FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

ZACHARY J. EICHEL                             GARY M. SELIG
Einterz & Einterz                             JENNIFER A. BONESTEEL
Zionsville, Indiana                           Indianapolis, Indiana



                             IN THE                                      FILED
                                                                      Aug 13 2012, 9:36 am
                   COURT OF APPEALS OF INDIANA
                                                                                CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court


MICHAEL THALHEIMER,                           )
                                              )
      Appellant-Defendent,                    )
                                              )
             vs.                              )       No. 49A02-1203-PL-167
                                              )
RAMON and STACEY HALUM,                       )
                                              )
      Appellees-Plaintiffs.                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Cynthia Ayers , Judge
                          Cause No. 49D04-0906-PL-28898




                                    August 13, 2012


                              OPINION - FOR PUBLICATION


ROBB, Chief Judge
                                  Case Summary and Issues

        Ramon and Stacey Halum (collectively, the “Halums”) entered into a contract with

Michael Thalheimer for Thalheimer to remove carpet and tiles in the Halums’s home and to

install new tiles. After Thalheimer did so, a dispute arose among the parties regarding

whether, when, and what Thalheimer would do about some portion of the work with which

the Halums were dissatisfied. Following a bench trial, Thalheimer appeals the trial court

findings and judgment in favor of the Halums. Thalheimer raises four issues, which we

restate as: 1) whether the Halums’s spoliation of evidence, if at all, required a finding in

favor of Thalheimer; 2) whether the doctrine of economic loss precluded the Halums’s

negligence claim; 3) whether the warranty in the contract precluded the Halums’s breach of

contract claim; and 4) whether the evidence presented supports the trial court’s findings

regarding the quality of Thalheimer’s work. The Halums contend Thalheimer’s appeal was

made in bad faith, and accordingly they request appellate attorney fees.

        We affirm upon concluding that Thalheimer waived his claim that the Halums

spoliated evidence; the economic loss doctrine did not preclude the Halums’s negligence

claim; the trial court did not abuse its discretion in finding that Thalheimer’s conduct negated

the warranty in the contract; and the trial court did not abuse its discretion in finding that

Thalheimer’s work was of poor quality. We deny the Halums’s request for appellate attorney

fees.




                                               2
                                    Facts and Procedural History1

        On June 8, 2008, the Halums entered into a written contract with Thalheimer for his

compensation to remove carpet and tiles in the Halums’s living room, entryway, and at least

one hallway, and to install new tiles. Thalheimer completed the work in late June, the

Halums conducted an initial review2 of his work, and Thalheimer and the Halums made a

verbal agreement for Thalheimer to return at some unspecified later date to fix about six of

the tiles which were unsatisfactory to the Halums. The Halums also paid Thalheimer in full

and provided Thalheimer with two $100 gift cards as well, which Thalheimer believed to be

a bonus.

        Over the next several months, Thalheimer and the Halums corresponded by email to

negotiate when and how many tiles Thalheimer would adjust when he returned to the

Halums’s home because the Halums identified additional tiles with which they were

dissatisfied. At some point, the Halums became frustrated with the negotiations, hired

another contractor to redo the flooring, and retained an attorney.

        A little over a year after the contract was signed, on June 16, 2009, the Halums filed

suit against Thalheimer, alleging breach of contract, negligence, and violation of an implied

warranty of habitability.

        Following a bench trial, the trial court entered an order which states:


        1
         We note that confidential information appears in the exhibits which are part of the appellate record.
The applicable rules governing the filing of documents excluded from public access are Indiana Appellate Rule
9(G)(1)(f) and Trial Rule 5(G), the latter of which explains how such documents shall be filed.
        2
         There appears to be some dispute as to the length of time in which the Halums conducted this initial
review of Thalheimer’s work. Because this is an issue of fact, we defer to the fact-finder’s assessment.

                                                      3
      [T]he Court . . . now finds as follows:
      1. That the [Halums] are entitled to Judgment against [Thalheimer] on their
      Complaint in the amount of $14,262.38, which represents the amount [the
      Halums] paid in labor and materials to Jeremy Keenan to have their floor torn
      out and re-installed as a result of [Thalheimer]’s Breach of Contract and
      negligence in installing the original floor per the parties’ contract.
      ***

Appellant’s Appendix. at 3-4.

      Thalheimer filed a motion to correct error, which the trial court denied in an order

which states:

                                   FINDINGS OF FACT
      ***
      4. [Thalheimer] alleged [in his motion to correct error] that the Court
      misapplied the law to the facts of this case and if certain corrections are made
      that the outcome would have been in favor of [Thalheimer].
      5. The Court rejects [Thalheimer]’s arguments on the Motion to Correct Error
      and hereby denies the same.
                                  CONCLUSIONS OF LAW
      1. The contract was performed by [Thalheimer] and he was paid in full by the
      [Halums]. The contract was also supposed to be performed in a “good and
      workmanlike manner”.
      2. The tile floor installation was done improperly, installed in an un-
      workmanlike manner, and was a poor quality job. The [Halums] attempted to
      have [Thalheimer] complete repair to the floor for several months, to no avail,
      and ended up having the entire floor replaced.
      3. [Thalheimer] breached the contract, but was paid for his work, quantum
      meruit.
      4. “Damage from a defective product or service may be recoverable under a
      tort theory if the defect causes personal injury or damage to other property, but
      contract law governs damage to the product or service to perform as expected.”
       Gunkel v. Renovations, Inc., 822 N.E.2d 150, 153 (Ind. 2005). [The Halums]
      presented additional evidence of physical injury to their son due to scuffing his
      feet and falling down due to the unevenness of the tile floor installed by
      [Thalheimer] in order to support their claim of negligence. Gunkel is
      applicable to the facts of this case because the loss to [the Halums] was not
      purely economic. Tort law is therefore pertinent and should have been applied.
      5. Expert testimony was presented by [the Halums]’s witness, Jeremy Keenan,
      that the tile floor installation was of poor quality and needed to be redone in its

                                              4
       entirety due to tile color and texture differences found in each new tile lot. He
       also found that he could not insure that the replacement of the offending tiles,
       by themselves, would not cause further damage to the floor during installation
       due to cracking and misalignment when placed next to the other non-offending
       tiles. Mr. Keenan was qualified as a skilled witness to establish the standard of
       care in installing this type of floor. That standard should have been met by
       [Thalheimer] in his initial installation and was not which supports the finding
       in favor of [the Halums].
       6. Error alleged by [Thalheimer] that relates to spoliation of evidence and
       standing to sue were waived by [Thalheimer] and therefore not considered in
       this order.
       ***

Id. at 5-7.

       Thalheimer now appeals.

                                  Discussion and Decision

                                   I. Standard of Review

       In reviewing an order in which the trial court makes findings of fact and conclusions

of law, our standard of review is well-settled:

       First, we determine whether the evidence supports the findings and second,
       whether the findings support the judgment. In deference to the trial court’s
       proximity to the issues, we disturb the judgment only where there is no
       evidence supporting the findings or the findings fail to support the judgment.
       We do not reweigh the evidence, but consider only the evidence favorable to
       the trial court’s judgment. Challengers must establish that the trial court’s
       findings are clearly erroneous. Findings are clearly erroneous when a review
       of the record leaves us firmly convinced a mistake has been made. However,
       while we defer substantially to findings of fact, we do not do so to conclusions
       of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule
       52 if it relies on an incorrect legal standard. We evaluate questions of law de
       novo and owe no deference to a trial court’s determination of such questions.

McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied.




                                              5
                                  II. Spoliation of Evidence

       Thalheimer first argues the Halums committed spoliation of evidence by having

Keenan remove and redo Thalheimer’s tile installation, all in the same month that the Halums

filed suit. The Halums’s spoliation of evidence, Thalheimer argues, required the trial court to

find in his favor. Before we discuss whether spoliation occurred or its effect, if any, on the

trial court’s findings, we address the threshold issue of whether Thalheimer waived appellate

review of this issue.

       Waiver is a threshold issue because generally a party is precluded from presenting an

argument or issue to Indiana appellate courts unless the party first raised that argument or

issue to the trial court. GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d

647, 651 (Ind. Ct. App. 2002).

       This rule exists because trial courts have the authority to hear and weigh the
       evidence, to judge the credibility of witnesses, to apply the law to the facts
       found, and to decide questions raised by the parties. Appellate courts, on the
       other hand, have the authority to review questions of law and to judge the
       sufficiency of the evidence supporting a decision. The rule of waiver in part
       protects the integrity of the trial court; it cannot be found to have erred as to an
       issue or argument that it never had an opportunity to consider. Conversely, an
       intermediate court of appeals, for the most part, is not the forum for the initial
       decisions in a case. Consequently, an argument or issue not presented to the
       trial court is generally waived for appellate review.

Id. (citations omitted); see, e.g., Harris v. Superior Ct. of Arizona ex rel. Cnty. of Maricopa,

278 Fed. Appx. 719, 722 (9th Cir. 2008) (holding that the appellant waived his appellate

claim of spoliation of evidence by raising it for the first time on appeal).

       Thalheimer insists he raised the issue of spoliation to the trial court, referring us to

two portions of the record: 1) one page of the transcript in which Ramon Halum states that in

                                                6
June 2009 Keenan redid Thalheimer’s work of June 2008, and 2) portions of Thalheimer’s

motion to correct error in which he summarizes the law regarding spoliation of evidence and

urges the trial court to make an inference in his favor. Thalheimer also appears to contend

the Halums’s spoliation of evidence was so obvious that he should not have needed to

explicitly make such an argument to the trial court.

       Arguments articulated in a motion to correct error which were not made at trial do not

preserve issues for appellate review. If the opposite were true, motions to correct error might

contain a bevy of untimely objections, petty complaints regarding the logistical presentation

of evidence, attempts to rework trial strategies that did not work well, and other untimely

arguments that would distract from the purpose of a motion to correct error.3

       We are also not persuaded by Thalheimer’s contention that some arguments are so

obvious that they do not require explicit argument or presentation of any evidence. As stated,

an argument must be raised before the trial court to preserve an issue for appeal. If an

argument is as obvious as Thalheimer characterizes his own regarding spoliation, evidence or

an argument will inevitably be presented at trial, even if unintentionally.

       It is this latter type of argument which we now address. Specifically, whether the

testimony to which Thalheimer now refers us sufficiently raised the issue of spoliation to

avoid waiver:


       3
           Cf. P-M Gas & Wash Co., Inc. v. Smith, 268 Ind. 297, 301, 375 N.E.2d 592, 594 (1978):
                 The motion to correct error serves three purposes: (1) to present to the trial court an
                 opportunity to correct error which occurs prior to the filing of the motion; (2) to develop
                 those points which will be raised on appeal by counsel; and (3) to inform the opposing party
                 concerning the points which will be raised on appeal so as to provide that party an
                 opportunity to respond in the trial court and on appeal.

                                                         7
        Q [Thalheimer’s trial attorney]: So . . . so just to clarify. June, 2008 Mr.
        Thalheimer laid the floor and June, 2009 Mr. Keenan laid the floor. Is that
        right?
        A [Ramon Hulman] Yes.

Transcript at 57 (ellipses in original).

        This single question and answer is insufficient to argue spoliation occurred, and thus,

insufficient to preserve the issue of spoliation for appellate review. This question was part of

cross-examination which spanned less than one and one-half pages in the transcript. Read in

context, this question appears to have been intended to clarify that Keenan redid

Thalheimer’s work during the two-year warranty period after Thalheimer completed the

work. This question – and the focused, limited cross-examination in the entirety – did not

explicitly seek to present evidence of spoliation, appear to have been intended to demonstrate

evidence of spoliation, or raise the issue of spoliation at all.4

                                            III. Economic Loss

        Generally, the economic loss doctrine provides that where a contract exists, that

“contract is the only available remedy where the loss is solely economic in nature, as where

the only claim of loss relates to the [service or] product’s failure to live up to expectations,

and in the absence of damage to other property or person.” Gunkel, 822 N.E.2d at 152


        4
           We note that even if Thalheimer did not waive the issue of spoliation of evidence, and even if the
trial court should have concluded the Halums did, in fact, spoliate evidence, the trial court was not required to
find in favor of Thalheimer. It is well-settled that when one party demonstrates that an opposing party
spoliated evidence, the fact-finder has the discretion to find that the missing evidence was unfavorable to the
party which destroyed the evidence, and likewise, the discretion to find that the missing evidence was not
necessarily unfavorable to the party which destroyed the evidence. Glotzbach v. Froman, 854 N.E.2d 337, 338
(Ind. 2006) (“If spoliation by a party to a lawsuit is proved, rules of evidence permit the jury to infer that the
missing evidence was unfavorable to that party.”) (emphasis added); Am. Nat. Prop. & Cas. Co. v. Wilmoth,
893 N.E.2d 1068, 1070 (Ind. Ct. App. 2008) (“If spoliation by a party to a lawsuit is proved, the jury may infer

                                                        8
(quotation omitted). Thalheimer argues the trial court failed to apply the economic loss

doctrine in determining the claims and remedies available to the Halums. The Halums

respond that the economic loss doctrine does not apply because the trial court entered a

factual finding that the Halums’s young son sustained physical injury.

        We are guided by Indiana case law regarding the economic loss doctrine, which began

with Reed v. Cent. Soya, 621 N.E.2d 1069 (Ind. 1993), modified on reh’g on other grounds

by 644 N.E.2d 84 (Ind. 1994). In Reed, the supreme court principally addressed whether,

under Indiana’s Strict Product Liability Act, one may recover damages for property damage.

The court adopted the economic loss doctrine, which is common in other states, and held that

“[w]here . . . only economic loss is alleged, no recovery is allowed under the Act.” Id. at

1074 (emphasis in original). The court continued:

        [W]here the loss is solely economic in nature, as where the only claim of loss
        relates to the product’s failure to live up to expectations, and in the absence of
        damage to other property or person, then such losses are more appropriately
        recovered by contract remedies.
        . . . Allowing a buyer to recover in tort where he has suffered only economic
        loss allows him to circumvent the seller’s effective limitation or exclusion of
        warranties under the UCC, and subjects manufacturers to liability for damages
        of unknown and unlimited scope.

Id. at 1074-75.

        In Gunkel, the court clarified:

        Indiana law under the Products Liability Act and under general negligence law
        is that damage from a defective product or service may be recoverable under a
        tort theory if the defect causes personal injury or damage to other property, but
        contract law governs damage to the product or service itself and purely

that the missing evidence was unfavorable to that party.”) (emphasis added), trans. denied.


                                                     9
       economic loss arising from the failure of the product or service to perform as
       expected.
       ***
       The theory underlying the economic loss doctrine is that the failure of a
       product or service to live up to expectations is best relegated to contract law
       and to warranty either express or implied. The buyer and seller are able to
       allocate these risks and price the product or service accordingly.

822 N.E.2d at 153.

       In other words, a plaintiff may bring an action for breach of contract and may only

recover economic losses under that contract, but the same plaintiff may also bring a tort

action for a loss that is not purely economic and not covered in the contract. Whether the

plaintiff may succeed under the tort theory is another question, but the point here is that the

plaintiff is not precluded from bringing an action for personal injuries merely because a

contract existed and the plaintiff also seeks a remedy under the contract. See Fleetwood

Enters., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492, 495 (Ind. 2001) (“[U]nder Indiana

procedure, a plaintiff may readily pursue both a contract claim for damage to the product

itself and a tort claim for personal injury or damage to other property under the Products

Liability Act.”).

       Here the Halums sued Thalheimer for a breach of contract, and the trial court found in

their favor. The Halums also sued Thalheimer for negligence for the injury to their son, and

the trial court found in their favor. The economic loss doctrine does not lead us to conclude

the trial court committed reversible error.

       Thalheimer appears to challenge the trial court’s finding that the Halums’s son

sustained an injury, but this is quite different from arguing the trial court improperly failed to


                                               10
apply the economic loss doctrine, and is unpersuasive in its own right because we do not

reweigh evidence.

                                             IV. Warranty

        Thalheimer next argues that the trial court erred in not considering the warranty

included in the contract when it ruled in favor of the Halums. The portion of the contract to

which Thalheimer refers states: “All workmanship guaranteed for two (2) years from date of

completion.” Appellant’s App. at 92. Thalheimer contends that because of this clause, the

Halums are not entitled to reimbursement from Thalheimer for having another contractor

redo the tiling work within two years after Thalheimer completed his work.

        In addressing Thalheimer’s argument as to the warranty, at least two sub-issues arise.

It appears from the evidence that the Halums sought Thalheimer’s additional work under the

warranty and Thalheimer was dilatory in responding. The degree to which the Halums

diligently sought redress under the warranty and the degree to which Thalheimer was dilatory

were factual issues at trial. The first sub-issue then, is whether the trial court abused its

discretion by apparently concluding that Thalheimer’s dilatory response in effect voided the

warranty.5 As stated, this was an issue thoroughly covered by the testimonies of Thalheimer

and the Halums and the email correspondence between them. This is a factual issue, and we

defer to the fact-finding court that the communication between the parties beginning at the

time Thalheimer first completed the work led to the finding that Thalheimer’s conduct


        5
         Stated differently, in a manner more common when addressing breach of contract claims, did
Thalheimer breach the contract first by not honoring the warranty? This is essentially what the trial court
addressed, but the issue was presented at trial in a manner that is better described in the text.

                                                    11
effectively voided the warranty. We do not second-guess the trial court’s findings in this

regard.

       The second sub-issue is whether the warranty in the contract was clear. In Schultz v.

Erie Ins. Grp., 754 N.E.2d 971 (Ind. Ct. App. 2001), trans. denied, our court explained how

the term “faulty workmanship” in an insurance contract could be read in at least two ways.

Id. at 974-77. The term workmanship could refer to a final product, or it could refer to one’s

craftsmanship. This ambiguity could be relevant here, where Thalheimer argues the warranty

in the contract only entitled the Halums to his continued labor (i.e., craftsmanship) in the

event of their dissatisfaction; while the Halums argue the warranty in the contract entitled

them to a satisfactory product. Because of this genuine dispute over the interpretation of the

terms of a contract, it would not have been unreasonable for the trial court to construe it

against Thalheimer, who drafted it. See Binford v. Shicker, 553 N.E.2d 845, 848 (Ind. Ct.

App. 1990), trans. denied.

       In sum, the trial court did not abuse its discretion in finding for the Halums in spite of

the disputed warranty included in the contract.

                             V. Quality of Thalheimer’s Work

       Thalheimer next argues the trial court erred in concluding that Thalheimer’s tile work

was done in an unworkmanlike manner. He refers us to portions of the record which support

his view that his work was done properly, but this is contrary to other portions of the record

which support the trial court’s finding that the quality of his work was of poor quality,

namely, the testimonies of the Halums and Keenan. Thalheimer invites us to reweigh the


                                              12
evidence and assess the credibility of witnesses. Per our standard of review, we decline this

request and affirm this conclusion of the trial court.

                                VI. Appellate Attorney Fees

       The Halums argue Thalheimer’s appeal is frivolous and was made in bad faith, and

therefore they seek appellate attorney fees under Appellate Rule 66(E). Our discretion to

award attorney fees under this rule is “limited to instances when an appeal is permeated with

meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Life v.

F.C. Tucker Co., Inc., 948 N.E.2d 346, 353 n.3 (Ind. Ct. App. 2011). We do not believe

Thalheimer’s appeal warrants an award of appellate attorney fees to the Halums, and deny

the request.

                                         Conclusion

       Thalheimer waived the issue of the Halums’s spoliation of evidence by not presenting

the issue to the trial court. The economic loss doctrine did not preclude the Halums’s

negligence claim. The trial court did not abuse its discretion in determining the contract

warranty did not bar the Halums’s breach of contract claim, or in finding that Thalheimer’s

work was of poor quality. Therefore we affirm, but the Halums’s request for attorney fees is

denied.

       Affirmed.

BAILEY, J., and MATHIAS, J., concur.




                                              13
