V.P. Construction Co., Inc., Steven Rilenge, and Julie Rilenge v. Interior Renovation & Design, Inc., and Patricia A. Geisler (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 28, 2018
• Docket: 49A02-1712-CC-2851
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Sep 28 2018, 8:50 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Robert Oakley Clinton E. Blanck Daniel K. Dilley Rifkin, Blanck & Rubenstein, P.C. Dilley & Oakley P.C. Carmel, Indiana Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

V.P. Construction Co., Inc., September 28, 2018 Steven Rilenge, and Julie Court of Appeals Case No. Rilenge, 49A02-1712-CC-2851 Appellants, Appeal from the Marion Superior Court (Defendants/Counterclaim-Plaintiffs The Honorable Thomas J. Carroll, Judge and Third-Party Plaintiff below), Trial Court Cause No. v. 49D06-1212-CC-48269

Interior Renovation & Design, Inc., and Patricia A. Geisler, Appellees,

(Plaintiffs/Counterclaim-Defendants

and Third-Party Defendant below)

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 1 of 16 May, Judge.

[1] Appellants-Defendants, V.P. Construction Co., Inc. (“V.P.”), and Steven

Rilenge (“Steven”); and Appellant-Third-Party Plaintiff, Julie Rilenge (“Julie”)

(collectively, “Appellants”) appeal the trial court’s order granting damages in

favor of Interior Renovation & Design, Inc., (“Interior”) and Third Party-

Defendant, Patricia Geisler (“Geisler”) (collectively, “Appellees”). Appellants

present multiple issues for our consideration, which we consolidate and restate

as:

1. Whether the trial court erred in its findings regarding the amounts of the mechanic’s liens;

2. Whether the trial court erred in its findings regarding the breach of contract claims;

3. Whether the trial court erred in its findings regarding Interior’s alleged tax liability; and

4. Whether the trial court erred in the amount of damages awarded to Appellees.

We affirm.

Facts and Procedural History [2] In 1983, Steven formed V.P., a corporation which performs general contracting

services. Steven is the chief operating officer and sole shareholder of V.P. In

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 2 of 16 1986, V.P. hired Geisler as an office administrator to manage all V.P.’s day-to-

day operations.

[3] In 1989, when V.P. entered a contract that required unionized workers, Steven

arranged for Geisler and Julie, Steven’s wife, to form Interior. Geisler held

sixty percent, while Julie held forty percent of Interior shares and acted as

secretary. Following Interior’s incorporation, V.P. orally agreed that it would

exclusively subcontract Interior for its commercial and residential construction

projects. Geisler managed all of Interior’s operations, and Interior’s primary

employee was Geisler’s husband, a union carpenter. Geisler performed her

duties for V.P. and for Interior out of V.P.’s corporate office.

[4] V.P. and Interior did business together without issue until 2009. Between 2009

and 2011, Interior alleged, V.P. underpaid or failed to pay Interior for the

services Interior rendered on several projects and as a result of the

underpayment and non-payment, Interior accrued $96,179.53 debt to the

Internal Revenue Service (“IRS”); $5,984.78 in debt to the Indiana Department

of Revenue (“IDR”); and $64,284.20 in debt for union dues. Sometime in

2012, the IRS and the IDR sought to recover the back taxes from Interior’s

majority shareholder, Geisler. Geisler subsequently entered into a payment

plan, whereby she agreed to personally pay the federal and state taxes owed.

Geisler later sought Julie’s 40% contribution on the back taxes, but Julie refused

to pay.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 3 of 16 [5] Sometime in April 2012, Steven took over the financial management of V.P. In

May 2012, V.P. subcontracted Interior to remodel the lobby area for a Key

Bank. Geisler was aware that Key Bank paid V.P. for the work, but V.P. did

not pay Interior for the remodeling. Again, in May 2012, V.P. subcontracted

Interior to conduct remodeling for a Fifth Third Bank. Geisler was aware that

Fifth Third Bank paid V.P. for the remodeling, but Interior did not get paid for

its labor. In June 2012, on behalf of V.P., Interior remodeled Gallahue Hall at

Butler University. In the same month, Interior remodeled portions of the

Sigma Nu fraternity house at Butler University, and it installed an awning at

the house occupied by the Butler University President. In July 2012, V.P.

subcontracted Interior to conduct work at a private residence. In the same

month, Interior remodeled parts of Jordan Hall at Butler University. The last

project that Interior undertook for V.P. was in August 2012, when Interior

installed an exhaust fan at a private residence.

[6] On August 31, 2012, Geisler resigned from V.P. By that time, V.P. had failed

to pay Interior for at least eight projects. On October 25, 2012, Geisler, as

president of Interior, filed several mechanic liens with the Marion County

Recorder for unpaid services performed for V.P. For the Key Bank project,

Interior claimed that it was owed $3,750.00. For the Fifth Third project,

Geisler specified that the amount owed was $6,600.00. The outstanding

amounts for the Butler University projects were $5,500.00 for Gallahue Hall;

$3,500.00 for the Sigma Nu fraternity house; $4,400.00 for the President’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 4 of 16 house; and $6,000.00 for Jordan Hall. Lastly, Geisler asserted Interior was

owed $350.00 for work conducted at a private residence.

[7] On November 5, 2012, eleven days after Geisler filed the mechanic liens, Julie,

without Geisler’s authority, executed a “Final Waiver of Lien” for each of the

mechanic’s liens, indicating Interior waived all the liens Geisler had filed on

October 25, 2012. Julie did not tender any funds to Interior or deposit funds

into Interior’s bank account, despite the fact she indicated Interior had received

final payment for the projects listed on the mechanic’s liens.

[8] On December 17, 2012, Interior filed a breach of contract action against V.P.

and Steven, alleging failure of payment on eight construction projects in 2012.

Interior also claimed that V.P. was the alter ego of Steven and piercing of the

corporate veil of V.P. was appropriate in order to hold Steven personally liable

for V.P.’s breach of contract.

[9] On January 17, 2014, Interior filed an Amended Complaint reasserting its

claims against V.P. and Steven from its original Complaint. The Amended

Complaint included a new breach of contract claim against V.P. and Steven,

alleging that from “2009 to 2011” V.P. and Steven breached “the oral contract

by failing and refusing to pay Interior, for each project on which Interior

performed work, an amount sufficient to cover Interior’s federal and state

payroll taxes and union dues.” (Appellants’ App. Vol. II at 11.) Interior also

added Julie as a defendant and alleged Julie had breached her fiduciary duty to

Interior by executing waivers for several liens without authorization. Interior

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 5 of 16 alleged Julie committed fraud, conspiracy, and tortuiously interfered with

Interior’s business by falsely affirming to the Marion County Recorder that the

mechanic liens had been satisfied by V.P. On April 24, 2014, V.P. filed its

answer with respect to Interior’s amended complaint. The record shows that on

June 16, 2014, V.P. and Julie filed a counterclaim against Interior. 1

[10] On October 24, 2017, Steven, Geisler, and Julie appeared for a bench trial, with

Geisler and Steven testifying. On November 7, 2017, the trial court issued a

judgment in favor of Interior. The order also denied all counterclaims by V.P.

and Julie. 2

Discussion and Decision Standard of Review

[11] Where, as here, the trial court enters findings sua sponte after a bench trial, the

findings control our review and judgment only as to those issues specifically

referenced in the findings. Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind. Ct.

App. 2014). When the trial court does not make specific findings on an issue,

1 That counterclaim was not enclosed for our review. Additionally, we note Appellants have filed a copy of the “MyCase” summary, representing such as the Chronological Case Summary required as part of the Appendix, despite the fact the summary clearly states at the top of the page, “This is not the official court record. Official records of court proceedings may only be obtained directly from the court maintaining a particular record.” (Appellants’ App. at 2.) While this is not a violation of the Indiana Rules of Appellate Procedure, we note the Chronological Case Summary is the official record of the court. See Anderson v. Horizon Homes, 644 N.E.2d 1281, 1287 (Ind. Ct. App. 1995) (Chronological Case Summary is official record of the court), trans. denied. 2 On August 14, 2018, Appellants filed a Motion to Stay with this court. Our opinion makes the motion moot, and we have issued an order denying the motion contemporaneously with the opinion.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 6 of 16 we apply a general judgment standard, and we may affirm on any legal theory

supported by the evidence adduced at trial. Id. at 950.

A two-tier standard of review is applied to the sua sponte findings and conclusions made: whether the evidence supports the findings, and whether the findings support the judgment. Findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. In conducting our review, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom. We will neither reweigh the evidence nor assess witness credibility.

Id.

Amount Awarded for Mechanic’s Liens

[12] Regarding the payment of mechanic’s liens filed by Interior, the trial court

ordered, “Interior is awarded $40,062.54 in compensatory damages from [V.P.]

for unpaid fees earned on eight construction projects in 2012, plus court costs

and prejudgment interest at the rate of eight percent (8%) per annum from

October 25, 2012.” (Appellants’ App. Vol. II at 25.) On appeal, Appellants

argue the mechanic’s liens were invalid “thereby rendering all claims against

[Julie] premised thereon baseless.” (Br. of Appellants at 19) (formatting

omitted). Appellants also challenge the amounts awarded to Appellees as

payment for the mechanic’s liens.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 7 of 16 [13] First, Appellants did not argue before the trial court that the mechanic’s liens

were invalid. The mechanic’s liens were offered into evidence without

objection, (see Tr. Vol. II at 31), and Appellants cross-examined Geisler

regarding the amounts, but Appellants have not directed us to a portion of the

transcript wherein they argued the mechanic’s liens were invalid. Therefore,

their arguments regarding the validity of the mechanic’s liens are waived. See

Breneman v. Slusher, 768 N.E.2d 451, 463 (Ind. Ct. App. 2002) (issues raised for

the first time on appeal are waived), reh’g denied, trans. denied.

[14] Appellants’ arguments regarding the amounts of the mechanic’s liens are

invitations for us to reweigh evidence and judge witness credibility. Appellees

presented evidence and testimony regarding the amounts of those liens, and the

trial court was free to credit testimony and evidence at its discretion. See

Samples, 12 N.E.2d at 950 (appellate court will not reweigh evidence or judge

the credibility of witnesses). Further, the proceedings were a bench trial, and

we presume trial courts know and follow the law. Boone Cty. Rural Elec.

Membership Corp. v. Layton, 664 N.E.2d 735, 739 (Ind. Ct. App. 1996), trans.

denied.

Breach of Contract and Tax Liability

[15] Regarding the breach of contract and tax liability claims, the trial court ordered:

Interior is awarded $166,446.43 in compensatory damages from [V.P.] for unpaid state and federal tax withholdings and union dues, plus court costs and prejudgment interest at the rate of eight percent (8%) per annum from November 28, 2012. [V.P.’s] obligation to pay this award shall be offset by [Julie’s] . . . Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 8 of 16 obligation to cover and pay Interior 40% of the back taxes, i.e., $40,865.72, plus court costs and prejudgment interest at the rate of eight percent (8%) per annum from November 2, 2012.

(Appellants’ App. Vol. II at 25.) Appellants argue the trial court made a “sua

sponte ruling on these issues during the bench trial that effectively dismissed

Appellee’s [sic] claims for unpaid taxes and union dues.” (Br. of Appellants at

18.) However, Appellants do not indicate the location in the record in which it

alleges the trial court made this statement; thus the issue is waived for failure to

make a cogent argument by neglecting to cite to “parts of the Record of Appeal

relied on.” Ind. Appellate Rule 46(A)(8)(a). See Nealy v. American Family Mut.

Ins. Co., 910 N.E.2d 842, 845 n.2 (Ind. Ct. App. 2009) (on appeal “we will not

search the record to find a basis for a party’s argument”), trans. denied; and see

Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (failure to present

cogent argument results in waiver of issue on appeal).

Amount of Damages 3

[16] The trial court awarded Interior the following damages for various claims:

a. Interior is awarded $166,446.43 in compensatory damages from [V.P.] for unpaid state and federal tax withholdings and

3 Appellants also argue the trial court sua sponte made a statement during trial that precluded it from piercing the corporate veil and holding Steven personally liable for damages due to Interior. However, Appellants have not cited case law to support this contention, and thus it is waived for failure to make a cogent argument. See Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (“We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal.”); see also App. R. 46(A)(8)(a) (Argument section of appellant’s brief must “contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”).

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 9 of 16 union dues, plus court costs and prejudgment interest at the rate of eight percent (8%) per annum from November 28, 2012. [V.P.’s] obligation to pay this award shall be offset by [Julie’s]. . . obligation to cover and pay Interior 40% of the back taxes, i.e., $40,865.72, plus court costs and prejudgment interest at the rate of eight percent (8%) per annum from November 2, 2012.

b. Interior is awarded $40,062.54 in compensatory damages from [V.P.] for unpaid fees earned on eight construction projects in 2012, plus court costs and prejudgment interest at the rate of eight percent (8%) per annum from October 25, 2012.

c. Interior is awarded $30,800.00 in compensatory and punitive damages from Julie [] for her willful breach of fiduciary duty and tortious interference with Interior’s prospective advantage, plus court costs and prejudgment interest at the rate of eight percent (8%) per annum from November 5, 2012.

d. Interior is awarded $92,400.00 in statutory treble damages, $25,225.25 in reasonable attorney’s fees and $395.77 in costs from Julie . . . under Ind. Code § 34-24-3-1 for her intentional conversion of Interior’s mechanic’s liens.

(Appellants’ App. Vol. II at 25.) Appellants argue Appellees did not present

evidence to support the trial court’s computation of damages and that the

damage amounts were a windfall for Appellees.

[17] Appellants’ arguments are invitations for us to reweigh the evidence and judge

the credibility of witnesses, which we cannot do. See Samples, 12 N.E.2d at 950

(appellate court will not reweigh evidence or judge the credibility of witnesses).

Geisler testified she owed, as owner of Interior, $96,179.53 in back taxes to the

Internal Revenue Service; $5,984.78 to the Indiana Department of Revenue; Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 10 of 16 and $64,282.20 in unpaid union dues. (See Tr. Vol. II at 15-16.) Those

amounts total $166,446.43, which is the amount the trial court awarded.

Giesler testified to the amounts she believed Interior was owed for the eight

projects, an amount which totaled $40,062.54, which also matches the amount

the trial court awarded. Additionally, the trial court admitted copies of the

mechanic’s liens that were fraudulently waived by Julie, which totaled

$30,800.00 - the amount awarded for Julie’s torts. Finally, it was within the

trial court’s discretion to award prejudgment interest on all of the amounts. 4

See Hayes v. Chapman, 894 N.E.2d 1047, 1054 (Ind. Ct. App. 2008)

(prejudgment interest may be awarded where the amount of damages can be

ascertained by simple mathematical computation), trans. denied.

Conclusion [18] The trial court did not err when it ordered Appellants to pay various damages

to Appellees. Those arguments not waived by Appellants are impermissible

requests for our court to reweigh evidence and judge the credibility of witnesses.

Accordingly, we affirm.

[19] Affirmed.

4 Appellants challenge the trial court’s award of attorney’s fees in their reply brief. As an argument cannot be advanced for the first time in a reply brief, the issue is waived. See Crossmann Communities, Inc. v. Dean, 767 N.E.2d 1035, 1044 (Ind. Ct. App. 2002) (issues raised for the first time in a reply brief are waived); and see Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”).

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 11 of 16 Mathias, J., concurs

Riley, J., dissent with separate opinion.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 12 of 16 IN THE COURT OF APPEALS OF INDIANA

V.P. Construction Co, Inc., Court of Appeals Case No. Steven Rilenge, and Julie 49A02-1712-CC-2851 Rilenge, Appellants,

(Defendant/Counterclaim-Plaintiffs

and Third-Party Plaintiff below),

v.

Interior Renovation & Design, Inc. and Patricia A. Geisler, Appellees,

(Plaintiff/Counterclaim-Defendant and

Third-Party Defendant below)

Riley, Judge, dissenting.

[20] I respectfully dissent from the majority’s determination to consider the

Appellants’ claims on the merits. The crux of the Appellee’s action at trial was

for the recovery of damages for breach of contract with respect to unpaid and

underpaid projects. The bulk of the Appellants’ brief focuses on whether the

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 13 of 16 liens were valid instead of discussing why the trial court’s award of damages

was erroneous. Consequently, I find the Appellants’ argument on the validity

of the liens is not of material assistance in determining whether the trial court’s

judgment on damages was erroneous. Pursuant to Indiana Appellate Rule

46(A)(8)(a), the argument section of an appellant’s brief should “contain the

contentions of the appellant on the issues presented, supported by cogent

reasoning. Each contention must be supported by citations to the authorities,

statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”

[21] This court has previously stated:

We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator. A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. On review, we will not search the record to find a basis for a party’s argument . . . nor will we search the authorities cited by a party in order to find legal support for its position.

Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (internal citations

omitted). Although its prefered to dispose of cases on their merits, where an

appellant fails to substantially comply with the appellate rules, then dismissal of

the appeal is warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App.

2004). This court has discretion to dismiss an appeal for the appellant’s failure

to comply with the Rules of Appellate Procedure. See Miller v. Hague Ins.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 14 of 16 Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (“Although we will

exercise our discretion to reach the merits when violations are comparatively

minor, if the parties commit flagrant violations of the Rules of Appellate

Procedure we will hold issues waived, or dismiss the appeal.”), reh’g denied.

[22] Here, I find that the Appellants have failed to advance their arguments with

cogent reasoning on the issue of whether the trial court’s judgement with

respect to damages was erroneous, and I find that addressing Appellants claims

on the merits would require this court to make and advance arguments for

them. See Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016).

Accordingly, I would dismiss this appeal for the foregoing reasons.

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