Kotsopoulos v. Peters Broadcast Engineering, Inc.

962 N.E.2d 97, 2011 WL 7310319
CourtIndiana Court of Appeals
DecidedFebruary 10, 2012
Docket02A03-1012-PL-675
StatusPublished
Cited by9 cases

This text of 962 N.E.2d 97 (Kotsopoulos v. Peters Broadcast Engineering, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kotsopoulos v. Peters Broadcast Engineering, Inc., 962 N.E.2d 97, 2011 WL 7310319 (Ind. Ct. App. 2012).

Opinion

OPINION

KIRSCH, Judge.

George Kotsopoulos (“Kotsopoulos”) appeals from the trial court’s denial of his motion to correct error and judgment in favor of Peters Broadcast Engineering, Inc. (“PBE”), on PBE’s complaint alleging conversion, statutory damages, accounts stated and due, and Kotsopoulos’ counterclaim alleging fraud and unjust enrichment. The issue presented for our review is whether the trial court’s judgment is supported by sufficient evidence or is erroneous as a matter of law.

We affirm and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Robert Peters (“Peters”) is a broadcast engineer and the owner and president of PBE. In September 2006, PBE was retained by Bob Britt (“Britt”), operational manager and twenty-five percent share partner of Three Amigos, a Hispanic radio station with a transmitter in Garrett, Indiana, to perform work related to the design and build of a studio. Three Amigos hired PBE on a retainer basis at the rate of $600.00 per month, including labor for normal wear and tear on radio station equipment, but not covering acts of God, vandalism, and user-induced problems, the repairs of which would be separately billed. PBE performed several jobs over the years for Three Amigos, which were separately billed at an hourly rate depend *102 ing on the nature of the work performed and the particular PBE employee doing the work. All bills submitted to Three Amigos were sent via e-mail or hand-delivered. Neither Three Amigos nor Kotso-poulos, the majority share owner of Three Amigos and partner with check-writing authority, objected to the amounts charged by PBE for the work performed until after litigation ensued.

In March 2008, the Federal Aviation Authority notified Peters that the Three Amigos’ transmitter in Garrett, Indiana needed to be shut down because its transmissions interfered with airport tower communications and data. Peters visited the Garrett site and found that the interference was coming from the Three Amigos’ transmitter at that site. Three Amigos hired PBE to perform the repairs necessary to make the station operational without further interfering with the airport’s radio towers. Kotsopoulos instructed Peters to contact the insurance carrier for Three Amigos.

Upon examining the transmitter site, Peters concluded that the transmitter had been struck by lightning, and, because of its age, needed to be replaced. The insurance adjuster for Three Amigos contacted Peters to obtain his findings and recommendations regarding the damage to and repair of the transmitter. After reviewing PBE’s recommendations, and viewing the transmitter itself, the insurance adjuster concluded that a full replacement of the transmitter was appropriate. The adjuster asked Peters to provide an estimate for a like-kind replacement. Peters recommended a “solid state” replacement, which was similar to the damaged transmitter. The insurance company adjusted the claim based on Peters’ recommendation for a like-kind replacement transmitter, and issued a check to Three Amigos and PBE as co-payees in the amount of $39,800.00. That amount included replacement costs and labor for the damaged transmitter. The insurance company sent the check directly to Three Amigos, its insured.

Kotsopoulos discussed the transmitter problem with Peters and told him that he did not want to spend the insurance money on replacing the damaged transmitter with a new solid state component. Instead, Kotsopoulos chose to spend the insurance money fixing the transmitter because Kot-sopoulos believed that Three Amigos did not receive enough money in settlement of the insurance claim to replace it. Peters informed Kotsopoulos that the repairs to the transmitter would cost approximately $26,312.00, a figure he later submitted in writing. PBE performed the repairs to the transmitter as instructed by Kotsopou-los and was able to make the transmitter operable. PBE refused to warrant the repairs to the transmitter in excess of six months because of the extent of the damage to, and the age of, the transmitter. The transmitter was approximately twenty years old and certain second-hand parts were used to replace damaged ones as certain parts were no longer being manufactured.

PBE employee and technician, Jamie Till (“Till”), tested the repairs on the transmitter performed by PBE and found that the radio station was running at full capacity and within specifications. Till did not consider the repairs to be a permanent fix because the transmitter equipment was in poor condition and would need to be replaced.

At the time the repairs were being performed, Three Amigos owed PBE approximately $14,651.45 for past work performed and retainer fees. PBE sent Three Amigos an invoice dated October 17, 2008, for past work performed on the damaged transmitter, including parts and labor, in *103 the amount of $26,312.00, the original estimate given by PBE.

Several weeks after PBE performed work on the transmitter, PBE had not been fully paid. Peters placed a call to the insurance carrier and was informed that the check for the repairs to the transmitter had been processed. Peters was unaware of the amount of the check or the date on which the check had been issued.

Prior to the issuance of the insurance check, Peters and Kotsopoulos had come to an oral agreement whereby Peters would accept $21,000.00 for the repairs to the transmitter if Kotsopoulos would catch up on payments due and owing to PBE, which at the time were in the amount of $14,651.45. After the passage of several weeks, Kotsopoulos did not mention the issuance of the insurance check. On June 26, 2008, Kotsopoulos called Peter to his office, stated that the amount received from the insurance company was less than he had expected, and asked Peters if PBE would be willing to accept $13,000.00 instead of $21,000.00. Peters did not agree to the proposal because the $21,000.00 figure had been negotiated with the expectation that Three Amigos would pay the $14,651.45 that was already due on the account from prior work. Three Amigos issued PBE a check in the amount of $17,000.00 with the promise that PBE would be paid the remainder at a later date. Peters cashed the $17,000.00 check on behalf of PBE and applied the proceeds to the oldest balance on the account to reduce the accrual of additional interest on the old debts.

In August 2008, Three Amigos contacted PBE to perform repairs caused by a second lightning strike. Till examined the transmitter and confirmed that it was completely destroyed. Peters was able to repair three of the four transmitter modules, and replaced one of the modules with a dummy module pulled from PBE’s own equipment in an effort to keep the station on the air. The purpose of installing the dummy module in the empty module slot was to allow for proper air flow and cooling.

Peters continued to send invoices and statements of account to Three Amigos for the work performed, but the accounts remained unpaid. No one objected on behalf of Three Amigos to the amounts owed. In October 2008, PBE sent Three Amigos an invoice in the amount of $26,312.00 for work performed related to the first lightning strike. Peters invoiced the entire amount for the work performed instead of the previously agreed $21,000.00 amount because Kotsopoulos had not paid anything on the account since he had issued the check for $17,000.00 to PBE.

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