MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                           Jul 10 2018, 8:44 am
the defense of res judicata, collateral                                    CLERK
estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEES
Diane Seiwert                                             Joseph W. Votaw, III
Lawrenceburg, Indiana                                     Votaw and Schwarz
                                                          Lawrenceburg, Indiana

                                                          Susan M. Salyer
                                                          Ruggiero & Salyer, LPA
                                                          Cincinnati, Ohio



                                           IN THE
    COURT OF APPEALS OF INDIANA

Diane Seiwert and 19942                                   July 10, 2018
Longview Drive, LLC,                                      Court of Appeals Case No.
Appellants/Defendants/Cross-Claim                         15A01-1707-PL-1616
                                                          Appeal from the Dearborn
Plaintiffs,                                               Superior Court
                                                          The Honorable Jonathan N.
        v.
                                                          Cleary, Judge
                                                          Trial Court Cause No.
Ty Brown and Brown Roofing
                                                          15D01-1611-PL-74
Co.,
Appellees/Plaintiffs/Cross-Claim

Defendants.



Court of Appeals of Indiana | Memorandum Decision 15A01-1707-PL-1616 | July 10, 2018           Page 1 of 6
      Bradford, Judge.



                                           Case Summary
[1]   Diane Seiwert and 19942 Longview Drive, LLC (“Seiwert”) appeal the trial

      court’s judgment in favor of Ty Brown and Brown Roofing Company

      (“Brown”). We affirm.



                            Facts and Procedural History
[2]   On June 16, 2016, Seiwert contracted with Brown for the installation of copper

      gutters and downspouts. The parties’ contract provided that the cost of

      installation of the gutters and downspouts would be $7000.00. After Brown

      had installed the gutters but before he could install the downspouts, Seiwert

      decided that she was not satisfied with the aesthetics of the gutters, ordered

      Brown to stop work, and informed him that she would not be paying for the

      work done to that point. Brown filed suit in the small claims court seeking

      payment in the amount of $5531.83. The requested amount covered both the

      cost of the gutters and the labor for the installation. Seiwert filed a

      counterclaim alleging breach of contract and negligence. The matter was

      transferred to the trial court. Following a multi-day trial, the trial court rejected

      Seiwert’s counterclaim and entered judgment in favor of Brown in the amount

      of $5531.83.



                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-PL-1616 | July 10, 2018   Page 2 of 6
                           I. Whether the Contract was Void
[3]   Seiwert contends that the trial court erred as it should have found the contract

      at issue to be void because it lacked a start and completion date in violation of

      the Home Improvement Contracts Act (“HICA”).1 The HICA provides that a

      home improvement contract must contain the “approximate starting and

      completion dates of the real property improvements.” Ind. Code § 24-5-11-

      10(a)(6). The purpose of the HICA “is to protect consumers by placing specific

      minimum requirements on the contents of home improvement contracts.”

      Benge v. Miller, 855 N.E.2d 716, 720 (Ind. Ct. App. 2006). We have previously

      concluded that “the General Assembly did not intend that every contract made

      in violation of HICA to automatically be void.” Imperial Ins. Restoration &

      Remodeling, Inc. v. Costello, 965 N.E.2d 723, 729 (Ind. Ct. App. 2012).


              Instead, we apply a balancing approach and examine the factors
              that courts use to determine whether or not a contract
              contravenes declared public policy. The considerations to be
              balanced are (1) the nature of the subject matter of the contract,
              (2) the strength of the public policy underlying the statute, (3) the
              likelihood that refusal to enforce the bargain or term wi[ll] further
              that policy, (4) how serious or deserved would be the forfeiture
              suffered by the party attempting to enforce the bargain, and (5)
              the parties’ relative bargaining power and freedom to contract.




      1
        We note that Seiwert’s entire argument relating to this contention appears to be a block-quote from an
      uncited prior opinion of either this court or the Indiana Supreme Court. Despite Seiwert’s failure to make
      any argument relating to the facts and circumstances surrounding this case, we have nonetheless addressed
      the merits of her contention.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-PL-1616 | July 10, 2018             Page 3 of 6
      Id. (internal citations omitted).


[4]   The contract at issue involved two parties of seemingly equal bargaining power

      and freedom to contract. The parties contracted for the installation of copper

      gutters and downspouts. Brown began work and completed installation of the

      gutters before being instructed by Seiwert to stop. Brown did not remove the

      gutters from Seiwert’s home after being instructed to stop work and the gutters

      remain in Seiwert’s possession. To void the contract after partial completion of

      the contracted work would result in a windfall for Seiwert as it would leave

      Brown deprived of both compensation for the work completed and the cost of

      the materials themselves. Further, the record reveals that the underlying claims

      do not allege any issue related to the start or completion date of the project. For

      these reasons, we cannot conclude that the parties’ agreement should be

      unenforceable against Seiwert.


                                     II. Breach of Contract
[5]   Seiwert also contends that the trial court erred in finding in favor of Brown on

      the parties’ competing breach of contract claims. Seiwert appeals from a

      general judgment.


              A general judgment will be affirmed if it can be sustained upon
              any legal theory consistent with the evidence. In making that
              determination we neither reweigh the evidence nor judge the
              credibility of witnesses. Rather, we consider only the evidence
              most favorable to the judgment together with all reasonable
              inferences to be drawn therefrom. In reviewing a general
              judgment, we must presume the trial court correctly followed the
              law. A general judgment will be affirmed unless the
      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-PL-1616 | July 10, 2018   Page 4 of 6
              uncontradicted evidence leads to a conclusion opposite that
              reached by the trial court.


      Conseco Fin. Servicing Corp. v. Friendly Vill. of Indian Oaks, 774 N.E.2d 87, 92

      (Ind. Ct. App. 2002) (internal citations omitted).


[6]   Seiwert does not dispute that she instructed Brown to stop work or that she did

      not pay Brown for the work completed. Nevertheless, Seiwert argues that the

      trial court should have found that it was Brown who first breached the parties’

      contract. In making this argument, Seiwert does not assert that the gutters were

      not properly affixed to the home or that the gutters did not function properly.

      She merely claims that Brown damaged the aesthetics of the gutters during the

      installation process. Specifically, Seiwert asserts that she expected Brown to

      “ensure [that] the money [she] spent resulted in adding aesthetic value to her

      home.” Appellants’ Br. p. 22. The trial court considered the evidence

      presented by the parties and determined that the alleged damage to the

      aesthetics of the gutters did not amount to a breach of the parties’ contract.

      Seiwert has failed to convince us of such on appeal. As such, given that Seiwert

      does not dispute that she both instructed Brown to stop work before the

      downspouts were installed and failed to pay for the installation of the gutters,




      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-PL-1616 | July 10, 2018   Page 5 of 6
      we conclude that the trial court did not err in finding that Seiwert breached the

      parties’ contract.2


[7]   The judgment of the trial court is affirmed.


      Baker, J., and Kirsch, J., concur.




      2
        Seiwert also raises the issue that the trial court erred in failing to specifically address her counterclaim in its
      ruling. We see no merit in this argument in that the trial court’s ruling implicitly rejects her counterclaim.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-PL-1616 | July 10, 2018                     Page 6 of 6
