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Vander Woude v. First Midwest Bank

Court of Appeals of Indiana

November 6, 2015

Dean Vander Woude and Timothy Koster, Appellants-Plaintiffs,
v.
First Midwest Bank, Successor in Interest to Bank Calumet, N.A., Appellee-Defendant

Page 848

          Appeal from the Porter Superior Court. The Honorable Roger V. Bradford, Judge. Trial Court Cause No. 64D01-0605-PL-3878.

         ATTORNEY FOR APPELLANTS: Gordon A. Etzler, Gordon A. Etzler & Associates, LLP, Valparaiso, Indiana.

         ATTORNEY FOR APPELLEE: David W. Westland, Westland & Bennett, P.C., Schererville, Indiana.

          OPINION

Page 849

          Najam, Judge.

         Statement of the Case

         [¶1] 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 our review:

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.

         We affirm in part, reverse in part, and remand with instructions.

         Facts and Procedural History

         [¶2] 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.

Page 850

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 " ).

         [¶3] 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.

         [¶4] 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.

Page 851

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 ...

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