Stephen Dissette v. Brandon Rudd

Court of Appeals of Indiana | Memorandum Decision 25A-PL-2468 | October 15, 2026 	Page 1 of 27
Pursuant to Indiana Appellate Rule 65(E), the trial court and parties shall not take
any action in reliance upon this memorandum decision until it is certified.
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not
binding precedent for any court and may be cited only for persuasive value
or to establish res judicata, collateral estoppel, or law of the case.
I N 	T H E
Court of Appeals of Indiana
Stephen Dissette,
Appellant-Defendant and Cross Appellee
v.
Brandon Rudd,
Appellee-Plaintiff and Cross Appellant
October 15, 2026
Court of Appeals Case No.
25A-PL-2468
Appeal from the Lake Superior Court
The Honorable Bruce D. Parent, Judge
Trial Court Cause No.
45D11-2307-PL-470
Memorandum Decision by Judge Altice
Judges Vaidik and Foley concur.

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Altice, Judge.
Case Summary
[1] 	Stephen Dissette appeals the judgment entered in favor of Brandon Rudd on
Rudd’s claims against him for breach of contract, unjust enrichment,
conversion, and promissory estoppel, which resulted in a judgment in the
amount of $119,779.09. Dissette contends that the judgment must be set aside
because the trial court erred in denying his motion for partial summary
judgment based on the statute of frauds requirements and because Rudd’s
summary of damages was improperly admitted into evidence. Dissette further
claims that the trial court abused its discretion in refusing to permit him to
amend his complaint to add a party and another count on his counterclaim and
that the trial court abused its discretion in not permitting an amendment to
conform to the evidence presented at trial pursuant to Ind. Trial Rule 15(B) on
the last day of trial. Rudd cross-appeals, claiming that the trial court erred in
denying his request for attorney’s fees on his conversion claim.
[2] 	We affirm.
Facts and Procedural History
[3] 	Dissette is a retirement planner in LaPorte County who sells annuities,
securities, and other financial products. Dissette also holds retirement seminars
for individuals interested in retirement investment strategies.

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[4] 	Dissette and Rudd—who was not a financial planner at the time—met
sometime in late 2018, and they began working together in 2019 under a verbal
arrangement to co-host investment seminars for the sale and solicitation of
annuities and insurance-based products. Annuity sales resulted in an
approximate five percent commission of the initial premiums that were paid.
Additional commissions would be earned on the first, second and third
anniversary of the initial premiums. Rudd and Dissette agreed to a “50/50
split” of commissions on joint business. Transcript Vol. II at 128.
[5] 	In early 2023, Rudd opened a retirement planning office—Rite Path Financial,
LLC (Rite Path)—in Valparaiso. His name only was on the lease and internet
statements, and Dissette did not work out of that office. Later that year, a
dispute arose over unpaid commissions that Rudd believed he was owed from
Dissette. Rudd told Dissette that they needed to “settle up,” and Dissette told
him to “figure out what I owe you” and to come up with something for his
review. Id.
[6] 	In response, Rudd examined his notes, joint client information, and
commission records. He also contacted American Equity—the third-party
financial company that Rudd and Dissette used for the issuance of annuities
and various insurance policies. Rudd used the information that he gathered
from American Equity to verify contract issue dates and numbers, premiums,
and client names. As a result of that collected information, Rudd prepared a
chart and summary of the amounts due and provided it to Dissette.

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[7] 	When no resolution was reached as to the amount of the commissions that
Rudd believed he was owed, Rudd filed a complaint against Dissette on July 7,
2023 for breach of contract, unjust enrichment, conversion, and promissory
estoppel. Rudd alleged, among other things, that Dissette failed to pay him the
commissions that were due, and that Dissette wrongfully converted and took
the commissions that he was owed. Rudd contended that he was owed “no less
than $123,529.09,” plus attorney’s fees. Appellant’s Appendix Vol. II at 23-30.
Dissette denied the allegations and asserted counterclaims for unjust
enrichment and abuse of process.
[8] 	On September 3, 2024, the trial court entered a case management order setting
a deadline of December 15, 2024 for the amendment of pleadings, a discovery
deadline of December 14, 2024, and a dispositive motion deadline of January
25, 2025. Thereafter, on October 22, 2024, Dissette filed a motion for leave to
file an amended counterclaim to include a claim against Rudd for tortious
interference, and to add Rite Path as a counter defendant. Dissette also
requested the trial court to reopen discovery. Dissette asserted, among other
things, that amendment of his counterclaim was necessary because Rudd was
“impermissibly using the discovery to obtain client lists and contract
information in order to steal the clients of Dissette for the benefit of . . . Rudd.”
Appellant’s Appendix Vol. II at 86. The trial court denied Dissette’s motions and
entered the following order:
1. The case management in this case is replete with gamesmanship
by both counsel of record.

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2. To this end the Court, on its own motion, re-opened discovery
(which had been closed) on August 20, 2024 because of the way
counsel were acting toward one another.
3. The Court then held a case management conference on
September 3, 2024, where it permitted the parties to choose their
own deadlines with two provisos: the Court intended to strictly
enforce the chosen deadlines, and (2) the Court intended to never
extend the deadlines for either party.
4. At that case management conference, the Court instructed the
attorneys that it intended to set this case for trial at the next case
management conference of December 11, 2024.
. . .
8. Generally, this judicial officer is very generous with the
granting of amendments to pleadings. However, in this instance,
to . . . permit the proposed amendment this late in the game would both
prejudice the PLAINTIFF and make the Court’s instructions of
September 3, 2024 completely meaningless.
9. The parties are instructed again to stringently comply with
this Court’s Order of September 3, 2024, and to be prepared to
close all deadlines and set this matter for trial on December 11,
2024.
Id. at 94-95 (emphases supplied). The trial court subsequently denied Dissette’s
request for reconsideration on the same basis.
[9] 	On January 15, 2025, Dissette moved for partial summary judgment on Rudd’s
claims, arguing among other things, that the statute of frauds barred those

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claims because there “was no contract between Rudd and Dissette,” that Rudd
“cannot establish an unjust and unconscionable injury to remove his
promissory estoppel or unjust enrichment from the Statue of Frauds,” and that
Dissette’s alleged refusal to pay a debt did not amount to conversion as a matter
of law. Id. at 105-23.
[10] 	The trial court denied Dissette’s motion, determining that the statute of frauds
governs the enforceability of a contract, rather than the formation of one, and
that the verbal contract between Rudd and Dissette, i.e., the payment of
commissions, was “capable of being completed within one year.” Appellant’s
Appendix Vol. V at 62-63. The trial court further concluded that Dissette failed
to carry his burden related to the unjust enrichment and promissory estoppel
claims, and that the inability to demonstrate mens rea at trial with regard to a
conversion claim “is not the standard for summary judgment.” Id. at 63.
Thereafter, a joint pretrial order was issued setting forth the issues that were to
be litigated at trial. That order further provided that if Rudd succeeded on his
conversion claim at trial, the jury would determine the amount of reasonable
attorney’s fees that should be awarded.
[11] 	A three-day jury trial commenced on June 30, 2025. During Rudd’s case-in-
chief, he presented a chart and a summary of the commission payments that he
was allegedly due from Dissette (Exhibit D), claiming that he was entitled to
$123,529.09. Rudd testified that he arrived at this figure from his notes,
speaking with representatives at American Equity, and commission reports.
The trial court allowed Rudd’s chart and summary into evidence over Dissette’s

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objection that Rudd failed to satisfy the requirements for admitting chart and
summary evidence under Ind. Evidence Rule 1006. Rudd further testified that
he incurred more than $100,000 in attorney’s fees, for the time that counsel
spent on his claims against Dissette.
[12] 	Dissette testified that he was damaged as a result of Rudd’s breach of contract
in the amount of $267,000, and requested reimbursement for the amounts he
had paid Rudd because “Rudd was not properly licensed in Indiana.”
Transcript Vol. III at 46.
[13] 	On the third day of trial, Dissette moved for an amendment of the pleadings
under T.R. 15 (B) to include a breach of contract claim against Rudd. In
support of that motion, Dissette maintained that evidence was presented of
Rudd’s “under performance” of the contract and that he was damaged as a
result of Rudd’s breach of contract.
[14] 	The trial court sustained Rudd’s objection to the motion, noting that Rudd had
already rested, “they’ve already asked all of their questions . . . and at this late
juncture, there would be prejudice.” Id. at 65. The trial court went on to
explain that it had
no desire to have all of the witnesses that have already been
called to be re-called to flush out this new cause of action on the
day that . . . you’ve all told me closing arguments were going to
be here this morning or early this afternoon. I just don’t think
this is appropriate at this point. And I also think it would
confuse the jury. This has not been introduced to them up to this
point.

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Id. at 65.
[15] 	On July 2, 2025, the jury returned verdicts in Rudd’s favor on his breach of
contract, unjust enrichment, conversion, and promissory estoppel claims. On
the breach of contract claim, the jury awarded Rudd $123,529.09, which was
the amount set forth in his summary/chart exhibit. On the conversion and
equitable estoppel claims, the jury awarded Rudd zero damages and separately
awarded him “invoiced legal fees as of July 2, 2025.” Appellant’s Appendix Vol.
VI at 145. The jury found for Dissette on his unjust enrichment counterclaim,
awarding him $3,750, and found against him on the abuse of process claim.
[16] 	Upon Rudd’s oral motion, the trial court entered judgment on the verdict and
set the net judgment at $119,779.09. After the jury was excused, Dissette
moved to set aside the attorney fee portion of the conversion verdict. The trial
court denied the motion without prejudice and directed Rudd to file his
invoiced legal fees only as to the conversion claim. Rudd filed his attorney fee
affidavit for attorney’s fees seeking $117,786.86 and attached a 77-page
activities report.
[17] 	At a hearing on September 2, 2026, Rudd’s counsel testified that he was unable
to say how much time he spent exclusively on the conversion claim. Although
Rudd was invoiced $117,787.86 in attorney’s fees, his counsel testified that
Rudd had paid him an amount less than $117,000. Following the hearing, the
trial court’s “Order Entering Judgment” of September 5, 2025, stated:

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15. The net judgment against the DEFENDANT and in favor of
the PLAINTIFF was set at $119,779.09 ($123,529.09 minus
$3,750.00), as of July 2, 2025.
16. The PLAINTIFF is ordered to file with the Court all of his
“invoiced legal fees as of July 2, 2025” related only to Count III,
Conversion, by not later than July 10, 2025. Should the
DEFENDANT wish to file a response, this shall be filed by not
later than July 17, 2025. If any party wishes for a hearing on this
issue, they are instructed to file a motion thereon.
ATTORNEY FEE MOTIONS, MOTION TO CORRECT
ERROR, AND RENEWED TRIAL RULE 50 MOTION
. . .
4. All motions addressed by this order were filed on the issue of
attorney fees related to the PLAINTIFF’S claim against the
DEFENDANT for conversion.
5. The jury was provided with two agreed-upon potential verdict
forms on the issue of conversion.
6. Count III Conversion. One proposed verdict form provided
the jury with the ability to find for the DEFENDANT, while the
other proposed verdict form provided the jury with the ability to
find for the PLAINTIFF, assess damages for conversion, and
award attorney fees for conversion.
7. The jury chose to find for the PLAINTIFF on conversion,
assessed damages for conversion in the amount of zero dollars,
and awarded “invoiced legal fees as of July 2. 2025.”

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8. After judgment was entered on the verdict, and the jury left
the premises, the DEFENDANT orally moved the Court to set
aside the jury’s attorney fee award. . . .
9. The Court denied the DEFENDANT’S oral motion without
prejudice, finding that there was some very scant testimony
related to attorney fees expended by the PLAINTIFF.
10. Here, the DEFENDANT seeks for the Court to revisit this
issue and both of his motions filed herein relate to this issue.
11. The purpose of a motion to correct error is to afford the trial
court the opportunity to fix errors it may have committed.
Johnson v. State, 338 N.E.2d 680, 682 (Ind. Ct. App. 1975).
. . .
18. Indiana Crime Victim’s Relief Act provides that if a person
suffers a pecuniary loss as a result of certain offenses, including
conversion, the person may bring a civil action against the person
who caused the loss for attorney fees. See Coleman v. Coleman,
949 N.E.2d 860, 869 (Ind. Ct. App. 2011).
19. A plaintiff must prove by a preponderance of the evidence
that the defendant committed a criminal act, although a
conviction is not a condition precedent to recovery. Coleman v.
Coleman . . . .
20. The [Court of Appeals] has plainly held that if a plaintiff
suffers no pecuniary loss as a result of a defendant’s actions, the
plaintiff is not entitled to recover attorney fees under the Crime
Victims Relief Act. Id.

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21. The statute explicitly refers to pecuniary loss as the necessary
prerequisite for an award of attorney fees. Id.
22. [The statute] does not state that any victim of one of the
enumerated crimes is entitled to attorney fees. Id.
23. If the legislature had intended the statute to have that broad
of an application, it could have worded the statute differently. Id.
. . .
26. It was clear that the jury found that the PLAINTIFF proved
by a preponderance of the evidence that the DEFENDANT
committed the criminal act of conversion.
27. It was equally clear that the jury found that PLAINTIFF suffered
no pecuniary loss as a result of the conversion-related actions of the
DEFENDANT.
28. Consequently, this Court found as a matter of law that the
PLAINTIFF is not entitled to recover attorney fees under Indiana’s
Crime Victims Relief Act pursuant to Coleman v Coleman, 949
N.E.2d 860, 869 (Ind. Ct. App. 2011).
29. For this Court to find otherwise would, in the opinion of this
judicial officer, result in abuse of discretion, and thus reversible
error.
30. This Court found that under the Crime Victims Relief Act, the
pecuniary loss prerequisite to awarding attorney fees was not reached
because the jury did not award damages relative to conversion.

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WHEREFORE, based upon all of the foregoing, the Court found
and Ordered:
. . .
2. The Court DENIED the PLAINTIFF’S attorney fee request
under Indiana’s Crime Victims Relief Act pursuant to Coleman v.
Coleman.
3. The Court entered judgment in favor of the PLAINTIFF and
against the DEFENDANT in the amount $119,779.09. The
Court arrived at this number by subtracting $3,750.00 awarded to
the DEFENDANT by the jury on his claim of Unjust
Enrichment from the $123,529.09 in damages on Count I—
Breach of Contract that the jury awarded to the PLAINTIFF.
Appellant’s Appendix Vol. VII at 125-30 (emphases added).
[18] 	Dissette appeals and Rudd cross-appeals.
Discussion and Decision
I. Dissette’s Claims
A. Partial Summary Judgment
[19] 	Dissette argues that the trial court erred in denying his motion for partial
summary judgment with respect to Rudd’s claims for breach of contract,
promissory estoppel, and unjust enrichment, claiming that these actions were
barred by the statute of frauds as a matter of law. Dissette also argues that he
was entitled to summary judgment on the conversion claim because there was

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no criminal intent and Rudd “was merely attempting to collect a debt.”
Appellant’s Brief at 26.
[20] 	When reviewing a grant or denial of a motion for summary judgment, our
standard of review is the same as it is for the trial court. The moving party
bears the initial burden of making a prima facie showing that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of
law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012). Summary judgment is
improper if the movant fails to carry its burden, but if it succeeds, then the
nonmoving party must come forward with evidence establishing the existence
of a genuine issue of material fact. Id. In determining whether summary
judgment is proper, this court considers only the evidentiary matter the parties
have specifically designated to the trial court. We construe all factual inferences
in the nonmoving party’s favor and resolve all doubts as to the existence of a
material issue against the moving party. Id.
[21] 	In addressing Dissette’s argument that the statute of frauds barred Rudd’s
claims as a matter of law, Ind. Code § 32-21-1-1 (the Statute of Frauds) provides
in part that a person “may not bring any of the following actions unless the
promise, contract or agreement is in writing and signed by the party against
whom the action is brought . . . (5) an action involving any agreement that is
not to be performed within one . . . year from making of the agreement.” The
Statute of Frauds does not govern the formation of a contract but only the
enforceability of contracts that have been formed. Knapp v. Estate of Wright, 76
N.E.3d 900, 907 (Ind. Ct. App. 2007), trans. denied. The Statute of Frauds

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applies “only if it is impossible for an oral contract to be completed within one
year.” Tobin v. Ruman, 819 N.E.2d 78, 85 (Ind. Ct. App. 2004) (emphasis
added), trans. denied.
[22] 	In this case, the evidence established that the parties entered into a verbal
agreement in January 2019, which provided that they would split commissions
“50/50” for the premiums from all insurance-based products from jointly held
retirement planning events that they hosted that year. Appellant’s Appendix Vol.
II at 128. Dissette admitted that he chose to have the commission amounts
paid out over several years rather than one year. And Dissette admitted that he
was the only one who decided when the commissions would be paid. In other
words, the payment extended beyond one year because Dissette chose that
structure and not because the parties’ agreement required it. Therefore, the
designated evidence did not conclusively establish that the parties’ agreement
was incapable of being performed within one year. As a result, the trial court
properly rejected Dissette’s statute of frauds argument and denied his motion
for summary judgment on the breach of contract, promissory estoppel and
unjust enrichment claims.1
[23] 	Dissette further maintains that he was entitled to summary judgment on Rudd’s
conversion claim because the circumstances here only involve Rudd’s effort “to
1 Dissette merely concludes that Rudd “cannot use promissory estoppel to avoid the statute of frauds.”
Appellant’s Brief at 31. Further, he has offered no analysis regarding the elements of unjust enrichment, and
he does not explain why there is no genuine issue of material fact with respect to that claim.

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collect a debt,” and there is no evidence as a matter of law that he “took any
money from Rudd.” Appellant’s Brief at 31, 33.
[24] 	Under Ind. Code § 35-43-4-3, a person who knowingly or intentionally exerts
unauthorized control over the property of another person commits criminal
conversion. 	Contrary to Dissette’s claim, Rudd’s theory for recovery was
based on more than an allegation that Dissette failed to pay him in accordance
with their contract. To be sure, Rudd’s designated evidence established that the
commissions were deposited into Dissette’s own account and that he withheld
funds to which Rudd was entitled. This evidence established that there is a
genuine issue of material fact as to whether Dissette committed conversion
when he did not make the commission payments to Rudd. As a result, the trial
court properly denied Dissette’s motion for summary judgment on the
conversion claim.
B. Rudd’s Proof of Damages
[25] 	Dissette contends that the trial court erred in admitting Exhibit D into evidence
because it was inadmissible hearsay and it violated the “summaries to prove
content” requirements of Evid. R. 1006. Appellant’s Brief at 19. Dissette
maintains that the admission of Exhibit D was reversible error because Rudd
offered no additional evidence regarding his alleged damages.
[26] 	The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for an abuse of
discretion. Turner v. KLS Servs., LLC, 254 N.E.3d 1082, 1087 (Ind. Ct. App.

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2025). An abuse of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before it. Dow v.
Hurst, 146 N.E.3d 990, 1001 (Ind. Ct. App. 2020), trans. denied.
[27] 	Under Evid. R. 1006:
The proponent may use a summary, chart, or calculation to
prove the content of voluminous writings, recordings, or
photographs that cannot be conveniently examined in court. The
proponent must make the originals or duplicates available for
examination or copying, or both, by other parties at a reasonable
time or place. The court may order the proponent to produce
them in court.
[28] 	In this case, the evidence showed that after Dissette told Rudd to “figure out
what I owe you,” Rudd gathered information from his notes, client information
and commission records, and reviewed everything “line-by-line, client-by-
client,” and “contract-by-contract.” Transcript Vol. II at 112-13, 119. Rudd
also testified that he “cross-checked” his figures with American Equity
personnel for accuracy “down to the penny.” Id. 	Exhibit D showed: the
policy number and owner, the premiums paid, payout year, percentage, and
amount owed. Rudd also testified—and Dissette admits—that he provided
Exhibit D to Dissette before the action was filed. American Equity’s records
were also accessible to Dissette for examination.
[29] 	A party’s own testimony about the methodology used to complete a summary
of sales and costs for various items combined with the availability of the
underlying records to the opponent before trial satisfies foundational

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requirements for admissibility. See Shively v. Shively, 680 N.E.2d 877, 881 (Ind.
Ct. App. 1997); see also Bane v. Roth, 590 N.E.2d 587, 591 (Ind. Ct. App. 1992)
(holding that a summary may be admitted where the records or reports used to
prepare the summary are admitted into evidence or are available to the opposite
party), trans. denied. And while Dissette asserts that there was “no way to verify
the accuracy” of Exhibit D because the notes and commission reports were not
admitted into evidence and no one from American Equity testified, he fails to
identify any inaccuracies on the chart and summary. Appellant’s Brief at 25. To
be sure, Dissette did not present any evidence that a client was erroneously
included in the summary, that any policy number or premium was wrong, that
any payout year or percentage was misstated, or that the calculations were
erroneous. Even more compelling, Dissette admitted he did not review any
client files or records after receiving them. Instead, he looked at Rudd’s total
and merely concluded that it was “absurd.” Transcript Vol. III at 68.
[30] 	Also, while Dissette maintains that the documents that Rudd relied upon
should have been excluded as hearsay, he has failed to develop that argument.
Ind. Appellate Rule 46(A)(8)(a) requires contentions to be supported by cogent
reasoning and citation to authority. And we do not develop arguments for a
party. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (contention
waived where it was not supported by cogent argument or citation to authority).
Dissette does not direct us to any of the rules of evidence that pertain to
hearsay. Rather, Dissette only cites I.R.E. 1006 and concludes—with no
analysis—that Rudd’s notes, conversations with American Equity, and

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commission reports would have all have been “hearsay.” Appellant’s Brief at 25.
He also fails to identify what statement in Exhibit D is allegedly hearsay, who
the declarant is, whether the statement was offered for its truth, or why a
hearsay exception would not apply under Indiana law. For these reasons,
Dissette’s hearsay contention is waived. See, e.g., Romine v. Gagle, 782 N.E.2d
369, 386 (Ind. Ct. App. 2003) (holding that a party generally waives any issue
for which it fails to develop a cogent argument or support with adequate
citation to authority and portions of the record), trans. denied.
[31] 	We conclude that the trial court did not abuse its discretion in admitting Exhibit
D into evidence.
C. Trial Court’s Denial of Dissette’s Request to Amend His
Counterclaim and Reopen Discovery
[32] 	Dissette argues that the trial court abused its discretion in denying his motion to
amend his counterclaim to include a count for tortious interference and add a
new party, i.e., a former employee who “hung out with Rudd” and “made calls
on Rudd’s behalf to Dissette’s clients while working for Dissette.” Appellant’s
Brief at 36-37. Dissette maintains that his motion should have been granted
because it was filed “within the time proscribed by the trial court’s . . . order . . .
and contained the same operative facts already being litigated.” Appellant’s Brief
at 37.
[33] 	The trial court has broad discretion in granting or denying amendments to the
pleadings, and its determination will be reversed only upon a showing of abuse

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of discretion. Hendrickson v. Alcoa Fuels, Inc., 735 N.E.2d 804, 818 (Ind. Ct.
App. 2000). An abuse of discretion is an “erroneous conclusion and judgment,
clearly against the logic and effect of the facts and circumstances before the
court or the reasonable deductions to be drawn therefrom.” Id.
[34] 	In determining whether leave to amend a complaint should be granted, a court
considers undue delay, bad faith, or dilatory motive on the part of the movant,
repeated failure to cure deficiency by an amendment previously allowed, undue
prejudice to the opposing party by virtue of the amendment, and futility of the
amendment. Crawford v. City of Muncie, 655 N.E.2d 614, 622-23 (Ind. Ct. App.
1995), trans. denied.
[35] 	On September 3, 2024, the trial court admonished both attorneys in this case for
their “gamesmanship” throughout the pendency of the litigation. Appellant’s
Appendix Vol. II at 94-95.2 The trial court, sua sponte, reopened discovery
because of the parties’ conduct and at the September 3, 2024, case management
conference, it permitted them to choose their own deadlines under the
following conditions: (1) the deadlines would be strictly enforced, and (2) they
would not be extended. When Dissette later sought, over objection, leave to
add the tortious interference claim and a new party, the trial court denied that
2 We note that on August 20, 2024, the trial court vacated earlier case management deadlines and observed
that “neither attorney was prepared to have any of the . . . deadlines . . . close within a few days.” Appellant’s
Appendix Vol. II at 82. In that order, the trial court observed that both attorneys have been “running from
sideline-to-sideline, without gaining any yardage,” and that such “gamesmanship . . . is unacceptable.” Id. at
83. The trial court ordered counsel to re-implement discovery so that everything can be completed in the
near future, reminding them that “no one case is worth your reputation in the legal community.” Id.

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request because permitting such an amendment “this late in the game” would
prejudice Rudd and make the trial court’s order “completely meaningless.”
Appellant’s Appendix Vol. II at 95. This is precisely the type of delay and
prejudice determination that is committed to the trial court’s discretion. See
Crawford, 655 N.E.2d at 622-23 (finding no abuse of discretion to deny leave to
amend where six years had passed and the amendment would have forced a
police officer to defend in an individual capacity and under new legal theories,
thus causing undue prejudice and manifest unfairness).
[36] 	Here, the amendment and the addition of a new party would have delayed
discovery, which is the type of gamesmanship the trial court stated it would no
longer permit. To be sure, the trial court had warned the parties in August 2024
that its patience with their continued lack of progress was waning. In these
circumstances, adding a party would have defeated the existing case
management schedule, which is precisely what the trial court determined that it
would not allow. And when Dissette asked the trial court to reconsider, the
trial court noted that the case was “winding out of control,” and that Dissette
moved “at the eleventh hour” to add a new party, “with the obvious effect of
causing case management to be extended.” Appellant’s Appendix Vol. II at 103.
[37] 	In these circumstances, we conclude that the trial court did not abuse its
discretion in denying Dissette’s request to amend his pleadings to add a new
party and an additional cause of action.

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D. Dissette’s Request To Amend On the Final Day Of Trial
[38] 	Dissette argues that the trial court erred in denying his request—on the third
and final day of trial—to amend the pleadings to conform to the evidence to
include a breach of contract claim against Rudd. Dissette maintains that
because “there was evidence presented on his breach of contract claim, and it
was included in the parties’ joint pre-trial order,” the trial court abused its
discretion in precluding the jury from deciding that claim. Appellant’s Brief at
36.
[39] 	After the close of pleadings, the grant or denial of a motion to amend pleadings
is a matter within the trial court’s discretion. Stone v. Wright, 133 N.E.3d 210,
219 (Ind. Ct. App. 2019). 	Amendments to the pleadings under T.R. 15(B)
should be liberally granted to ensure adjudication of all issues raised at trial.
Elkhart Cnty. Farm Bureau Co-op. Ass’n, Inc. v. Hochstetler, 418 N.E.2d 280, 283
(Ind. Ct. App. 1981). But in determining whether leave to amend a complaint
should be granted, a court considers various factors including delay and
prejudice to the opposing party. Crawford, 655 N.E.2d at 622-23.
[40] 	T.R. 15(B) provides as follows:
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform to
the evidence and to raise these issues may be made upon motion
of any party at any time, even after judgment, but failure to so
amend does not affect the result of the trial of these issues.

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In this case, Dissette’s counterclaim included only two counts against Rudd:
unjust enrichment and abuse of process. Dissette’s counterclaims alleged an
oral agreement, claimed that Rudd failed to complete agreed responsibilities,
alleged that Rudd received fifty percent of certain initial commissions and kept
one hundred percent of others, and then sought recovery on an unjust-
enrichment theory because it would be inequitable for Rudd to retain those
benefits. Dissette did not plead a separate breach of contract count. And when
Dissette referred to “Rudd’s breach of contract” in his answer, he did so as an
affirmative defense to Rudd’s claims rather than a separate claim for his own
contract damages. Appellant’s Appendix Vol. II at 42-48. Nothing that Dissette
alleged put Rudd on notice that he had to defend against a separate
counterclaim for breach of contract and damages. That point is reinforced by
Dissette’s proposed issues instruction, where Dissette only alleged that Rudd
was unjustly enriched and that he committed abuse of process by initiating the
case. Additionally, the trial court’s general issues instruction identified Rudd’s
four claims and Dissette’s two counterclaims prior to trial. Moreover, Dissette
even claimed that there was no contract as a matter of law because the parties
did not agree on essential terms, including what commissions were allegedly
covered. That allegation is at odds with the notion that Dissette’s own
affirmative breach of contract claim had been part of the case from the outset.
[41] 	We further note that Dissette did not assert his claim under T.R. 15(B) until the
final day of trial after Rudd had already presented his case-in-chief. While the
trial court recognized that it had discretion to allow such a late amendment, it

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found prejudice because Rudd had already rested, and his examination of
witnesses would likely have been different had Dissette’s breach of contract
claim been part of the case. It also found that Dissette’s proposed amendment
would be confusing to the jury. Finally, the trial court explained that it would
not have witnesses recalled on the morning that closing arguments were
expected.
[42] 	In sum, nothing in the record supports that notion that Dissette’s breach of
contract theory was presented in the initial case. Moreover, it was within the
trial court’s discretion to find that Dissette’s proposed amendment would have
been prejudicial to Rudd and confusing to the jury. We therefore conclude that
the trial court properly exercised its discretion in denying Dissette’s request to
amend the pleadings under T.R. 15(B).
II. Rudd’s Cross Appeal—Attorney’s Fees
[43] 	Rudd argues that the trial court erred in setting aside the jury’s attorney fee
award on his conversion claim. Rudd maintains that because Dissette failed to
timely object to the “obvious inconsistency” in awarding attorney’s fees with a
zero damage award for conversion, the attorney’s fee award should stand.
Appellee’s Brief at 13.

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[44] 	Ind. Code § 34-24-3-1 (The Crime Victim’s Relief Act) provides: “If a person . .
. suffers a pecuniary loss as a result of a violation of IC 35-43[3] . . . the person may
bring a civil action against the person who caused the loss for the following: . . .
(3) A reasonable attorney’s fee.” (Emphases added). An award of attorney’s fees
is appropriately limited to those fees incurred because of the basis underlying
the award. SJS Refractory Co. v. Empire Refractory Sales, Inc., 952 N.E.2d 758, 767
(Ind. Ct. App. 2011). A party requesting an award of attorney’s fees “bears the
burden of proving an appropriate allocation of fees between the issues for which
fees may be assessed and those for which they may not.” Id. It is not
impractical to allocate attorney’s fees in conversion cases. Whiskey Barrel
Planters Co. v. Am. Gardenworks, Inc., 966 N.E.2d 711,724 fn. 3 (Ind. Ct. App.
2012).4
[45] 	Although the trial court typically decides a reasonable attorney fee award after a
judgment has been rendered, a jury may decide the issue of a reasonable
attorney’s fee when the parties have stipulated to such a determination on the
issue. Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1008 (Ind.
Ct. App. 2015). There must be objective evidence of the nature of the legal
services and the reasonableness of the fee. Id. at 1009.
3 Criminal conversion is codified at Ind. Code § 35-43-4-3.
4 Although our Supreme Court initially granted transfer in this case, it subsequently issued an order
reinstating this court’s opinion. See 976 N.E.2d 1227 (Ind. 2012)

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[46] 	Notwithstanding Rudd’s contention that Dissette failed to lodge a timely
objection to the jury’s decision to award attorney’s fees for conversion, this
court’s decision in Coleman v. Coleman, 949 N.E.2d 860 (Ind. Ct. App. 2011)
controls. In Coleman, a stepmother sued her stepchildren for ejectment and
quiet title to certain real property, along with claims for conversion and theft, in
which treble damages and attorney fees were sought. Stepmother presented
evidence at trial that the residence was worth somewhere between $40,000 and
$65,000 and her lost personal property was worth $125,000. The jury found in
favor of stepmother on the unjust enrichment claim and awarded her $20,000.
The jury subsequently returned a verdict in favor of stepmother on the theft
count, awarded zero damages, and awarded her attorney’s fees. Stepchildren
appealed the unjust enrichment finding and the award of attorney’s fees on the
theft count.
[47] 	On appeal, this court, among other things, determined that stepmother was not
entitled to attorney’s fees on the theft count in light of the zero-damage award.
Id. at 869-70. The Coleman court reasoned that the Crime Victim’s Relief Act
required a pecuniary loss on the theft claim before attorney’s fees could be
awarded. Id.; see also Bridgeforth v. Thornton, 847 N.E.2d 1015, 1028 (Ind. Ct.
App. 2006) (holding that if a plaintiff does not suffer a pecuniary loss as the
result of a defendant’s actions, the plaintiff is not entitled to recover attorney’s
fees under the Crime Victim’s Relief Act). In other words, although the jury in
Coleman found for the stepmother on the theft claim, it determined that she

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suffered no damages as a result. Id. at 870. And because there was no damage,
i.e., no pecuniary loss, an attorney’s fee award was improper. Id.
[48] 	As in Coleman, the jury in this case found in Rudd’s favor on his conversion
claim, i.e., one of the offenses listed in the Crime Victim’s Relief Act, awarded
him zero damages, but awarded him attorney’s fees. The zero damage award
on the conversion claim necessarily means that Rudd suffered no pecuniary loss
on the conversion count. See id. Thus, following the rationale in Coleman, the
trial court correctly concluded that Rudd was not entitled to an award of
attorney’s fees.
[49] 	Although Rudd attempts to incorporate his damage award on his breach of
contract claim, a breach of contract claim and conversion claim have different
elements, and a successful breach of contract award is not a basis for attorney’s
fees under the Crime Victim’s Relief Act. See id. (similarly rejecting an effort to
incorporate the jury’s award of damages for unjust enrichment into its separate
theft verdict because the two claims have different elements and unjust
enrichment is not a basis for an award of attorney’s fees under the Crime
Victim’s Relief Act). In short, Rudd was not entitled to attorney’s fees on his
conversion claim.
Conclusion
[50] 	In light of our discussion above, we conclude that Dissette was not entitled to
summary judgment on Rudd’s claims against him for breach of contract,
promissory estoppel, unjust enrichment, and conversion. We further conclude

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that the trial court properly admitted Rudd’s summary of damages into
evidence at trial, and that the trial court did not err in denying Dissette’s request
to amend the pleadings to add an additional party and a new cause of action.
The trial court also properly denied Dissette’s request to amend the pleadings to
conform to the evidence under T.R. 15(B). Finally, we conclude that the trial
court properly denied Rudd’s request for attorney’s fees on his conversion
claim.
[51] 	Judgment affirmed.
Vaidik, J. and Foley, J., concur.
ATTORNEYS FOR APPELLANT
Benjamen W. Murphy
Griffith, Indiana
Daniel J. Calhoun
Crown Point, Indiana
ATTORNEY FOR APPELLEE
Kevin E. Werner
Crown Point, Indiana