Gregory W. Daily, et al., Appellants/Cross-Appellees-Defendants v. Chad Sims, Appellee/Cross-Appellant-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Gregory Daily and Daily Feed & Grain, Inc. (DFG) appeal the trial court's judgment and award of damages in favor of Chad Sims. They present five issues for our review:

1. Did the trial court err in entering judgment in favor of Sims on Sims's claim for criminal conversion?

2. Did the trial court abuse its discretion when it entered default judgment as to several of Daily's counterclaims as a discovery sanction?

3. Did the trial court err in denying Daily's request for attorney's fees associated with what he claims was a wrongly entered temporary restraining order (TRO)?

4. Is the trial court's judgment on Count 3 of Sims's complaint regarding breach of an oral agreement to farm on shares (Shares Agreement) supported by the court's findings of fact and conclusions of law?

5. Did the trial court err in concluding that Daily was precluded from recovering damages from Sims because Daily failed to comply with state law and file a financing statement to secure a lien against Sims's crops?

[2] On cross-appeal, Sims argues that the trial court erred in failing to award statutorily mandated attorney's fees on Count 4 regarding criminal conversion.

[3] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Facts & Procedural History

[4] Henry Marr owned approximately 655 acres of farmland spread over fifteen tracts in Bartholomew County (the Marr Farm). Sims worked as a hired farmhand for the Marr Farm and lived on the property for 18 years. When Marr died in 2008, he left his grandchildren 529 acres (Tracts 1-12) and left Sims 126 acres (Tracts 13-15).

[5] In his will, Marr provided that if his heirs chose to sell Tracts 1-12, Sims would have the first right to purchase those Tracts at fair market value. During 2009, Sims farmed the entire Marr Farm pursuant to a lease with Marr's estate. That summer, Marr's heirs decided to sell their portion of the Marr Farm and took steps to auction it off. Sims took legal action to stop the auction and enforce his right to purchase. Sims obtained an appraisal for Tracts 1-12, which set the fair market value of the property at $2.8 million. Because Sims could not secure financing to cover the purchase price, he had to quickly find an investor interested in partnering with him to buy the property.

[6] By virtue of having been a farmhand for nearly two decades, Sims knew Greg Daily, a third-generation farmer who owned and farmed land around the Marr Farm and throughout Indiana. Daily also owned and operated DFG, a grain elevator that sells seed and buys harvested crops. Sims approached Daily and others seeking financial help to purchase Tracts 1-12. Ultimately, Sims chose to work with Daily because Daily indicated that he would let Sims continue to work the Marr Farm and that he would sell back portions of the land to Sims as Sims was able to buy them.

[7] In August 2009, Sims and Daily met with Attorney Charlie Wells to discuss how they could go about purchasing the property held by Marr's grandchildren. Attorney Wells took notes and created a handwritten list as to what Sims and Daily proposed for the terms of a possible agreement. Attorney Wells included in his notes that Sims was to “farm all (share crop with Daily).” Exhibits Vol. 7 at 14. Attorney Wells also included on the list that the parties desired secrecy and that the purchase price was to be $2,819,483. Sims and Daily proposed that in the end, Sims would own 287 acres and Daily would own 342 acres.

[8] Attorney Wells contacted Attorney Tim Ochs, who specialized in land transactions, for assistance in drafting a formal agreement for the purchase of Tracts 1-12 of the Marr Farm. Based on Attorney Wells's notes and discussions with Daily and Sims, Attorney Ochs drafted a document, which Daily and Sims signed on September 4, 2009 (the Acquisition Agreement). The Acquisition Agreement provided Daily would contribute $2.2 million of the total purchase price and Sims would contribute $619,000. Based on their respective monetary contributions, 404 acres were initially allocated to Daily and 125 acres were allocated to Sims.

[9] Because Daily wished that his identity be kept confidential, he established the Marr Farm Land Trust (the Marr Trust), of which he was the beneficiary, in September 2009. The Marr Trust held the acreage Daily acquired through the Acquisition Agreement. Likewise, Sims established the Henry Farm Land Trust (the Henry Trust), of which he was the beneficiary and which he used to hold the land he acquired. Attorney Wells was the Trustee for both the Marr Trust and the Henry Trust.

[10] Although the Acquisition Agreement settled the initial allocation, it was expressly noted therein that it was “intended to be an interim or step towards a more comprehensive agreement that may involve additional exchanges of real estate, options, and rights of first refusal” and that the parties agreed “to negotiate in good faith the terms of such [comprehensive agreement].” Exhibit Vol. 7 at 192. The Acquisition Agreement set out that Sims and Daily had reciprocal rights of first refusal until December 31, 2010, or the execution of the comprehensive agreement, whichever was later, and that both parties agreed not to encumber their respective tracts unless necessary to secure financing for their portion of the purchase price. They also agreed that in any action alleging breach of the Acquisition Agreement, the unsuccessful party “will reimburse” the successful party for reasonable attorney's fees. Id. at 196. The Acquisition Agreement contained no provision about share cropping.

[11] Using a bridge loan, Sims purchased the remaining 529 acres of the Marr Farm from Marr's grandchildren.¹ He then mortgaged his 125 acres to repay his portion of the bridge loan. Daily also mortgaged some of his other property to cover his $2.2 million portion of the bridge loan.

[12] In February 2010, at Sims's request, Attorney Wells drafted an Addendum to the Acquisition Agreement (Addendum) that set out an exchange of parcels along with payment in cash to effectuate an equal trade between Sims and Daily. The Addendum also set out that “Sims shall be allowed to farm the Daily property ․ on shares as [Sims and Daily] shall agree annually” to allow Sims to be able to generate income in order to purchase Tract 5 from Daily. Exhibit Vol. 7 at 43. Within the same provision, the Addendum provided that “Sims shall have the first right to share crop the Daily acreage.” Id. The last line in the Addendum states: “This Addendum along with the ․ Agreement of Acquisition shall comprise the Comprehensive Agreement of the parties.” Id. at 44. Sims signed the Addendum but Daily did not because he did not agree to the terms set out therein. Thereafter, Sims farmed his own land as well as the land in the Marr Trust on an agreed “50/50 shares” with Daily. Transcript Vol. 2 at 58. On June 1, 2010, Attorney Wells, as trustee for the Marr Trust and the Henry Trust, executed trustee's deeds effectuating the land swap between Sims and Daily that was set out in the Addendum.²

[13] At some point after execution of the Acquisition Agreement, Sims presented Attorney Wells with a Power of Attorney (POA) that appointed Sims as the attorney-in-fact for the “Marr Farm Land Trust.” Exhibits Vol. 7 at 19. Attorney Wells signed the document as “Trustee” on May 24, 2010. Id. At a preliminary injunction hearing, Attorney Wells testified that in executing that document, he “did not” intend to give Sims POA over the Marr Trust but that he “believed” he was giving Sims power of attorney over the Henry Trust of which Sims was beneficiary.³ Transcript Vol. 2 at 21. At the same hearing, Sims testified that Attorney Wells executed the POA so Sims could “handle all the documents at the FSA [Farm Service Agency] office” for purposes of obtaining crop insurance. Id. at 59.

[14] On March 1, 2011, Sims presented Attorney Wells with a “Cash Rent Farm Lease Agreement” (Lease Agreement) between the Marr Trust and Sims. Exhibits Vol. 7 at 26. The Lease Agreement provided that “Charles Wells Jr., Trustee, hereby leases to Chad Sims to occupy and use for agricultural purposes the 395 +/- acres.” Id. The section for “Terms of Lease” was blank but it was noted in a separate section that the “Tenant” agreed to fix minor tile repairs and trim back all fence rows and tree lines. Id. Attorney Wells and Sims signed the document that day. Attorney Wells testified at the preliminary injunction hearing that

it was [his] understanding that there were some problems with insurance and some entitlements and that somehow [a document was needed] that said cash rent on it. [Sims] told [him] that ․ we didn't have to have anything like that. All we had to do was have this [document] so he could go ahead and try to deal with problems with insurance.

Transcript Vol. 2 at 23. Sims likewise testified that the purpose of the Lease Agreement was to allow him to register the acres of the Marr Trust so he could obtain crop insurance.⁴ According to Attorney Wells, there was no discussion with Sims about the amount of rent to be paid and thereafter, Sims never paid or offered to pay cash rent to the Marr Trust. Sims agreed that the “real purpose” of the Lease Agreement “was to allow [him] to register the acres owned by the Marr Farm for the purpose of insuring those acres[.]” Id. at 64.

[15] In 2011, Sims and Daily entered into a verbal “year to year agreement to farm on shares” with Richard Harwell, another local farmer in the area.⁵ (the Shares Agreement). Id. at 63. The Shares Agreement set out an arrangement whereby a given field owner received four-sixths of the grain his field produced, and the other two farmers received one-sixth. For any rented field farmed under the Shares Agreement, each farmer received one-third of the grain produced. Each party was required to pay for their own input based on the same sixths/one-third division and each would provide labor to put the crop out and get it harvested. Once a farmer was allocated his share of the grain, the grain was his to do as he pleased.

[16] Sims, Daily, and Hartwell farmed between 2700 and 2800 acres under the Shares Agreement, with 600 acres allocated to both Sims and Hartwell, individually, and 1500-1600 acres allocated to Daily. While farming under the Shares Agreement, they used Daily's farming equipment more than Sims's or Hartwell's, but Sims and Hartwell did most of the farming. The three operated under the Shares Agreement for the 2011, 2012, 2013, and 2014 crop years. At the end of each year, Hartwell compiled information regarding the final weights of dry bushels produced on each tract of land from scale tickets and allocated the crops to each based on the sixths/one-third share distribution. Each farmer was then able to decide what to do with their allocated crop.

[17] Although free to do whatever he wanted with his allocated crop, Sims took most of his grain to DFG during 2011, 2012, and 2013. He also took some of his 2014 crop to DFG. Sims also kept some of the 2014 crop in his grain bins and took portions to another grain elevator. By the end of 2014, the relationship between Sims and Daily/Hartwell had irretrievably broken down as a result of multiple disputes. One such dispute arose over the use of equipment. According to Sims, Daily insisted that Sims and Hartwell use his equipment. Sims did use Daily's equipment to some extent and it became a point of contention for Daily when Sims would use his own equipment. Even though Daily insisted that his farm equipment be used, Sims testified that there was never an agreement to pay Daily for such use. Daily never invoiced Sims or Hartwell for using his equipment. Nor did the parties keep good records as to equipment use. Nevertheless, at the end of 2014, Daily insisted that Sims pay him for “equipment use.” Transcript Vol. 4 at 148. According to Sims, Daily told him that DFG impounded 30,735.062 bushels of corn and $83,008.01 in funds belonging to Sims because Sims owed him money for use of his farming equipment.⁶

[18] In late 2014, Daily had Attorney Wells send a letter to Sims notifying Sims that their farming arrangement was being terminated and that Sims would not be permitted to farm the property held by the Marr Trust in 2015. Specifically, the letter stated:

You are hereby notified that you will not be the operator and will not farm the Marr Farm Land Trust farmland in 2015. This is due to the breakdown of the relationships with the other two farmers you were working with. As the relationships have not worked, there will not be a need for land trusts and I will be terminating the various land trusts effective January 1, 2015 (so the tax years are clear) and deeding back the real estate to the appropriate persons.

Appellant's Appendix Vol. 2 at 166. Sims received the letter on December 12, 2014. Sims believed that the letter was an attempt to terminate the lease agreement. According to Sims, December 1 was the “cut off line to notify tenants that they are no longer going to be farming land.” Transcript Vol. 2 at 65. Believing that the termination notice to him was late and did not therefore terminate the Lease Agreement for 2015, Sims went ahead and purchased inputs to farm the land in the Marr Trust for the 2015 farming season. Daily moved forward under the impression that the letter applied to termination of the Shares Agreement as between himself, Hartwell, and Sims. Daily maintains that there was never a valid Lease Agreement between the Marr Trust and Sims. Effective January 1, 2015, Daily terminated the Marr Trust and had the property therein deeded back to him personally.

[19] On April 15, 2015 (and later amended on August 1, 2018), Sims filed a complaint against Daily, Hartwell, and DFG. Three counts are relevant to this appeal. In Count 3, Sims alleged that Daily and Hartwell breached the Shares Agreement concerning the division of grain among them and Sims requested an accounting. In Count 4, Sims alleged that DFG criminally converted grain and grain proceeds belonging to Sims and requested treble damages, interest, and attorney's fees. In Count 10, Sims alleged that Daily breached the Acquisition Agreement.

[20] On May 7, 2015, Sims filed in the same action a motion for a TRO and preliminary injunction to prevent Daily from interfering with his claimed right to farm the land in the Marr Trust pursuant to the lease agreement. At the time, Daily had already started preparing the land at issue for non-GMO ⁷ grain crops and had informed Sims that his entry onto the property would be considered a trespass. On May 11, 2015, Judge James Worton entered a TRO without a hearing, finding that on its face, Sims had established that the lease agreement “was not terminated in a timely fashion” and therefore, as a matter of law, Sims was entitled to farm the land at issue for the 2015 planting season. Appellant's Appendix Vol. 2 at 169. After the TRO was entered, Daily ceased his farming efforts and Sims started working the fields and ultimately planted a GMO crop on the land at issue. The TRO dissolved due to the passage of time, so Daily raised his arguments challenging the issuance of the TRO and his damages request at a preliminary injunction hearing on August 10, 2015, before Special Judge Jonathan Webster.⁸ At the conclusion of the hearing, the court denied Sims's request for a preliminary injunction but did not address whether the TRO was wrongfully issued or Daily's request for damages therefrom.⁹

[21] Thereafter, Daily answered the complaint, asserting several affirmative defenses and twenty-six counterclaims against Sims. In Counterclaim 2, Daily mirrors Sims's Count 3—claiming that Sims did not pay his share of costs and did not properly account for grain under the terms of the Shares Agreement. In Counterclaim 25, Daily alleges that the TRO was wrongfully entered and requested compensatory damages.

[22] Over the next four years, the discovery process played out. Sims served his first set of document requests on May 6, 2015. Daily and DFG responded to Sims's requests for documents with the following: “All documents in response to this request will be made available for inspection and copying at Defendant's counsel's office upon reasonable request.” See, e.g., Appellant's Appendix Vol. 3 at 47, 51, and 56. Finding the response to be deficient, Sims sent a letter to Daily outlining the deficiencies. Sims sent a second request for production of documents and a first set of interrogatories in 2016. Again, Daily did not produce any of the requested information or documents. During a 2017 deposition, Daily agreed to turn over records relating to his purported counterclaim damages, but he never followed through. Sims made additional requests for specific information and documents but received no response from Daily.

[23] At some point, Hartwell assembled and organized by year a collection of responsive records and provided such to Daily. This collection of records, however, was not copied and produced to Sims as Hartwell had expected. Rather, the records were stored in DFG's barn. While being stored, the records became so unorganized that Hartwell could not find documents therein when he was later deposed by Sims at the barn. In Hartwell's own words, what he had once gathered and organized for production “was definitely not in order” at the time of his deposition. Transcript Vol. 4 at 31. Sims's counsel asserted that he made three separate trips to DFG's barn to try and get copies of the documents. Sims even paid a copying vendor to go to the barn and copy the records because DFG and Daily refused to allow any documents to be removed therefrom. Sims maintains that he still was unable to obtain the information he sought through discovery.

[24] On December 5, 2019, Sims filed a motion for default judgment pursuant to “Trial Rules 37 and 55” as to seven of Daily's counterclaims based on alleged discovery violations. Appellant's Appendix Vol. 3 at 40. In his motion, Sims cited “Trial Rule 37(B)(2)(c)” as authorizing the court to exercise its discretion to enter default judgment as a sanction for failure to comply with discovery. Id. at 44. The basis of Sims's motion was that Daily had failed to provide requested information pertaining to damages associated with his counterclaims.

[25] Daily filed his brief in opposition to default judgment on December 18, 2019, wherein he explained that he could not provide Sims with the requested information because Sims had failed to provide documents he had requested through discovery pertaining to the 2014 crop. On a procedural note, Daily pointed out that there had never been an order to compel under T.R. 37(A)(1), which he argued was a prerequisite to entry of default judgment under T.R. 37(B)(2)(c). The trial court held a hearing regarding the ongoing discovery dispute. Thereafter, the trial court issued an order on December 23, 2019, instructing the parties to “meet personally to attempt to resolve the discovery disputes,” and warning that if court action became necessary, “the offending part[y] will be sanctioned.” Appellant's Appendix Vol. 4 at 120.

[26] When the parties could not resolve their discovery dispute, the court held a another hearing on January 10, 2020. At this hearing, Daily again argued that there had never been an order from the court compelling discovery and therefore, Sims's motion for default judgment could not be granted. On January 15, 2020, the trial court entered default judgment against Daily on Counterclaims 4, 8, 14, 21, 22, 25, and 26. Daily filed a motion to reconsider, which the court denied on March 12, 2020.

[27] A bench trial before Special Judge Webster commenced on June 29, 2020. At the start of the second day of trial, the matter was rescheduled to January 2021 due to COVID protocols. In November 2020, Daily suffered serious injuries, including a head injury, due to a farming accident. The bench trial was repeatedly continued until Daily recovered. During that time, Special Judge Webster retired.

[28] Special Judge AmyMarie Travis was assigned the case. The bench trial resumed in January 2024. At the conclusion of the evidence, the parties agreed to submit written final arguments. On June 14, 2024, the trial court issued its findings and conclusions and judgment. The court noted that Daily had memory issues related to his accident and expressly stated that Sims's recollection of “relevant events was more credible than that of Daily.” Appellant's Appendix Vol. 2 at 52. As to the claims raised by the parties, the court mostly found in Sims's favor. Specifically, the court found that Sims proved DFG converted his grain and proceeds with criminal intent and awarded treble damages and prejudgment interest but awarded no attorney's fees. The court also found that Sims proved that Daily breached the Acquisition Agreement but awarded nominal damages and attorney's fees.¹⁰

[29] As to Daily's counterclaims, the court rejected his claims for equipment payments and rent. The court also concluded that if there was any discrepancy under the terms of the Shares Agreement as to who was entitled to which bushels, Daily failed to follow the statutory process for asserting a lien on those crops and was therefore precluded from recovering damages.¹¹ Finally, the court rejected Daily's attempt to recover attorney's fees for defending against the TRO, finding that such request was tardy coming nearly nine years after the TRO was entered and after he was given the opportunity to present evidence at the preliminary injunction hearing.

[30] All told, the trial court found that Daily and DFG were entitled to nothing on their counterclaims and that Sims was entitled to $1,034,324.77 on his criminal conversion claim, no attorney's fees on that claim, and $10 plus $149,470.01 in attorney's fees on his claim for breach of the Acquisition Agreement.

[31] Daily now appeals, challenging the trial court's judgment in several respects. Sims cross-appeals, arguing that the trial court erred in failing to award mandatory attorney's fees. Additional facts will be provided as necessary.

Discussion & Decision

Standard of Review

[32] Our standard of review is well settled. “When a trial court enters findings of fact and conclusions thereon, the findings control as to the issues they cover and a general judgment will control as to the issues upon which there are no findings.” Thalls, Tr. of M. Todd Thalls Revocable Tr. v. Draving, 182 N.E.3d 260, 265 (Ind. Ct. App. 2022) (citing Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). When a trial court has made findings of fact, the appellate court first determines whether the evidence supports the findings of fact and then whether those findings support the trial court's judgment. Id. Findings will be set aside only if they are clearly erroneous. Id. Findings are clearly erroneous when the record contains no facts to support them either directly or by inference. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In order to determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id.

1. Criminal Conversion

[33] The trial court found in favor of Sims on his claim for criminal conversion, and pursuant to Ind. Code § 34-24-3-1, awarded him treble damages.¹² The court entered a total judgment of $1,034,324.77 ¹³ against DFG for criminal conversion, Count IV of Sims's complaint.

[34] A person who has suffered a pecuniary loss as a result of a criminal conversion may bring a civil action pursuant to I.C. § 34-24-3-1 to recover the loss. Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 814 (Ind. 2009). This statute is referred to as the Crime Victims Relief Act and it “provides a punitive remedy if the claimant can prove that the defendant violated a penal statute, and, as a punitive measure, it should be strictly construed and applied only where the challenged conduct is clearly proscribed.” Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 195 (Ind. 2012).

[35] A claimant who proves the elements of criminal conversion by a preponderance of the evidence can recover the costs of the action, reasonable attorney's fees, and up to three times the actual damages. French-Tex Cleaners, Inc. v. Cafaro Co., 893 N.E.2d 1156, 1166-1167 (Ind. Ct. App. 2008); see also I.C. 34-24-3-1. We will reverse the trial court's award of treble damages only if the trial court's judgment is clearly erroneous. See Whitaker v. Brunner, 814 N.E.2d 288, 297 (Ind. Ct. App. 2004), trans. denied. A judgment is clearly erroneous in this context when a review of the record leaves us with a firm conviction that a mistake has been made. See id.

[36] Criminal conversion requires proof that a person knowingly or intentionally exerted unauthorized control over property of another person. Ind. Code § 35-43-4-3. In any criminal conversion action, criminal intent is an essential element that must be proven. French-Tex, 893 N.E.2d at 1166-67. It is this mens rea requirement that differentiates criminal conversion from a more innocent breach of contract or failure to pay a debt, which situations the criminal conversion statute was not intended to cover. Id.

[37] DFG asserts that the trial court's conversion finding is grounded in contract and therefore, the court's finding of criminal conversion is erroneous. Sims argues that the trial court's findings support its conclusion that the requisite criminal intent was established by a preponderance of the evidence.

[38] Relevant to Sims's claim of conversion, the trial court made the following findings of fact:

4. Sims and Daily's dispute led to 30,735.062 bushels of corn, as well as $83,008.01 of impounded funds being kept at DFG.

* * *

6. The grain proceeds due to Sims from the farm agreement have been withheld from Sims for 3,317[14] days through March 11, 2024.

In its conclusions of law as to criminal conversion, the trial court stated:

1.2.4. DFG, owned and operated by Daily, had in its possession 30,735.062 bushels of corn and grain proceeds totaling $83,008.01, as of February 2015.

1.2.5. Because Sims had not received payment for the impounded crop upon delivery (as is custom [pursuant to witness testimony]), DFG did not acquire proper title to Sims’[s] grain and proceeds and thus exercised unauthorized possession of the grain and proceeds.

1.2.6. This Court concludes that DFG's sale of the impounded grain ․ was an unlawful conversion of property and funds to which Sims had a right.

1.2.7. Daily's behavior was in violation of both Ind. Code § 26-3-7-3[15] and 824 Ind. Admin. Code 2-11-1(a)[16].

1.2.8. This Court concludes that Daily's behavior satisfies the criminal intent element of [I.C.] § 35-43-4-3. Sims is thus entitled to treble damages.

[39] Citing Crowe v. Kell, 35 N.E. 186, 186 (Ind. Ct. App. 1893), the trial court found that DFG was not permitted to make an affirmative defense or counterclaim based on breach of agreement or contract. We, however, find Crowe inapposite to this case because it did not concern a claim for statutory criminal conversion.¹⁷ The trial court also cited Sawers Grain Co. v. Goodwin, 83 Ind. App. 556, 566-67 (1925), in which the court held that a grain elevator can be liable for conversion if it sells commingled grain without the consent of owner of the grain where the grain elevator was acting as a bailee. This case is likewise inapplicable as a finding of conversion does not necessarily equate to criminal conversion.

[40] Here, to establish mens rea, Sims had to show that DFG was aware of a high probability its control over the impounded funds and grain was unauthorized. Id. We first note that the trial court apparently treated DFG and Daily as one as evidenced by its conclusions that “Daily's behavior” satisfied the criminal intent element. Appellant's Appendix Vol. 2 at 64. In this regard, the trial court simply states the conclusion with reference to a statute and administrative code provision without further elaboration. As noted in Footnotes 15 and 16, it is unclear how the statute is applicable and violation of the administrative code does not in and of itself establish criminal intent.

[41] We next observe that the trial court expressly found that DFG retained the grain and funds pursuant to a contractual dispute. Indeed, the court's findings primarily concern the terms of the Shares Agreement and how the parties thereto (including Sims and Daily) operated thereunder. Daily argues on appeal that DFG could retain Sims's grain and funds because Sims oversold his grain to DFG. Citing the court's credibility determination that Sims was more credible than Daily and that Sims testified that he did not oversell his grain, Sims maintains that Daily's argument is a non-starter. In turn, Sims cites his testimony that Daily told him that his grain and funds were being impounded because Sims owed him for equipment use, which Sims claims was not part of the terms of the Shares Agreement. At a minimum, we find that every argument circles back to a contract. The trial court's findings also highly suggest that the gravamen of this case is based in breach of contract.

[42] Finally, we note that the trial court's conclusion that DFG's sale of the impounded grain “was an unlawful conversion” does not correlate to a determination that such was done with the requisite criminal intent. Appellant's Appendix Vol. 2 at 64. Indeed, even if unlawful, such does not necessarily mean DFG acted with criminal intent. In short, we find that the court's findings of fact and conclusions of law do not support the court's judgment that DFG had the requisite criminal intent to support a claim for criminal conversion. We reverse the trial court's determination in this regard. Sims is thus not entitled to treble damages, only ordinary damages.

[43] On cross-appeal, Sims argues that the trial court erred in failing to award him attorney's fees under I.C. § 34-24-3-1. However, given our conclusion that the trial court's determination of criminal conversion was not supported by the trial court's findings of fact, we need not address Sims's cross-appeal for attorney's fees under the criminal conversion statute.

2. Default Judgment as Discovery Sanction

[44] We assign the selection of an appropriate sanction for a discovery violation to the trial court's sound discretion. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993). Trial judges stand much closer than an appellate court to the currents of litigation pending before them, and they have a correspondingly better sense of which sanctions will adequately protect the litigants in any given case, without going overboard, while still discouraging gamesmanship in future litigation. We therefore review a trial court's sanction only for an abuse of its discretion. Id. at 180–81.

[45] Daily argues that the trial court committed reversible error when it granted Sims's motion for default judgment. Directing us to Ind. Trial Rule 37(B)(2)(c), Daily argues that a court order to compel discovery under T.R. 37(A) and a violation of such order are required before the court can enter default judgment as a discovery sanction. We disagree.

[46] As is pertinent here, T.R. 37(B)(2)(c) provides:

If a party ․ fails to obey an order to provide or permit discovery, including an order made under subdivision (A) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

* * *

(c) An order ․ rendering a judgment by default against the disobedient party.

The rule specifically requires that a party fail to obey “an order to provide or permit discovery,” which includes an order to compel under T.R. 37(A). The rule does not foreclose the entry of default judgment simply because there is no specific order to compel under subsection (A) as it specifically references generally “an order to provide or permit discovery.” Here, the trial court held a hearing on December 6, 2019 about the ongoing discovery dispute. At that hearing, it was suggested as a solution that the parties sit down together and go through the discovery “piece by piece.” Supplemental Transcript Vol. 20 at 11. The court told the parties if it had to resolve the dispute, the court would have “to make a decision on who it believes and doesn't believe” and “sanction the party that it doesn't believe.” Id. at 11, 12. The court warned that “the offending party can expect the sanctions to be heavy.” Id. at 19. On December 23, 2019, the trial court entered an order consistent with what was discussed at the hearing. Specifically, the court ordered the parties to meet up and settle their discovery dispute and warned of possible sanctions. We find that the court's December 23, 2019 order satisfies the requirement of “an order to provide or permit discovery” set out in T.R. 37(B)(2).

[47] When the parties appeared before the court in early January 2020, the court revisited the continuing discovery dispute. Sims informed the court that the parties had been in “constant communication” since the December hearing but that scheduled meetings and phone calls did not take place as planned for various reasons Sims attributed to Daily. Supplemental Transcript Vol 16 at 6. In short, Sims informed the court that the discovery dispute had not been resolved. This is sufficient evidence from which the court could have found that Daily violated the court's order to engage in discovery. On this record, we cannot say the trial court abused its broad discretion in entering default judgment as a sanction for what the trial court found to be repeated failures by Daily to comply with Sims's discovery requests and the court's order as it related to discovery.

3. Damages from Entry of Temporary Restraining Order

[48] Daily argues that the trial court abused its discretion in denying his request for attorney's fees incurred in challenging what he labels as an improper entry of a TRO. The trial court summarily denied Daily's request and quoted R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 460 (Ind. 2012) as support therefore:

[T]rial courts must use their discretion to prevent unfairness to parties facing petitions for fees․ To be sure, a request for fees is in some sense an equitable petition, and it might be that an extremely tardy request should fall on deaf ears due to lack of notice or staleness.

[49] Id. at 460. The court concluded that “even if Daily were entitled to seek reasonable attorney fees concerning the already-defunct TRO, he could have done so in the intervening eight years and ten months since the order denying the preliminary injunction.” Appellant's Appendix Vol. 2 at 71.

[50] Daily asserts that because there was no determination that the TRO was wrongfully entered, he could not put on evidence of damages incurred because such was not ripe for consideration. See R.L. Turner, 963 N.E.2d at 460 (holding that “a request for attorneys’ fees almost by definition is not ripe for consideration until after the main even reaches an end”). He thus argues that the trial court's denial of his attorney's fees request must be reversed. We disagree for several reasons.

[51] At the preliminary injunction hearing in 2015, the TRO had already expired by its own terms. At that time, Daily argued the TRO was wrongfully entered and requested damages resulting therefrom. Although the parties agreed that the matter could be heard at the bench trial, the court nevertheless offered Daily the opportunity to present evidence of damages at that time. He did not do so. In Counterclaim 25, Daily asserted a claim for wrongful entry of the TRO and requested damages. Prior to trial, however, the trial court entered default judgment on Counterclaim 25. The court nevertheless permitted Daily to present evidence of attorney's fees incurred in challenging entry of the TRO. The only evidence of attorney's fees presented by Daily came from his own vague statement that the amount shown on some unidentified document was “like 70,000 or something.” Transcript Vol. 5 at 123. He did not present any invoices; never explained what “or something” meant; and he did not remember “an exact number.” Id.

[52] Aside from the lack of evidence, we note that Ind. Trial Rule 65(C) does not create a private right of action to recover attorney's fees. As our Supreme Court has explained, laws that create substantive rights are “the legislative prerogative.” Mellowitz v. Ball State Univ., 221 N.E.3d 1214, 1221 (Ind. 2023); see also Ind. Const. art. 3, § 1. The Trial Rules create only procedural rules governing those substantive causes of action. Id.

[53] T.R. 65(C) provides:

No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.

This provision sets out the requirements for the giving of security upon entry of a TRO. The security is intended to cover costs and damages ¹⁸ that may be incurred if the TRO is later determined to have been wrongfully entered. T.R. 65.1 creates the procedure for collecting from the surety—precisely because there is no standalone cause of action for damages under T.R. 65. This distinction between a security requirement and a cause of action matters. Daily has no freestanding claim for T.R. 65(C) damages. He had a right to collect on a surety (if he could establish that the trial court wrongfully entered the TRO and that he incurred damages).¹⁹ But Daily's claim that the TRO was wrongfully entered is no longer before the court. Essentially, Daily is using his request for attorney's fees to revive the non-existent defaulted damages claim in Counterclaim 25.

[54] For the above reasons, we find that the trial court did not err in denying Daily's request for attorney's fees related to the TRO.

4. Judgment on Count 3

[55] In Count 3, Sims alleged that Daily breached the oral Shares Agreement by retroactively changing the distribution of proceeds and asked the court to “order an accounting of the farming enterprise” pursuant to the agreed upon terms. Appellant's Appendix Vol. 2 at 80. In its judgment, the trial court found in favor of Sims on Count 3, but the court's findings and conclusions all relate to the written Acquisition Agreement, which is the basis for Sims's breach of contract claim in Count 10. Both Daily and Sims agree the trial court's judgment in this respect is erroneous; they disagree as to the appropriate remedy for that error. Daily asks simply for reversal of the trial court's judgment on Count 3. Sims argues, however, that the appropriate remedy for the trial court's mistake is to remand to the trial court for reconsideration based on the underlying record.

[56] As the parties repeatedly acknowledged during the bench trial, this is a complicated case that dates back over a decade and has been impacted by several intervening incidents. It would appear that the trial court simply made a mistake that resulted in the court making no decision as to Sims's claim for breach of the Shares Agreement.

[57] Here, the trial court entered its findings of fact and conclusions of law under Ind. Trial Rule 52 following a bench trial. In that posture, its “failure to enter findings upon a material issue for which a finding is required can be challenged for incompleteness or inadequacy.” Vukovits v. Bd. of Sch. Trustees of Rockville Cmty. Sch. Corp., 659 N.E.2d 174, 181 (Ind. Ct. App. 1995) (citing T.R. 52(B) and (D)). That holding follows directly from T.R. 52 itself, which authorizes challenges to a trial court's findings and conclusions if they “do not cover the issues raised by the pleadings or evidence.” T.R. 52(B)(2). An aggrieved party could raise that challenge in the trial court, but it can also raise it on appeal. See T.R. 52(B) (“Failure of a party to move to modify the findings or judgment under this subdivision and failure to object to ․ such findings or judgment which has been entered of record shall not constitute a waiver of the right to raise the question ․ on appeal.”). The proper remedy for the trial court's mistake is remand for findings and conclusions based on the record below. See Ind. Appellate Rule 66(D). We therefore remand to the trial court to make findings of fact and conclusions of law and issue a judgment as to Sims's claim for breach of the oral Shares Agreement based on the record below.

5. Daily's Counterclaim 2 – Breach of Shares Agreement

[58] Daily's Counterclaim 2 alleged that Sims breached the Shares Agreement by inappropriately weighing grain and reconciling expenses and proceeds. The trial court concluded that Daily “had a right to seek a lien on bushels harvested by Sims for which there was a discrepancy.” Appellant's Appendix Vol. 2 at 70. The trial court, citing Montgomery Cnty. Farm Bureau Co-op. Ass'n, Inc. v. Deseret Title Holding Corp., 513 N.E.2d 193 (Ind. Ct. App. 1987)²⁰ and Ind. Code § 32-31-1-19,²¹ found that Indiana law requires that “any owner intending to place a lien on crops as rent must file a financing statement prior to maturation and harvest.” Appellant's Appendix Vol. 2 at 69. The court therefore concluded that “Daily's failure to comply with state law precludes the recovering of damages from Sims.” Id. at 70.

[59] Daily argues that the trial court's conclusion is erroneous because the state law referenced deals with “leases for crops paid as rent” not “crop share agreements” like the Shares Agreement at issue in Counterclaim 2. Daily maintains that the Lease Agreement referred to by Sims is not the subject of his Counterclaim 2. He thus contends that because the Shares Agreement is a crop share agreement, he did not have to “comply with state law” and file a financing statement to assert a lien against the crops harvested by Sims. Id.

[60] Sims argues that even if the trial court misapplied the lien statute, the error is harmless. In so arguing, Sims takes liberties with the trial court's findings and conclusions. In entering judgment as to Daily's counterclaim for breach of the Shares Agreement, the court did state that “Daily failed to meet his burden of proof.” Appellant's Appendix Vol. 2 at 72. This statement, however, must be considered along with the trial court's findings and conclusions on the matter.

[61] We agree with Daily that the Shares Agreement was not a crops as rent agreement, as apparently found by the trial court, but rather was a crop share agreement between Daily, Sims, and Hartwell that did not require the filing of a financing statement pursuant to state law. The trial court therefore incorrectly concluded that Daily was required to comply with I.C. § 32-31-1-19 and that such precluded him from recovering damages. The trial court made no findings or determination as to whether there was a discrepancy. This determination is central to Daily's Counterclaim 2. We therefore remand to the trial court to address Daily's claim that Sims breached the Shares Agreement.²²

Conclusion

[62] The trial court's findings do not support its determination that DFG committed criminal conversion. Sims is thus not entitled to treble damages, only ordinary damages. The court did not abuse its discretion in entering default judgment on several of Daily's counterclaims as a sanction for Daily's failure to comply with discovery. The trial court did not err in denying Daily's request for attorney's fees relating to entry of the TRO. And finally, the trial court erred in concluding that Daily was required to file a financing statement to assert a lien against certain crops. On remand, the trial court is to reconsider the underlying record and make a determination regarding Sims's claim for breach of the Shares Agreement raised in Count 3, which the trial court mistakenly overlooked in its judgment, in conjunction with Daily's counterclaim that it was Sims who breached the Shares Agreement.

[63] Judgment affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   The Acquisition Agreement provided that at closing, Sims would take title to all 529 acres and then he would immediately convey Daily's portion to the Marr Trust.

2.   Although he did not agree to the terms of the Addendum and maintains that it did not constitute the comprehensive agreement referred to in the Acquisition Agreement, Daily stated that he went ahead with the transfer of property as set out in the Addendum because he and his father had given their “word” to Sims to help him get the land surrounding his homestead. Id. at 108.

3.   “Marr Farm Land Trust” was written in and clearly identified as the entity over which Sims was being granted POA. Exhibits Vol. 7 at 19. Attorney Wells could not recall if such was written in on the document prior to him signing it. He testified, “I guess if that was filled in, I certainly didn't, I didn't notice it, I don't know why I would have signed it for him to have authority over Marr Farm other than Henry.” Transcript Vol. 2 at 21.

4.   Every year since 2010, Sims registered Daily's property in his name as tenant.

5.   Daily, Sims, and Hartwell pooled their farmland and agreed to farm the collective acres together.

6.   According to Daily, Sims oversold grain to DFG, i.e., he contracted to sell DFG more grain than he delivered. Daily claims that DFG impounded the funds and grain as payment for the oversold grain. In contrast, Sims testified that he never oversold grain to DFG.

7.   Daily testified that he had already purchased the non-GMO seed for the land but that he had not been able to plant it prior to the TRO being entered.

8.   Daily argued that contrary to Sims's assertion in his request for a TRO, the Lease Agreement was not valid. Daily asserted that the course of dealing between the parties demonstrated that the parties had an agreement to farm the land in the Marr Trust according to shares. Daily pointed out that the Lease Agreement contains no terms, that Sims never paid or offered to pay rent pursuant to the Lease Agreement, and that Sims's stated purpose for such document wholly related to obtaining crop insurance. Daily argued that he was damaged by entry of the TRO because he had already expended time, effort, and money to prepare the land for planting a non-GMO crop and due to the lower profits expected from the GMO grain that was ultimately planted by Sims.

9.   Daily tried to bring up the issue of whether the TRO was properly handled but the court interjected, questioning whether such was a matter to be addressed at the preliminary injunction hearing. Sims chimed in, stating that “[w]hether or not there are damages from a TRO [or if it] was improperly done can be heard at trial.” Transcript Vol. 2 at 85.

10.   Sims's claim for breach of the Acquisition Agreement was set out in Count 10 of his complaint. The trial court's findings and conclusions related thereto were set out in the trial court's judgment under the heading for Count 3. Under its heading for Count 10, the trial court incorporated its findings and conclusions as its findings and conclusions as to Count 10.

11.   The court did not decide whether there was any discrepancy in accounting for the grain produced under the Shares Agreement, nor did it need to given its conclusion that even if there was a discrepancy, Daily failed to follow state law to assert a lien.

12.   The trial court did not award Sims attorney's fees.

13.   This amount is comprised of $115,871.18 and $83,008.01 for the value of the impounded bushels of corn and the impounded funds, respectively, plus 8% prejudgment interest on those amounts. Before accounting for treble damages, this totals $344,774.92 in damages and interest.

14.   In awarding prejudgment interest, the trial court states that the grain proceeds were withheld for 3,347 days. Appellant's Appendix Vol. 2 at 65 (emphasis supplied).

15.   Setting out the powers and duties of the director of the Indiana grain buyers and warehouse licensing agency who is appointed by the director of the Indiana state department of agriculture to administer the Indiana grain buyers warehouse licensing and bonding law. (Amended by 2026 Ind. Legis. Serv. P.L. 23-2026 (H.E.A. 1088)). It is unclear how this statute applies to Daily, or for that matter, how he violated it.

16.   This provision provided:(a) When a grain depositor requests the return of his grain, the grain must be delivered in the quantity and grade as designated on the warehouse receipt or ticket. Upon delivery of the grain represented by a warehouse receipt, the depositor must surrender the warehouse receipt and pay storage and any other charges due.(Repealed by P.L.114-2025, § 82, effective July 1, 2025). A violation of this provision does not necessarily establish the presence of criminal intent.

17.   In Crowe, the issue before the court was whether a contract claim could be asserted as a counterclaim to offset damages from a claim of conversion. The court concluded that the claim for conversion sounded entirely in tort and “wholly disconnected with a contract.” Id. Thus, the court did not consider whether the trial court erred in sustaining plaintiff's demurrer to defendant's breach of contract claim asserted in his answer. Id.

18.   Costs and damages under Ind. Trial Rule 65(C) may include attorney's fees. Bigley v. MSD of Wayne Twp. Schools, 881 N.E.2d 77, 81 (Ind. Ct. App. 2008).

19.   The trial court fixed the security obligation from which he could collect at $0. If Daily thought that was error, his remedy was to appeal the trial court's issuance of a TRO setting security at $0. After all, “the normal course” when a trial court abuses its discretion to fix sufficient security is a remand “for determination of a sufficient bond.” Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 181-82 (Ind. Ct. App. 2008). Daily did not appeal the trial court's setting of the surety at $0.

20.   This case distinguished between “leases for crops paid as rent” and “crop share agreements,” explaining:A lease of farmland which provides that a tenant shall pay as rent, a certain number of bushels of grain per acre, does not vest any title to the crops in the landlord․ In contrast, a crop share type of agreement where a tenant agrees to pay the landlord a percentage of the crops to be grown places the tenant and landlord in the position of tenants in common of the grain produced on the land.513 N.E.2d at 195. Under a crop share arrangement, the crop becomes the property of the landlord as soon as it is put into sacks.

21.   This statute provides, in pertinent part:(a) In a case where a tenant agrees under contract to pay as rent:(1) a part of the crop raised on the leased premises;(2) rent in kind; or(3) a cash rent;the landlord may have a lien on the crop raised under the contract for payment of the rent. If the tenant refuses or neglects to pay or deliver to the landlord the rent when it is due, the landlord may enforce the lien by selling the crop.(b) A landlord who desires to acquire a lien on a crop raised under a contract on leased premises must file a financing statement under IC 26-1-9.1-501 at least thirty (30) days before the crop matures and during the year in which the crop is grown.

22.   Daily's Counterclaim 2 is the inverse of Sims's Count 3, which the trial court did not address because it mistakenly considered the written Acquisition Agreement—the subject of the breach of contract claim found in Count 10—in addressing Sims's claim for breach of the Shares Agreement under Count 3. It would thus seem that remand for the trial court to consider the competing claims for breach of the Shares Agreement (Count 3 and Counterclaim 2) is the proper remedy for addressing the issue presented.

Altice, Judge.

May, J. and Foley, J., concur.