                                                                        FILED
MEMORANDUM DECISION                                                Mar 17 2016, 9:05 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
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                                   APPELLEE PRO SE
Jonathan A. Leachman                                     Marie D. Jackson
Fifer Law Office                                         Crestwood, Kentucky
New Albany, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven D. Brazell,                                       March 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A01-1505-SC-310
        v.                                               Appeal from the Floyd Superior
                                                         Court
Marie Dezi Jackson,                                      The Honorable James B. Hancock,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Julie Fessel
                                                         Flanigan, Magistrate
                                                         Trial Court Cause No.
                                                         22D02-1411-SC-1137



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016        Page 1 of 7
                                          Case Summary
[1]   Steven Brazell contracted with Marie Jackson to refinish and expand Jackson’s

      aging asphalt driveway. Shortly after Brazell completed his work, the driveway

      began to deteriorate, and Jackson sued Brazell in small-claims court. The

      court, after hearing testimony from both Jackson and Brazell, ruled in favor of

      Jackson and ordered Brazell to pay damages in the amount of the contract

      price. Brazell now appeals, arguing that the evidence presented to the small-

      claims court is insufficient to support the judgment. We disagree and affirm the

      judgment.



                            Facts and Procedural History
[2]   In August 2010, Brazell and Jackson entered into a written agreement by which

      Jackson agreed to pay Brazell $2,975.00 to repair Jackson’s cracked asphalt

      driveway, construct an addition for turnaround space or extra parking, and

      perform decorative “stamping.” Specifically, the parties’ written agreement

      required Brazell to do the following:

              1. To clean existing drive to be stamped with a pattern design.


              2. Grout out any vegetation.


              3. Excavate 1 area about 12’ x 15’ area [and] pave excavated
              areas.


              4. Heat up existing asphalt, taking out any cracks.


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              5. Bring asphalt back to normal state, and stamp with layout
              design.


              6. Spray the colors that are pic [sic] out by customer.


              7. Add on for turnaround or extra parking about 12’ x 18’ area
              and bring up level at entrance.


      Appellant’s App. p. 6. Jackson asked for the main surface to be painted

      sandstone and for the borders to be painted burnt sienna.

[3]   Even though the contract was signed in August 2010, Brazell did not complete

      his work until July 2012. When he finished, Jackson noticed that the colors

      were not the ones that she had picked, but she did not complain to Brazell or

      take any action against him because, she later testified, “[I]t’s been two (2) years

      and it’s completed. I’m finished. I don’t have to do this anymore.” Tr. p. 19.

      However, within a couple of months, the driveway started “deteriorating” and

      “crumbling.” Id. Jackson contacted an independent paving contractor, who

      told her that she had “a substandard base on her driveway.” Id. at 21; see also id.

      at 28-31. Jackson then filed a small-claims action against Brazell.

[4]   At trial, both parties testified and submitted documents and photographs to the

      court. The court took the matter under advisement and later issued a judgment

      in favor of Jackson and against Brazell in the amount of $2,975.00 (the contract

      price) plus court costs.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016   Page 3 of 7
                                 Discussion and Decision
[5]   Brazell challenges the judgment of the small-claims court on two grounds.

      First, he argues that the evidence presented to the court does not support its

      finding that he breached the contract or any duty he owed to Jackson. Second,

      he contends that even if we uphold the finding of a breach, the small-claims

      court’s damages award is not supported by the evidence and must be reversed.

[6]   Small-claims judgments are “subject to review as prescribed by relevant Indiana

      rules and statutes.” Ind. Small Claims Rule 11(A). “In the appellate review of

      claims tried by the bench without a jury, the reviewing court shall not set aside

      the judgment ‘unless clearly erroneous, and due regard shall be given to the

      opportunity of the trial court to judge the credibility of the witnesses.’” City of

      Dunkirk Water & Sewage Dept. v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting

      Ind. Trial Rule 52(A)). In determining whether a judgment is clearly

      erroneous, the appellate court does not reweigh the evidence or determine the

      credibility of witnesses but considers only the evidence that supports the

      judgment and the reasonable inferences to be drawn from that evidence. Id. A

      judgment in favor of the party that had the burden of proof will be affirmed if

      the evidence was such that from it a reasonable trier of fact could conclude that

      the elements of the party’s claim were established by a preponderance of

      evidence. Id. “This deferential standard of review is particularly important in

      small-claims actions, where trials are ‘informal, with the sole objective of

      dispensing speedy justice between the parties according to the rules of

      substantive law.’” Id. (quoting Ind. Small Claims Rule 8(A)).

      Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016   Page 4 of 7
                                                 I. Breach
[7]   Brazell first asserts that the evidence presented at trial is insufficient to support a

      conclusion that he breached the contract or any duty he owed to Jackson.

      While the small-claims court did not explain the basis for its decision, either on

      the record or in its written judgment, we presume that it correctly applied the

      law, and we must affirm if the judgment is sustainable on any legal theory.

      Brandeis Machinery & Supply Co. v. Capitol Crane Rental, Inc., 765 N.E.2d 173, 176

      (Ind. Ct. App. 2002). We conclude that the small-claims court’s judgment is

      sustainable based on the implied warranty of workmanlike performance.

[8]   “In a contract for work, there is an implied duty to do the work skillfully,

      carefully, and in a workmanlike manner.” Homer v. Burman, 743 N.E.2d 1144,

      1147 (Ind. Ct. App. 2001), reh’g denied. “Negligent failure to do so is a tort, as

      well as a breach of contract.” Id. Here, Brazell agreed to refurbish and expand

      Jackson’s aging asphalt driveway. Jackson acknowledged that Brazell

      completed the work that she paid him to do, but she also testified that her

      driveway started deteriorating and crumbling within a couple of months

      thereafter. This evidence supports a conclusion that Brazell did not complete

      the project “skillfully, carefully, and in a workmanlike manner.” See id.


[9]   Brazell’s main argument, though, is that any deficiencies in his own work are

      irrelevant because Jackson herself acknowledged that the deterioration and

      crumbling were the result of a “substandard base.” Brazell says that “[t]he




      Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016   Page 5 of 7
       undisputed evidence at trial was that [he] did not build, disturb or perform any

       work on the base of Jackson’s driveway.” Appellant’s Br. p. 14.

[10]   The first problem with Brazell’s assertion is that he did, in fact, create the base

       for the addition to the driveway. Jackson testified at trial that both her original

       driveway and the section that Brazell added started deteriorating after Brazell

       finished the project. Tr. p. 27, 29, 40-41.

[11]   As for the original driveway, even if the base was substandard before Brazell

       began his work, that fact would not preclude his liability. He agreed, in writing,

       to “[h]eat up [the] existing asphalt, taking out any cracks” and to “[b]ring [the]

       asphalt back to [its] normal state.” Appellant’s App. p. 6. The agreement does

       not contain any sort of disclaimer or exception relating to the condition of the

       base, and Brazell did not present any evidence that Jackson ever acknowledged

       or assumed any risk that the condition of the surface could be affected by the

       condition of the base. In other words, Brazell agreed to return Jackson’s

       driveway to its “normal” (uncracked) state irrespective of the condition of the

       base. Because it is undisputed that the driveway began to deteriorate and

       crumble shortly after Brazell completed his work, the small-claims court was

       justified in ruling against him and in favor of Jackson.


                                               II. Damages
[12]   Brazell also asserts that even if the evidence supports a conclusion that he

       performed subpar work, the small-claims court’s award of damages is not

       supported by the evidence and should be reversed. “Our review of a damages

       Court of Appeals of Indiana | Memorandum Decision 22A01-1505-SC-310 | March 17, 2016   Page 6 of 7
       award is limited.” Sheek v. Mark A. Morin Logging, Inc., 993 N.E.2d 280, 287

       (Ind. Ct. App. 2013), trans. denied. “We do not reweigh the evidence or judge

       the credibility of witnesses, and we will reverse an award only when it is not

       within the scope of the evidence before the finder of fact.” Id.


[13]   Brazell correctly notes that “[a] damage award must be referenced to some

       fairly defined standard[.]” Appellee’s Br. p. 14 (quoting Fowler v. Campbell, 612

       N.E.2d 596, 603 (Ind. Ct. App. 1993)). However, he cites no authority for the

       proposition that the full contract price cannot be the “fairly defined standard” in

       a case like this. Jackson paid Brazell $2,975.00 to improve her aging and

       cracked driveway, and she testified that the driveway returned to a crumbling

       state shortly after Brazell completed his work. That is, Jackson testified that

       Brazell did not do what he was paid to do. The small-claims court must have

       credited Jackson’s testimony, and its damages award plainly falls within the

       scope of the evidence.

[14]   Affirmed.

       Bailey, J., and Crone, J., concur.




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