from the Porter Superior Court. The Honorable Roger V.
Bradford, Judge. Trial Court Cause No. 64D01-0605-PL-3878.
FOR APPELLANTS: Gordon A. Etzler, Gordon A. Etzler &
Associates, LLP, Valparaiso, Indiana.
FOR APPELLEE: David W. Westland, Westland & Bennett, P.C.,
of the Case
Dean Vander Woude and Timothy Koster appeal the trial
court's judgment in their favor on their complaint
against First Midwest Bank (" the Bank" ) following
a bench trial. Vander Woude and Koster present two issues for
1. Whether the trial court abused its discretion when it
calculated their attorney's fee award.
2. Whether the trial court erred when it denied their request
for prejudgment interest.
affirm in part, reverse in part, and remand with
and Procedural History
This court set out the relevant facts and procedural history
in this matter in a prior appeal as follows:
In 1999, Michael and Kim Angelini executed a note and
mortgage with Bank Calumet, National Association (" Bank
Calumet" ) regarding a Porter County property. Bank
Calumet mistakenly recorded this mortgage in the Lake County
Recorder's Office and not in the Porter County
Recorder's Office. The Angelinis defaulted on this note
and mortgage and, in October 2004, Bank Calumet initiated a
foreclosure action in Porter Superior Court. In November
2004, the Porter Superior Court entered a default judgment.
The Angelinis filed for bankruptcy soon thereafter, which
caused the Porter Superior Court to stay the foreclosure.
The Angelinis also executed a note and mortgage against the
same property with Bank One and defaulted on this note and
mortgage, too. Bank One filed a foreclosure action in Porter
Superior Court, and the property was sold at a Sheriff's
sale in March 2005 to Dean Vander Woude and Timothy Koster,
who immediately took possession of the property via a
Sheriff's deed. A Bank Calumet mortgage lien did not
appear on the chain of title in the Porter County
Recorder's Office. In May 2005, Vander Woude and Koster
entered into a purchase agreement to sell the property to a
third party, scheduled with Ticor Title Company to close on
or before June 30, 2005, as Vander Woude and Koster contend,
or July 6, 2005, as FMB contends.
Meanwhile, the Porter Superior Court lifted the stay of Bank
Calumet's foreclosure action and a Sheriff's sale was
scheduled for June 2005. In May 2005, upon noticing the
newspaper listing for a Sheriff's sale, Vander Woude
contends he contacted David Westland, a Bank Calumet
attorney, to prevent a second Sheriff's sale. Westland
does not recall this conversation. The June 2005
Sheriff's sale was eventually canceled, but another was
later scheduled for August 24, 2005.
Shortly before Vander Woude's and Koster's sale of
the property was to close, Ticor's title search revealed
the Bank Calumet foreclosure action. Ticor rescheduled the
closing and Vander Woude and Koster discounted the sale of
the property by $15,000. Ticor required Vander Woude and
Koster produce $96,600, the amount of the listed mortgage in
favor of Bank Calumet, before issuing clean title and a title
insurance policy in the sale to the third party.
Vander Woude and Koster produced and Ticor retained $96,600,
and the sale was completed.
At some point Bank Calumet began to assist Vander Woude and
Koster in correcting the errors and eliminating the mortgage
and judgment liens. Specifically, Bank Calumet sent a letter
to the Porter County Sheriff's Office dated August 10,
2005, to cancel the August 24, 2005[,] Sheriff's sale. In
compliance with a demand from Vander Woude's and
Koster's attorney, Bank Calumet completed and recorded a
release of mortgage in the Lake County Recorder's Office
on September 19, 2005. In November 2005, Ticor still had not
released escrowed funds to Vander Woude and Koster. Bank
Calumet requested Ticor do so, entered an indemnity agreement
with Ticor on November 17, 2005, and on December 1, 2005,
made a last request for Ticor to release escrowed funds to
Vander Woude and Koster.
In May 2006, Bank Calumet merged with and into FMB. FMB does
not dispute that it is the successor in interest to Bank
Calumet for purposes of this case. Also in May 2006, Vander
Woude and Koster filed suit against FMB, alleging slander of
title, intentional interference with a contract, and
conversion. Pursuant to cross-motions for summary judgment,
the trial court entered summary judgment in favor of FMB as
to intentional interference with a contract and conversion,
and in favor of Vander Woude and Koster as to slander of
title. At a February 2011 jury trial for damages, FMB filed a
motion for judgment on the evidence at the close of Vander
Woude's and Koster's case. The trial court denied
this motion, the jury awarded damages to Vander Woude and
Koster in the amount of $99,900, and the trial court entered
a judgment in that amount.
First Midwest Bank v. Vander Woude, 961 N.E.2d 69,
2012 WL 32082, at *1-2 (Ind.Ct.App. 2012) (footnote omitted)
(" First Midwest Bank I " ).
On appeal, we stated the issues for our review and summarized
our decision as follows:
FMB raises two issues, which we reorder and restate as:
whether the trial court erred in granting summary judgment as
to slander of title in favor of Dean Vander Woude and Timothy
Koster and denying the same in favor of FMB; and whether the
trial court erred in denying FMB's motion for judgment on
the evidence during a trial for damages. We conclude that the
trial court erred in granting summary judgment to Vander
Woude and Koster as to their claim for slander of title
because a genuine issue of material fact remains.
Accordingly, we reverse the trial court's order granting
summary judgment, decline FMB's invitation to enter
summary judgment in its favor, and remand this case for
further proceedings on this claim. This nullifies the jury
verdict regarding damages for FMB's slander of title, so
we need not address FMB's appellate challenge regarding
its motion for judgment on the evidence.
961 N.E.2d 69, Id. at *1.
On remand, the trial court held a bench trial on July 22 and
23, 2014. The trial court took the matter under advisement
and issued its order with findings and conclusions on March
12, 2015. The trial court found and concluded in relevant
part as follows:
37. Plaintiffs incurred attorney fees in the prosecution of
this action. Exhibit 46 in the bench trial contained several
invoices and statements from attorney Etzler.
38. At the trial by jury on damages in this cause which was
reversed and remanded, the Plaintiffs presented Exhibit 40
which were fee statements from attorney Etzler.
39. From Exhibit 40 admitted at the trial by jury, the Court
finds that the following charges were applicable to this
cause generally, not to the trial by jury:
Invoice No. 1799 dated 6/30/06 in the amount of ...