Diane Seiwert and 19942 Longview Drive, LLC v. Ty Brown and Brown Roofing Co. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jul 10 2018, 8:44 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Diane Seiwert Joseph W. Votaw, III
Lawrenceburg, Indiana Votaw and Schwarz
Lawrenceburg, Indiana
Susan M. Salyer
Ruggiero & Salyer, LPA
Cincinnati, Ohio
IN THE
COURT OF APPEALS OF INDIANA
Diane Seiwert and 19942 July 10, 2018
Longview Drive, LLC, Court of Appeals Case No.
Appellants/Defendants/Cross-Claim 15A01-1707-PL-1616
Appeal from the Dearborn
Plaintiffs, Superior Court
The Honorable Jonathan N.
v.
Cleary, Judge
Trial Court Cause No.
Ty Brown and Brown Roofing
15D01-1611-PL-74
Co.,
Appellees/Plaintiffs/Cross-Claim
Defendants.
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Bradford, Judge.
Case Summary
[1] Diane Seiwert and 19942 Longview Drive, LLC (“Seiwert”) appeal the trial
court’s judgment in favor of Ty Brown and Brown Roofing Company
(“Brown”). We affirm.
Facts and Procedural History
[2] On June 16, 2016, Seiwert contracted with Brown for the installation of copper
gutters and downspouts. The parties’ contract provided that the cost of
installation of the gutters and downspouts would be $7000.00. After Brown
had installed the gutters but before he could install the downspouts, Seiwert
decided that she was not satisfied with the aesthetics of the gutters, ordered
Brown to stop work, and informed him that she would not be paying for the
work done to that point. Brown filed suit in the small claims court seeking
payment in the amount of $5531.83. The requested amount covered both the
cost of the gutters and the labor for the installation. Seiwert filed a
counterclaim alleging breach of contract and negligence. The matter was
transferred to the trial court. Following a multi-day trial, the trial court rejected
Seiwert’s counterclaim and entered judgment in favor of Brown in the amount
of $5531.83.
Discussion and Decision
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I. Whether the Contract was Void
[3] Seiwert contends that the trial court erred as it should have found the contract
at issue to be void because it lacked a start and completion date in violation of
the Home Improvement Contracts Act (“HICA”).1 The HICA provides that a
home improvement contract must contain the “approximate starting and
completion dates of the real property improvements.” Ind. Code § 24-5-11-
10(a)(6). The purpose of the HICA “is to protect consumers by placing specific
minimum requirements on the contents of home improvement contracts.”
Benge v. Miller, 855 N.E.2d 716, 720 (Ind. Ct. App. 2006). We have previously
concluded that “the General Assembly did not intend that every contract made
in violation of HICA to automatically be void.” Imperial Ins. Restoration &
Remodeling, Inc. v. Costello, 965 N.E.2d 723, 729 (Ind. Ct. App. 2012).
Instead, we apply a balancing approach and examine the factors
that courts use to determine whether or not a contract
contravenes declared public policy. The considerations to be
balanced are (1) the nature of the subject matter of the contract,
(2) the strength of the public policy underlying the statute, (3) the
likelihood that refusal to enforce the bargain or term wi[ll] further
that policy, (4) how serious or deserved would be the forfeiture
suffered by the party attempting to enforce the bargain, and (5)
the parties’ relative bargaining power and freedom to contract.
1
We note that Seiwert’s entire argument relating to this contention appears to be a block-quote from an
uncited prior opinion of either this court or the Indiana Supreme Court. Despite Seiwert’s failure to make
any argument relating to the facts and circumstances surrounding this case, we have nonetheless addressed
the merits of her contention.
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Id. (internal citations omitted).
[4] The contract at issue involved two parties of seemingly equal bargaining power
and freedom to contract. The parties contracted for the installation of copper
gutters and downspouts. Brown began work and completed installation of the
gutters before being instructed by Seiwert to stop. Brown did not remove the
gutters from Seiwert’s home after being instructed to stop work and the gutters
remain in Seiwert’s possession. To void the contract after partial completion of
the contracted work would result in a windfall for Seiwert as it would leave
Brown deprived of both compensation for the work completed and the cost of
the materials themselves. Further, the record reveals that the underlying claims
do not allege any issue related to the start or completion date of the project. For
these reasons, we cannot conclude that the parties’ agreement should be
unenforceable against Seiwert.
II. Breach of Contract
[5] Seiwert also contends that the trial court erred in finding in favor of Brown on
the parties’ competing breach of contract claims. Seiwert appeals from a
general judgment.
A general judgment will be affirmed if it can be sustained upon
any legal theory consistent with the evidence. In making that
determination we neither reweigh the evidence nor judge the
credibility of witnesses. Rather, we consider only the evidence
most favorable to the judgment together with all reasonable
inferences to be drawn therefrom. In reviewing a general
judgment, we must presume the trial court correctly followed the
law. A general judgment will be affirmed unless the
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uncontradicted evidence leads to a conclusion opposite that
reached by the trial court.
Conseco Fin. Servicing Corp. v. Friendly Vill. of Indian Oaks, 774 N.E.2d 87, 92
(Ind. Ct. App. 2002) (internal citations omitted).
[6] Seiwert does not dispute that she instructed Brown to stop work or that she did
not pay Brown for the work completed. Nevertheless, Seiwert argues that the
trial court should have found that it was Brown who first breached the parties’
contract. In making this argument, Seiwert does not assert that the gutters were
not properly affixed to the home or that the gutters did not function properly.
She merely claims that Brown damaged the aesthetics of the gutters during the
installation process. Specifically, Seiwert asserts that she expected Brown to
“ensure [that] the money [she] spent resulted in adding aesthetic value to her
home.” Appellants’ Br. p. 22. The trial court considered the evidence
presented by the parties and determined that the alleged damage to the
aesthetics of the gutters did not amount to a breach of the parties’ contract.
Seiwert has failed to convince us of such on appeal. As such, given that Seiwert
does not dispute that she both instructed Brown to stop work before the
downspouts were installed and failed to pay for the installation of the gutters,
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we conclude that the trial court did not err in finding that Seiwert breached the
parties’ contract.2
[7] The judgment of the trial court is affirmed.
Baker, J., and Kirsch, J., concur.
2
Seiwert also raises the issue that the trial court erred in failing to specifically address her counterclaim in its
ruling. We see no merit in this argument in that the trial court’s ruling implicitly rejects her counterclaim.
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