Snellenbarger v. Kunz

798 N.E.2d 523, 2003 Ind. App. LEXIS 2120, 2003 WL 22682465
CourtIndiana Court of Appeals
DecidedNovember 14, 2003
DocketNo. 29A02-0209-CV-755
StatusPublished
Cited by3 cases

This text of 798 N.E.2d 523 (Snellenbarger v. Kunz) 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
Snellenbarger v. Kunz, 798 N.E.2d 523, 2003 Ind. App. LEXIS 2120, 2003 WL 22682465 (Ind. Ct. App. 2003).

Opinion

OPINION

MAY, Judge.

Raymond Snellenbarger appeals the trial court's judgment in favor of Peter Kunz, Jane Kunz, and Two Gaits Development Company, L.P. (collectively, "Kunz"). Snellenbarger raises three issues,1 which we consolidate and restate as:

[525]*5251. Whether a supplemental agreement requiring a contractor to pay damages if a job is not completed by a specified date was entered without consideration and is an unenforceable penalty provision; and

2. Whether sufficient evidence supports the trial court's judgment for Kunz and its damage award.

We affirm.

FACTS AND PROCEDURAL HISTORY

In September of 1997, Snellenbarger contracted with Kunz to move an historic barn 2 from its original location to a Kunz property. The agreement provided, in pertinent part:

WORK TO BE DONE:

1. DISASSEMBLE OLD BARN.
2. PREP NEW SITE.
3. POUR NEW FOUNDATION WITH FOUR FOOT OF ADDITIONAL HEIGHT.
4. RAISE OLD BARN ON NEW SITE.
5. LOWER LOFT FLOOR 3° AND LOWER ROOF PITCH.
6. PLANE PAINT FROM OLD SIDING.
7. MAKE OLD BARN MATCH PICTURE IN CUSTOMERS BOOK.
LABOR / PAYMENT AGREEMENT:
THE ABOVE WORK PERFORMED IN ACCORDANCE WITH SPECIFICATIONS SUBMITTED FOR ABOVE WORK AND COMPLETED IN A SUBSTANTIAL WORKPERSONLIKE MANNER FOR THE ABOVE SUM WITH PAYMENTS TO BE MADE AS FOLLOWS: 1/4 AT BEGINNING OF PROJECT, 1/4 AFTER BARN READY TO BE MOVED, 1/4 AFTER BARN MOVED, AND 1/8 UPON COMPLETION OF PROJECT AND REMAINDER 2 MONTHS AFTER COMPLETION. ALL ADD-ONS TO BE PAID UPON COMPLETION OF SAID ADD-ON.
ANY ALTERATIONS (ADD-ONS) FROM ORIGINAL SPECIFICATIONS INVOLVING EXTRA COSTS, WILL BE PERFORMED ONLY UPON WRITTEN ORDERS, AND WILL BECOME AN EXTRA CHARGE OVER AND ABOVE THE ESTIMATE. ALL TIME AGREEMENTS CONTINGENT UPON ACCIDENTS OR DELAYS BEYOND OUR CONTROL, LE. WEATHER.

(Appellant's App. at 18) (capitalization in original).

The estimated cost for undertaking those seven steps was $91,945.25. However, Kunz received a $12,900.00 discount because the barn was in above average condition and a $10,000.00 discount because Snellenbarger was permitted to salvage and keep materials from a second barn if those materials were not needed for reconstructing the Kunz barn. After the discounts, Kunz was to pay Snellenbar-ger $69,045.25.

Snellenbarger and his subcontractors began dismantling the barn. Within the first week of work, based on conversations with the work crew at the site, Kunz "had doubts about [Snellenbarger's] ability to do the work." (Id. at 140.)

On October 10, Kunz and Snellenbarger signed a second agreement:

Agreed This Date 10-10-97 That Raymond's Barns Shall pay To Mr. P. Kunz [526]*526The Sum of $500 ® A Day And $250 ® To RL. Wilfong Land Corp. in The event That The Barns Are Not Down and Moved To The New Site By 10-20-97.

(Id. at 21) (capitalization in original).

On October 11, Snellenbarger was hospitalized. He remained in the hospital until October 15, after which he was confined to bed rest at home until the 25th of October. During that time, he did not visit the worksite.

On October 16, 1997, someone from Historic Landmarks 3 asked another contractor, Amos Schwartz, to check the status of the barn's removal. That day, Schwartz visited the site and found the site was "a mess" (Appellee's App. at 94) and "there was junk everywhere." (Id.) Schwartz testified that two men and one woman were at the site, but only one man was working on disassembling the barn. The other man and the woman indicated they were foremen. The man who was working got off a ladder to ask Schwartz "how do you get pins out[?]"4 (d.) The next day, Schwartz met with Kunz to report his opinion of the work being done.

On October 19, Kunz called Snellenbar-ger and told him he was being removed from the job. To complete the work Snel-lenbarger had not completed, Kunz had to pay the following amounts to other individuals or companies: $53,511.00 to Schwartz for dismantling and reassembling the barn; $21,384.00 to Rock Foundations, Inc. for foundation work; $1,040.00 to T.A. Million for hauling; $2,873.05 to Newton Crane Service, Inc. for crane service; and $1,000.00 to Russell Cavaly, a former Snel-lenbarger foreman, to obtain a lien release. When those amounts were added to the $17,250.00 Kunz paid Snellenbarger, the completed job cost Kunz $96,558.00.

Snellenbarger filed a $45,000.00 lien against both the land where the barns were originally located and Kunz's residential property. Thereafter, Snellenbarger filed suit for breach of contract and to foreclose the liens. Kunz counterclaimed for breach of contract. After a bench trial, the court entered judgment for Kunz on Snellenbarger's breach and foreclosure claims. In addition, the court entered judgment for Kunz on the counterclaim and awarded Kunz $27,513.00, which is the difference between the contract price and the amount Kunz paid others to finish the job.

DISCUSSION AND DECISION

1. Validity of Supplemental Agreement

Snellenbarger claims the supplemental agreement is void as a matter of law because penalty provisions are not allowed under Indiana law and because he was not given consideration in exchange for his signature on the penalty provision. Assuming arguendo the amendment of October 10, 1997 was an unenforceable penalty provision entered without proper consideration, such fact would not require us to reverse the trial court's judgment. The judgment for Kunz was not based on a breach of the deadline established in that amendment. Rather, the trial court determined Snellenbarger breached the contract by failing to perform in a workmanlike manner as required by the original [527]*527contract. Moreover, the damages the trial court awarded to Kunz were not based on the penalty provision. Therefore, the validity of supplemental agreement does not affect the validity of the trial court's judgment, and we need not address it.

2. Sufficiency of Evidence

Pursuant to a request, the trial court entered extensive findings and conclusions. Accordingly, we "shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Ind. Trial Rule 52(A). A judgment is clearly erroneous if it is unsupported by the findings and conclusions, and findings are clearly erroneous if "the record lacks any evidence to support them." Ind.-Am. Water Co., Inc. v. Town of Seelyville, 698 N.E.2d 1255, 1258 (Ind.Ct.App.1998). Accordingly, we determine first whether the evidence supports the findings, and see-ond, whether the findings support the judgment. Id. In reviewing the findings and judgment, we may consider "only the evidence favorable to the judgment and all reasonable inferences flowing therefrom." Id. We may affirm the trial court's decision on any legal theory supported by the findings. Id.

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