MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                    Jul 06 2018, 8:39 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                                   ATTORNEY FOR APPELLEES
Nathan D. Hoggatt                                        Dawn M. Boyd
Fort Wayne, Indiana                                      Law Office of Dawn M. Boyd
                                                         Columbia City, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Susan Tennant,                                           July 6, 2018
Appellant-Defendant/Counter-Plaintiff,                   Court of Appeals Case No.
                                                         92A04-1710-CC-2474
        v.                                               Appeal from the Whitley Circuit
                                                         Court
Peaks & Valleys, Inc., and                               The Honorable Matthew J.
Toni Staples,                                            Rentschler, Judge
Appellees-Plaintiffs/Counter-                            Trial Court Cause No.
Defendants                                               92C01-1505-CC-201



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018               Page 1 of 24
[1]   Susan Tennant hired Peaks & Valleys, Inc. (P&V), to construct a pole building

      on her property. As the construction was nearing completion, Tennant fired

      P&V and refused to pay for its work. P&V filed a complaint against Tennant,

      and Tennant filed a counterclaim against P&V. A bench trial took place, and

      now both parties appeal. Tennant argues that the trial court erred in its

      application of the Home Improvement Contracts Act (HICA);1 P&V argues that

      the trial court erred by denying its motion for prejudgment interest; and both

      parties argue that the trial court erred in its attorney’s fee award to P&V.

      Finding that the trial court did not err in its application of HICA or in its

      attorney’s fee award, but that the trial court erred by denying P&V’s request for

      prejudgment interest, we affirm in part, reverse in part, and remand.


                                                        Facts      23




                                                       The Project




      1
          Ind. Code § 24-5-11-1 et. seq.
      2
          We commend and thank the trial court for its thorough order.
      3
        The purpose of our appellate rules, especially Indiana Appellate Rule 46, is to aid and expedite review and
      to relieve the appellate court of the burden of searching the record and briefing the case. Thacker v. Wentzel,
      797 N.E.2d 342, 345 (Ind. Ct. App. 2003). The briefs in this case violate several provisions of our appellate
      rules, which impedes our ability to expeditiously consider the issues.

      First, the briefs for both parties violate Rule 46(A)(5) by omitting some citations in their statements of the
      case. Second, Tennant’s brief violates Rule 46(A)(6)(a), (b), and (c) because many facts in the statement of
      facts are unsupported by citations, the facts are not stated in accordance with the appropriate standard of
      review, and the statement is at times argumentative, rather than in a narrative form. P&V’s brief similarly
      fails to include citations for certain facts. Third, Tennant’s brief violates Rule 46(A)(8)(a) because the brief
      contains contentions that are not supported by cogent reasoning or by citations to the authorities. Fourth,
      although Rule 46(D)(3) provides that the “appellant’s reply brief shall address the arguments raised on cross-

      Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018                 Page 2 of 24
[2]   Tennant owns a farm in Whitley County. P&V is a roofing and construction

      company. Its owner, sole shareholder, and president is Toni Staples.

      Sometime in May 2014, Tennant told P&V that she wanted a pole building

      constructed on her property (the Project) and some land cleared. On or around

      May 15, 2014, P&V presented Tennant with a written estimate of $33,812 for

      the Project and the land clearing. The estimate was based on the pole building

      as a basic structure—a frame, metal siding, a roof, a cement slab, three garage

      doors, and a regular door—with an unfinished interior and no plumbing or

      electricity. Tennant understood and agreed to the terms of the estimate.

      Tennant did not sign the estimate, nor did the parties put their agreement in a

      written, signed contract.


[3]   P&V spent ten days clearing the land. On or around August 22, 2014, P&V

      began the Project. P&V purchased supplies on credit from a third-party

      business (the Supplier), expecting to repay the Supplier once Tennant paid for

      the Project. On August 26, 2014, Tennant paid P&V $6,000 for the clearing

      work.


[4]   By early September, P&V was ready to prepare and pour the concrete slab for

      the Project. Around this time, Tennant requested certain modifications and

      upgrades—including relocating the Project and adding water and electric

      lines—to the Project, which resulted in increased material and labor costs and




      appeal,” (emphasis added), Tennant’s reply brief fails to mention any of the issues that P&V raises on its
      cross-appeal. Instead, the reply brief is a near-verbatim reiteration of sections of her initial brief.

      Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018                Page 3 of 24
      delayed the Project. P&V informed Tennant that the requested changes would

      increase the Project’s cost and timeline; Tennant verbally agreed to pay for the

      additional costs. P&V made changes and incurred expenses based on these

      requests.


[5]   Around the middle of October 2014, P&V once again began to prepare the

      concrete site. Tennant then told P&V that she wanted to increase the depth of

      the concrete slab from four to six inches. This change required P&V to adjust

      the building frame. On October 23, 2014, the stone fill for the concrete was

      delivered. On October 24, 2014, P&V’s concrete subcontractor placed the stone

      fill in the building frame and graded it. Meanwhile, Tennant and P&V

      mutually agreed to allow Tennant to have a different contractor lay the

      concrete, and on October 24, 2014, Tennant began contacting other contractors.

      She hired Barry Myers and Roger Conrad to pour the building’s concrete slab

      by separate agreement.


[6]   By early November, P&V had completed most of the work for the Project.

      When Myers and Conrad worked on the concrete, they chose to remove and

      replace the concrete fill that P&V had installed because it was saturated and

      muddy. P&V was not permitted to work on the Project while the concrete was

      being poured. On November 11, 2014, Tennant called Staples and fired P&V

      from the Project. When P&V’s subcontractors returned to the Project to finish

      the few remaining tasks, Tennant told them they were fired and ordered them

      to leave her property. Tennant refused to pay P&V for the Project. As a result,

      P&V was unable to repay the Supplier and accrued interest on its debt to the

      Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 4 of 24
      Supplier; P&V then took out a loan at a lower interest rate to mitigate its

      damages.


                                              Procedural History


[7]   On December 4, 2014, P&V filed a mechanic’s lien on the Project for

      $33,511.39. At some point, P&V admitted to an error in the amount and

      excluded certain materials, reducing the amount of the lien to $26,511.39. On

      May 13, 2015, P&V and Staples filed a complaint against Tennant, alleging

      breach of contract and other claims. P&V also sought to foreclose on its

      mechanic’s lien. On July 20, 2015, Tennant filed counterclaims against P&V,

      alleging breach of contract, slander of title, and other claims. On March 30,

      2016, Tennant amended her counterclaims, adding an allegation of failure to

      comply with HICA. On June 12, 2017, P&V amended its complaint, adding an

      allegation of abuse of process. On June 28, 2017, Tennant filed a motion for

      discovery sanctions. During the pleading stage, both parties requested

      attorney’s fees.


[8]   A bench trial took place on July 18-21, 2017. On August 10, 2017, the trial

      court issued its findings of fact and conclusions of law. Its findings of fact

      included the following:


              12. The Court finds that the parties intended that the clearing
              work—and only the clearing work—was paid in full by
              [Tennant’s] $6000.00 payment.


                                                       ***

      Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 5 of 24
        29. On Tuesday, November 11, 2014, Mrs. Tennant fired Peaks
        & Valleys via telephone call to Toni Staples.


        30. Mrs. Tennant disputes that she fired Peaks & Valleys.


        31. Subcontractors of Peaks & Valleys returned to finish the roof
        and siding on or about November 12, 2014 when Mrs. Tennant
        approached them and ordered them to leave her property.


        32. Mrs. Tennant disputes that she ordered anyone associated
        with Peaks & Valleys to leave the property.


                                                 ***


        37. Peaks & Valleys spent 16.5 days working on the pole barn
        project.


        38. Peaks & Valleys filed its Notice of Intent to Hold Mechanic’s
        Lien on December 4, 2014 for $33,511.39.


        39. Peaks & Valleys admits to an error in the Mechanic’s Lien
        . . . which inflated the lien by $4000.00.


        40. Mrs. Tennant brought other contractors in to finish the
        building and make improvements not contemplated by her
        dealings with Peaks & Valleys. . . .


        41. Mrs. Tennant refused to pay Peaks & Valleys for the services
        and materials rendered to erect the pole building. While there
        was negotiation and mediation between the parties, Mrs.
        Tennant refused to pay any of the money—even the thousands of
        dollars she acknowledged she owed for material that Peaks &
        Valleys had purchased and incorporated into her building.

Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 6 of 24
                                                 ***


        43. Due to Mrs. Tennant’s non-payment, Peaks & Valleys lost its
        line of credit with its local supplier, . . . and incurred substantial
        interest on materials provided to Mrs. Tennant.


        44. The undisputed value of materials provided by Peaks &
        Valleys to Mrs. Tennant is $13,328.29.


        45. Labor costs owed in this case are difficult to calculate for
        many reasons. First, the Court is cognizant that Peaks &
        Valleys—like any small business—is required to make a profit[]
        for its owner (Toni Staples), but cannot label it as such in their
        estimate. Thus, a contractor inflates certain items in their
        estimate and utilizes this inflation to realize their profit.
        Therefore, it is difficult to assess an appropriate measurement of
        labor cost and profit from the estimate in this case.


        46. It is even more difficult in this case to assess labor and profit
        because there were changes and additions to the project which
        increased the amount of labor from what was expected in the
        estimate. Of course, there was also an early exit for Peaks &
        Valleys that saved them a couple of days of additional labor.


        47. At trial, Peaks & Valleys presented evidence that 16.5 days
        were expended on putting up the pole barn and that each day,
        Peaks & Valleys endeavors to earn $1,000.00 per day. Ipso facto,
        Peaks & Valleys claims that they are due $16,500.00. The
        $1,000.00 per day figure is not convincing, however, as the Court
        interprets this figure as the business’ goal which is not always
        achieved. . . .


        48. During those 16.5 days, Peaks & Valleys had on average
        three subcontractor laborers working on the project. There was

Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 7 of 24
        testimony that Peaks & Valleys paid their laborers at least
        $100.00 per day . . . .


        49. Mrs. Tennant saw fit to pay Peaks & Valleys $6000 for the
        clearing project which took at most 10 days to complete. If
        Peaks and Valleys utilized three laborers and presumed that the
        business would pay its owner at least as much as the laborers, we
        can calculate that the laborers and Toni Staples were paid at least
        $150.00 per person per day ($6000/10 = $600 per day; $600.00/4
        wages = $150.00 per person per day.)


        50. This Court determines based upon the acceptable rate of pay
        on the clearing project that a fair rate of pay for the laborers on
        this project is $150.00 per day. Thus, labor costs were $450.00
        per day for 16.5 days for a total of $7,425.00. The Court finds
        that Peaks & Valleys is also entitled to $150.00 per day in
        “profit” for owner Toni Staples for coordinating and supervising
        the project for a total of $2,475.00. The total that Peaks &
        Valleys is therefore due for labor and profit is $9,900.00.


        51. In addition to these damages, Peaks & Valleys suffered the
        loss of ability to pay off their line of credit with [the Supplier].
        As a direct result of Mrs. Tennant’s refusal to pay, Peaks &
        Valleys paid 18% interest on the outstanding balance it carried
        with [the Supplier]. Peaks & Valleys paid a total of $8,900.00 in
        interest to [the Supplier] beginning in December of 2014. Peaks
        & Valleys eventually mitigated its losses by undertaking [a loan
        with a lower interest rate to pay off the Supplier]. Peaks &
        Valleys contends the interest paid (a total of $10,777.92) is
        damage attributable to Mrs. Tennant’s failure to pay for her pole
        barn.


Appealed Order p. 2-8.




Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 8 of 24
[9]    On P&V’s breach of contract claim and its mechanic’s lien, the trial court

       concluded that:


           • An oral agreement based on the estimate existed between P&V and
             Tennant, and Tennant terminated that agreement when she was no
             longer willing to accept work from P&V.
           • The agreement was not unenforceable just because it did not completely
             comply with HICA.
           • P&V is entitled to recover damages for labor and materials, totaling
             $23,228.29; P&V is entitled to prejudgment interest totaling “roughly
             $5,000.00,” id. at 9; and P&V is entitled to interest costs of $10,777.92 for
             money it borrowed to cover its losses, a proximately caused damage.
           • Awarding prejudgment interest and proximately caused interest costs
             would constitute unfair double-dipping. P&V is entitled to only the
             greater of the two; hence, P&V is entitled to $10,777.92 but not the
             $5,000 of prejudgment interest.
           • Thus, P&V could enforce its mechanic’s lien for a total of $34,006.21.

       As for P&V’s abuse of process claim, the trial court gave Tennant “the benefit

       of doubt and finds insufficient basis for an abuse of process claim. Most of Mrs.

       Tennant’s legal claims are ultimately without merit, but this Court stops short

       of finding that the filings were so lacking in a legal foundation that they amount

       to abuse of the legal process.” Id. at 10-11.


[10]   On Tennant’s claims, the trial court concluded as follows:


           • The trial court denied Tennant’s breach of contract claim, concluding
             that P&V did not breach its contract “and only left the project unfinished
             when they were not welcome to return.” Id. at 11.
           • The trial court denied Tennant’s slander of title claim, concluding that
             she did not quantify any loss as the result of P&V’s overstatement of its
             claim on its mechanic’s lien.


       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 9 of 24
           • On Tennant’s claim under HICA, the trial court concluded that Tennant
             prevailed because P&V operated contrary to HICA when it did not
             reduce their agreement to writing; that Tennant suffered no perceptible
             damages because of P&V’s failure to comply with HICA; and that “[i]f
             the original estimate had been reduced to a contract, and if each
             modification had been further reduced to writing, it is unlikely—or at
             least highly speculative—that any events would have happened
             differently.” Id. at 12. The trial court awarded Tennant the minimum
             statutory award of $500.
           • The trial court denied Tennant’s motion for discovery sanctions, finding
             no proof that any discovery violations occurred.

[11]   Regarding attorney’s fees, the trial court found that P&V incurred more than

       $80,000 in attorney’s fees, and Tennant more than $112,000; that P&V’s request

       for attorney’s fees carried more weight than Tennant’s because the mechanic’s

       lien statute entitles a plaintiff who recovers a judgment to attorney’s fees; and

       that a “reasonable attorney fee for pursuing a roughly $34,000.00 mechanic’s

       lien is $10,000.00.” Id. at 14.


[12]   On September 6, 2017, P&V filed a motion to correct error, arguing that the

       trial court erred by denying P&V prejudgment interest, its abuse of process

       claim, and its full request for attorney’s fees; and by awarding Tennant $500

       under HICA. On October 5, 2017, the trial court issued an order affirming its

       judgment regarding the prejudgment interest and the abuse of process claim.

       The trial court reversed its judgment on Tennant’s $500 award under HICA,

       finding that she was not entitled to an award because P&V did not act with

       intent to defraud or mislead and because Tennant did not provide sufficient and




       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 10 of 24
timely notice about P&V’s noncompliance as required by the statute. As for the

attorney’s fees, the trial court found as follows:


        14. This Court is likewise concerned with a property owner’s
        ability to contest a mechanic’s lien when, as in this case, the
        ultimate cost in terms of labor and materials for an interrupted
        project are legitimately in dispute. Forcing Tennant to pay 100%
        of Peaks & Valleys’ legal costs in addition to Tennant’s own
        would be an excessive systemic discouragement to property
        owners facing a mechanic’s lien for an amount with which they
        did not agree and whose disagreement proves to have some
        merit.


                                                 ***


        19. This Court acknowledges that its’ [sic] original $10,000.00
        attorney fee award was an arbitrary figure based upon the relative
        merits of Peaks & Valleys’ litigation . . . and the size of Peaks &
        Valleys’ potential (roughly $40,000) and actual ($34,006.21)
        award. This Court’s $10,000.00 award was mainly reactionary to
        the incongruity between the award and the legal costs, and it was
        contrary to the law and logic of [caselaw].


        20. To hunt and peck through Peaks & Valleys’ fee statement to
        determine which charges were reasonably necessary to the
        litigation—and which were not—is an impossible task. Which
        charges relate to the mechanics’ lien error? Do we allow the
        billable hours during which counsel pursued claims where she
        was ultimately successful and disallow billable hours when she
        was arguing claims where she was unsuccessful? Which hours
        relate to claims where Tennant did not prevail, but did have a
        reasonable dispute? Accounting for “reasonable” and
        “reasonably necessary” charges is too subjective and
        insufficiently quantified to lend itself to itemization on the record
        available to this Court.

Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 11 of 24
                21. . . . [I]n light of the law and logic of [caselaw], and with
                consideration given to avoiding unnecessary discouragement of
                legitimate litigation, and given the Court’s assessment that 60%
                of Peaks & Valleys’ attorney fees were reasonably necessary to
                the litigation and/or responsive to unsuccessful counterclaims or
                litigation tactics on the part of Tennant, the Court . . . now
                awards 60% of Peaks & Valleys [sic] requested award:
                $82,236.86 x .60 = $49,342.11.


       Appellant’s App. Vol. V p. 135-37. Tennant and P&V now appeal.


                                       Discussion and Decision
[13]   Tennant raises multiple issues on appeal, which we consolidate and restate as

       whether the trial court erred in its application of HICA.4 On cross-appeal, P&V




       4
         Tennant’s other issues are not supported by cogent argument or appropriate authority. Tennant argues that
       the trial court erred by determining that P&V’s mechanic’s lien was a valid lien on which it could foreclose.
       On appeal, she argues that the lien is invalid because Staples, in her individual capacity, rather than P&V,
       filed it; however, she argued to the trial court that the lien was invalid because P&V overstated the amount of
       its claim. An argument raised for the first time on appeal is waived. E.g., Troxel v. Troxel, 737 N.E.2d 745,
       752 (Ind. 2000). Therefore, we will not consider this argument.
       Tennant also contends that the trial court erred by denying her claim of slander of title. The trial court found
       that Tennant failed to quantify any loss because of P&V’s overstatement of its claim on the mechanic’s lien.
       To demonstrate slander of title, one must prove “false statements were made, with malice, and that the
       plaintiff sustained pecuniary loss as a necessary and proximate consequence of the slanderous statements.”
       Bixeman v. Hunter’s Run Homeowners Ass’n of St. John, Inc., 36 N.E.3d 1074, 1078 (Ind. Ct. App. 2015) (citation
       omitted). On appeal, Tennant does not argue that P&V made false statements with malice or that she
       sustained any financial loss as a result of any statement. Her argument is unavailing.
       Tennant then challenges the trial court’s award of damages to P&V. We employ a limited standard of review
       when addressing challenges to a trial court’s calculation and award of damages. Prime Mortg. USA, Inc. v.
       Nichols, 885 N.E.2d 628, 656 (Ind. Ct. App. 2008). We do not require mathematical certainty in awarding
       damages as long as the amount awarded is supported by evidence in the record. Id. First, Tennant argues
       that no award of consequential damages is warranted in this case but she offers no statutory authority or
       caselaw to support her position. Tennant then argues that the trial court failed to consider three invoices
       when calculating damages; the trial court denied their admission under Indiana Rule of Evidence 408, which
       prohibits the admission of compromise offers and negotiations, and Tennant does not present a cogent
       argument that the trial court erred by excluding them as evidence. Lastly, Tennant argues that the trial court
       erred when calculating damages for labor, but again, she provides no statutory authority or caselaw to

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018               Page 12 of 24
       argues that the trial court erred by denying P&V prejudgment interest.5 In

       addition, both parties contest the trial court’s award of attorney’s fees.


                                         I. Standard of Review
[14]   When the trial court enters findings of fact and conclusions of law, we will

       apply a two-tier standard of review, first determining whether the evidence

       supports the findings, and second, whether the findings support the judgment.

       Millikan v. Eifrid, 968 N.E.2d 243, 251 (Ind. Ct. App. 2012). The trial court’s

       specific findings will be set aside only where they are clearly erroneous, that is,

       when there are no facts or inferences drawn therefrom to support them. Id.

       Only the evidence favorable to the judgment and all reasonable inferences

       flowing therefrom is considered, and the evidence is not reweighed, nor is the

       credibility of witnesses assessed. Id.




       support this argument. The trial court provided clear reasoning to show why and how it calculated P&V’s
       damages award, and we find no error with its calculation.
       Finally, Tennant asserts that the trial court erred by denying her motion for sanctions for discovery
       violations. According to Tennant, during discovery, P&V misstated the Project’s start date, was unclear
       about whether it purchased garage doors for the Project, misstated the number of documents it presented to
       Tennant, and withheld material evidence. Despite a lengthy discussion, however, Tennant provides no
       statutory authority or caselaw to support her claims that any of these allegations constitute discovery
       violations. It is well settled that we will not consider an appellant’s assertion on appeal when she fails to
       present cogent argument supported by authority. E.g., Thacker, 797 N.E.2d at 345. Moreover, Tennant does
       not identify any prejudice she suffered because of these perceived violations. We find no error on this basis.
       5
         P&V also argues that the trial court erred by denying its claim of abuse of process. Although the trial court
       found that “[m]ost of Mrs. Tennant’s legal claims are ultimately without merit,” the trial court “stop[ped]
       short of finding that the filings were so lacking in a legal foundation that they amount to abuse of the legal
       process.” Appealed Order p. 10-11. P&V asserts that the trial court applied the wrong legal standard when it
       made this finding, but is unclear about how the trial court’s legal standard was wrong. The trial court
       declined to find that P&V met its burden to show that Tennant misused the legal process. We decline to
       second-guess the trial court’s judgment on this issue.

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018              Page 13 of 24
                                          II. Tennant’s Appeal
[15]   Tennant argues that the trial court erred by finding that P&V’s noncompliance

       with HICA did not make their contract unenforceable and by denying Tennant

       an award under the Act.


                                                   A. The Act
[16]   The purpose of HICA


                is to protect consumers by placing specific minimum
                requirements on the contents of [real property] improvement
                contracts . . . [because] few consumers are knowledgeable about
                the [real property] improvement industry or of the techniques
                that must be employed to produce a sound structure. The
                consumer’s reliance on the contractor coupled with well-known
                abuses found in the [real property] improvement industry, served
                as an impetus for the passage of [HICA], and contractors are
                therefore held to a strict standard.


       Imperial Ins. Restoration & Remodeling, Inc. v. Costello, 965 N.E.2d 723, 727 (Ind.

       Ct. App. 2012). HICA requires real property improvement suppliers6

       performing any alteration, repair, or modification to residential real property—

       which includes all fixtures to, structures on, and improvements to the real

       property—of a consumer7 for an amount greater than $150 to provide the




       6
        A “real property improvement supplier” is “a person who engages in or solicits real property improvement
       contracts whether or not the person deals directly with the consumer.” I.C. § 24-5-11-6. P&V does not
       dispute on appeal that it is a real property improvement supplier subject to HICA.
       7
        A “consumer” is a person who owns, leases, or rents the residential real property that is the subject of a real
       property improvement contract. I.C. § 24-5-11-2. P&V does not dispute that Tennant is a consumer.

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018               Page 14 of 24
       consumer with a written home improvement contract. I.C. §§ 24-5-11-1, -3, -4,

       -10(a). The home improvement contract must contain certain information

       before it is signed by the consumer, including the consumer’s name, the address

       of the real property that is the subject of the real property improvement, a

       reasonably detailed description of the proposed real property improvements,

       approximate starting and completion dates, a statement of any contingencies

       that would materially change the approximate completion date, and the

       contract price. I.C. § 24-5-11-10(a).


[17]   A real property improvement supplier who violates HICA commits a

       “deceptive act” that is actionable by a consumer and subject to the remedies

       and penalties available to victims of deceptive consumer sales. I.C. § 24-5-11-

       14. Specifically, “[a] person relying upon an uncured or incurable deceptive act

       may bring an action for the damages actually suffered as a consumer as a result

       of the deceptive act or five hundred dollars ($500), whichever is greater.”8 I.C.

       § 24-5-0.5-4(a). “[T]he court may void or limit the application of contracts or

       clauses resulting from deceptive acts . . . .” I.C. § 24-5-0.5-4(d). The statute

       then limits its application, stating that:


                No action may be brought under this chapter, . . . unless (1) the
                deceptive act is incurable or (2) the consumer bringing the action




       8
         An “uncured deceptive act” is a deceptive act of which the consumer gave proper notice to the supplier and
       either the supplier made no offer to cure within thirty days, or the act has not been cured within a reasonable
       time after the consumer’s acceptance of the offer to cure. I.C. § 24-5-0.5-2(a)(7). An “incurable deceptive
       act” is a deceptive act done by a supplier as part of a scheme, artifice, or device with intent to defraud or
       mislead. I.C. § 24-5-0.5-2(a)(8).

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018               Page 15 of 24
               shall have given notice in writing to the supplier within the sooner of
               (i) six (6) months after the initial discovery of the deceptive act,
               (ii) one (1) year following such consumer transaction, or (iii) any
               time limitation, not less than thirty (30) days, of any period of
               warranty applicable to the transaction, which notice shall state fully
               the nature of the alleged deceptive act and the actual damage suffered
               therefrom, and unless such deceptive act shall have become an
               uncured deceptive act.


       Ind. Code § 24-5-0.5-5(a) (emphases added).


[18]   This Court has concluded that the General Assembly did not intend that every

       contract that violates HICA is automatically void. Costello, 965 N.E.2d at 729.

       Instead, we apply a balancing approach and examine the factors that courts use

       to determine whether a contract contravenes declared public policy. Id. 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 will 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. Id.


                                             B. Application
[19]   Tennant argues that P&V did not comply with HICA because no formal written

       contract existed between the parties. In the alternative, Tennant asserts that

       P&V’s “failure to adhere to legislative mandates has caused Tennant so much

       time, money, and emotional grief” that their agreement must be declared void.


       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 16 of 24
       Appellant’s Br. p. 28. P&V concedes that the written estimate did not conform

       to HICA’s requirements, but asserts that because the omissions were not

       intentional and did not prejudice Tennant, their agreement should not be found

       unenforceable.


[20]   Here, Tennant suggests that no contract existed between the parties because

       their agreement was not reduced to writing. The trial court found that the

       estimate served as a written contract in that it “outlined the terms and

       parameters of the project to which Mrs. Tennant orally agreed and upon which

       Peaks & Valleys proceeded. The estimate establishes generally what both

       parties agreed to be reasonable terms and expectations.” Appealed Order p. 8.

       In other words, the trial court found that a contract existed because the essential

       elements of a contract were present. See, e.g., Jernas v. Gumz, 53 N.E.3d 434,

       445 (Ind. Ct. App. 2016), trans. denied (“The basic requirements for a contract

       are offer, acceptance, consideration, and a meeting of the minds between the

       contracting parties on all essential elements or terms of the transaction.”).

       Tennant does not refute the trial court’s finding beyond a general statement that

       no written agreement evinces the meeting of the minds. The trial court did not

       err by finding that a written contract existed.


[21]   To find this contract unenforceable against Tennant would leave P&V suffering

       “a serious and undeserved forfeiture outweighing the other factors.” Costello,

       956 N.E.2d at 729. P&V provided services to Tennant at her request and

       accommodated her modification requests during the Project. The Project was

       near completion when Tennant fired P&V. Tennant acknowledged that she

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 17 of 24
       received the benefit of P&V’s services and that she owes P&V for its work. Tr.

       Vol. III p. 239-40; Appellant’s App. Vol. II p. 153, 158, 160-61.


[22]   Moreover, Tennant fails to show that she was deceived by P&V’s

       noncompliance with HICA. The trial court concluded that even if the original

       estimate had been reduced to a formal written contract, it was speculative that

       events would have happened differently. We find the trial court’s reasoning

       sound. Even if P&V had complied with HICA, Tennant fails to show how the

       Project would have proceeded differently. She does not argue that she would

       have requested fewer or no modifications, or that she would have paid for the

       work and materials P&V had expended before she fired it. In short, she fails to

       show how P&V’s failure to comply with the statute led to any deception or

       abuse of her as a consumer. “HICA aims to protect consumers from abuse, not

       to provide an escape from legitimate contractual obligations.” Paul v. Stone

       Artisans, Ltd., 20 N.E.3d 883, 889 (Ind. Ct. App. 2014). Not enforcing this

       contract would not further the policy behind HICA and would simply allow

       Tennant to enjoy a windfall. The trial court did not err by finding that a valid

       contract existed between the parties despite P&V’s noncompliance with HICA.9


[23]   As for damages, the trial court initially awarded Tennant $500, the minimum

       award for a HICA violation. After P&V filed its motion to correct error, the




       9
         Tennant also contends that her oral modifications to the contract did not comply with HICA. Tennant
       does not identify which modifications she is referencing. However, as the trial court did not make any
       findings of fact or conclusions of law related to modifications under HICA, it appears that Tennant is raising
       this issue for the first time on appeal. It is, therefore, waived. Troxel, 737 N.E.2d at 752.

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018              Page 18 of 24
       trial court reversed its judgment, finding that the deceptive act was not

       incurable because P&V did not act with intent to defraud or mislead and that

       “Tennant failed to provide sufficient and timely notice under the statute so that

       she could later claim that she was the victim of an ‘uncured deceptive act[.]’”

       Appellant’s App. Vol. V p. 133-34. Tennant now argues that she was entitled to

       damages.


[24]   We agree with the trial court’s finding. Indiana Code section 24-5-0.5-5(a)

       states clearly that an action cannot be brought under HICA unless the deceptive

       act is incurable (meaning that it was done by the real property improvement

       supplier as part of a scheme, artifice, or device with intent to defraud or

       mislead) or unless the consumer bringing the action gives written notice to the

       real property improvement supplier within a certain timeframe that states the

       nature of the alleged deceptive act and the actual damage suffered from it.

       Tennant does not argue that the deceptive act was incurable. Instead, she

       contends that she met the statutory requirement for notice because she called

       P&V to address her concerns about the concrete portion of the Project.

       However, not only does a phone call not comply with the statutory requirement

       for written notice, a conversation about concrete is irrelevant to P&V’s

       noncompliance with HICA. Tennant also fails to show any actual damage

       suffered from P&V’s noncompliance. Simply put, Tennant did not comply with

       her own obligations under HICA to receive damages. We find no error with

       the trial court’s resolution of this issue.




       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 19 of 24
                                       III. P&V’s Cross-Appeal                            10




[25]   P&V challenges the trial court’s elimination of prejudgment interest from its

       total damages award. The trial court determined that although P&V is entitled

       to prejudgment interest of approximately $5,000 and interest costs of $10,777.92

       for money it borrowed to cover its losses, awarding both amounts would

       constitute unfair double-dipping. The trial court concluded that P&V is entitled

       to the greater of the two; hence, it awarded P&V $10,777.92 for interest and

       denied it approximately $5,000 in prejudgment interest.


[26]   Prejudgment interest is awarded to fully compensate an injured party for the

       lost use of money. Song v. Iatarola, 76 N.E.3d 926, 939 (Ind. Ct. App. 2017),

       trans. denied. In a breach of contract action, an award of prejudgment interest is

       warranted if the amount of the claim rests upon a simple calculation and the

       terms of the contract make such a claim ascertainable. Kopka, Landau & Pinkus

       v. Hansen, 874 N.E.2d 1065, 1074 (Ind. Ct. App. 2007). “Prejudgment interest

       is computed from the time the principal amount was demanded or due and is

       allowable at the permissible statutory rate when no contractual provision

       specifies the interest rate.” Fackler v. Powell, 923 N.E.2d 973, 977 (Ind. Ct. App.

       2010). An award of prejudgment interest is generally not considered a matter of




       10
          Because Tennant’s reply brief did not address any of P&V’s claims raised on cross-appeal, we may reverse
       if P&V presents a prima facie case of error. In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). “Prima
       facie error is error at first sight, on first appearance, or on the face of it.” Sand Creek Country Club, Ltd. v. CSO
       Architects, Inc., 582 N.E.2d 872, 876 (Ind. Ct. App. 1991) (internal quotation marks and citation omitted).

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018                    Page 20 of 24
       discretion. Town of New Ross v. Ferretti, 815 N.E.2d 162, 170 (Ind. Ct. App.

       2004).


[27]   The amount of P&V’s breach of contract damages is the amount of money that

       P&V spent on labor and materials as well as its consequential damages

       (including the interest it paid on the loan it obtained to mitigate its financial

       losses). The monetary value of P&V’s labor, materials, and consequential

       damages depends on a simple calculation and is ascertainable. Thus, P&V is

       entitled to prejudgment interest on its award. The fact that P&V’s total

       damages award includes interest it paid on a loan does not affect its entitlement

       to prejudgment interest and does not constitute double-dipping.


[28]   Because the damages resulting from the breach of contract were calculable and

       ascertainable at the time of trial, the trial court did not have the discretion to

       deny P&V prejudgment interest. Accordingly, we remand and order the trial

       court to calculate the amount of prejudgment interest to which P&V is entitled.


                                           IV. Attorney’s Fees
[29]   P&V argues that the trial court erred by not awarding it the full amount of

       attorney’s fees it requested.11 In an action to enforce a mechanic’s lien, “a

       plaintiff or lienholder who recovers a judgment in any sum is entitled to recover




       11
         Tennant argues that P&V is not entitled to attorney’s fees, and states simply, without any discussion or
       authority, that this Court should order attorney’s fees for her trial and appellate expenses. We decline to
       consider this argument.

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018              Page 21 of 24
       reasonable attorney’s fees. The court shall enter the attorney’s fees as a part of

       the judgment.” Ind. Code § 32-28-3-14(a). What constitutes a reasonable

       attorney’s fee in an action to enforce a mechanic’s lien is a question of fact, the

       computation of which may depend on a variety of factors, including the time

       and effort required; the value of the interest involved; the experience,

       reputation, and ability of the attorneys performing the services; and the results

       secured at trial. Ponziano Constr. Servs. Inc. v. Quadri Enters., LLC, 980 N.E.2d

       867, 876 (Ind. Ct. App. 2012). The trial court has discretion in determining

       what constitutes a reasonable attorney’s fee, and we will reverse only if the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court. Id. The trial court may look at the

       responsibility of the parties in incurring the attorney’s fees, and the trial judge

       possesses personal expertise he or she may use when determining reasonable

       attorney’s fees. Id. at 876-77.


[30]   This Court has further explained that


               The award of attorney’s fees in an action to foreclose on a
               mechanic’s lien is not an attempt to compensate the attorney for
               all the legal services performed in connection with the lien;
               rather, the amount of the award is intended to reflect the amount
               the lienholder reasonably had to expend to foreclose on the lien.
               Such awards should be made with caution so that excessive
               awards of attorney’s fees do not discourage property owners from
               challenging defective workmanship on the part of lien holders.
               The amount awarded as attorney’s fees therefore should be
               reasonable in relation to the amount of the judgment secured.



       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 22 of 24
       Id. at 877.


[31]   Here, P&V’s counsel submitted an affidavit and itemized billing records to the

       trial court after the trial regarding P&V’s attorney’s fees and expenses, which

       totaled $82,326.86. P&V is entitled only to the attorney’s fees resulting from its

       action to foreclose on its mechanic’s lien. Although the mechanic’s lien was

       initially the primary issue between the parties, ultimately it was but one of

       multiple issues that arose in this case. Further, the attorney’s fee must be

       reasonable in relation to the amount of the lien secured. The judgment for P&V

       was $34,006.21; excluding the damages for interest on its loan means P&V

       recovered $23,228.29 on its mechanic’s lien. After the motion to correct error,

       the trial court ordered Tennant to pay $49,342.11 toward P&V’s attorney’s fees.


[32]   We find that the trial court’s award of attorney’s fees was not against the logic

       and effect of the facts and circumstances before it. Initially, we note that it is

       challenging to determine which charges relate specifically to the mechanic’s

       lien. Second, the trial court was in accord with caselaw when it sought to avoid

       an award amount that would discourage property owners from challenging

       defective workmanship on the part of the lien holders. And finally, the award

       was more than reasonable in relation to the amount of the lien secured—

       indeed, the attorney’s fee was approximately $26,000 greater than the value of

       the mechanic’s lien. See Ponziano Constr. Servs. Inc., 980 N.E.2d at 877 (finding

       an attorney’s fee award of $8,000 “not inadequate” for recovery of a mechanic’s

       lien worth approximately $45,500). We affirm the trial court’s decision to

       award P&V $49,342.11 in attorney’s fees.

       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 23 of 24
[33]   The judgment of the trial court affirmed in part, reversed in part, and remanded

       for calculation and award of prejudgment interest.


       Vaidik, C.J., and Barnes, S.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 92A04-1710-CC-2474 | July 6, 2018   Page 24 of 24
