MEMORANDUM DECISION                                                            FILED
                                                                          May 09 2017, 10:09 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                   CLERK
                                                                           Indiana Supreme Court
precedent or cited before any court except for the                            Court of Appeals
                                                                                and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEES
S. Andrew Burns                                        David L. Byers
Cox, Sargeant & Burns, P.C.                            Andrew J. Noone
Indianapolis, Indiana                                  Holwager, Byers, & Caughey
                                                       Beech Grove, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Scott Tod,                                                 May 9, 2017

Appellant/Plaintiff/Counterclaim                           Court of Appeals Case No.
                                                           49A04-1609-CT-2157
Defendant,
                                                           Appeal from the Marion Superior
                                                           Court
        v.
                                                           The Hon. Thomas J. Carroll, Judge
Indy Goldmine, LLC, d/b/a IG                               Trial Court Cause No.
Home Improvements, and Aaron                               49D06-1508-CT-28726
McGee,
Appellees/Defendants/Counterclaim
Plaintiffs.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017                 Page 1 of 8
                                          Case Summary
[1]   Appellant/Plaintiff/Counterclaim Defendant Scott Tod appeals from the trial

      court’s entry of judgment in favor of Appellees/Defendants/Counterclaim

      Plaintiffs Indy Goldmine, LLC, d/b/a IG Home Improvements (“IG”), and

      Aaron McGee (collectively, “Defendants”). When Tod purchased his

      Indianapolis home, he obtained a rehabilitation loan and executed a series of

      agreements with IG (collectively, “the Contract”) to perform a series of

      renovations, including replacement of the roof. After IG completed some

      renovations, Tod ultimately hired another contactor to replace his roof, which

      violated the terms of the Contract.


[2]   Tod sued Defendants for breach of contract, conversion, and unjust

      enrichment, and Defendants countersued Tod for breach of contract. At one

      point, Tod served Defendants with a request for admissions, which included

      requests that they admit that Tod had paid them some $21,000.00 for

      renovations, they had not completed the contracted-for work, and Tod had

      received no more than $10,000.00 of value. Because Defendants did not timely

      respond to Tod’s requests, the admissions were deemed conclusively

      established. Following a bench trial, the trial court entered judgment in favor of

      Defendants and awarded them $8987.50 in damages. Tod contends that the

      trial court erred because Defendants’ admissions automatically entitle Tod to

      judgment. Because we disagree, we affirm.



                            Facts and Procedural History
      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017   Page 2 of 8
[3]   Tod purchased his Indianapolis home on October 31, 2014, and began to

      remodel it to address some health and safety issues. To that end, Tod obtained

      a $35,000.00 203(k) loan.1 IG was referred to Tod as a provider of contracted

      203(k) services. Tod and IG executed a Contract for work on the home, which

      obligated IG to do many things, including installation of railing on three decks

      and a handrail for exterior stairs, replacement of rotten trim, demolition, mold

      remediation, and roof replacement, only some of which IG ultimately

      completed. IG began work in the first week of November 2014, after Tod

      closed on the home. Soon after work started, Tod became dissatisfied with IG’s

      work and began to speak with other contractors, eventually having another

      contractor repair and replace the roof. On December 29, 2014, Tod sent IG a

      termination notice.


[4]   On August 24, 2015, Tod filed suit against Defendants, alleging breach of

      contract, conversion of funds, and unjust enrichment. On November 24, 2015,

      Defendants answered Tod’s complaint and filed a counterclaim, alleging breach

      of contract by Tod. On January 26, 2016, Tod served a request for admissions

      on Defendants, which included the following requests:

               REQUEST FOR ADMISSIONS NO. 1: Please admit that
               you/IG received and cashed a check in the amount of $6,000.00
               from Plaintiff on or about November 1, 2014.
               …



      1
        A 203(k) loan is a “rehabilitation loan” as defined by 24 C.F.R. § 203.50 and that is eligible for insurance
      pursuant to Section 203(k) of the National Housing Act. See 12 U.S.C. 1709(k).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017                   Page 3 of 8
              REQUEST FOR ADMISSIONS NO. 2: Please admit that
              you/IO received and cashed a check in the amount of $14,987.50
              from Plaintiff on or about November 7, 2014.
              …
              REQUEST FOR ADMISSIONS NO. 3: Please admit that to
              date no monies have been returned to Plaintiff by Defendants.
              …
              REQUEST FOR ADMISSIONS NO. 4: Please admit that
              you/IG have/has not performed all services requested by the
              Plaintiff.
              …
              REQUEST FOR ADMISSIONS NO. 5: Please admit that there
              is no single document which memorializes the terms of the
              agreement reached between you/IG and the Plaintiff.
              …
              REQUEST FOR ADMISSIONS NO. 6: Please admit that there
              is no single document which lists all of the services you/IG were
              committed to provide to or for the benefit of the Plaintiff.
              …
              REQUEST FOR ADMISSIONS NO. 7: Please admit that you
              and your crew or agents damaged a water pipe on the real estate
              owned by the Plaintiff.
              …
              REQUEST FOR ADMISSIONS NO. 8: Please admit that you
              did not provide goods and/or services to or for the benefit of the
              Plaintiff in an amount in excess of $10,000.00.
      Appellant’s App. pp. C9-C10.


[5]   Defendants untimely responded to Tod’s request for admissions on July 14,

      2016, which had the effect of deeming the admissions conclusively established.

      On August 16, 2016, defendants moved to withdraw their admissions, which

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017   Page 4 of 8
      motion the trial court denied on August 24, 2016. Also on August 24, 2016, the

      matter was tried to the bench, after which the trial court ruled that Tod could

      take nothing by way of his complaint and entered judgment in favor of

      Defendants on their breach-of-contract counterclaim in the amount of $8987.50.

      Tod contends that Defendants’ admissions required the entry of judgment in his

      favor, while Defendants argue that entry of judgment in their favor was still

      permissible, even taking their admissions into account.


                                Discussion and Decision
[6]   The trial court’s judgment here is not supported by specific findings of fact or

      conclusions thereon. Under such circumstances,

              [t]he applicable standard of appellate review is clear. In the
              absence of special findings, we review a trial court decision as a
              general judgment and, without reweighing evidence or
              considering witness credibility, affirm if sustainable upon any
              theory consistent with the evidence. Sizemore v. H & R Farms,
              Inc., 638 N.E.2d 455, 457 (Ind. Ct. App. 1994); Bedford Recycling,
              Inc. v. U.S. Granules Corp., 634 N.E.2d 1361, 1363 (Ind. Ct. App.
              1994); Quebe v. Davis, 586 N.E.2d 914, 917 (Ind. Ct. App. 1992).
              In reviewing a general judgment, we must presume that the trial
              court correctly followed the law. Sizemore; Turpen v. Turpen, 537
              N.E.2d 537, 539 (Ind. Ct. App. 1989); Baker v. Baker, 488 N.E.2d
              361, 364 (Ind. Ct. App. 1986).… On appellate review, due
              regard must be given the trial court’s opportunity to judge the
              credibility of witnesses, and the judgment should not be set aside
              unless clearly erroneous. Ind. Trial Rule 52(A); Ind. Appellate
              Rule 15(N).
      Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240-41 (Ind. 1997).



      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017   Page 5 of 8
[7]   Tod’s sole argument is that Defendants’ admissions that they received

      $20,987.50 from Tod, did not complete all of the contracted-for work, and did

      not provide services in excess of $10,000.00 required the trial court to enter

      judgment in his favor. Defendants counter that, even if all of the above is true

      (they concede that their admissions are conclusively established), none of this

      precludes a breach on Tod’s part. We agree with Defendants on this point; the

      facts established by the admissions are just as consistent with a breach by Tod

      as they are with a breach by Defendants. The admissions, at most, establish

      that Defendants did not perform (which they concede) but have nothing to do

      with why, which they claim was due to Tod’s breach.


[8]   That said, we conclude that Defendants did produce sufficient evidence to

      sustain a finding that their failure to perform was due to Tod’s breach. The

      validity of the Contract is not in dispute, nor is the fact that Tod violated its

      terms when he hired his own roofing contractor. Although Tod presented

      evidence that he hired a new roofing contractor and terminated IG because of

      substandard work, among other reasons, the trial court was not required to

      credit this evidence or conclude that it justified Tod’s actions.


[9]   As for Defendants, we conclude that the record is sufficient to permit a finding

      of substantial performance, with their ultimate failure to perform caused by

      Tod’s breach. “No mathematical rule relating to the percentage of the price, of

      cost of completion, or of completeness can be laid down to determine

      substantial performance of a building contract.” Johnson v. Taylor Bldg. Corp.,

      371 N.E.2d 404, 407 (Ind. Ct. App. 1978). Defendants produced evidence that

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017   Page 6 of 8
work began on the project in the first week of November 2014, with the main

component being a replacement roof. Prior to termination, Defendants

completed the following: (1) installation of deck railing for three decks, (2)

installation of a handrail for exterior stairs, (3) replacement of rotten trim, (4)

demolition work, (5) removal of drywall ceiling in the basement, and (6) mold

remediation. Regarding the replacement of the roof, which was a significant

part of the work to be done, Defendants produced evidence of their diligence in

attempting to complete the work. Defendants came to Tod’s home at least

twice to show him materials. Tod did select a roofing material and issued a

check, but then notified Defendants that he wanted a metal, rather than shingle,

roof. Defendants then spent over thirty hours researching and collecting

multiple bids for a metal roof, only to have Tod tell them that the price was too

high. Despite Defendants informing Tod that he could not do so pursuant to

the Contract, Tod pursued third-party options, eventually having the roof

installed by another contractor and eventually terminating the Contract with

Defendants. Moreover, McGee testified that IG was “very, very busy” at the

time and had to forego other projects in order to take on Tod’s. Tr. Vol. II p.

69. We conclude that Defendants produced sufficient evidence to sustain a

finding that they stood ready to fulfil their contractual obligations but were

prevented by Tod’s hiring of another roofing contractor and termination of

them. Consequently, Tod has failed to establish that the trial court’s entry of

judgment in favor of Defendants is clearly erroneous.




Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017   Page 7 of 8
[10]   The judgment of the trial court is affirmed.2


       Najam, J., and Riley, J., concur.




       2
         Tod does not dispute the trial court’s award of damages to Defendants, which represents the full, agreed-
       upon contract price of $29,975.00 minus the $20,987.50 already paid, for a total award of $8987.50. Tod
       makes no argument that this damages award should have been reduced by the cost of labor and materials
       Defendants would have expended had they completed Tod’s roof replacement.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CT-2157 | May 9, 2017                Page 8 of 8
