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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Mar 16 2009, 9:33 am
of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANTS: ERIC C. BOHNET Indianapolis, Indiana

CLERK

IN THE COURT OF APPEALS OF INDIANA
RICK LIKES d/b/a LIKES LOGGING and, ADAM CUREY Appellants, vs. JEFFREY G. SHANER and CATHY SUTTON Appellees. ) ) ) ) ) ) ) ) ) ) )

No. 76A05-0810-CV-585

APPEAL FROM THE STEUBEN SUPERIOR COURT The Honorable William C. Fee, Judge The Honorable Randy L. Coffey, Magistrate Cause No. 76D01-0710-SC-1112

March 16, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Rick Likes d/b/a Likes Logging (Likes) and Adam Curey appeal from a small claims judgment in favor of Cathy Sutton on her counterclaim seeking treble damages for criminal conversion. On appeal, Likes and Curey present the following consolidated and restated question for review: Did the trial court err when it determined that Likes and Curey criminally converted Sutton's timber? We reverse. Sutton and Jeffrey Shaner jointly own real property in Steuben County as tenants in common, with each owning an undivided one-half interest.1 On Thursday, October 4, 2007, Shaner contacted Likes, a friend of a friend, to discuss having him cut and remove some trees from the property. Though not involved in any discussions with Likes, Sutton was aware that Shaner was attempting to sell some timber off the property. Likes met Shaner the next day, Friday, to walk the property line together and mark trees. Curey met Likes at the property later that evening to scale the marked trees and compute an offer price. Likes relayed the offer price to Shaner, which Shaner called to accept Saturday morning. Curey and Likes then went out to the property to meet with Shaner. While sitting at a table just outside of the home on the property, Likes and Shaner executed a timber purchasing contract. Pursuant to the contract, Shaner received a check for $2544.00 in exchange for Likes being allowed to timber walnut, oak, and ash trees on the property. Likes informed Shaner that he would be out on Monday (October 8) to start removing the trees.

1

While the nature of Sutton and Shaner's relationship is not clear, it appears from the record that they lived together on said property.

Immediately following the meeting, Shaner went inside the home and showed Sutton the contract and the check. Sutton expressed displeasure with the fact that the number of trees to be removed was not indicated in the contract. At no time, however, did she personally contact Likes to request an inventory list or to indicate her opposition to the contract, which was executed by Shaner. Rather, she simply spoke with Shaner about the matter over the weekend, and on Monday morning, she told Likes, "if they're comin' out here they better have a inventory list of what they're taking, how many trees or whatever, before I sign anything." Transcript at 96. After Shaner signed the contract and before cutting any trees, Likes learned from a routine on-line check of the county land records that Sutton was listed as a co-owner of the property. Likes did not believe that he needed to have Sutton sign the contract, however, because Shaner had signed the contract and he figured Shaner was acting as "the man of the house."2 Id. at 54. Though the testimony is conflicting, Shaner testified that he called Likes on Monday morning of the scheduled cutting and told him there was "a question between me and the other owner about the contract and stuff, and how many trees he was gonna take out". Id. at 73. According to Shaner, Likes informed him that he had a list that he would give to Shaner. Later that morning, Likes and his crew cut down a number of trees on the property and skidded them into the field.3 Likes informed Shaner that they would return on Tuesday to

2

In fact, Sutton testified that she had been ill for some time and, therefore, "[Shaner's] been handlin' things." Id. at 105. 3 Sutton was inside the home while the cutting occurred.

3

haul the timber away. On Tuesday, Shaner called Likes and told him not to come back because the deal was off. Likes complied and did not return to remove the timber. When Shaner spoke with Likes the following Sunday, October 14, Shaner indicated that he did not think he had received a fair price and that Likes had cut too many trees, including at least one maple tree. Curey called Shaner about two days later to inquire further about the situation. Shaner indicated he had learned from a friend that the timber was worth substantially more than he had been paid. Shaner never cashed the check that he received from Likes, and Likes eventually made a stop-payment request upon the check in January 2008. On October 18, 2007, Likes initiated a small claims action against Shaner in Steuben County Superior Court seeking damages for breach of contract. Thereafter, Sutton

intervened in the action, and Sutton and Shaner filed a counterclaim against Likes and Curey alleging the men had committed criminal conversion by cutting down the trees without consent. Sutton and Shaner sought treble damages and attorney's fees pursuant to Ind. Code Ann.

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