      MEMORANDUM DECISION
                                                                    Aug 21 2015, 9:13 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Timothy F. Devereux                                       Katherine J. Noel
      Ladendorf Law                                             Justin K. Clouser
      Indianapolis, Indiana                                     Noel Law
                                                                Kokomo, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Floyd Kinslow,                                           August 21, 2015

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               12A02-1502-CT-106
              v.                                               Appeal from the Clinton Superior
                                                               Court.
                                                               The Honorable Justin H. Hunter,
      Dennis Coddington, Travis                                Judge.
      Sheets and Gina Sheets,                                  Cause No. 12D01-1301-CT-43
      Appellees-Defendants.




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Floyd Kinslow appeals from the trial court’s order granting summary judgment

      in favor of Travis and Gina Sheets and denying his motion for partial summary




      Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 1 of 13
      judgment in an action seeking damages for personal injuries he suffered. We

      affirm.


                                                     Issue
[2]   We restate the sole issue Kinslow raises on appeal as follows: whether the trial

      court erred by granting summary judgment in favor of the Sheetses and by

      denying Kinslow’s motion for partial summary judgment resolving the issue of

      their vicarious liability for Coddington’s alleged negligence.


                               Facts and Procedural History
[3]   Travis and Gina Sheets own rental properties in Frankfort, Indiana. One of

      those rental properties was located at 606 Alhambra Street. Although the house

      faced Alhambra Street, the driveway was accessible by way of Hackett Street,

      which ran behind the house.


[4]   Dennis Coddington, a handyman who did some work for the Sheetses, was at

      the property on 606 Alhambra on March 19, 2012. After repairing an electrical

      plug, collecting the rent check from the tenant, and writing a receipt for the

      rent, Coddington entered his Ford F150 pickup truck and began to back out of

      the driveway at approximately 9:39 a.m. He stopped his truck after hearing

      someone yell. Coddington exited his truck and ran toward the road to see what

      had happened. Floyd Kinslow was lying in the grass on the other side of

      Hackett Street holding his leg, and the motorcycle he had been riding was also

      in the grass on the other side of the road.



      Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 2 of 13
[5]   Kinslow filed a complaint for damages against Coddington alleging negligence

      claims and made an underinsured motorist insurance claim against GEICO. In

      his complaint, Kinslow alleged that Coddington’s truck had pulled into the path

      of Kinslow’s motorcycle, Kinslow was unable to avoid the collision, and

      Coddington’s truck struck Kinslow’s motorcycle resulting in injuries to

      Kinslow’s ankle. On April 5, 2013, the trial court entered an order dismissing

      Kinslow’s underinsurance claims against GEICO pursuant to a stipulation of

      dismissal without prejudice. On December 6, 2013, Kinslow filed a notice of

      filing of an amended complaint for damages pursuant to Indiana Trial Rule

      15(A). In his amended complaint filed that same day, Kinslow added the

      Sheetses as defendants to the action. After the Sheetses filed their answer to the

      complaint, they filed a motion for summary judgment and designation of

      evidence. In addition to a response to the Sheetses’ motion for summary

      judgment, Kinslow filed a motion for partial summary judgment.


[6]   The trial court held a hearing on the parties’ motions for summary judgment.

      On February 2, 2015, the trial court entered its order granting the Sheetses’

      motion for summary judgment and denying Kinslow’s motion for partial

      summary judgment. Kinslow now appeals.


                                   Discussion and Decision
                                         Standard of Review
[7]   We review an order on summary judgment de novo applying the same standard

      as that used by the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 3 of 13
      2014). We draw all reasonable inferences in favor of the non-moving parties

      and will find that summary judgment is appropriate if the designated

      evidentiary matter shows that there are no genuine issues as to any material fact

      and that the moving party is entitled to judgment as a matter of law. Id. A fact

      is considered to be material if its resolution would affect the outcome of the

      case. Id. An issue is considered to be genuine if a trier of fact is required to

      resolve the parties’ differing accounts of the truth, or if the undisputed material

      facts support conflicting reasonable inferences. Id.


[8]   The party moving for summary judgment bears the initial burden of

      demonstrating the absence of any genuine issue of fact as to a determinative

      issue. Id. Once that burden is met, the burden shifts to the non-movant to

      come forward with contrary evidence showing an issue for the trier of fact. Id.

      The non-moving party has the burden on appeal of persuading us that the grant

      of summary judgment was erroneous. Id. However, on review, we carefully

      assess the trial court’s decision to ensure that the non-moving party was not

      improperly denied his or her day in court. Id. In addition, the fact that both

      parties have filed cross-motions for summary judgment does not alter our

      standard of review. Sargent v. State, 27 N.E.3d 729, 732 (Ind. 2015). We

      consider each motion separately to determine whether the moving party is

      entitled to judgment as a matter of law. Id.




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                      Coddington’s Relationship To The Sheetses
[9]    The designated evidence presented to the trial court reflects that as of the time

       of his deposition, Coddington had provided handyman services for twelve years

       for Nina Rogers. Rogers owned several rental properties and according to

       Coddington operated her business as Rogers Rentals. Although Coddington

       did not provide his services under a formal business structure, he had business

       cards bearing the name Rogers Rentals and including Coddington’s name and

       contact information at the bottom. Coddington continued to provide services

       for Rogers after he began providing handyman services for the Sheetses and

       would pass out the business cards to the Sheetses’ tenants.


[10]   Travis Sheets asked other landlords for whom Coddington had done some work

       about his qualifications and the manner in which he conducted business with

       them. When Coddington began providing services for the Sheetses, he charged

       $15.00 per hour and his rate remained the same throughout. There was no

       formal written agreement between Coddington and the Sheetses. They

       considered him to be an independent contractor and he considered himself to be

       a handyman. Additionally, no money was withheld from Coddington’s pay.

       The only year for which the Sheetses issued a 1099 to Coddington was at the

       end of 2013, well after the accident. Until they were named in the lawsuit, it

       had not occurred to them to issue a 1099 to those who provided services for

       them. However, Coddington was never issued a W2 tax form by the Sheetses.


[11]   Coddington would discuss the particular repair or task with Travis or Gina,

       would keep track of the hours he spent doing the task, and would submit a
       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 5 of 13
       handwritten invoice, titled Coddington Handyman Service, to them at the end

       of the month detailing the properties at which he worked and the time and tasks

       that were involved. The Sheetses would then issue a check to Coddington.

       They might need to use Coddington’s services for several months in a row, or

       there would be periods of several months when they would not need his

       services.


[12]   Coddington, who provided mostly general contracting work, provided his own

       tools and truck. If Coddington was too busy to complete the task himself, he

       would hire people to complete the work for him, if he chose to accept the task.

       In particular, Coddington hired a crew to paint one of the Sheetses’ rental units.

       When Travis stopped at that location, he was surprised to find people there he

       did not know, as he unaware that Coddington had hired others to complete the

       task he had accepted. Coddington, who was paid by Travis and Gina, paid

       those workers. When Coddington needed to purchase an item for a repair, he

       would either telephone Travis to arrange for payment with the store, receive a

       check from Gina in advance for the purchase, or submit a receipt for

       reimbursement for the purchase if he paid for the item himself.


[13]   Travis or Gina would receive calls from tenants about needed repairs or

       Coddington would receive the calls directly. In either circumstance, Travis and

       Coddington would discuss the nature of the requested repair and Coddington’s

       availability. Coddington could choose to accept or decline any of the tasks

       offered to him. If Coddington was already at a particular rental property to

       mow the grass or collect rent and a tenant approached him about a needed

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       repair, he would take a look at the issue, inform Travis of the nature of the

       repair and his estimate of how much the repair would cost, and tell him if it was

       a task Coddington could undertake. Sometimes Coddington would make the

       repair on the spot, while other times he would purchase items and return to the

       property.


[14]   If the Sheetses needed larger projects to be completed such as painting an entire

       house, having plaster work done, or having all of the carpets in a home cleaned,

       Travis would form a budget for the project to be done by any one of the

       handymen they used. Travis maintained a list of handymen to turn to for

       estimates for many kinds of repairs. Oftentimes, for minor repairs, Travis

       would suggest that certain smaller requested repairs wait until the activity could

       be combined with another task associated with the property in order to keep the

       overall cost per hour down. The Sheetses authorized Coddington to repair

       items as their budget would allow.


[15]   One of the services Coddington provided involved the collection of rent. Travis

       had learned that Coddington provided that service for other landlords.

       Coddington started doing this for the Sheetses at his usual hourly rate when the

       Sheetses learned that they would be returning to Liberia. He would collect rent,

       issue a receipt, and would sometimes deposit the money for Travis and Gina.

       Coddington was one of the few handymen who was willing to take on that task

       and was paid for his time only.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 7 of 13
[16]   Travis Sheets frequently traveled out of the country related to his mission work.

       He gave Coddington keys to many if not all of the rental properties. Travis

       notified the tenants that he would be traveling out of the country and would

       have them contact Coddington if something happened late at night and would

       have them follow up with a call to Gina the next day. Coddington returned the

       keys to Travis when asked to do so.


[17]   Coddington was collecting the rent for the Sheetses, who were out of the

       country, when the collision with Kinslow occurred. On the date of the

       accident, Coddington planned to stop by rental properties on behalf of Rogers

       and the Sheetses. During his deposition, Coddington at first indicated that he

       was at the Alhambra address to complete work for Rogers, but then stated that

       it was one of the Sheetses’ properties and that he had to do something for

       Rogers after that. Coddington did not notify Travis or Gina of the incident.

       They learned that an accident had occurred only after receiving the amended

       complaint naming them as additional defendants to the action.


[18]   Coddington stopped providing handyman services for the Sheetses late in 2013.

       They were going to be moving to Liberia to complete missionary work there. A

       friend of theirs offered to provide services for them for free as the Sheetses

       transitioned toward moving to Liberia.


                                         Agency Relationship
[19]   Kinslow argues that the trial court erred by concluding that there was no

       genuine issue of material fact that Coddington was acting as an agent of the

       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 8 of 13
       Sheetses at the time of the accident. “Agency is a relationship resulting from

       the manifestation of consent by one party to another that the latter will act as an

       agent for the former.” Demming v. Underwood, 943 N.E.2d 878, 884 (Ind. Ct.

       App. 2011), trans. denied (citing Meridian Sec. Ins. Co. v. Hoffman Adjustment Co.,

       933 N.E.2d 7, 12 (Ind. Ct. App. 2010)). In order to establish the existence of an

       actual agency relationship, three elements must be shown: (1) manifestation of

       consent by the principal; (2) the agent’s acceptance of authority; and (3) control

       exerted by the principal over the agent. Id. The elements may be proven by

       way of circumstantial evidence. Id. There is no requirement that the agent’s

       authority to act be reduced to writing. Id. Whether the agency relationship

       exists is generally a question of fact; however, if the evidence is undisputed, the

       matter may be resolved by summary judgment. Id.


[20]   Here, Kinslow focusses on the degree of control he claims the Sheetses exerted

       over Coddington. He does so to support his contention that vicarious liability

       for Coddington’s alleged negligence should be imposed. With respect to

       control, “‘[t]he principal’s control cannot simply consist of the right to dictate

       the accomplishment of a desired result.’” Id. at 885 (quoting Policy Mgmt. Sys.

       Corp. v. Ind. Dep’t of State Revenue, 720 N.E.2d 20, 24 (Ind. Tax Ct. 1999), trans.

       denied). In order to satisfy the control element, “‘[i]t is necessary that the agent

       be subject to the control of the principal with respect to the details of the

       work.’” Id. (quoting Turner v. Bd. of Aviation Comm’rs, 743 N.E.2d 1153, 1163

       (Ind. Ct. App. 2001), trans. denied). “However, the principal need not exercise




       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 9 of 13
       complete control over every aspect of the agent’s activities within the scope of

       the agency.” Id.


[21]   The designated materials established that the Sheetses would use various

       handymen or services in the course of the management of their rental

       properties. Coddington was one of the handymen they would contact to

       provide an estimate of the cost of the needed repair or task. Coddington

       provided written invoices, bearing the name Coddington Handyman Services,

       to the Sheetses in the months he was hired. Coddington, like any other

       handyman, could choose not to take on work offered by the Sheetses.


[22]   Further, with respect to at least one painting job Coddington undertook for

       them, he hired and paid his own crew to complete the task. Travis Sheets

       stopped by the property and was surprised to find people he did not know

       performing the task. Coddington occasionally collected rent from the Sheetses’

       tenants, and on occasion would show a property to a prospective tenant.

       However, Coddington was paid at his hourly rate for the time it took to

       complete these tasks. To the extent that Travis Sheets controlled which repairs

       were completed, he did so to control his budget.


[23]   Based on the foregoing designated evidence we conclude that the trial court did

       not err by granting the Sheetses’ motion for summary judgment and denying

       Kinslow’s motion for partial summary judgment with respect to this common

       law agency argument.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 10 of 13
                            Independent Contractor or Employee
[24]   Kinslow also argues that the trial court erred by concluding as a matter of law

       that Coddington was an independent contractor and not an employee. “[T]he

       question of whether one acts as an agent or independent contractor is generally

       one of fact.” Benante v. United Pacific Life Ins. Co., 659 N.E.2d 545, 548 (Ind.

       1995). Additionally, “[t]hat the parties may have characterized their

       relationship as that of independent contractor is significant but not dispositive.”

       Id.


[25]   When evaluating whether one’s status is an employee or an independent

       contractor in many contexts in addition to negligence cases, we have applied

       the ten-factor test from the Restatement (Second) of Agency § 220 (1958). See

       e.g., Howard v. U.S. Signcrafters, 811 N.E.2d 479 (Ind. Ct. App. 2004) (applying

       test in worker’s compensation case).


[26]   Coddington had his own informal business, Coddington’s Handyman Service,

       and worked for others, including Rogers and the Sheetses, submitting his own

       invoices to them. The Sheetses issued a check to Coddington when they

       received an invoice from him. He was not paid a salary and did not receive a

       W2 tax form from the Sheetses. Coddington believed that he was a handyman,

       and the Sheetses believed that he was an independent contractor. The only year

       for which the Sheetses issued a 1099 to Coddington was at the end of 2013.

       Until they were named in the lawsuit, it had not occurred to them to issue a

       1099 to those who provided services for them. No money was withheld from

       the checks issued to Coddington.
       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 11 of 13
[27]   Coddington supplied his own truck, his own tools, and hired a crew when

       needed to complete a task he had accepted. Coddington provided certain

       handyman services that were general in nature, while the Sheetses managed

       rental properties they owned. The fact that the Sheetses sometimes had

       Coddington collect rent payments from the tenants and that it was also a task

       that the Sheetses did in the course of managing their properties does not weigh

       in favor of employee status. Coddington did so by his own choice at his hourly

       rate when hired by the Sheetses while they were out of the country.

       Coddington did not report the accident to the Sheetses; rather, they learned of

       the incident upon receiving the amended complaint naming them as

       defendants.


[28]   We have already discussed the extent-of-control factor in the argument above

       concluding that no agency relationship existed. The same rationale supports

       the conclusion that Coddington was an independent contractor and not an

       employee.


[29]   The designated evidence pertaining to these ten factors supports the trial court’s

       conclusion. The trial court did not err by concluding that Coddington was an

       independent contractor and not an employee.


                                                Conclusion
[30]   In light of the foregoing, we affirm the trial court’s order granting summary

       judgment in favor of the Sheetses and denying Kinslow’s motion for partial

       summary judgment.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 12 of 13
[31]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1502-CT-106 | August 21, 2015   Page 13 of 13
