concurring in part and dissenting in part.
While I agree with the result reached by the majority in affirming the jury award of $11,136.05, I cannot agree with its rationale or with the determination that Ms. Adamson is entitled to appellate attorney fees on remand.
As recounted by the majority, Adamson commenced this action alleging eight theories for recovery, including breach of trust, and at the conclusion of evidence successfully added *296a claim for breach of contract. The jury returned a verdict in her favor "on the issue of compensatory damages and award[ed] the amount of $11,136.05."
On appeal she contends that this general verdict necessarily found for her on the breach of trust claim which would invoke the statutory right to recover reasonable attorney fees, including appellate attorney fees, found in I.C. 30-4-3-l1(b)(4) and 30-4-3-22(e). From this she urges that in view of the evidence concerning the value of reasonable attorney fees for this litigation, the verdict was substantially inadequate and that she is, in addition, entitled to appellate attorney fees.
Although sustaining the amount awarded by the jury, it appears to me that the majority has necessarily adopted this rationale.
I believe it is correct to say that when the jury has been instructed on several theories it is our duty to sustain the judgment upon any theory supported by the evidence. Ohio Finance Co. v. Berry (1941) 219 Ind. 94, 37 N.E.2d 2 (evidence sufficient if it sustains either paragraph of complaint); English Coal Co. v. Durcholz (1981) Ind.App., 422 N.E.2d 302.
Furthermore, it is well established that the general verdict constitutes a finding of every material fact necessary to support it. Bender v. Peay (1982) Ind.App., 433 N.E.2d 788, 790. (If the verdict be for the defendant, it must necessarily negate each of plaintiffs claims.)
Those principles are matters of everyday use in our appellate courts. They are premised on the notion that appellate review should proceed from the perspective that the jury is the constitutionally empowered fact-finder, and we are to presume the jury followed the law in reaching its decision. In other words, we are to assume the jury found the facts necessary to the result it reached so that in our review we accord to it the power granted it by the constitution.
I strongly favor that perspective. But for me these principles provide no basis for ascribing to the jury determinations wholly unnecessary to its result. And such is the case if we are to say that a finding for a plaintiff necessarily constitutes a finding for the plaintiff on each and every separate theory of the complaint. If the jury finds for the plaintiff it is logical to assume that it found the existence of the material facts necessary for recovery. Logic does not, however, dictate that if a jury had before it claims for breach of contract, negligence, fraud and breach of trust any finding for the plaintiff must necessarily mean that the jury found for her on each and every claim.
In the case before us there was evidence that would support the determination that Norwest contracted to pay the cost to draw up the documents necessary to undo the inappropriate estate plan and the amount of the verdict approximated the billing submitted for that work. On the other hand, there was substantial evidence from which the jury might have concluded that the bank was not liable for breach of trust because Adamson was well aware that the bank officer was acting wholly outside the seope of his authority when he prepared the trust instrument. Indeed, the trial judge speculated that such was the case.
Because the evidence sustains the claim for breach of contract and the damage award is consistent with such a determination, I concur in affirming the verdict. Because, however, there is no clear indication that the jury found breach of trust by the bank, I dissent from the remand for the award of appellate attorney fees.