Bogunia Electric, Inc., d/b/a Mr. Electric and Steven Bogunia v. James Yakym

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 APPELLANTS:
Jan 22 2015, 10:06 am
RICHARD J. LASALVIA
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BOGUNIA ELECTRIC, INC. )
d/b/a MR. ELECTRIC and )
STEVEN BOGUNIA, )
)
Appellants-Defendants/Counterplaintiffs, )
)
vs. ) No. 71A04-1405-CC-238
)
JAMES YAKYM, )
)
Appellee-Plaintiff/Counterdefendant. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jenny Pitts Manier, Judge
Cause No. 71D05-1302-CC-134
January 22, 2015
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Bogunia Electric, Inc. d/b/a Mr. Electric appeals the trial court’s judgment in favor of
James Yakym on his complaint against it for breach of contract.1 The trial court found that
Bogunia Electric failed to provide a total house rewire as required under its contract with
Yakym and that its work did not comply with the Mishawaka Electrical Code (“the Code”)
and was unworkmanlike. The trial court found that Yakym was entitled to recover the costs
necessary to bring his home’s electrical system into compliance with the Code and up to a
workmanlike manner. On appeal, Bogunia Electric argues that there is no evidence in the
record to support the trial court’s findings that Bogunia Electric’s work did not comply the
Code and was unworkmanlike and that Yakym’s expert witness provided the best evidence
for the electrical work that needs to be done to bring the house into compliance with the
Code and to a workmanlike standard. It also asserts that Yakym did not suffer any damages.
We conclude that the trial court’s findings are supported by evidence in the record.
We are also unpersuaded by Bogunia Electric’s argument that Yakym did not suffer
damages. Accordingly, we affirm.
1
Pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on
appeal. In the notice of appeal, both Bogunia Electric and Steven Bogunia were named as appealing parties
and attorney Richard LaSalvia failed to specify for whom he was filing an appearance. However, the trial court
found that Steven Bogunia was not personally liable to Yakym, and the appellant’s brief appears to be written
on behalf of Bogunia Electric only.
2
Facts and Procedural History
Yakym owns a home in Mishawaka. Steven Bogunia is a certified electrical
contractor who does business in Indiana and Michigan. Bogunia conducts his business
through Bogunia Electric, which uses the assumed name “Mr. Electric.” In August 2012,
Yakym contacted Bogunia Electric to obtain an estimate for electrical work to his home. A
representative from Bogunia Electric visited Yakym’s home, and Yakym showed him the
work he wanted done. Bogunia Electric subsequently sent Yakym a two-page proposal (“the
Proposal”). Page one of the Proposal set forth a summary of the work to be performed and
an estimated price for that work. The work to be performed was described as follows:
“Replace 100 A main breaker panel with new 100 main breaker panel[,] [g]round and bond
electrical service per code[, and] trace down bathroom circuits and rewire to eliminate knob
and tube.” Plaintiff’s Ex. 2. The estimated total cost for the work was $10,811.84. Page two
provided a room-by-room description of the electrical work to be completed.
Yakym decided that he wanted to upgrade his electrical service from 100 to 200 amps.
Bogunia sent Yakym an email stating that Bogunia Electric “agreed to upgrade to 200 [amp]
service for the 100 [amp] [Proposal] price,” and that “[a]ll the numbers are exactly as listed
in the original [Proposal].” Plaintiff’s Ex. 5. Yakym signed a one-page document (“the
Authorization”) that authorized Bogunia Electric to bill Yakym’s credit card. The
Authorization constitutes the contract between the parties. Plaintiff’s Ex. 4; Defendants’ Ex.
B. The Authorization does not expressly incorporate the Proposal by reference. The
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Authorization describes the recommended repairs as “1- Replace 100A main breaker panel
with new 200A main breaker panel[,] 2 - Ground and bond service to code[, and] 3 - Trace
down bathroom circuits and rewire to eliminate knob and tube.” Id. Below that, the
Authorization lists specific tasks and provides the cost for each task as follows:
200 AMP Main Breaker 1,008.40
GROUND ELECTRICAL SERVICE 430.09
Rewire house and eliminate knob and tube. New devices. 11,175.49
1 YEAR PLAN 89.95
ADV PLAN DISCOUNT -1,892.09
Id. The total cost was $10,811.84. Id.
In October 2012, Bogunia Electric began electrical work on Yakym’s house. During
November and December 2012, Mishawaka electrical inspector Les Villanueva visually
inspected Yakym’s house three times to determine whether the electrical work performed by
Bogunia Electric complied with the Code. After the first two inspections, Villanueva
determined that work still needed to be done to bring the electrical system in compliance with
the Code. On his third visual inspection, Villanueva determined that the home’s electrical
system was in compliance with the Code and issued a letter stating, “The house has been
upgraded to a 200 amp service and its wiring, according to all visible evidence, is in good
working order. The system does meet the present requirements of the [Code].” Defendants’
Ex. J. By this time, Yakym had paid $6811.84 to Bogunia Electric under the contract.
In February 2013, Yakym filed a complaint against Bogunia Electric and Steven
Bogunia, alleging that (1) they failed to perform the work as promised in the Authorization;
(2) they failed to perform the work in a good and workmanlike manner and the work did not
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meet the Code’s requirements; (3) the Authorization did not comply with the requirements of
the Home Improvement Contracts Act (“the Act”) and constituted a deceptive act; (4) as a
result of their failure to perform the work and their deceptive acts, he had been damaged in
excess of $20,000; and (5) he was entitled to treble damages under the Act because
defendants’ deceptive acts were part of a scheme, artifice, or device with intent to defraud or
mislead. Appellant’s App. at 13-14. Yakym also asked for attorney fees and costs. Bogunia
Electric filed a counterclaim against Yakym alleging that he failed to pay the full contract
amount and owed $4000 under the contract.
A bench trial was held. Yakym introduced the testimony of expert witness Thomas E.
McCormick, a licensed electrician and owner of McCormick Electrical Services. McCormick
had inspected Yakym’s home and determined that twenty-nine areas in Yakym’s electrical
system did not comply with the Code. McCormick prepared a report (“McCormick’s
Report”) identifying the electrical work that was needed to bring Yakym’s electrical system
in compliance with the Code and up to a workmanlike standard. Plaintiff’s Ex. 1. The cost
for this work was $19,013.15. McCormick’s Report included the following statement: “The
Electrical Inspector of the City of Mishawaka would be the ‘Authority having Jurisdiction’
and the final interpretation in regard to these and possibly other concerns with [the] residence
in the City of Mishawaka.” Id. On cross-examination, McCormick testified that “the
ultimate authority” as to whether Yakym’s electrical system complied with the Code was the
“City of Mishawaka inspection.” Tr. at 24. McCormick was also asked, “[I]f the City of
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Mishawaka approved Mr. Bogunia’s work that … take[s] precedence over your opinion;
correct?” Id. McCormick answered, “That would take precedence at that point, yes.” Id.
On behalf of Bogunia Electric, Villanueva testified regarding his three inspections of
Yakym’s home and his final decision that the electrical system complied with the Code.
Villanueva considered each item in McCormick’s Report and testified that three of them
were not required by the Code.2 Id. at 115-19. He also testified that his visual inspection
would not have revealed ten of the items and admitted that he could have missed some items.
Id.
The trial court issued a judgment, concluding that (1) Yakym reasonably understood
the parties’ contract to provide a “whole house rewire”; (2) Bogunia Electric did not provide
a “whole house rewire,” as the parties’ contract provides; (3) the Authorization is not in
compliance with the Home Improvement Contracts Act and is a deceptive act; (4) the
electrical work performed by Bogunia Electric did not comply with the Code and was done in
an unworkmanlike manner; (5) Yakym is entitled to recover the cost of what is necessary to
bring the work into compliance with the Code and up to a workmanlike standard; (6) Yakym
failed to prove that Bogunia’s or Bogunia Electric’s actions were part of a scheme, artifice,
or device with intent to defraud or mislead such as to merit the award of treble damages; (7)
Yakym is entitled to recover attorney fees and court costs; (8) Yakym failed to prove that he
is entitled to recover against Bogunia personally; and (9) Bogunia Electric failed to prove
2
Bogunia Electric asserts that Villanueva testified that most of the work recommended by McCormick
was not required by the City of Mishawaka, citing the transcript at pages 119-20. Appellant’s Br. at 9. This is
a wholly inaccurate summary of Villanueva’s testimony. See Tr. at 115-19.
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that it is entitled to recover on its counterclaim. Appellant’s App. at 10-12. The trial court
entered judgment in favor of Yakym in the amount of $19,013.15 based on McCormick’s
Report, plus attorney fees of $4725.80, for a total judgment of $23,288.97 plus court costs.
Bogunia Electric appeals.
Discussion and Decision
Standard of Review
Our standard of review is affected by Yakym’s failure to submit an appellee’s brief.
In such a situation, we do not undertake the burden of developing arguments
for the appellee. Applying a less stringent standard of review with respect to
showings of reversible error, we may reverse the lower court if the appellant
can establish prima facie error. Prima facie is defined in this context as at first
sight, on first appearance, or on the face of it. The purpose of this rule is not to
benefit the appellant. Rather, it is intended to relieve this court of the burden
of controverting the arguments advanced for reversal where that burden rests
with the appellee. Where an appellant is unable to meet that burden, we will
affirm.
State Farm Ins. v. Freeman, 847 N.E.2d 1047, 1048 (Ind. Ct. App. 2006) (citations and
quotation marks omitted).
Here, the trial court sua sponte issued findings of fact and conclusions thereon, which
we review by evaluating (1) whether the evidence supports the findings and (2) whether the
findings support the judgment. Cyr v. J. Yoder, Inc., 762 N.E.2d 148, 15 (Ind. Ct. App.
2002). We will set aside the trial court’s findings and judgment only if they are clearly
erroneous. Hopper Res., Inc. v. Webster, 878 N.E.2d 418, 422 (Ind. Ct. App. 2007), trans.
denied (2008). Findings of fact are clearly erroneous when the record contains no facts to
support them either directly or by inference, and a judgment is clearly erroneous if it is
7
unsupported by the findings of fact and the conclusions that rely upon those findings.
Bussing v. Ind. Dep’t of Transp., 779 N.E.2d 98, 102 (Ind. Ct. App. 2002), trans. denied
(2003). “The specific findings control only as to issues they cover, while a general judgment
standard applies to any issue upon which the trial court has not entered findings.” Cyr, 762
N.E.2d at 150. Additionally, in reviewing the findings and judgment entered by the trial
court, we will not reweigh the evidence or assess witness credibility and will consider only
the evidence favorable to the judgment and all reasonable inferences flowing therefrom. Id.
Section 1 – The trial court’s findings that Bogunia Electric’s work did not comply
with the Code and was unworkmanlike and that McCormick’s Report is the best
evidence for the necessary electrical work are not clearly erroneous.
In relevant part, the trial court found as follows:
The work performed by Bogunia Electric does not meet all
requirements of the Mishawaka Electrical Code, notwithstanding the fact that
the work passed inspection and is in many material aspects unworkmanlike.
The proposal from McCormick Electric as to what was necessary to
bring the Home up to code and all electrical systems repaired to a workmanlike
standard is the best evidence of the work necessary to and the cost of a “whole
house re-wire.”
Yakym is entitled to recover the cost of what is necessary to bring the
work that was performed into compliance with the Mishawaka Electrical Code
and a workmanlike condition.
Appellant’s App. at 11.
Bogunia Electric asserts that there is no evidence that its work did not comply with the
Code or that McCormick’s Report is the best evidence of the work necessary to bring its
work into compliance with the Code, and therefore the conclusion that Yakym is entitled to
recover the amount necessary to bring the work into compliance with the Code is
8
unsupported by any findings. According to Bogunia Electric, although McCormick provided
evidence that its work did not comply with the Code, he nevertheless testified that the
Mishawaka electrical inspector’s decision was the final authority on the matter and would
take precedence over McCormick’s opinion. Further, Villanueva, in his capacity as
Mishawaka electrical inspector, concluded that Bogunia Electric’s work complied with the
Code. In other words, because McCormick testified that the Mishawaka electrical
inspector’s decision was the final authority on the matter, McCormick’s testimony and his
Report cannot support the trial court’s finding that the electrical work did not comply with
the Code and that his Report is the best evidence of the work that is necessary. We disagree.
McCormick’s testimony that the Mishawaka electrical inspector’s decision was the
final authority referred to the inspector’s authority as representative of the City of Mishawaka
to officially approve electrical work as in compliance with the Code. However, in a court of
law, a factfinder is not bound to accept the Mishawaka electrical inspector’s opinion as fact.
“The trier of the facts is not required to believe the testimony of every witness.” Jones v.
First Nat’l Bank, 143 Ind. App. 243, 248, 239 N.E.2d 398, 401 (1968). “Doctors and other
expert witnesses are not oracles whose opinions, once stated, cannot be questioned or refuted
by other evidence.” Walker v. Cuppett, 808 N.E.2d 85, 95 (Ind. Ct. App. 2004).
“There is, generally speaking, no rule of law which requires controlling effect
or influence to be given to, and the court and jury are not required to accept in
the place of their own judgments, the opinion testimony of expert witnesses,
merely because of the special knowledge of the witnesses concerning the
matters upon which they give their testimony. Expert opinions are not
ordinarily conclusive in the sense that they must be accepted as true on the
subject of their testimony, but are generally regarded as purely advisory in
character; the jury may place whatever weight they choose upon such
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testimony and may reject it, if they find that it is inconsistent with the facts in
the case or otherwise unreasonable. The weight given to expert testimony is
for the trier of the facts, who is not required to give it controlling influence.”
Ferdinand Furniture Co. v. Anderson, 399 N.E.2d 799, 807 (Ind. Ct. App. 1980) (quoting 31
AM. JUR. 2D Expert and Opinion Evidence § 183 (1967)). The Ferdinand court also noted,
The evidence of an expert witness is to be received by the Court or jury trying
the cause under the same rules and in the same manner that evidence of other
witnesses is received and must be weighed by the trier of facts, the same as
other evidence is weighed; the trier of facts is not bound by an expert’s
opinion.
Id.
We observe that even though an electrical inspector in the exercise of his official
duties has the authority to approve electrical work as compliant with the Code, having that
authority does not mean that an inspector is never mistaken, and it certainly does not mean
that a factfinder in a court of law is required to accept the inspector’s approval as conclusive
proof that electrical work is in fact compliant with the Code. Put another way, the electrical
inspector’s power outside a court of law does not dictate whether the factfinder must accept
the inspector’s opinion as dispositive. Accordingly, we conclude that the findings that
Bogunia Electric’s work did not comply with the Code and was unworkmanlike and that
McCormick’s Report is the best evidence of the work that needs to be done are supported by
evidence in the record. Because the findings are not clearly erroneous, the conclusion that
Yakym is entitled to recover damages based on the findings is also not clearly erroneous.
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Section 2 – Yakym suffered damages for breach of contract.
Bogunia Electric contends that even if it breached the contract, Yakym did not suffer
any damages. “It is axiomatic that a party injured by a breach of contract may recover the
benefit of its bargain but is limited in its recovery to the loss actually suffered.” L.H.
Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1043 (Ind. Ct. App. 2012).
“Generally, the measure of damages for breach of contract is either such damages as may
fairly and reasonably be considered as arising naturally from the breach itself, or as may be
reasonably supposed to have been within the contemplation of the parties at the time they
entered into the contract as a probable result of the breach.” Fairfield Dev., Inc. v.
Georgetown Woods Sr. Apts., LP, 768 N.E.2d 463, 473 (Ind. Ct. App. 2002), trans. denied.
A party injured by a breach of contract may not be placed in a better position than he or she
would have enjoyed if the breach had not occurred. Farah, LLC v. Architura Corp., 952
N.E.2d 328, 337 (Ind. Ct. App. 2011).
Specifically, Bogunia Electric argues that McCormick testified that rewiring the whole
house would cost almost $20,000 and Yakym paid Bogunia Electric $6811.84, and therefore
Yakym did not suffer any damages because the money he paid under the contract “did not
pay for a total home re-wire, whether or not the parties agreed to that.” Appellant’s Br. at 10
(emphasis added). The trial court found that the parties’ contract was for a “whole house
rewire” and that Bogunia Electric failed to provide it. Appellant’s App. at 10. Simply put,
Yakym bargained for a whole-house rewire, but Bogunia Electric’s argument would deny
him the benefit of his bargain. We are unpersuaded by Bogunia Electric’s argument that
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Yakym did not suffer damages.3 Based on the foregoing, we affirm the trial court’s
judgment.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
3
Bogunia Electric presents three additional arguments that are based on the premise that it performed
its obligations under the contract. Given that Bogunia Electric does not challenge the trial court’s finding that
it failed to provide a whole-house rewire as required under the contract and that we have concluded that the
trial court did not err in finding that Bogunia Electric’s work did not comply with the Code and was
unworkmanlike, we need not address these arguments.
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