FILED MEMORANDUM DECISION Mar 17 2016, 9:05 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT APPELLEE PRO SE Jonathan A. Leachman Marie D. Jackson Fifer Law Office Crestwood, Kentucky New Albany, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven D. Brazell, March 17, 2016 Appellant-Defendant, Court of Appeals Case No. 22A01-1505-SC-310 v. Appeal from the Floyd Superior Court Marie Dezi Jackson, The Honorable James B. Hancock, Appellee-Plaintiff Judge The Honorable Julie Fessel Flanigan, Magistrate Trial Court Cause No. 22D02-1411-SC-1137
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 1 of 7 Case Summary [1] Steven Brazell contracted with Marie Jackson to refinish and expand Jackson’s
aging asphalt driveway. Shortly after Brazell completed his work, the driveway
began to deteriorate, and Jackson sued Brazell in small-claims court. The
court, after hearing testimony from both Jackson and Brazell, ruled in favor of
Jackson and ordered Brazell to pay damages in the amount of the contract
price. Brazell now appeals, arguing that the evidence presented to the small-
claims court is insufficient to support the judgment. We disagree and affirm the
judgment.
Facts and Procedural History [2] In August 2010, Brazell and Jackson entered into a written agreement by which
Jackson agreed to pay Brazell $2,975.00 to repair Jackson’s cracked asphalt
driveway, construct an addition for turnaround space or extra parking, and
perform decorative “stamping.” Specifically, the parties’ written agreement
required Brazell to do the following:
1. To clean existing drive to be stamped with a pattern design.
2. Grout out any vegetation.
3. Excavate 1 area about 12’ x 15’ area [and] pave excavated areas.
4. Heat up existing asphalt, taking out any cracks.
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 2 of 7 5. Bring asphalt back to normal state, and stamp with layout design.
6. Spray the colors that are pic [sic] out by customer.
7. Add on for turnaround or extra parking about 12’ x 18’ area and bring up level at entrance.
Appellant’s App. p. 6. Jackson asked for the main surface to be painted
sandstone and for the borders to be painted burnt sienna.
[3] Even though the contract was signed in August 2010, Brazell did not complete
his work until July 2012. When he finished, Jackson noticed that the colors
were not the ones that she had picked, but she did not complain to Brazell or
take any action against him because, she later testified, “[I]t’s been two (2) years
and it’s completed. I’m finished. I don’t have to do this anymore.” Tr. p. 19.
However, within a couple of months, the driveway started “deteriorating” and
“crumbling.” Id. Jackson contacted an independent paving contractor, who
told her that she had “a substandard base on her driveway.” Id. at 21; see also id.
at 28-31. Jackson then filed a small-claims action against Brazell.
[4] At trial, both parties testified and submitted documents and photographs to the
court. The court took the matter under advisement and later issued a judgment
in favor of Jackson and against Brazell in the amount of $2,975.00 (the contract
price) plus court costs.
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 3 of 7 Discussion and Decision [5] Brazell challenges the judgment of the small-claims court on two grounds.
First, he argues that the evidence presented to the court does not support its
finding that he breached the contract or any duty he owed to Jackson. Second,
he contends that even if we uphold the finding of a breach, the small-claims
court’s damages award is not supported by the evidence and must be reversed.
[6] Small-claims judgments are “subject to review as prescribed by relevant Indiana
rules and statutes.” Ind. Small Claims Rule 11(A). “In the appellate review of
claims tried by the bench without a jury, the reviewing court shall not set aside
the judgment ‘unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.’” City of
Dunkirk Water & Sewage Dept. v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting
Ind. Trial Rule 52(A)). In determining whether a judgment is clearly
erroneous, the appellate court does not reweigh the evidence or determine the
credibility of witnesses but considers only the evidence that supports the
judgment and the reasonable inferences to be drawn from that evidence. Id. A
judgment in favor of the party that had the burden of proof will be affirmed if
the evidence was such that from it a reasonable trier of fact could conclude that
the elements of the party’s claim were established by a preponderance of
evidence. Id. “This deferential standard of review is particularly important in
small-claims actions, where trials are ‘informal, with the sole objective of
dispensing speedy justice between the parties according to the rules of
substantive law.’” Id. (quoting Ind. Small Claims Rule 8(A)).
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 4 of 7 I. Breach [7] Brazell first asserts that the evidence presented at trial is insufficient to support a
conclusion that he breached the contract or any duty he owed to Jackson.
While the small-claims court did not explain the basis for its decision, either on
the record or in its written judgment, we presume that it correctly applied the
law, and we must affirm if the judgment is sustainable on any legal theory.
Brandeis Machinery & Supply Co. v. Capitol Crane Rental, Inc., 765 N.E.2d 173, 176
(Ind. Ct. App. 2002). We conclude that the small-claims court’s judgment is
sustainable based on the implied warranty of workmanlike performance.
[8] “In a contract for work, there is an implied duty to do the work skillfully,
carefully, and in a workmanlike manner.” Homer v. Burman, 743 N.E.2d 1144,
1147 (Ind. Ct. App. 2001), reh’g denied. “Negligent failure to do so is a tort, as
well as a breach of contract.” Id. Here, Brazell agreed to refurbish and expand
Jackson’s aging asphalt driveway. Jackson acknowledged that Brazell
completed the work that she paid him to do, but she also testified that her
driveway started deteriorating and crumbling within a couple of months
thereafter. This evidence supports a conclusion that Brazell did not complete
the project “skillfully, carefully, and in a workmanlike manner.” See id.
[9] Brazell’s main argument, though, is that any deficiencies in his own work are
irrelevant because Jackson herself acknowledged that the deterioration and
crumbling were the result of a “substandard base.” Brazell says that “[t]he
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FILED MEMORANDUM DECISION Mar 17 2016, 9:05 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT APPELLEE PRO SE Jonathan A. Leachman Marie D. Jackson Fifer Law Office Crestwood, Kentucky New Albany, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven D. Brazell, March 17, 2016 Appellant-Defendant, Court of Appeals Case No. 22A01-1505-SC-310 v. Appeal from the Floyd Superior Court Marie Dezi Jackson, The Honorable James B. Hancock, Appellee-Plaintiff Judge The Honorable Julie Fessel Flanigan, Magistrate Trial Court Cause No. 22D02-1411-SC-1137
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 1 of 7 Case Summary [1] Steven Brazell contracted with Marie Jackson to refinish and expand Jackson’s
aging asphalt driveway. Shortly after Brazell completed his work, the driveway
began to deteriorate, and Jackson sued Brazell in small-claims court. The
court, after hearing testimony from both Jackson and Brazell, ruled in favor of
Jackson and ordered Brazell to pay damages in the amount of the contract
price. Brazell now appeals, arguing that the evidence presented to the small-
claims court is insufficient to support the judgment. We disagree and affirm the
judgment.
Facts and Procedural History [2] In August 2010, Brazell and Jackson entered into a written agreement by which
Jackson agreed to pay Brazell $2,975.00 to repair Jackson’s cracked asphalt
driveway, construct an addition for turnaround space or extra parking, and
perform decorative “stamping.” Specifically, the parties’ written agreement
required Brazell to do the following:
1. To clean existing drive to be stamped with a pattern design.
2. Grout out any vegetation.
3. Excavate 1 area about 12’ x 15’ area [and] pave excavated areas.
4. Heat up existing asphalt, taking out any cracks.
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 2 of 7 5. Bring asphalt back to normal state, and stamp with layout design.
6. Spray the colors that are pic [sic] out by customer.
7. Add on for turnaround or extra parking about 12’ x 18’ area and bring up level at entrance.
Appellant’s App. p. 6. Jackson asked for the main surface to be painted
sandstone and for the borders to be painted burnt sienna.
[3] Even though the contract was signed in August 2010, Brazell did not complete
his work until July 2012. When he finished, Jackson noticed that the colors
were not the ones that she had picked, but she did not complain to Brazell or
take any action against him because, she later testified, “[I]t’s been two (2) years
and it’s completed. I’m finished. I don’t have to do this anymore.” Tr. p. 19.
However, within a couple of months, the driveway started “deteriorating” and
“crumbling.” Id. Jackson contacted an independent paving contractor, who
told her that she had “a substandard base on her driveway.” Id. at 21; see also id.
at 28-31. Jackson then filed a small-claims action against Brazell.
[4] At trial, both parties testified and submitted documents and photographs to the
court. The court took the matter under advisement and later issued a judgment
in favor of Jackson and against Brazell in the amount of $2,975.00 (the contract
price) plus court costs.
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 3 of 7 Discussion and Decision [5] Brazell challenges the judgment of the small-claims court on two grounds.
First, he argues that the evidence presented to the court does not support its
finding that he breached the contract or any duty he owed to Jackson. Second,
he contends that even if we uphold the finding of a breach, the small-claims
court’s damages award is not supported by the evidence and must be reversed.
[6] Small-claims judgments are “subject to review as prescribed by relevant Indiana
rules and statutes.” Ind. Small Claims Rule 11(A). “In the appellate review of
claims tried by the bench without a jury, the reviewing court shall not set aside
the judgment ‘unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.’” City of
Dunkirk Water & Sewage Dept. v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting
Ind. Trial Rule 52(A)). In determining whether a judgment is clearly
erroneous, the appellate court does not reweigh the evidence or determine the
credibility of witnesses but considers only the evidence that supports the
judgment and the reasonable inferences to be drawn from that evidence. Id. A
judgment in favor of the party that had the burden of proof will be affirmed if
the evidence was such that from it a reasonable trier of fact could conclude that
the elements of the party’s claim were established by a preponderance of
evidence. Id. “This deferential standard of review is particularly important in
small-claims actions, where trials are ‘informal, with the sole objective of
dispensing speedy justice between the parties according to the rules of
substantive law.’” Id. (quoting Ind. Small Claims Rule 8(A)).
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 4 of 7 I. Breach [7] Brazell first asserts that the evidence presented at trial is insufficient to support a
conclusion that he breached the contract or any duty he owed to Jackson.
While the small-claims court did not explain the basis for its decision, either on
the record or in its written judgment, we presume that it correctly applied the
law, and we must affirm if the judgment is sustainable on any legal theory.
Brandeis Machinery & Supply Co. v. Capitol Crane Rental, Inc., 765 N.E.2d 173, 176
(Ind. Ct. App. 2002). We conclude that the small-claims court’s judgment is
sustainable based on the implied warranty of workmanlike performance.
[8] “In a contract for work, there is an implied duty to do the work skillfully,
carefully, and in a workmanlike manner.” Homer v. Burman, 743 N.E.2d 1144,
1147 (Ind. Ct. App. 2001), reh’g denied. “Negligent failure to do so is a tort, as
well as a breach of contract.” Id. Here, Brazell agreed to refurbish and expand
Jackson’s aging asphalt driveway. Jackson acknowledged that Brazell
completed the work that she paid him to do, but she also testified that her
driveway started deteriorating and crumbling within a couple of months
thereafter. This evidence supports a conclusion that Brazell did not complete
the project “skillfully, carefully, and in a workmanlike manner.” See id.
[9] Brazell’s main argument, though, is that any deficiencies in his own work are
irrelevant because Jackson herself acknowledged that the deterioration and
crumbling were the result of a “substandard base.” Brazell says that “[t]he
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 5 of 7 undisputed evidence at trial was that [he] did not build, disturb or perform any
work on the base of Jackson’s driveway.” Appellant’s Br. p. 14.
[10] The first problem with Brazell’s assertion is that he did, in fact, create the base
for the addition to the driveway. Jackson testified at trial that both her original
driveway and the section that Brazell added started deteriorating after Brazell
finished the project. Tr. p. 27, 29, 40-41.
[11] As for the original driveway, even if the base was substandard before Brazell
began his work, that fact would not preclude his liability. He agreed, in writing,
to “[h]eat up [the] existing asphalt, taking out any cracks” and to “[b]ring [the]
asphalt back to [its] normal state.” Appellant’s App. p. 6. The agreement does
not contain any sort of disclaimer or exception relating to the condition of the
base, and Brazell did not present any evidence that Jackson ever acknowledged
or assumed any risk that the condition of the surface could be affected by the
condition of the base. In other words, Brazell agreed to return Jackson’s
driveway to its “normal” (uncracked) state irrespective of the condition of the
base. Because it is undisputed that the driveway began to deteriorate and
crumble shortly after Brazell completed his work, the small-claims court was
justified in ruling against him and in favor of Jackson.
II. Damages [12] Brazell also asserts that even if the evidence supports a conclusion that he
performed subpar work, the small-claims court’s award of damages is not
supported by the evidence and should be reversed. “Our review of a damages
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 6 of 7 award is limited.” Sheek v. Mark A. Morin Logging, Inc., 993 N.E.2d 280, 287
(Ind. Ct. App. 2013), trans. denied. “We do not reweigh the evidence or judge
the credibility of witnesses, and we will reverse an award only when it is not
within the scope of the evidence before the finder of fact.” Id.
[13] Brazell correctly notes that “[a] damage award must be referenced to some
fairly defined standard[.]” Appellee’s Br. p. 14 (quoting Fowler v. Campbell, 612
N.E.2d 596, 603 (Ind. Ct. App. 1993)). However, he cites no authority for the
proposition that the full contract price cannot be the “fairly defined standard” in
a case like this. Jackson paid Brazell $2,975.00 to improve her aging and
cracked driveway, and she testified that the driveway returned to a crumbling
state shortly after Brazell completed his work. That is, Jackson testified that
Brazell did not do what he was paid to do. The small-claims court must have
credited Jackson’s testimony, and its damages award plainly falls within the
scope of the evidence.
[14] Affirmed.
Bailey, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016 Page 7 of 7