Country Contractors, Inc., Stephen Songer, and Jahn Songer v. A Westside Storage of Indianapolis, Inc.

Feb 12 2014, 8:40 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
KARL L. MULVANEY GREGORY W. BLACK
GRANTLAND M. CLAPACS Gregory W. Black, P.C.
MARGARET M. CHISTENSEN Plainfield, Indiana
Bingham Greenebaum Doll LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
COUNTRY CONTRACTORS, INC., )
STEPHEN SONGER, and JAHN SONGER, )
)
Appellants-Defendants, )
)
vs. ) No. 32A01-1304-CC-155
)
A WESTSIDE STORAGE OF )
INDIANAPOLIS, INC., )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Mark A. Smith, Judge
Cause No. 32D04-0905-CC-155
February 12, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Country Contractors, Inc. (“Country”) entered into a contract to provide excavation
services for A Westside Storage of Indianapolis, Inc. (“Westside”). Country subcontracted
out a substantial portion of the work and eventually left the worksite without completing the
job. Westside filed a breach of contract action against Country and its two shareholders,
Stephen Songer and Jahn Songer (“the Songers”). Following a bench trial, the trial court
entered judgment against Country and against the Songers personally for breach of contract
and slander of title.
Country and the Songers (collectively, “Appellants”) now appeal, claiming that the
trial court clearly erred in piercing the corporate veil as to the Songers and in finding in favor
of Westside on its slander of title claim. They also challenge the trial court’s award of
attorney’s fees and delay damages. Finding the evidence insufficient to support the trial
court’s decision to pierce the corporate veil, we reverse the judgment as to the Songers.
Finding the evidence sufficient to support the trial court’s conclusion that Country slandered
Westside’s title, we affirm that portion of the trial court’s judgment. With respect to
damages, we affirm the trial court’s award of attorney’s fees and reverse its award of delay
damages. We remand for a recalculation of prejudgment interest.
Facts and Procedural History
In 1983, the Songers formed Country Concrete, Inc., which was in the business of
providing ready-mix concrete. The original officers were Stephen, his wife Jahn, and his
mother Dorothy, now deceased. In the 1990s, the corporation began to expand its services to
2
include general contracting for construction projects and excavation. It maintained an
inventory of about 150 to 200 pieces of equipment, which it rented to other companies. In
January 2007, acting on the advice of its insurance agent, Country Concrete filed an
amendment to its articles of incorporation, changing its name to Country Contractors, Inc.
Jahn was president, and Stephen was vice president. The two comprised the board of
directors and shareholders. Corporate operations were handled by Jeff Baker, Lewis Smith,
and Doug Pribbeno. The three men participated in bid preparation, contract execution, and
project supervision. Although the corporation had enjoyed some profitable years, by 2007
and 2008 it was operating at a loss, due partly to its inability to collect outstanding balances
from bankrupt customers.
In August 2007, Westside entered into negotiations with Pribbeno for Country to
provide earthwork and construct a storm sewer on one of Westside’s properties. Baker
executed a contract proposal, and the parties eventually amended the contract to expand the
work and increase the contract price from $202,855 to $235,000. The signatories to the
contract and amendment were Pribbeno (for Country) and Larry Nielsen (for Westside).1
Although Country performed some of the excavation, Pribbeno hired out much of the project
to O&M Excavating (“O&M”), which in turn contracted with Everett J. Prescott, Inc.
(“Prescott”), Littleton & Sons Sand & Supply, Inc. (“Littleton”), and VCNA Prairie
Aggregate (“Prairie”) to provide materials for the project. The Songers were not involved in
1
Nielsen’s name is spelled numerous ways throughout the record. However, we have chosen the
spelling based on his signature as contained in the exhibits. See, e.g., Plaintiff’s Exs. 2, 3.
3
the Westside contract.
Country and O&M began work on the project in mid- to late summer of 2008.
During the fall of 2008, Westside paid Country $191,535.72 on the contract. Also during
that time, O&M sent Country a series of invoices. Country paid O&M’s first four invoices
but did not pay the final invoice for $38,182.23, which it claimed never to have received. By
the end of 2008, Country stopped working on the Westside project, which was not complete.
In February 2009, O&M, Prescott, Littleton, and Prairie filed notices of intent to hold
mechanic’s liens on Westside’s property. In May 2009, Westside paid the four mechanic’s
lien claimants in order to extinguish the liens and satisfy the bank holding the mortgage on
the property. That same month, Country filed a notice of intent to hold a mechanic’s lien on
Westside’s property land in the amount of $38,125. A couple months later, Westside
contracted with John Hall Construction (“Hall”) to complete the project for $33,137.14.
From beginning to end, Westside paid $286,162.86 in order to complete the project.
In May 2009, Westside filed a breach of contract action against Country, alleging
failure to complete performance and failure to pay subcontractors and demanding an
accounting of the payments it had made to Country on the contract. Westside later amended
its complaint, joining the Songers as defendants and requesting a declaratory judgment
piercing the corporate veil to hold these defendants personally liable for Country’s breach of
contract. With respect to the declaratory judgment request, Appellants filed a motion for
partial summary judgment, which the trial court denied.
4
At the ensuing bench trial in January 2013, Westside sought damages for breach of
contract and slander of title. Appellants requested that the trial court issue findings of fact
and conclusions thereon pursuant to Indiana Trial Rule 52(A). On March 11, 2013, the trial
court issued its findings, conclusions, and judgment in favor of Westside against Country and
against the Songers personally. The $117,542.20 damage award consisted of $51,162.86 in
additional costs to complete the Westside project; $14,959.34 in prejudgment interest;
$17,500.00 in attorney’s fees; and $33,920.00 in damages for delay of the project caused by
Country’s breach. Appellants’ App. at 129. This appeal ensued.2 Additional facts will be
provided as necessary.
Discussion and Decision
Appellants challenge the sufficiency of evidence to support the trial court’s judgment
in favor of Westside on the issues of piercing the corporate veil, slander of title, attorney’s
fees, and delay damages. Where, as here, the trial court issues findings of fact and
conclusions of law pursuant to a party’s request, we apply a two-tiered standard of review.
Baird v. ASA Collections, 910 N.E.2d 780, 785 (Ind. Ct. App. 2009), trans. denied (2010).
We first determine whether the evidence supports the findings and then determine whether
the findings support the judgment. Id. We review for clear error and will reverse only if the
trial court’s findings are unsupported by any evidence or reasonable inferences drawn from
the evidence or if the judgment is unsupported by the findings and conclusions. Id. In
2
We conducted oral argument on January 14, 2014, and we thank counsel for their time and
preparation.
5
conducting our review, we neither reweigh evidence nor judge witness credibility; rather, we
consider the evidence in the light most favorable to the judgment. Id. With respect to the
trial court’s findings of fact, we defer substantially; with respect to its conclusions of law, we
apply a de novo standard. Id.Here, the trial court’s findings include the following:
10. In early September 2007, Westside entered into a contract with Country
for the latter to provide earthwork and storm sewer construction for the
job on the property owned by Westside …. The contract was signed by
Larry Nielsen for Westside and Doug Prebbino [sic] for Country.
11. The original contract was for $96,145.00 for earthwork and
$106,710.00 for storm sewer, totaling $202,855.00.
12. In 2008, the parties amended the original contract. According to
Exhibit 2, the contract price increased $32,145.00 for a total price of
$235,000.00.
13. Work on the project began sometime in 2008. No work is shown in the
record until early September 2008 by O&M Excavating, owned by Brad
Empson. Mr. Empson testified to being hired by Country through Doug
Prebbino [sic].
14. O&M hired Everett J. Prescott, Inc., Littleton & Sons Sand & Supply,
Inc., [and] VCNA Prairie Aggregate … as subcontractors to do the
work apart from excavating.
15. Exhibit 12 is several invoices from O&M to Country Contractors. The
total billed by O&M is $165,976.36. The invoices and dates are:
a. 9/4/08—$66,454.72
b. 9/9/08—[$]13,249.38
c. 11/3/08—$3,332.43
d. 11/3/08—$44,757.60
e. 12/17/08—$38,182.23
16. After December 2008, no work was done on the project until
approximately July 2009.
6
17. Country Contractors did not return to the job site after December 2008.
According to its interrogatory answers (Exhibit 56), Country believed
the job was completed in 2008 and “pulled out” in March 2009. Larry
Nielsen was unaware Country had quit the job.
18. On February 6, 2009, O&M Excavating caused a notice of intent to
hold mechanic’s lien to be recorded for the work and materials on this
job. The lien amount was for $38,182.23.
19. On February 10, 2009, Everett J. Prescott caused a notice of intent to
hold mechanic’s lien to be sent to Westside for $19,102.29 for work
and materials on this job.
20. On February 13, 2009, Littleton & Sons Sand and Supply caused a
notice of intent to hold mechanic’s lien to be recorded for work and
materials on this job. The lien amount was $4,896.32.
21. On February 17, 2009, VCNA Prairie Aggregate caused a notice of
intent to hold mechanic’s lien for work and materials on this job. The
lien amount was $9,177.71.
22. In May 2009, Westside satisfied the lien claims of O&M Excavating,
Everett J. Prescott, Littleton & Sons, and VCNA Prairie Aggregate.
Westside paid $39,498.00 to the four (4) subcontractors to satisfy the
liens.
23. In July 2009, Westside hired John Hall Construction to finish
excavation work. John Hall provided stone, gravel, sand & grade work,
blanketing & seeding swales, excavation, and installation of silt fences.
24. On July 9, 2009, John Hall Construction billed Westside $29,104.64 for
work performed by it on this job.
25. On April 8, 2010, John Hall Construction billed Westside $4,032.50 for
work performed by it on this job.
26. Westside paid John Hall $33,137.14.
27. Westside paid a total of $191,527.72 to Country. Westside wrote four
(4) checks to Country as follows:
a. 9/8/08—$14,000.00
7
b. 9/10/08—$74,676.72
c. 10/30/08—$56,681.00
d. 12/1/08—$46,170.00
28. As a result of the lien payments, payments Westside made directly to
Country Contractors, and payments to John Hall Construction,
Westside paid a total of $264,162.86.
29. In addition, Westside paid an additional [sic] $22,000.00 to pay [sic]
for a water line.
….
31. According to [Country Contractors’ bookkeeper Patricia] Hambright, of
the total money paid to Country by Westside, $116,000.00 was paid to
O&M Excavating and Country paid itself approximately $74,000.00.
32. There is no record of any invoice submitted by Country for work done
by Country.
33. Hambright is unaware of the subcontracts as to the Westside job.
Hambright knows nothing of Prairie, Littleton, or Prescott.
34. The only assets Country Contractors ever owned was [sic]
approximately 150-200 pieces of equipment that were financed from
various lenders, and some accounts receivable of an unknown amount.
35. No one testified to the work Country performed at the site. Larry
Nielsen knows of none. Larry Nielsen testified a piece of equipment
was left at the site, apparently by Country. Brad Empson of O&M
Excavating saw Country work on site.
36. No one testified that any work done on the Westside job was wrong, or
inconsistent with the plans.
37. The Westside job is the last job done by Country Contractors.
38. In May 2009, Country recorded a lien claim against the Westside land,
asking the $38,125.00 be paid to Country by Westside. The claim
could not have been recorded within 60 days of the last work done by
Country as nothing was done after early December 2008. The lien
notice was signed by Jahn Songer. There was no notice of the lien to
8
Westside. The first Westside knew of the lien claim was when Country
filed its counterclaim. At close of trial, Country dismissed its
counterclaim upon the line with prejudice to further action.
….
40. There is no accounting by Country of what Country kept from the funds
paid to Country by Westside. There is no accounting of what Country’s
payees did to earn the money paid them or whether the payments were
for the Westside job.
41. Neither Stephen Songer nor Jahn Songer, claim any ability to testify to
the Westside contract or its performance in any detail.
42. Exhibit 53 shows Country Concrete, predecessor to Country
Contractors, in 2003 had assets of $410,944.00, accounts payable of
$465,944.00, no mortgage debt.
43. In approximately 2006, Country had long-term liabilities of about
$4,000,000.00.
44. As of December 31, 2007, Country Contractors was in a negative equity
position of over $700,000.00.
45. There was no equity in the corporation in 2008.
46. At the time of trial, Country Contractors was in bankruptcy.
47. Country’s abandonment set Westside back about a year. The delay
caused Westside damage of approximately $33,920.00
48. Westside has incurred $17,500.00 in legal fees.
49. Country failed to finish the work and failed to pay the final installment
owed O&M.
50. Country is spare on corporate formality. The annual meeting minutes,
2007 through 2009, are “boilerplate.” In discovery responses, Country
produced three (3) annual meeting minutes and the minutes changing
the corporate name. According to the records, all is satisfactory, even
though the corporation foundered in 2008 and by 2009 was over a
million dollars in [the] red.
9
51. Jahn, the president, [and] Steve, the vice president, knew little of the
corporation or its affairs.
52. Country paid Jahn Songer over $50,000.00 a year in salary in 2007 and
2008.
Appellant’s App. at 119-24.
The trial court pierced the corporate veil and found that Westside’s title was
slandered, concluding in pertinent part,
1. In general, corporate shareholders are not personally liable for the acts
of a corporation.
2. The party seeking to pierce the corporate veil bears the burden of
establishing that the corporation was so ignored, controlled, or
manipulated that it was merely [the] instrumentality of another and that
misuse of [the] corporate form would constitute fraud or promote
injustice.
3. Indiana courts are reluctant to disregard a corporate entity, but will do
so as a matter of equity to prevent fraud or unfairness to third parties.
4. In determining whether a party seeking to pierce the corporate veil has
met its burden of showing that the corporate form was abused, a court
considers [eight factors].
5. The plaintiff is not required to prove each factor …. This list is not
exhaustive in that not all factors must be shown to support a
determination that the corporate veil should be pierced.
….
7. One way to pierce a veil is to find the corporation was undercapitalized
in relation to the amount of risk it undertakes.
8. A finding of undercapitalization weighs in favor of piercing the veil.
9. The adequacy of capital is to be measured as of the time of a
corporation’s formation. “A corporation that was adequately
capitalized when formed, but which subsequently suffers financial
10
reverses is not undercapitalized.”
10. However, if an adequately capitalized corporation later substantially
expands the size or nature of the business with an attendant substantial
increase in business hazards, the corporation might be deemed
inadequately capitalized unless there is an infusion of additional risk
capital by shareholders.
11. While a trial court’s examination of the adequacy of capitalization may
inquire beyond the capitalization at the inception of the corporation,
such inquiry is limited to those circumstances where the corporation
distinctly changes the nature or magnitude of its business.
12. Another way to pierce a veil is to find an absence of corporate records.
13. Indiana Code § 23-1-52-1 requires a corporation to keep as permanent
records all actions taken by its shareholders or its board, taken without
a meeting, and it states a corporation shall “maintain appropriate
accounting records.”
14. A veil may also be pierced for disregarding corporate formalities.
15. Lack of attention to corporate formalities is common in family
corporations.
16. Authority of this Court to pierce does not depend on the existence of
any specific set of facts, but rather upon the need to prevent unfairness.
17. The need to prevent unfairness to Westside is paramount in this case.
In good faith, Westside hired what it assumed [to be] a viable entity,
never alerted that Country had no available assets. Westside paid
money, sufficient in sum to satisfy all debt that had accrued to its land,
to avoid lien claims. Country did not pay what it had agreed to pay,
what it had been paid to pay. Country was not operated efficiently,
with adequate records. There is no evidence it ever has properly
documented its affairs or records, to account to anyone for anything.
All it has is a bank account, meager paperwork and assets owned by its
financiers.
18. Undercapitalization and misuse of the corporate form have caused the
damages Westside has suffered. To be capitalized is to have capital
unencumbered. Capital that is encumbered to another cannot be
11
counted as “capitalized,” the purpose of being capitalized, as opposed
to being undercapitalized, is to protect others from fraud, injustice.
Country had no capital at all. It was not just undercapitalized, it was
not capitalized altogether, as of September 2008 when O&M began
work for Westside.
19. Country was unable to produce accounting records to demonstrate the
work it did or the value of its work in this job. Country retained over
$74,000.00 from Westside, not paying the final $38,123.00 owed to its
chief subcontractor, O&M. But Country paid other bills through March
of 2009 with money that could have been used to fulfill its duty to
Westside here.
20. Defendants produced just thee [sic] (3) copies of minutes, meager at
that, with no copies of corporate resolutions or any ledgers of stock, or
stock certificates. There is no record of any substantive corporate
decision, or who the stockholders are, or what amount of stock each
owner owns.
….
23. Indiana Code [Sections] 32-20-5-1, 2 forbids [sic] slander of title, and
permits [sic] a Court to award legal fees and damages when slander
occurs. Here, Country filed a lien notice against Westside’s land,
seeking over $38,182.23 for money Westside already had paid for work
done by companies hired by Country, companies not paid by Country.
The lien notice was filed even when Westside reached in and paid
another $39,000.00 plus to pay the companies Country should have
paid, had been given the money to pay. The lien claim slanders title of
Westside.
24. The legal fees of $17,500.00 incurred by Westside are reasonable.
….
28. Country Contractors, Inc. is liable to Westside in the sum of
$117,542.20 as follows: $51,162.86 for the difference between the
contract price of $235,000.00 and what Westside actually paid
$286,162.86 (including payments to Country, payment of liens,
payment to John Hall and payment for the water line); $14,959.34 for
pre-judgment interest from April 8, 2010 to the date of judgment
($14.02/day x 1067 days); $17,500.00 in attorney fees; $33,920.00 for
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the additional money lost [sic] caused by the delay due to Country’s
breach.
29. Stephen Songer and Jahn Songer are personally liable for the
obligations owed by Country to Westside. They operated their
company with no capital and disregarded the formalities of corporate
record keeping. The corporation is now bankrupt. Westside has been
damaged and has no other recourse. It would be unjust in this case to
permit the Songers to escape personal liability by not piercing the
corporate veil.
Id. at 124-30 (citations omitted).
I. Piercing the Corporate Veil
The Songers contend that the trial court clearly erred in concluding that they are
personally liable to Westside for Country’s liabilities. For over a century, a fundamental
principle of both American corporate law and Indiana common law has been that corporate
shareholders sustain liability for corporate acts only to the extent of their investment and are
not held personally liable for acts attributable to the corporation. Aronson v. Price, 644
N.E.2d 864, 867 (Ind. 1994). In 1986, the Indiana General Assembly codified this principle,
stating, “Unless otherwise provided in the articles of incorporation, a shareholder of a
corporation is not personally liable for the acts or debts of the corporation.” Ind. Code § 23-
1-26-3(b). Within the same provision, the General Assembly also codified the exception
known as “piercing the corporate veil,” wherein “the shareholder may become personally
liable by reason of the shareholder’s own acts or conduct.” Id.Because of the bedrock nature of the principle of limited shareholder liability,
the burden on a party seeking to pierce the corporate veil is severe. Such a
party may only recover from a shareholder if the party proves by a
preponderance of the evidence that [(1)] the corporate form was so ignored,
controlled or manipulated that it was merely the instrumentality of another and
13
[(2)] that the misuse of the corporate form would constitute a fraud or promote
injustice.
Escobedo v. BHM Health Assocs., Inc., 818 N.E.2d 930, 933 (Ind. 2004) (quoting Aronson,
644 N.E.2d at 867) (internal quotation marks omitted). In other words, “courts will not
provide the protection of limited liability to an entity that is a mere instrumentality of another
and engages in misconduct in the function or use of the corporate form.” CBR Event
Decorators, Inc. v. Gates, 962 N.E.2d 1276, 1281-82 (Ind. Ct. App. 2012), trans. denied.
In determining whether a plaintiff seeking to pierce the corporate veil has met its
burden concerning the Aronson test, the trial court considers whether the plaintiff has
presented evidence showing:
(1) undercapitalization; (2) absence of corporate records; (3) fraudulent
representation by corporation shareholders or directors; (4) use of the
corporation to promote fraud, injustice or illegal activities; (5) payment by the
corporation of individual obligations; (6) commingling of assets and affairs;
(7) failure to observe required corporate formalities; or (8) other shareholder
acts or conduct ignoring, controlling, or manipulating the corporate form.
Aronson, 644 N.E.2d at 867. The list of factors is not exhaustive, and the plaintiff need not
prove all eight factors in order to pierce the corporate veil. Longhi v. Mazzoni, 914 N.E.2d
834, 839 (Ind. Ct. App. 2009), trans. denied (2010).
The trial court found that Country was undercapitalized and failed to respect corporate
formalities by failing to maintain adequate records. The court did not enter findings on any
of the other factors. In its conclusions of law, the trial court cited Ziese & Sons Excavating,
14
Inc. v. Boyer Constr. Corp., 965 N.E.2d 713, 721 (Ind. Ct. App. 2012),3 stating that its
authority “to pierce does not depend on the existence of any specific set of facts, but rather
upon the need to prevent unfairness.” Appellants’ App. at 127. Certainly, preventing fraud
and unfairness to third parties is an important prong in our analysis. See Ziese, 965 N.E.2d at
721 (“The authority of the courts to disregard corporate identity does not stem from the
existence of a specific factual circumstance, but rather from the necessity of preventing fraud
or unfairness to third parties.”). However, it is not enough merely to establish one prong of
the test. Rather, it is essential that the plaintiff establish a causal connection between the first
and second prong of the test. Gates, 962 N.E.2d at 1282. In other words, “the fraud or
injustice alleged by a party seeking to pierce the corporate veil must be caused by, or result
from, misuse of the corporate form.” Id. at 1282-83 (emphasis added).
The mere fact that a corporation commits an unfair labor practice, or breaches
a contract, or commits a tort, does not mean that the individual shareholders of
the corporation should personally be liable. To the contrary, the corporate form
of doing business is typically selected precisely so that the individual
shareholders will not be liable. It is only when the shareholders disregard the
separateness of the corporate identity and when that act of disregard causes
the injustice or inequity or constitutes the fraud that the corporate veil may be
pierced.
Id. at 1283 n.2 (citation and quotation marks omitted).
In Escobedo, our supreme court emphasized that a court may not disregard the
corporate form merely to “promote substantial justice.” 818 N.E.2d at 935. Rather, the
3
Ziese involved the issue of whether one corporation was simply the alter ego of another. 965 N.E.2d
at 721. It is procedurally distinguishable from the present case in that it was an appeal from a denial of
summary judgment. As such, the Ziese court emphasized the fact-sensitivity of inquiries concerning the
piercing of the corporate veil. Id.15
evidence must show that the shareholders “misuse[d] the corporate form to promote
injustice.” Id. There, former employees of a defunct corporation and the corporation’s union
sued the two sole shareholders/officers/directors individually for unpaid wages and union
dues. In its last month of operation before selling all of its assets to a successor business, the
corporation paid its employees their first two weeks’ wages and paid the Internal Revenue
Service $70,000 toward a $200,000 corporate tax liability which the two shareholders had
personally guaranteed. Id. at 931-32. In seeking the two weeks’ unpaid wages and dues, the
plaintiffs asked the trial court to pierce the corporate veil. The trial court applied the two-
pronged test and found no basis for piercing the corporate veil. Our supreme court affirmed,
finding nothing to support a conclusion that the two individual shareholders “so ignored,
controlled, or manipulated the corporate form that it was merely their instrumentality” to
promote injustice. Id.
Here, the Songers did not use the corporation as a mere instrumentality to engage in
misconduct to their own benefit. Instead of dominating the corporation, they seemed
disconnected. Westside admits that the Songers had no involvement in their contract and
states that their dealings were with Pribbeno, who did not testify and whose whereabouts
were unknown at the time of trial. Appellee’s Br. at 3.4 The record shows that Baker also
participated in drafting the contract proposal and in dealing with Hambright concerning the
bookkeeping and payment on the contract. Defendant’s Ex. A; Plaintiff’s Ex. 63.
4
In her capacity as president, Jahn Songer signed the May 27, 2009 notice of intent to hold
mechanic’s lien.
16
Notwithstanding their apparent lack of direct connection to the Westside contract, the
question is whether the Songers failed in more general ways to respect the corporation as a
separate entity.
In this vein, the trial court cited Country’s undercapitalization and the Songers’ failure
to respect such corporate formalities as keeping adequate records. Capitalization is
inadequate when it is very small in relation to the nature of the corporation’s business and
risks attendant to such businesses. Cmty. Care Ctrs., Inc. v. Hamilton, 774 N.E.2d 559, 565
(Ind. Ct. App. 2002), trans. denied (2003). Because the adequacy of capital is measured as
of the time of the corporation’s formation, a corporation that was adequately capitalized
when formed but subsequently suffers financial reverses is not undercapitalized. Id.However, if an adequately capitalized corporation subsequently “substantially expands the
size or nature of its business with an attendant substantial increase in business hazards, the
corporation might be deemed inadequately capitalized unless there is an infusion of
additional risk capital by shareholders.” Id. This post-formation capitalization inquiry will
be made only in circumstances in which a corporation “distinctly changes the nature or
magnitude of its business.” Id.Here, the corporation was originally formed in 1983 as Country Concrete, Inc. It ran
at a profit for many years, up to and including 2006. In January 2007, the corporation
renamed itself as Country Contractors, Inc., to more accurately reflect its recently expanded
services beyond the mere provision and pouring of concrete. The record shows that by the
end of 2007, Country was operating at a loss. Plaintiff’s Ex. 34. Its year-end balance sheets
17
show net operating losses in 2007, 2008, and 2009. Id. It remained a corporation in good
standing with the Indiana Secretary of State through 2009. Simply put, Country was not
undercapitalized either at its inception or as of the date it amended its articles. Westside
failed to establish that Country’s dwindling capital was due to anything other than a general
downturn in the economy and a specific downturn in the construction industry.
With respect to corporate formalities and recordkeeping, “a corporation should be
operated as a distinct and separate business and financial unit, with its own books, records,
and bank accounts.” Cmty. Care Ctrs., 774 N.E.2d at 569 (citation omitted). Factors
indicating a failure to respect the separateness of the corporate entity include shareholder use
of corporate funds for personal purposes or the commingling of accounts or assets. Id. The
record shows that Country conducted all of its corporate business from one bank account.
Westside cites the single bank account as evidence of the Songers’ failure to respect the
separateness of the corporate entity. We disagree. The record reveals that Country was not a
large-scale operation. It is not uncommon for small corporations to operate from one bank
account. The record is devoid of any evidence that the Songers commingled personal and
corporate funds or used the corporate bank account for personal purposes. To the extent
Westside cites Country’s payment of a $50,000 salary to Jahn as president of Country, we
note that she provided services for the company and that Westside presented no evidence to
indicate that her salary was not commensurate with her regular activities as president of the
company.
18
Indiana Code Section 23-1-52-1 requires a corporation to keep and maintain certain
records, including appropriate accounting records and minutes of all shareholders’ meetings
held during the previous three years. Here, Country’s bookkeeper Hambright testified via
deposition concerning her accounting duties. At trial copies of the minutes from the three
most recent annual shareholders’ meetings (2007 through 2009) were admitted as Plaintiff’s
Exhibit 53. Each consists of one page, signed by Jahn Songer as director and president and
Stephen Songer as director and vice president. The minutes contain the following identical
language describing the matters covered at each meeting:
A general discussion of the corporation took place and it was
recognized by all present that the corporation was making satisfactory
progress.
On motion duly made and seconded all officers and directors were re-
elected by unanimous vote.
There being no further business the meeting was adjourned.
Id.5 The trial court described the minutes as “meager” and mere “boilerplate.” Appellants’
App. at 124, 128. Notwithstanding their lack of detail, we find that Westside has failed to
establish a causal link between Country’s recordkeeping and any injustice resulting from it.
5
Also included in the record is a copy of minutes from Country’s January 1, 2007 shareholders’ and
directors’ meeting. The language is nearly identical to the three most recent minutes except for the following:
On motion duly made and seconded it was decided by unanimous vote that the name
of the corporation should change from Country Concrete, Inc. to Country Contractors, Inc., in
light of the termination of the concrete business and the entry into the equipment leasing
contract business.
Defendant’s Ex. D.
19
Finally, we note that when it pierced the corporate veil, the trial court emphasized that
due to Country’s bankruptcy, Westside “has no other recourse” except against the Songers.
Id. at 130. The same could be said for any entity that contracts with a company that ends up
in bankruptcy. The record shows that Country was unable to collect from many of its
receivables due to its own customers’ bankruptcies. Lack of other recourse simply is not a
proper basis for piercing the corporate veil, and Westside failed to carry its burden of
establishing a causal connection as required by the Aronson test. Based on the foregoing, we
conclude that the trial court clearly erred in piercing the veil and reverse its judgment as to
the Songers. As a result, we resolve all subsequent issues solely with respect to Country.
II. Slander of Title
Country also challenges the trial court’s determination that it slandered Westside’s
title by filing a lien claim against Westside. Indiana Code Section 32-20-5-1 states, “A
person may not use the privilege of filing notices under this article to slander the title to
land.” To prevail on a slander of title claim, a plaintiff must prove that the defendant made
false, malicious statements regarding the plaintiff’s ownership of the land in question and
that those statements caused the plaintiff to suffer pecuniary loss. Walsh & Kelly, Inc. v. Int’l
Contractors, Inc., 943 N.E.2d 394, 398 (Ind. Ct. App. 2011), trans. denied. Malicious
statements are statements made knowingly or with reckless disregard for their falsity. Id.The trier of fact may infer malice from the evidence. Id. Numerous cases support the
premise that filing a mechanic’s lien may amount to slander of title in certain circumstances.
20
In Lee & Mayfield, Inc. v. Lykowski House Moving Engineers, Inc., 489 N.E.2d 603,
609 (Ind. Ct. App. 1986), trans. denied, another panel of this Court addressed the issue of
whether malice could be established by the filing of a mechanic’s lien. There, a machine
shop (Lee) that supplied parts for equipment used by a contractor was not within the class of
permissible mechanic’s lien claimants against the property of a third party (Levy) on which
the contractor happened to use the equipment. Id. at 608. Lee not only filed a mechanic’s
lien against Levy’s property but also filed an action to foreclose the lien and attempted to
block the passage of an ordinance sought by Levy to obtain economic development bond
financing, eventually causing the bank to withdraw its offer to purchase Levy’s bonds. Id. at
609. The Lee & Mayfield court affirmed the trial court’s finding of malice inferred from
conduct. Id.In Walsh & Kelly, a subcontractor filed an invalid lien against the owner of property
on which it performed work. The lien was invalid because the property owner had already
paid the general contractor. The lien’s invalidity was not challenged on appeal. The issue on
appeal was whether the evidence supported a finding that the lien claimant/subcontractor
acted maliciously. 943 N.E.2d at 399. At the time it filed the lien, the lien claimant Walsh
was unaware that the property owner had paid its obligation to the general contractor. After
the lien was filed, counsel for the property owner repeatedly contacted Walsh, requesting
release of the lien. When the lien was not released, the property owner sought and was
awarded damages for slander of title. On appeal, another panel of this Court held that while
Walsh was unaware and therefore lacked malice when it filed the invalid lien, its refusal to
21
release the lien despite multiple notifications amounted to malice sufficient to support a
slander of title finding. Id.
A mechanic’s lien is purely a statutory creation, and as such, the statutory provisions
governing mechanic’s liens must be strictly construed. Capital Drywall Supply, Inc. v. Jai
Jagdish, Inc., 934 N.E.2d 1193, 1200 (Ind. Ct. App. 2010). A person seeking to acquire a
lien must file a “sworn statement” specifying the amount of his claim as well as other
information identifying himself, the property owner, and the land. Ind. Code § 32-28-3-3. A
contractor or subcontractor may have a lien on the property “to the extent of the value of any
labor done or the material furnished.” Ind. Code § 32-28-3-1(b). “The filing requirements
for a mechanic’s lien serve two policy objectives: (1) to provide the record titleholder of the
property with notice that a mechanic’s lien has been placed upon the real estate; and (2) to
put third party purchasers and money lenders on notice of the same fact.” Capital Drywall,
934 N.E.2d at 1200.
Here, Country paid O&M approximately $116,000 on its first four invoices. On
December 17, 2008, O&M sent Country a fifth invoice for approximately $38,000. When
Country did not pay the invoice, O&M twice re-sent it. Jahn Songer testified that Country
did not pay the fifth invoice on the first and second billings because it never received those
earlier billings. Having received no payment on the fifth invoice by February 6, 2009, O&M
filed a $38,000 mechanic’s lien claim for work it performed on Westside’s property. Three
and a half months later, on May 27, 2009, Country filed a lien claim against Westside’s
property for the same amount, based on O&M’s fifth invoice which it received on O&M’s
22
third billing in March 2009. Plaintiff’s Ex. 63. A week before Country filed its May 27 lien
claim, O&M’s lien was released due to Westside’s payment directly to O&M. Plaintiff’s Ex.
17.
Country’s lien claim was file-stamped by an employee in the county recorder’s office,
but inexplicably, the lien did not appear in a title search of the property.6 Country asserts that
its act of filing the lien created no cloud on Westside’s title because the lien was not viewed
by any searchers of the records. We disagree. The statute clearly states that a mechanic’s
lien is valid when it is properly filed in the county recorder’s office. Ind. Code § 32-28-3-1.
Its validity is not vitiated by another person’s failure to find the lien in the records. See
Wilson v. Logue, 131 Ind. 191, 194, 30 N.E. 1079, 1080 (1892) (lien was valid where lien
claimant properly filed his notice of lien claim in county recorder’s office even though
county recorder recorded lien in the wrong book). Thus, the title company’s failure to
discover Country’s lien in its search does not render it invalid. Country’s lien was on file as
of the date on the file stamp and clouded Westside’s title as of that date.
While Country’s lien claim was not procedurally deficient, it was invalid for a
different reason: because it was a lien claim against Westside’s property for work that
6
Westside was unaware of Country’s filing until Country raised it in a counterclaim to Westside’s
amended complaint in the present action. Indiana Code Section 32-28-3-3(d) states that the recorder shall mail
a copy of the notice of intent to hold a lien to the owner of the property. It is unclear from the record why
Westside did not receive such notice.
23
Country did not perform and for an invoice that Country never paid to O&M.7 When
Country filed its lien claim, both O&M’s lien claim and its release of lien based on
Westside’s direct payment to O&M were on file in the county records. As such, Country had
constructive notice of those entries, and its filing of an invalid lien claim constitutes evidence
sufficient to support the trial court’s finding that it slandered Westside’s title.
III. Attorney’s Fees
Country also asserts that the trial court clearly erred in awarding attorney’s fees to
Westside. The general rule in Indiana is that each party to litigation must pay its own
attorney’s fees. City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1013 (Ind. Ct.
App. 2011), trans. denied (2013). Notwithstanding, an award of attorney’s fees may be
authorized by contract, rule, statute, or agreement, and in such cases, the trial court is
afforded broad discretion. Id. at 1012-13. We review both the decision to award attorney’s
fees as well as the amount of the fee, which must be supported by the evidence. Id. at 1013.
An award of attorney’s fees will be reversed only where an abuse of the trial court’s
discretion is apparent on the face of the record. Hill v. Davis, 850 N.E.2d 993, 996 (Ind. Ct.
App. 2006). Here, the award of attorney’s fees is statutorily authorized with respect to
Westside’s slander of title claim. In an action under Indiana Code Chapter 32-20-5, if the
trial court “finds that a person has filed a claim only to slander title to land, the court shall …
7
Although the record is inconclusive concerning the date upon which Country performed its last labor
on and/or removed its machinery from Westside’s property, there is some evidence to indicate that Country
stopped work on the property after December 2008, in which case Country’s May 27, 2009 filing of notice of
intent to hold a mechanic’s lien would be untimely. See Ind. Code § 32-28-3-3(a)(2) (a claimant must file its
notice of intent to hold lien not later than ninety days after performing labor or furnishing materials or
machinery).
24
award the plaintiff all the costs of the action, including attorney’s fees that the court allows to
the plaintiff.” Ind. Code § 32-20-5-2(1). As previously discussed, we affirm the trial court’s
conclusion that Country slandered Westside’s title. Thus, the trial court properly determined
that an attorney’s fee award was authorized in this case.
Country challenges the amount of the attorney’s fee award, claiming that it was
excessive and imprecise, containing fees for time spent on services other than those
attributable to the pursuit of Westside’s slander of title claim. “In determining the reasonable
value of the legal services rendered, the time expended by the attorney alone is not a
controlling factor.” Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 520 (Ind. Ct. App. 2009)
(citation and quotation marks omitted). The Indiana Professional Code of Conduct contains a
non-exhaustive list of factors providing guidance in determining the reasonableness of
attorney’s fees. Among the factors are time and labor; novelty and difficulty of the issues;
skill required to perform properly; the fee customarily charged in the locality for similar legal
services; and whether the fee is fixed or contingent. Ind. Professional Conduct Rule 1.5(a).
A trial judge has personal expertise that he or she may use when determining the
reasonableness of the fees. Nunn Law Office, 905 N.E.2d at 516.
At trial, Westside’s counsel testified that he had rendered services in this cause since
2008 and that his hourly rate was $175. Tr. at 121. He noted that the case involved
extensive discovery and described the case as “complicated,” “fairly difficult,” and a case
that “was going to take a lot more work than [Westside] could … justify.” Id. at 122. He
explained that the case had grown in such magnitude that he had agreed to convert from an
25
hourly fee to a contingency fee.8 He recognized the court’s “ability to access reasonable legal
fees, should it decide to find reasonable legal fees are showing or due and owing because of
the court’s training and its experience itself” and concluded, “I believe 100 hours over 4
years is a reasonable fee …. the value of my time is $17,500.00.” Id. The trial court agreed
and concluded, “[t]he legal fees of $17,500.00 incurred by Westside are reasonable.”
Appellants’ App. at 129. Appellants’ counsel was given the opportunity to cross-examine
Westside’s counsel concerning his fee testimony but chose not to do so.
From the record, we see a contract dispute that became exceedingly complicated with
the insertion of the counterclaim for slander of title. The action extended over a four-year
period, and counsel became increasingly concerned about his client’s ability to pay the
mounting attorney’s fees. We defer to the court’s broad discretion, recognizing the court’s
unique expertise and familiarity with the case and with the customary legal fees charged in
Hendricks County. As such, we affirm the trial court’s award of attorney’s fees.
IV. Delay Damages
Finally, Country contends that the trial court clearly erred in awarding delay damages
and in calculating the amount of those damages. The computation of damages is a matter
within the trial court’s discretion. Ponziano Constr. Servs. v. Quadri Enters., LLC, 980
8
We note that no written, signed contingency fee agreement was introduced at trial. See Ind.
Professional Conduct Rule 1.5(c) (requiring contingency fee agreement to be in writing and signed by client).
We also note that, although Indiana Professional Conduct Rule 1.5 lists contingency of the fee as a factor to be
considered, a contingency fee agreement between an attorney and his or her client is not controlling in fixing a
reasonable attorney’s fee to assess against an opposing party. Venture Enters., Inc. v. Ardsley Distributors,
Inc., 669 N.E.2d 1029, 1034 (Ind. Ct. App. 1996).
26
N.E.2d 867, 873 (Ind. Ct. App. 2012). Although mathematical certainty is not required, the
amount awarded must be supported by evidence in the record. Id. In a breach of contract
case, the measure of damages is the loss actually suffered by the breach. Id.In support of its argument that the trial court should not have awarded delay damages
at all, Country cites the contract’s failure to specify a completion date for performance.
“When the parties to an agreement do not fix a date certain for performance, the law implies
a reasonable time.” Id. at 874. “What constitutes a reasonable time depends upon the subject
matter of the contract, the circumstances attending the performance of the contract, and the
situation of the parties to the contract.” Id.With respect to the amount of the damage award, “[a] party’s recovery for breach of
contract is limited to the loss actually suffered, and the party 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). A proper award of lost profits is
lost net profits, not lost gross income. Belle City Amusements, Inc. v. Doorway Promotions,
Inc., 936 N.E.2d 243, 251 (Ind. Ct. App. 2010). Otherwise, the aggrieved party would
“receive a windfall in the form of that portion of lost gross income representing expenses of
operation saved by defendant’s breach.” Id. (citation omitted). See also Jay Clutter Custom
Digging v. English, 393 N.E.2d 230, 233 (Ind. Ct. App. 1979) (disallowing damage award as
speculative where based only on evidence of gross income).
Country asserts that the trial court clearly erred in merely accepting the sum as listed
in Westside’s proposed findings of fact. The practice of adopting a party’s proposed findings
27
verbatim is not prohibited. Piles v. Gosman, 851 N.E.2d 1009, 1012 (Ind. Ct. App. 2006).
“Although we by no means encourage the wholesale adoption of a party’s proposed findings
and conclusions, the critical inquiry is whether such findings, as adopted by the court, are
clearly erroneous.” Id.Here, the trial court did not adopt all of Westside’s proposed findings, but in its only
finding addressing delay damages, it adopted Westside’s proposed $33,920 figure. See
Appellants’ App. at 123 (“47. Country’s abandonment set Westside back about a year. The
delay caused Westside damage of approximately $33,920.00.”). The dollar figure comes
from Westside’s Proposed Finding 43, which states,
Larry Nielsen testifies Country’s abandonment set Westside back about a year.
Assuming a hard eight months of delay—contract had no completion date—
Exhibit 19 demonstrates a cash flow for Westside of about $4,240 net profit
before tax. (Page one, monthly rent of $15,823, with page two, monthly
expense, $11,583, difference being $4,240, times eight is $33,920.)
Id. at 93 (emphases added).
While the court’s adoption of a party’s dollar figure does not itself amount to clear
error, the figure must enjoy sufficient evidentiary support. In this vein, we first note that
although Westside’s proposed finding mentions a setback of about one year, its calculation is
clearly based on an assumed “hard eight months of delay.” Id. The trial court did not adopt
the eight-month delay but instead adopted a one-year delay. Notwithstanding, the court
adopted the dollar figure that was clearly calculated using an eight-month timeframe, as
evidenced in the parenthetical calculation contained within Westside’s proposed Finding 43.
The trial court simply removed the references to eight months and retained the delay duration
28
of one year but retained the dollar figure based on an eight-month duration. Thus, Finding 47
is internally inconsistent.
While the trial court did not indicate why it omitted the proposed eight-month
timeframe and adopted a one-year timeframe, we note that the record is devoid of evidence
concerning an eight-month timeframe. With respect to the duration of the delay, Nielsen
testified that he did not know exactly when Country began its work on the project, but he
knew that it ceased working after December 2008. Tr. at 19, 26, 29. At that time, the project
was incomplete. Nielsen did not indicate how much longer the project reasonably should
have taken to complete. When asked how long the project was supposed to take, he
responded, “Until it was completed, I don’t know how long it would have taken them.” Id. at
16. The replacement contractor, Hall, began its work sometime around July 2009, and
occupancy of the buildings began in December 2009. Id. at 27, 37. When asked how long
the project was delayed due to Country’s nonpayment to the subcontractors, Nielsen
responded, “At least six months, probably set us back a year …. [Country is responsible for
the] delay of at least six months as far as the excavating, yes.” Id. at 40 (emphases added).
In short, the trial court adopted a one-year duration figure, which enjoyed some evidentiary
support, but it did not adjust the calculation accordingly.
Even if the trial court had properly adjusted the delay damage calculation to cover a
six- or twelve-month duration, we find the evidence concerning Westside’s actual loss
attributable to delay to be speculative. Westside’s calculation (adopted by the court) was
based on figures contained in Plaintiff’s Exhibit 19. Page one of Plaintiff’s Exhibit 19
29
consists of a table listing annual rent projections beginning in November 2007. The table
contains numerous sets of figures, based on occupancy percentages of storage units. In
addition to the printed figures, there are additional, unexplained figures penciled in on each
side of the table. Page two of the exhibit contains a cash flow analysis/progression of
revenue for a twelve-month period. Again, the figures appear to be dependent upon the
occupancy rate. Also notable is that there is no date listed anywhere on page two; as such, it
is impossible to tell whether this page of the exhibit applies to the same time period as page
one, i.e., one year beginning November 2007. The record is devoid of any testimony
explaining the printed (or penciled) figures contained in the exhibit. At trial, Nielsen was
asked his gross income for the first year he was in business. He responded, “I believe 2010
was like $45,000.00 or $44,000.00 [or about $3,500.00 per month].” Tr. at 40. These
estimates represent gross rental income, provided in retrospect, rather than projections made
in 2007. They obviously differ from the monthly income used in Westside’s calculation in its
proposed findings. There also is a discrepancy in the number of buildings contained in the
projections versus the number actually built. Simply put, the evidence is inconclusive
concerning the actual amount of damages suffered due to Country’s delay. Based on the
foregoing, we conclude that the figure adopted by the trial court is speculative and therefore
reverse the trial court’s award of $33,920 delay damages. To the extent that our holding on
this issue affects the calculation of prejudgment interest, we remand for a recalculation.
Affirmed in part, reversed in part, and remanded.
BARNES, J., and PYLE, J., concur.
30