MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jun 10 2020, 9:51 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Fred Pfenninger                                          Steven E. Runyan
Pfenninger & Associates                                  Kevin D. Koons
Indianapolis, Indiana                                    Portia Bailey-Bernard
                                                         Kroger, Gardis & Regas, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

CSI Protective Services LLC,                             June 10, 2020
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-CC-2643
        v.                                               Appeal from the Marion Circuit
                                                         Court
Paragon Properties Company                               The Honorable Sheryl L. Lynch,
a/k/a Paragon Properties LLC,                            Judge
and Justin Dunckel,                                      Trial Court Cause No.
Appellees-Defendants                                     49C01-1705-CC-17418




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CC-2643 | June 10, 2020                    Page 1 of 7
[1]   CSI Protective Services LLC (CSI) appeals the trial court’s order granting

      summary judgment in favor of Paragon Properties Company (Paragon) and

      Justin Dunckel on CSI’s complaint for breach of contract. Finding no error, we

      affirm.


                                                     Facts
[2]   Before September 2015, Chapel Hill Apartments in Indianapolis was an

      apartment complex owned by Chapel Hill Indiana, LLC. In 2015, MF Blue

      Valley Apartments LLC (Blue Valley) purchased Chapel Hill Apartments at a

      Sheriff’s sale. Blue Valley recorded the Sheriff’s Deed on September 3, 2015.


[3]   Paragon is a limited liability company that performs property management

      services. Dunckel is the president of Paragon. At some point, Blue Valley

      engaged Paragon to manage Chapel Hill Apartments; in that capacity, Paragon

      was authorized to enter into agreements on Blue Valley’s behalf.


[4]   On September 14, 2015, CSI, a limited liability company that provides security

      services for apartment complexes, executed a contract (the Contract) to provide

      security services to Chapel Hill. The Contract, which was drafted by CSI, states

      that it is between CSI and Chapel Hill Apartments. Chad Butts, CSI’s CEO,

      signed for CSI; Dunckel signed on behalf of “Chapel Hill Apartments

      Management,” in his capacity as president of Paragon. Appellant’s App. Vol.

      II p. 166.


[5]   CSI and Paragon had a business relationship prior to the Contract, as CSI had

      provided security services for other properties managed by Paragon over the
      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2643 | June 10, 2020   Page 2 of 7
      course of several years. In multiple communications before the execution of the

      Contract, Butts confirmed CSI’s knowledge that Paragon was a third-party

      property manager that did not actually own Chapel Hill Apartments.


[6]   On May 2, 2017, CSI filed a complaint against Paragon for breach of contract,

      alleging that CSI had not been paid for its security work at Chapel Hill

      Apartments. CSI later added Dunckel, in his personal capacity, as a defendant.

      On September 6, 2018, Paragon and Dunckel filed a motion for summary

      judgment. Following briefing and a hearing, the trial court granted summary

      judgment in favor of Paragon and Dunckel on October 10, 2019. In relevant

      part, the trial court found and concluded as follows:


              26.      The parties do not dispute Paragon, through Justin
                       Dunckel, acted on behalf of Blue Valley, owner of Chapel
                       Hill Apartments, when it executed the Contract with CSI.


              27.      CSI disputes that it knew the specific identity of Paragon’s
                       principal, Blue Valley, saying that Paragon’s principal was
                       “undisclosed.”


                                                       ***


              44.      . . . Paragon provided the identity of the complex (and
                       address) which was sufficient to identify the principal
                       because the owner of the complex (the principal) was
                       readily available through property records.


              45.      The Sheriff’s deed is public information where the owner
                       of Chapel Hill Apartments is identified as Blue Valley.


      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2643 | June 10, 2020   Page 3 of 7
                       Thus, Paragon was not withholding the identify of the
                       principal or that a principal exists.


                                                       ***


                                                 Conclusion


                     The Court . . . now finds that the evidence is undisputed
              that Justin Dunckel, president of Paragon, signed the contract
              engaging the services of CSI in his capacity as agent of Chapel
              Hill Apartments. Chapel Hill Apartments, and its owner, Blue
              Valley[,] is a separate and distinct entity from its property
              management provider, Paragon. This information was readily
              apparent and ascertainable both before and after the Contract
              was executed. Therefore, CSI’s argument that Paragon’s
              principal was undisclosed fails.


      Appealed Order p. 5-10. CSI now appeals.


                                   Discussion and Decision
[7]   CSI argues that there is an issue of fact rendering summary judgment improper.

      Specifically, CSI contends that it did not know that Paragon, as agent, was

      acting on behalf of Blue Valley, as principal, when executing the Contract.


[8]   Our standard of review on summary judgment is well settled:


              The party moving for summary judgment has the burden of
              making a prima facie showing that there is no genuine issue of
              material fact and that the moving party is entitled to judgment as
              a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
              Once these two requirements are met by the moving party, the
              burden then shifts to the non-moving party to show the existence

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-2643 | June 10, 2020   Page 4 of 7
               of a genuine issue by setting forth specifically designated
               facts. Id. Any doubt as to any facts or inferences to be drawn
               therefrom must be resolved in favor of the non-moving
               party. Id. Summary judgment should be granted only if the
               evidence sanctioned by Indiana Trial Rule 56(C) shows there is
               no genuine issue of material fact and that the moving party
               deserves judgment as a matter of law. Freidline v. Shelby Ins.
               Co., 774 N.E.2d 37, 39 (Ind. 2002).


       Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[9]    To avoid personal liability, an agent must, at the time of contracting, disclose

       the capacity in which he acts and the existence and identity of his principal.

       Brown v. Owen Litho Serv., Inc., 179 Ind. App. 198, 201, 384 N.E.2d 1132, 1135

       (1979). Generally, whether there is an agency relationship is a question of fact,

       but if the evidence is undisputed, summary judgment may be appropriate.

       Rogers v. Sigma Chi Int’l Fraternity, 9 N.E.3d 755, 764 (Ind. Ct. App. 2014).


[10]   With respect to Dunckel in his individual capacity, the evidence is undisputed

       that at all times, he acted as an agent for Paragon and that CSI knew that

       Dunckel was acting as such. Dunckel is not named in or identified as a party to

       the Contract. The signature block bearing his signature identifies that he was

       providing a “Signature for Client” and reflects that he was signing in an official

       capacity as president of Paragon. Appellant’s App. Vol. II p. 166. Nothing in

       the record remotely suggests that there was any confusion about the fact that

       Dunckel was acting on behalf of Paragon. Consequently, the trial court did not

       err by granting summary judgment in favor of Dunckel as an individual.



       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2643 | June 10, 2020   Page 5 of 7
[11]   Next, with respect to Paragon, CSI seems to argue that it did not know that

       Paragon was acting as an agent. The record belies that argument. CSI had

       prior dealings with Paragon and was aware that Paragon was a third-party

       property manager. In fact, it is undisputed that CSI knew that Paragon was

       acting as an agent in its operation of Chapel Hill Apartments. Indeed, CSI

       drafted the Contract, which stated that the contracting parties were CSI and

       Chapel Hill Apartments. Paragon is not named in or identified as a party to the

       Contract.


[12]   It is somewhat unclear from the brief, but CSI appears to be arguing that even if

       it was aware that Paragon was acting as an agent, CSI did not actually know

       the identity of Blue Valley as Paragon’s principal. This Court has explained

       what evidence is necessary for an agent to avoid personal contractual liability:


               It is well-established that an agent, in order to avoid personal
               liability, must, at the time of contracting, disclose both the
               capacity in which he acts and the existence and identity of his
               principal. It is not sufficient that the third person
               has knowledge of facts and circumstances which would, if
               reasonably followed by inquiry, disclose the existence
               and identity of the principal. It is not the duty of third persons to
               seek out the identity of the principal. Rather, the weight of
               authority holds that the duty to disclose the identity of the
               principal is upon the agent. Thus, unless the third person knows
               or unless the facts are such that a reasonable person would know of the
               principal’s existence and identity, the agent must be held to be acting
               for an undisclosed principal and is held liable in the same manner
               as if he were the principal. Actual knowledge brought by the
               agent or, what is the same thing that which to a reasonable man
               is equivalent to actual knowledge is the criterion of the law.


       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2643 | June 10, 2020   Page 6 of 7
       Brown, 179 Ind. App. at 201-02, 384 N.E.2d at 1135 (internal citations and

       footnotes omitted) (emphasis added).


[13]   Here, as noted above, CSI was actually aware that Paragon was acting as a

       third-party property manager—in other words, as an agent. It is possible that

       CSI may not have been aware that the apartment complex had been purchased

       by Blue Valley,1 but it was certainly aware that the complex was owned by an

       entity other than Paragon. In other words, Paragon did not attempt to hide the

       proverbial ball, and CSI did not operate under a mistaken impression. The

       parties were on the same page when executing the Contract, understanding that

       Dunckel signed on behalf of Paragon, which entered into the agreement on

       behalf of the owner of the apartment complex—Blue Valley.


[14]   In sum, the evidence is undisputed that CSI was aware that Paragon was acting

       on behalf of the property owner and that, in drafting the Contract, CSI did not

       include Paragon as a contracting party. It is likewise undisputed that Paragon

       was acting as an agent on behalf of Blue Valley and, as such, cannot be held

       liable for any alleged breaches of the Contract.


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


       Bradford, C.J., and Pyle, J., concur.




       1
        The recorded Sheriff’s Deed was a public record that was available before the Contract was executed.
       Therefore, had CSI conducted a search, it would have learned that the apartment complex had been sold to
       Blue Valley.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-2643 | June 10, 2020                  Page 7 of 7
