MEMORANDUM DECISION FILED May 09 2017, 10:09 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 APPELLANT ATTORNEYS FOR APPELLEES S. Andrew Burns David L. Byers Cox, Sargeant & Burns, P.C. Andrew J. Noone Indianapolis, Indiana Holwager, Byers, & Caughey Beech Grove, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Tod, May 9, 2017
Appellant/Plaintiff/Counterclaim Court of Appeals Case No. 49A04-1609-CT-2157 Defendant, Appeal from the Marion Superior Court v. The Hon. Thomas J. Carroll, Judge Indy Goldmine, LLC, d/b/a IG Trial Court Cause No. Home Improvements, and Aaron 49D06-1508-CT-28726 McGee, Appellees/Defendants/Counterclaim Plaintiffs.
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 1 of 8 Case Summary [1] Appellant/Plaintiff/Counterclaim Defendant Scott Tod appeals from the trial
court’s entry of judgment in favor of Appellees/Defendants/Counterclaim
Plaintiffs Indy Goldmine, LLC, d/b/a IG Home Improvements (“IG”), and
Aaron McGee (collectively, “Defendants”). When Tod purchased his
Indianapolis home, he obtained a rehabilitation loan and executed a series of
agreements with IG (collectively, “the Contract”) to perform a series of
renovations, including replacement of the roof. After IG completed some
renovations, Tod ultimately hired another contactor to replace his roof, which
violated the terms of the Contract.
[2] Tod sued Defendants for breach of contract, conversion, and unjust
enrichment, and Defendants countersued Tod for breach of contract. At one
point, Tod served Defendants with a request for admissions, which included
requests that they admit that Tod had paid them some $21,000.00 for
renovations, they had not completed the contracted-for work, and Tod had
received no more than $10,000.00 of value. Because Defendants did not timely
respond to Tod’s requests, the admissions were deemed conclusively
established. Following a bench trial, the trial court entered judgment in favor of
Defendants and awarded them $8987.50 in damages. Tod contends that the
trial court erred because Defendants’ admissions automatically entitle Tod to
judgment. Because we disagree, we affirm.
Facts and Procedural History Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 2 of 8 [3] Tod purchased his Indianapolis home on October 31, 2014, and began to
remodel it to address some health and safety issues. To that end, Tod obtained
a $35,000.00 203(k) loan.1 IG was referred to Tod as a provider of contracted
203(k) services. Tod and IG executed a Contract for work on the home, which
obligated IG to do many things, including installation of railing on three decks
and a handrail for exterior stairs, replacement of rotten trim, demolition, mold
remediation, and roof replacement, only some of which IG ultimately
completed. IG began work in the first week of November 2014, after Tod
closed on the home. Soon after work started, Tod became dissatisfied with IG’s
work and began to speak with other contractors, eventually having another
contractor repair and replace the roof. On December 29, 2014, Tod sent IG a
termination notice.
[4] On August 24, 2015, Tod filed suit against Defendants, alleging breach of
contract, conversion of funds, and unjust enrichment. On November 24, 2015,
Defendants answered Tod’s complaint and filed a counterclaim, alleging breach
of contract by Tod. On January 26, 2016, Tod served a request for admissions
on Defendants, which included the following requests:
REQUEST FOR ADMISSIONS NO. 1: Please admit that you/IG received and cashed a check in the amount of $6,000.00 from Plaintiff on or about November 1, 2014. …
1 A 203(k) loan is a “rehabilitation loan” as defined by 24 C.F.R. § 203.50 and that is eligible for insurance pursuant to Section 203(k) of the National Housing Act. See 12 U.S.C. 1709(k).
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 3 of 8 REQUEST FOR ADMISSIONS NO. 2: Please admit that you/IO received and cashed a check in the amount of $14,987.50 from Plaintiff on or about November 7, 2014. … REQUEST FOR ADMISSIONS NO. 3: Please admit that to date no monies have been returned to Plaintiff by Defendants. … REQUEST FOR ADMISSIONS NO. 4: Please admit that you/IG have/has not performed all services requested by the Plaintiff. … REQUEST FOR ADMISSIONS NO. 5: Please admit that there is no single document which memorializes the terms of the agreement reached between you/IG and the Plaintiff. … REQUEST FOR ADMISSIONS NO. 6: Please admit that there is no single document which lists all of the services you/IG were committed to provide to or for the benefit of the Plaintiff. … REQUEST FOR ADMISSIONS NO. 7: Please admit that you and your crew or agents damaged a water pipe on the real estate owned by the Plaintiff. … REQUEST FOR ADMISSIONS NO. 8: Please admit that you did not provide goods and/or services to or for the benefit of the Plaintiff in an amount in excess of $10,000.00. Appellant’s App. pp. C9-C10.
[5] Defendants untimely responded to Tod’s request for admissions on July 14,
2016, which had the effect of deeming the admissions conclusively established.
On August 16, 2016, defendants moved to withdraw their admissions, which
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 4 of 8 motion the trial court denied on August 24, 2016. Also on August 24, 2016, the
matter was tried to the bench, after which the trial court ruled that Tod could
take nothing by way of his complaint and entered judgment in favor of
Defendants on their breach-of-contract counterclaim in the amount of $8987.50.
Tod contends that Defendants’ admissions required the entry of judgment in his
favor, while Defendants argue that entry of judgment in their favor was still
permissible, even taking their admissions into account.
Discussion and Decision [6] The trial court’s judgment here is not supported by specific findings of fact or
conclusions thereon. Under such circumstances,
[t]he applicable standard of appellate review is clear. In the absence of special findings, we review a trial court decision as a general judgment and, without reweighing evidence or considering witness credibility, affirm if sustainable upon any theory consistent with the evidence. Sizemore v. H & R Farms, Inc., 638 N.E.2d 455, 457 (Ind. Ct. App. 1994); Bedford Recycling, Inc. v. U.S. Granules Corp., 634 N.E.2d 1361, 1363 (Ind. Ct. App. 1994); Quebe v. Davis, 586 N.E.2d 914, 917 (Ind. Ct. App. 1992). In reviewing a general judgment, we must presume that the trial court correctly followed the law. Sizemore; Turpen v. Turpen, 537 N.E.2d 537, 539 (Ind. Ct. App. 1989); Baker v.
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MEMORANDUM DECISION FILED May 09 2017, 10:09 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 APPELLANT ATTORNEYS FOR APPELLEES S. Andrew Burns David L. Byers Cox, Sargeant & Burns, P.C. Andrew J. Noone Indianapolis, Indiana Holwager, Byers, & Caughey Beech Grove, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Tod, May 9, 2017
Appellant/Plaintiff/Counterclaim Court of Appeals Case No. 49A04-1609-CT-2157 Defendant, Appeal from the Marion Superior Court v. The Hon. Thomas J. Carroll, Judge Indy Goldmine, LLC, d/b/a IG Trial Court Cause No. Home Improvements, and Aaron 49D06-1508-CT-28726 McGee, Appellees/Defendants/Counterclaim Plaintiffs.
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 1 of 8 Case Summary [1] Appellant/Plaintiff/Counterclaim Defendant Scott Tod appeals from the trial
court’s entry of judgment in favor of Appellees/Defendants/Counterclaim
Plaintiffs Indy Goldmine, LLC, d/b/a IG Home Improvements (“IG”), and
Aaron McGee (collectively, “Defendants”). When Tod purchased his
Indianapolis home, he obtained a rehabilitation loan and executed a series of
agreements with IG (collectively, “the Contract”) to perform a series of
renovations, including replacement of the roof. After IG completed some
renovations, Tod ultimately hired another contactor to replace his roof, which
violated the terms of the Contract.
[2] Tod sued Defendants for breach of contract, conversion, and unjust
enrichment, and Defendants countersued Tod for breach of contract. At one
point, Tod served Defendants with a request for admissions, which included
requests that they admit that Tod had paid them some $21,000.00 for
renovations, they had not completed the contracted-for work, and Tod had
received no more than $10,000.00 of value. Because Defendants did not timely
respond to Tod’s requests, the admissions were deemed conclusively
established. Following a bench trial, the trial court entered judgment in favor of
Defendants and awarded them $8987.50 in damages. Tod contends that the
trial court erred because Defendants’ admissions automatically entitle Tod to
judgment. Because we disagree, we affirm.
Facts and Procedural History Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 2 of 8 [3] Tod purchased his Indianapolis home on October 31, 2014, and began to
remodel it to address some health and safety issues. To that end, Tod obtained
a $35,000.00 203(k) loan.1 IG was referred to Tod as a provider of contracted
203(k) services. Tod and IG executed a Contract for work on the home, which
obligated IG to do many things, including installation of railing on three decks
and a handrail for exterior stairs, replacement of rotten trim, demolition, mold
remediation, and roof replacement, only some of which IG ultimately
completed. IG began work in the first week of November 2014, after Tod
closed on the home. Soon after work started, Tod became dissatisfied with IG’s
work and began to speak with other contractors, eventually having another
contractor repair and replace the roof. On December 29, 2014, Tod sent IG a
termination notice.
[4] On August 24, 2015, Tod filed suit against Defendants, alleging breach of
contract, conversion of funds, and unjust enrichment. On November 24, 2015,
Defendants answered Tod’s complaint and filed a counterclaim, alleging breach
of contract by Tod. On January 26, 2016, Tod served a request for admissions
on Defendants, which included the following requests:
REQUEST FOR ADMISSIONS NO. 1: Please admit that you/IG received and cashed a check in the amount of $6,000.00 from Plaintiff on or about November 1, 2014. …
1 A 203(k) loan is a “rehabilitation loan” as defined by 24 C.F.R. § 203.50 and that is eligible for insurance pursuant to Section 203(k) of the National Housing Act. See 12 U.S.C. 1709(k).
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 3 of 8 REQUEST FOR ADMISSIONS NO. 2: Please admit that you/IO received and cashed a check in the amount of $14,987.50 from Plaintiff on or about November 7, 2014. … REQUEST FOR ADMISSIONS NO. 3: Please admit that to date no monies have been returned to Plaintiff by Defendants. … REQUEST FOR ADMISSIONS NO. 4: Please admit that you/IG have/has not performed all services requested by the Plaintiff. … REQUEST FOR ADMISSIONS NO. 5: Please admit that there is no single document which memorializes the terms of the agreement reached between you/IG and the Plaintiff. … REQUEST FOR ADMISSIONS NO. 6: Please admit that there is no single document which lists all of the services you/IG were committed to provide to or for the benefit of the Plaintiff. … REQUEST FOR ADMISSIONS NO. 7: Please admit that you and your crew or agents damaged a water pipe on the real estate owned by the Plaintiff. … REQUEST FOR ADMISSIONS NO. 8: Please admit that you did not provide goods and/or services to or for the benefit of the Plaintiff in an amount in excess of $10,000.00. Appellant’s App. pp. C9-C10.
[5] Defendants untimely responded to Tod’s request for admissions on July 14,
2016, which had the effect of deeming the admissions conclusively established.
On August 16, 2016, defendants moved to withdraw their admissions, which
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 4 of 8 motion the trial court denied on August 24, 2016. Also on August 24, 2016, the
matter was tried to the bench, after which the trial court ruled that Tod could
take nothing by way of his complaint and entered judgment in favor of
Defendants on their breach-of-contract counterclaim in the amount of $8987.50.
Tod contends that Defendants’ admissions required the entry of judgment in his
favor, while Defendants argue that entry of judgment in their favor was still
permissible, even taking their admissions into account.
Discussion and Decision [6] The trial court’s judgment here is not supported by specific findings of fact or
conclusions thereon. Under such circumstances,
[t]he applicable standard of appellate review is clear. In the absence of special findings, we review a trial court decision as a general judgment and, without reweighing evidence or considering witness credibility, affirm if sustainable upon any theory consistent with the evidence. Sizemore v. H & R Farms, Inc., 638 N.E.2d 455, 457 (Ind. Ct. App. 1994); Bedford Recycling, Inc. v. U.S. Granules Corp., 634 N.E.2d 1361, 1363 (Ind. Ct. App. 1994); Quebe v. Davis, 586 N.E.2d 914, 917 (Ind. Ct. App. 1992). In reviewing a general judgment, we must presume that the trial court correctly followed the law. Sizemore; Turpen v. Turpen, 537 N.E.2d 537, 539 (Ind. Ct. App. 1989); Baker v. Baker, 488 N.E.2d 361, 364 (Ind. Ct. App. 1986).… On appellate review, due regard must be given the trial court’s opportunity to judge the credibility of witnesses, and the judgment should not be set aside unless clearly erroneous. Ind. Trial Rule 52(A); Ind. Appellate Rule 15(N). Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240-41 (Ind. 1997).
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 5 of 8 [7] Tod’s sole argument is that Defendants’ admissions that they received
$20,987.50 from Tod, did not complete all of the contracted-for work, and did
not provide services in excess of $10,000.00 required the trial court to enter
judgment in his favor. Defendants counter that, even if all of the above is true
(they concede that their admissions are conclusively established), none of this
precludes a breach on Tod’s part. We agree with Defendants on this point; the
facts established by the admissions are just as consistent with a breach by Tod
as they are with a breach by Defendants. The admissions, at most, establish
that Defendants did not perform (which they concede) but have nothing to do
with why, which they claim was due to Tod’s breach.
[8] That said, we conclude that Defendants did produce sufficient evidence to
sustain a finding that their failure to perform was due to Tod’s breach. The
validity of the Contract is not in dispute, nor is the fact that Tod violated its
terms when he hired his own roofing contractor. Although Tod presented
evidence that he hired a new roofing contractor and terminated IG because of
substandard work, among other reasons, the trial court was not required to
credit this evidence or conclude that it justified Tod’s actions.
[9] As for Defendants, we conclude that the record is sufficient to permit a finding
of substantial performance, with their ultimate failure to perform caused by
Tod’s breach. “No mathematical rule relating to the percentage of the price, of
cost of completion, or of completeness can be laid down to determine
substantial performance of a building contract.” Johnson v. Taylor Bldg. Corp.,
371 N.E.2d 404, 407 (Ind. Ct. App. 1978). Defendants produced evidence that
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 6 of 8 work began on the project in the first week of November 2014, with the main
component being a replacement roof. Prior to termination, Defendants
completed the following: (1) installation of deck railing for three decks, (2)
installation of a handrail for exterior stairs, (3) replacement of rotten trim, (4)
demolition work, (5) removal of drywall ceiling in the basement, and (6) mold
remediation. Regarding the replacement of the roof, which was a significant
part of the work to be done, Defendants produced evidence of their diligence in
attempting to complete the work. Defendants came to Tod’s home at least
twice to show him materials. Tod did select a roofing material and issued a
check, but then notified Defendants that he wanted a metal, rather than shingle,
roof. Defendants then spent over thirty hours researching and collecting
multiple bids for a metal roof, only to have Tod tell them that the price was too
high. Despite Defendants informing Tod that he could not do so pursuant to
the Contract, Tod pursued third-party options, eventually having the roof
installed by another contractor and eventually terminating the Contract with
Defendants. Moreover, McGee testified that IG was “very, very busy” at the
time and had to forego other projects in order to take on Tod’s. Tr. Vol. II p.
69. We conclude that Defendants produced sufficient evidence to sustain a
finding that they stood ready to fulfil their contractual obligations but were
prevented by Tod’s hiring of another roofing contractor and termination of
them. Consequently, Tod has failed to establish that the trial court’s entry of
judgment in favor of Defendants is clearly erroneous.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 7 of 8 [10] The judgment of the trial court is affirmed.2
Najam, J., and Riley, J., concur.
2 Tod does not dispute the trial court’s award of damages to Defendants, which represents the full, agreed- upon contract price of $29,975.00 minus the $20,987.50 already paid, for a total award of $8987.50. Tod makes no argument that this damages award should have been reduced by the cost of labor and materials Defendants would have expended had they completed Tod’s roof replacement.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017 Page 8 of 8