Jeffrey M. Kaetzel, Marcia Kaetzel d/b/a J&M Construction v. Donald L. Woods, II and Kori M. McBrayer Woods (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 8, 2016
• Docket: 62A01-1507-CC-837
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jul 08 2016, 8:35 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES Paul J. Wallace Michael H. Hagedorn Jones-Wallace, LLC Hagedorn Law Office Evansville, Indiana Tell City, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffrey M. Kaetzel, Marcia Kaetzel July 8, 2016 d/b/a J&M Construction, Court of Appeals Case No. 62A01-1507-CC-837 Appellants-Plaintiffs/Counter-defendants, Appeal from the Perry Circuit v. Court. The Honorable William E. Weikert, Special Judge. Donald L. Woods, II and Kori M. Cause No. 62C01-1103-CC-127 McBrayer Woods, Appellees-Defendants/Counter-plaintiffs.

Friedlander, Senior Judge

[1] Jeffrey M. Kaetzel and Marcia Kaetzel, doing business as J & M Construction,

appeal after a bench trial from the trial court’s order resolving their amended

complaint against Donald L. Woods, II and Kori M. McBrayer Woods, and

resolving the Woodses’ counterclaims against the Kaetzels. The Woodses

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 1 of 12 cross-appeal contending that the trial court erred by entering judgment against

them and in favor of non-parties Leroy Oeding and Glen Hassfurther,

subcontractors of J & M Construction. We affirm in part, reverse in part, and

remand with instructions.

[2] The Woodses own real estate located in Tell City, Indiana. On April 16, 2010,

the Woodses and Jeffrey signed a document bearing the words “price sheet”

prepared by J & M Construction, the Kaetzels’ corporation, and listing the

prices of various aspects of the construction of a new home on the Woodses’

property. Appellees’ App. p. 11. The agreement had several prices that were

fixed, while other prices were dependent on factors not known to the parties at

the time of the signing. This agreement was a two-page document on the

second page of which a total price of $224,804.26 was typed, but $226,379.26 1 was written in the margin. At some point, an additional page was added, but

was neither signed nor dated. The additional page contained several items not

priced on the initial two pages. Certain written plans, blueprints, and

specifications also came into existence during the discussion by the parties.

[3] Jeffrey provided labor, materials, supplies, and services in the construction of

the Woodses’ home. He would submit invoices to them, and they would then

make payments to the Kaetzels’ business, J & M Construction. The Woodses

had separate projects related to the home construction to be completed by

1 If the total price of $224,804.26 is added to the line providing for additional allowances for tile floor and heat priced at $1,575, you arrive at the sum $226,379.26, the number handwritten in the margin. Id. at 63.

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 2 of 12 Jeffrey that were not priced in the two-page agreement. They also had separate

projects related to the home construction that were not part of the agreement to

be completed by Oeding and Hassfurther. Kaetzel had subcontracted with

Oeding to complete the plumbing and heating and with Hassfurther to complete

the masonry work, each aspects that were part of the two-page agreement.

[4] A dispute arose over the amount paid by the Woodses. On December 30, 2010,

Jeffrey filed in the county recorder’s office a sworn statement and notice of

intention to hold a mechanic’s lien against the Woodses’ property. On March

25, 2011, Jeffrey, doing business as J & M Construction, filed a complaint

against the Woodses for underpaying him by $93,993.39. The Woodses filed

an answer and affirmative defenses to Jeffrey’s complaint, and then on May 31,

2011 filed counterclaims against Jeffrey and J & M Construction, alleging

breach of contract, fraud, and slander of title. In particular, the Woodses

alleged that Jeffrey had been overpaid $79,635.16 beyond the contract price of

$226,379.26 for construction of the new house.

[5] On August 8, 2011, the trial court entered an order granting the Woodses’

motion for leave to deposit cash with the trial court clerk to be held in trust until

judgment of the court, and for the release of the mechanic’s lien against the

Woodses’ property. They deposited the money on September 29, 2011.

Thereafter, the Woodses filed amended counterclaims against Jeffrey and J &

M Construction, adding Marcia as a counter-defendant and additionally

alleging construction defects and breach of express and implied warranties.

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 3 of 12 [6] The Kaetzels entered a general denial to the Woodses’ counterclaims. They

then filed an amended complaint on March 4, 2014, alleging that the parties

signed an agreement on April 16, 2010, and attaching the agreement to the

complaint. The Woodses filed an answer and affirmative defenses to the

amended complaint, and while admitting the existence and signing of the

agreement, denied the authenticity of the document attached to the amended

complaint.

[7] The bench trial began on July 28, 2014, and continued over the course of

several days before its completion on November 6, 2014. At the beginning of

the second day of trial, Jeffrey filed a motion with the trial court seeking to

amend the complaint to conform to the evidence by adding a claim alleging

breach of contract, citing to the April 16, 2010 agreement. The motion was

filed in open court, but does not appear to have been ruled on by the trial court.

After the presentation of the evidence had concluded, the trial court took the

matter under advisement and entered findings of fact and conclusions thereon.

[8] The trial court found that there was never a meeting of the minds between the

parties, and therefore, no contract existed. The trial court concluded that the

only theory under which Jeffrey could recover was quantum meruit. The trial

court further concluded that it would not consider page three of the agreement,

doubting its legitimacy, but would consider the plans and blueprints that were

part of the discussions between the parties in the early stages of negotiations.

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 4 of 12 2 The trial court then found $224,022.26 to be the fair market value of the

Woodses’ home. In order to arrive at a just amount to compensate Jeffrey, the

trial court deducted from the fair market value certain amounts for which

Jeffrey provided no labor, materials, supplies, or services. The trial court

deducted a total of $85,206.00 for plumbing, duct work, rock, grading,

excavating, cabinets, tile, paint, painting, floors, geothermal, electrical,

appliances, permits, and fees. The total amount owed Jeffrey under a quantum

meruit analysis was $139,598.26. The Woodses had already paid Kaetzel

$150,090.03, thereby overpaying him by $10,491.77. The trial court concluded

that Jeffrey was entitled to take nothing by way of his amended complaint, and

entered judgment against J & M Construction and Jeffrey and Marcia Kaetzel

jointly and severally in the amount of $10,491.77.

[9] The trial court also considered Jeffrey’s claims of entitlement to payment for

extra projects completed for the Woodses by him. After hearing the evidence,

the trial court concluded that the Woodses owed Jeffrey $6,652.39 for all extra

projects, including trim, hedge labor, extra concrete pad, and enlargement of

the back porch.

[10] The trial court then made findings, legal conclusions, and entered judgment

against the Woodses and in favor of Oeding and Hassfurther, non-parties to the

2 In the trial court’s conclusions of law with respect to Kaetzel’s claim on quantum meruit, paragraph 5(a) finds the fair market value of the Woodses’ home to be $224,022.26. Appellees’ App. p. 20. In subsequent conclusions with respect to that claim, however, the trial court cites the fair market value as $224,804.26, which is the price reflected in the April 16, 2010 agreement.

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 5 of 12 action, for the cost of extra projects that were not part of the agreement, but

were completed by them for the Woodses.

[11] Next, the trial court considered the Woodses’ counterclaims for construction

defects and concluded that they were entitled to $39,370.00 for the repair of

structural defects attributable to Jeffrey and J & M Construction. The trial

court also entered judgment in favor of the Woodses for professional costs for a

structural evaluation by a professional engineer incurred in the prosecution of

that counterclaim. The Kaetzels and J & M Construction were ordered to

reimburse the Woodses for attorney fees incurred in the prosecution of this

counterclaim in an amount to be determined later.

[12] The trial court found that the Woodses had failed to meet their burden of

proving fraud, slander of title, and breach of express and implied warranties.

This appeal and cross-appeal followed.

[13] When entering judgment, the trial court, sua sponte, issued findings of fact and

conclusions thereon pursuant to Indiana Trial Rule 52(A). Under that rule,

courts on review will not set aside the findings or judgment unless they are

clearly erroneous and due regard shall be given to the opportunity of the trial

court to judge the witnesses’ credibility. Best v. Best, 941 N.E.2d 499 (Ind.

2011). We do not reweigh the evidence nor reassess witness credibility, and

view the evidence most favorably to the judgment. Id. Findings are clearly

erroneous only when the record contains no facts to support them either

directly or by inference. Id.

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 6 of 12 [14] Neither party challenges the trial court’s determination that Jeffrey was entitled

to damages under principles of quantum meruit, nor do they challenge the trial

court’s calculation of damages. Jeffrey asks that we reverse the trial court’s

judgment awarding damages to the Woodses for their counterclaim under

Indiana Code article 32-27 (West, Westlaw 2002), contending that the absence

of a contract, which is a statutory prerequisite, makes the award improper.

[15] The Woodses alleged in Count IV of their counterclaim that their home had a

major structural defect, defect, or construction defect, as those terms are defined

by statute, and that they met the definitions of both initial home buyers, or

home owners, terms also defined by statute. Indiana Code section 32-27-2-2

(West, Westlaw 2002) defines an initial home buyer as “a person who executes a

contract with a builder to buy a new home and who occupies the new home as its

first occupant and occupies the new home as a residence.” (emphasis added).

A home owner is defined by Indiana code section 32-27-3-1(6) (West, Westlaw

2002) in pertinent part as any person that is the owner of the residence and

contracts with a construction professional for the construction of a residence.

Crucial to both definitions is the existence and execution of a contract.

[16] When examining the trial court’s special findings of fact, appellate courts

review the sufficiency of the evidence supporting the trial court’s findings of

fact, and then determine if those findings support the trial court’s conclusions.

The Woodses seek damages authorized by statute. When a statute is clear and

unambiguous, as the pertinent statutes are, we need not apply rules of statutory

construction other than to give words and phrases their plain, ordinary, and

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 7 of 12 usual sense. City of Carmel v. Steele, 865 N.E.2d 612 (Ind. 2007). The existence

of a contract is a question of law. Sands v. Helen HCI, LLC, 945 N.E.2d 176

(Ind. Ct. App. 2011).

[17] Regarding the Woodses’ construction defects claims, the trial court concluded

that the Woodses met the statutory definition of initial home buyer and home

owner. The trial court also found that “Kaetzels did, in fact, construct the

‘New Home and Residence’, but not in accordance with the ‘Contract’ or the

Plans and Specifications.” Appellants’ App. p. 27. The trial court’s only

reference to a contract in this specific section of findings and conclusions

thereon was to note that the home was built not in accordance with the

contract, plans, and specifications; i.e., the home’s construction suffered one or

more of the kinds of defects as defined by statute and alleged in the

counterclaims.

[18] Although the trial court specifically concluded as a matter of law that the

Woodses met the statutory definition of initial home buyer and homeowner, it

made no specific findings pertaining to the execution of a contract, which

would be necessary to support its conclusion. Other findings explicitly made by

the trial court, specifically addressing the issue of breach of contract, reflected

that there was no contract, and those findings are supported by the evidence.

The Woodses, therefore, cannot succeed on their claim for statutory damages,

the prerequisite for which is the existence and execution of a contract, when the

trial court has made no finding in this specific section of its order, or by looking

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 8 of 12 at the findings in the entire order. Likewise, the Woodses cannot recover

attorney fees, costs, or professional fees under the related statutes.

[19] The Woodses cross-appeal, contending that the trial court’s award of damages

to Oeding and Hassfurther is improper because they were not parties to the

action. The Woodses further contend that the trial court used an improper

measure of damages in determining the judgment amounts in favor of Oeding,

Hassfurther, and Jeffrey for extra projects completed.

[20] The trial court issued specific findings of fact and conclusions thereon with

respect to extra projects completed by Hassfurther, Oeding, and Jeffrey.

Although Hassfurther and Oeding testified at trial, neither were named parties

to the complaint, nor did they move to intervene in the cause of action. With

respect to Hassfurther, the trial court found as follows:

Hassfurther was a subcontractor of plaintiff. The plaintiff performed no services in the areas claimed by Hassfurther. Therefore, the plaintiff can make no claim under quantum meruit for services done by Hassfurther. Since Hassfurther was not a party to this action, Hassfurther cannot make a claim for its contribution to the reasonable value of this house on the basis on [sic] quantum meruit. Therefore, the only claims made by Hassfurther which shall be allowed are for “extra projects” between Hassfurther and the defendant. These will be itemized separately. Appellants’ App. pp. 22-23. After finding that the Woodses were equally

responsible for the events contributing toward the expense associated with the

retaining wall, the trial court awarded Hassfurther a judgment of $9,584.40

against the Woodses.

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 9 of 12 [21] The trial court made the following findings pertaining to Oeding:

Oeding was a subcontractor of plaintiff. The plaintiff performed no services in the areas claimed by Oeding. Therefore, the plaintiff can make no claim under quantum meruit for services done by Oeding. Since Oeding was not a party to this action, he cannot make a claim for his contribution to the reasonable value of this house on the basis of quantum meruit. Therefore, the only claims made by Oeding which shall be allowed are for “extra projects” between Oeding and the defendant. These will be itemized separately. Id. at 24. The trial court then awarded Oeding a judgment of $5,597.54 against

the Woodses.

[22] While there is evidence to support the trial court’s findings, we must reverse the

trial court’s award of damages in favor of Hassfurther and Oeding, which seem

to be based on a theory of implied contract or quasi contract. “A judgment

cannot properly be rendered for or against one who is not a party to the action.”

Ind. Dept. of State Revenue v. Ind. Gamma Gamma of Alpha Tau Omega, Inc., 181

Ind. App. 664, 687, 394 N.E.2d 187, 201 (1979) (citing Kist v. Coughlin, 222 Ind.

639, 57 N.E.2d 586 (1944)). Because Hassfurther and Oeding were not parties

to this action, we must reverse the trial court’s judgment as to them.

[23] The trial court also issued findings of fact and conclusions thereon pertaining to

extra work performed for the Woodses by Jeffrey. The trial court specifically

found that the addition of Craftsman trim to the interior of the house, hedge

labor, extra concrete pad, and the expansion of the back porch were extra

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 10 of 12 projects completed for the Woodses by him. The trial court assigned values for

the reasonable cost of the extra work totaling $6,652.39.

[24] The Woodses assert that the trial court used an improper measure of damages

in determining the judgment amount. The trial court relied on invoices

submitted by Kaetzel and admitted in evidence over objection as Plaintiff’s

Exhibit 29. The Woodses claim that if awarding damages under a theory of

quantum meruit is proper, introduction of invoices and bills for materials

purchased and of work done is insufficient to establish the reasonable value of

the materials and labor, which is required to establish what benefit was received

or rendered to the Woodses.

[25] Adhering to our standard of review, we observe that the trial court’s findings of

fact are supported by Plaintiffs’ Exhibit 29. The Woodses do not dispute that

the extra projects were requested and performed. Instead, they challenge the

value of the benefit received by them. The evidence of that value was

established by the invoices and bills, and while objected to, was uncontradicted.

The trial court did not err by using that evidence to determine the measure of

damages. The conclusion that Jeffrey is entitled to recovery for the value of the

extra work totaling $6,652.39 is supported by the findings, which are supported

by the evidence.

[26] The value of the home was $224,804.26 to which $85,206.00 Jeffrey is not

entitled. The amount the Woodses owed Jeffrey is $139,598.26. The Woodses,

however, have paid Kaetzel $150,090.03, thereby overpaying Kaetzel by

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 11 of 12 3 $10,401.74. The extra projects completed by Kaetzel are valued at $6,652.39.

The Woodses are not entitled to statutory damages and are not liable in this

cause of action for the extra projects completed by Hassfurther and Oeding,

non-parties to the complaint. Consequently, we instruct the trial court to enter

judgment in favor of the Woodses for the difference, $3,749.35.

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

Mathias, J., and Bradford, J., concur.

3 The trial court’s summary indicates an overpayment of $10,491.77 by the Woodses to Kaetzel. Appellants’ App. p. 26. Our calculations reflect the overpayment is $10,401.74.

Court of Appeals of Indiana | Memorandum Decision 62A01-1507-CC-837 | July 8, 2016 Page 12 of 12