MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Sep 28 2018, 8:50 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Robert Oakley                                            Clinton E. Blanck
Daniel K. Dilley                                         Rifkin, Blanck & Rubenstein, P.C.
Dilley & Oakley P.C.                                     Carmel, Indiana
Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

V.P. Construction Co., Inc.,                             September 28, 2018
Steven Rilenge, and Julie                                Court of Appeals Case No.
Rilenge,                                                 49A02-1712-CC-2851
Appellants,                                              Appeal from the Marion Superior
                                                         Court
(Defendants/Counterclaim-Plaintiffs                      The Honorable Thomas J. Carroll,
                                                         Judge
and Third-Party Plaintiff below),
                                                         Trial Court Cause No.
        v.                                               49D06-1212-CC-48269

Interior Renovation & Design,
Inc., and Patricia A. Geisler,
Appellees,

(Plaintiffs/Counterclaim-Defendants

and Third-Party Defendant below)



Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018        Page 1 of 16
      May, Judge.


[1]   Appellants-Defendants, V.P. Construction Co., Inc. (“V.P.”), and Steven

      Rilenge (“Steven”); and Appellant-Third-Party Plaintiff, Julie Rilenge (“Julie”)

      (collectively, “Appellants”) appeal the trial court’s order granting damages in

      favor of Interior Renovation & Design, Inc., (“Interior”) and Third Party-

      Defendant, Patricia Geisler (“Geisler”) (collectively, “Appellees”). Appellants

      present multiple issues for our consideration, which we consolidate and restate

      as:


              1. Whether the trial court erred in its findings regarding the
              amounts of the mechanic’s liens;


              2. Whether the trial court erred in its findings regarding the
              breach of contract claims;


              3. Whether the trial court erred in its findings regarding
              Interior’s alleged tax liability; and


              4. Whether the trial court erred in the amount of damages
              awarded to Appellees.


      We affirm.


                            Facts and Procedural History
[2]   In 1983, Steven formed V.P., a corporation which performs general contracting

      services. Steven is the chief operating officer and sole shareholder of V.P. In




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018   Page 2 of 16
      1986, V.P. hired Geisler as an office administrator to manage all V.P.’s day-to-

      day operations.


[3]   In 1989, when V.P. entered a contract that required unionized workers, Steven

      arranged for Geisler and Julie, Steven’s wife, to form Interior. Geisler held

      sixty percent, while Julie held forty percent of Interior shares and acted as

      secretary. Following Interior’s incorporation, V.P. orally agreed that it would

      exclusively subcontract Interior for its commercial and residential construction

      projects. Geisler managed all of Interior’s operations, and Interior’s primary

      employee was Geisler’s husband, a union carpenter. Geisler performed her

      duties for V.P. and for Interior out of V.P.’s corporate office.


[4]   V.P. and Interior did business together without issue until 2009. Between 2009

      and 2011, Interior alleged, V.P. underpaid or failed to pay Interior for the

      services Interior rendered on several projects and as a result of the

      underpayment and non-payment, Interior accrued $96,179.53 debt to the

      Internal Revenue Service (“IRS”); $5,984.78 in debt to the Indiana Department

      of Revenue (“IDR”); and $64,284.20 in debt for union dues. Sometime in

      2012, the IRS and the IDR sought to recover the back taxes from Interior’s

      majority shareholder, Geisler. Geisler subsequently entered into a payment

      plan, whereby she agreed to personally pay the federal and state taxes owed.

      Geisler later sought Julie’s 40% contribution on the back taxes, but Julie refused

      to pay.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018   Page 3 of 16
[5]   Sometime in April 2012, Steven took over the financial management of V.P. In

      May 2012, V.P. subcontracted Interior to remodel the lobby area for a Key

      Bank. Geisler was aware that Key Bank paid V.P. for the work, but V.P. did

      not pay Interior for the remodeling. Again, in May 2012, V.P. subcontracted

      Interior to conduct remodeling for a Fifth Third Bank. Geisler was aware that

      Fifth Third Bank paid V.P. for the remodeling, but Interior did not get paid for

      its labor. In June 2012, on behalf of V.P., Interior remodeled Gallahue Hall at

      Butler University. In the same month, Interior remodeled portions of the

      Sigma Nu fraternity house at Butler University, and it installed an awning at

      the house occupied by the Butler University President. In July 2012, V.P.

      subcontracted Interior to conduct work at a private residence. In the same

      month, Interior remodeled parts of Jordan Hall at Butler University. The last

      project that Interior undertook for V.P. was in August 2012, when Interior

      installed an exhaust fan at a private residence.


[6]   On August 31, 2012, Geisler resigned from V.P. By that time, V.P. had failed

      to pay Interior for at least eight projects. On October 25, 2012, Geisler, as

      president of Interior, filed several mechanic liens with the Marion County

      Recorder for unpaid services performed for V.P. For the Key Bank project,

      Interior claimed that it was owed $3,750.00. For the Fifth Third project,

      Geisler specified that the amount owed was $6,600.00. The outstanding

      amounts for the Butler University projects were $5,500.00 for Gallahue Hall;

      $3,500.00 for the Sigma Nu fraternity house; $4,400.00 for the President’s




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018   Page 4 of 16
      house; and $6,000.00 for Jordan Hall. Lastly, Geisler asserted Interior was

      owed $350.00 for work conducted at a private residence.


[7]   On November 5, 2012, eleven days after Geisler filed the mechanic liens, Julie,

      without Geisler’s authority, executed a “Final Waiver of Lien” for each of the

      mechanic’s liens, indicating Interior waived all the liens Geisler had filed on

      October 25, 2012. Julie did not tender any funds to Interior or deposit funds

      into Interior’s bank account, despite the fact she indicated Interior had received

      final payment for the projects listed on the mechanic’s liens.


[8]   On December 17, 2012, Interior filed a breach of contract action against V.P.

      and Steven, alleging failure of payment on eight construction projects in 2012.

      Interior also claimed that V.P. was the alter ego of Steven and piercing of the

      corporate veil of V.P. was appropriate in order to hold Steven personally liable

      for V.P.’s breach of contract.


[9]   On January 17, 2014, Interior filed an Amended Complaint reasserting its

      claims against V.P. and Steven from its original Complaint. The Amended

      Complaint included a new breach of contract claim against V.P. and Steven,

      alleging that from “2009 to 2011” V.P. and Steven breached “the oral contract

      by failing and refusing to pay Interior, for each project on which Interior

      performed work, an amount sufficient to cover Interior’s federal and state

      payroll taxes and union dues.” (Appellants’ App. Vol. II at 11.) Interior also

      added Julie as a defendant and alleged Julie had breached her fiduciary duty to

      Interior by executing waivers for several liens without authorization. Interior


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018   Page 5 of 16
       alleged Julie committed fraud, conspiracy, and tortuiously interfered with

       Interior’s business by falsely affirming to the Marion County Recorder that the

       mechanic liens had been satisfied by V.P. On April 24, 2014, V.P. filed its

       answer with respect to Interior’s amended complaint. The record shows that on

       June 16, 2014, V.P. and Julie filed a counterclaim against Interior. 1


[10]   On October 24, 2017, Steven, Geisler, and Julie appeared for a bench trial, with

       Geisler and Steven testifying. On November 7, 2017, the trial court issued a

       judgment in favor of Interior. The order also denied all counterclaims by V.P.

       and Julie. 2



                                   Discussion and Decision
                                                Standard of Review

[11]   Where, as here, the trial court enters findings sua sponte after a bench trial, the

       findings control our review and judgment only as to those issues specifically

       referenced in the findings. Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind. Ct.

       App. 2014). When the trial court does not make specific findings on an issue,




       1
         That counterclaim was not enclosed for our review. Additionally, we note Appellants have filed a copy of
       the “MyCase” summary, representing such as the Chronological Case Summary required as part of the
       Appendix, despite the fact the summary clearly states at the top of the page, “This is not the official court
       record. Official records of court proceedings may only be obtained directly from the court maintaining a
       particular record.” (Appellants’ App. at 2.) While this is not a violation of the Indiana Rules of Appellate
       Procedure, we note the Chronological Case Summary is the official record of the court. See Anderson v.
       Horizon Homes, 644 N.E.2d 1281, 1287 (Ind. Ct. App. 1995) (Chronological Case Summary is official record
       of the court), trans. denied.
       2
        On August 14, 2018, Appellants filed a Motion to Stay with this court. Our opinion makes the motion
       moot, and we have issued an order denying the motion contemporaneously with the opinion.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018         Page 6 of 16
       we apply a general judgment standard, and we may affirm on any legal theory

       supported by the evidence adduced at trial. Id. at 950.


               A two-tier standard of review is applied to the sua sponte findings
               and conclusions made: whether the evidence supports the
               findings, and whether the findings support the judgment.
               Findings and conclusions will be set aside only if they are clearly
               erroneous, that is, when the record contains no facts or inferences
               supporting them. A judgment is clearly erroneous when a review
               of the record leaves us with a firm conviction that a mistake has
               been made. In conducting our review, we consider only the
               evidence favorable to the judgment and all reasonable inferences
               flowing therefrom. We will neither reweigh the evidence nor
               assess witness credibility.


       Id.


                                 Amount Awarded for Mechanic’s Liens

[12]   Regarding the payment of mechanic’s liens filed by Interior, the trial court

       ordered, “Interior is awarded $40,062.54 in compensatory damages from [V.P.]

       for unpaid fees earned on eight construction projects in 2012, plus court costs

       and prejudgment interest at the rate of eight percent (8%) per annum from

       October 25, 2012.” (Appellants’ App. Vol. II at 25.) On appeal, Appellants

       argue the mechanic’s liens were invalid “thereby rendering all claims against

       [Julie] premised thereon baseless.” (Br. of Appellants at 19) (formatting

       omitted). Appellants also challenge the amounts awarded to Appellees as

       payment for the mechanic’s liens.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018   Page 7 of 16
[13]   First, Appellants did not argue before the trial court that the mechanic’s liens

       were invalid. The mechanic’s liens were offered into evidence without

       objection, (see Tr. Vol. II at 31), and Appellants cross-examined Geisler

       regarding the amounts, but Appellants have not directed us to a portion of the

       transcript wherein they argued the mechanic’s liens were invalid. Therefore,

       their arguments regarding the validity of the mechanic’s liens are waived. See

       Breneman v. Slusher, 768 N.E.2d 451, 463 (Ind. Ct. App. 2002) (issues raised for

       the first time on appeal are waived), reh’g denied, trans. denied.


[14]   Appellants’ arguments regarding the amounts of the mechanic’s liens are

       invitations for us to reweigh evidence and judge witness credibility. Appellees

       presented evidence and testimony regarding the amounts of those liens, and the

       trial court was free to credit testimony and evidence at its discretion. See

       Samples, 12 N.E.2d at 950 (appellate court will not reweigh evidence or judge

       the credibility of witnesses). Further, the proceedings were a bench trial, and

       we presume trial courts know and follow the law. Boone Cty. Rural Elec.

       Membership Corp. v. Layton, 664 N.E.2d 735, 739 (Ind. Ct. App. 1996), trans.

       denied.


                                  Breach of Contract and Tax Liability

[15]   Regarding the breach of contract and tax liability claims, the trial court ordered:


                 Interior is awarded $166,446.43 in compensatory damages from
                 [V.P.] for unpaid state and federal tax withholdings and union
                 dues, plus court costs and prejudgment interest at the rate of eight
                 percent (8%) per annum from November 28, 2012. [V.P.’s]
                 obligation to pay this award shall be offset by [Julie’s] . . .
       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018   Page 8 of 16
                obligation to cover and pay Interior 40% of the back taxes, i.e.,
                $40,865.72, plus court costs and prejudgment interest at the rate
                of eight percent (8%) per annum from November 2, 2012.


       (Appellants’ App. Vol. II at 25.) Appellants argue the trial court made a “sua

       sponte ruling on these issues during the bench trial that effectively dismissed

       Appellee’s [sic] claims for unpaid taxes and union dues.” (Br. of Appellants at

       18.) However, Appellants do not indicate the location in the record in which it

       alleges the trial court made this statement; thus the issue is waived for failure to

       make a cogent argument by neglecting to cite to “parts of the Record of Appeal

       relied on.” Ind. Appellate Rule 46(A)(8)(a). See Nealy v. American Family Mut.

       Ins. Co., 910 N.E.2d 842, 845 n.2 (Ind. Ct. App. 2009) (on appeal “we will not

       search the record to find a basis for a party’s argument”), trans. denied; and see

       Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (failure to present

       cogent argument results in waiver of issue on appeal).


                                                Amount of Damages 3

[16]   The trial court awarded Interior the following damages for various claims:


                a. Interior is awarded $166,446.43 in compensatory damages
                from [V.P.] for unpaid state and federal tax withholdings and



       3
         Appellants also argue the trial court sua sponte made a statement during trial that precluded it from piercing
       the corporate veil and holding Steven personally liable for damages due to Interior. However, Appellants
       have not cited case law to support this contention, and thus it is waived for failure to make a cogent
       argument. See Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (“We demand cogent argument
       supported with adequate citation to authority because it promotes impartiality in the appellate tribunal.”); see
       also App. R. 46(A)(8)(a) (Argument section of appellant’s brief must “contain the contentions of the appellant
       on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to
       the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018          Page 9 of 16
               union dues, plus court costs and prejudgment interest at the rate
               of eight percent (8%) per annum from November 28, 2012.
               [V.P.’s] obligation to pay this award shall be offset by [Julie’s]. . .
               obligation to cover and pay Interior 40% of the back taxes, i.e.,
               $40,865.72, plus court costs and prejudgment interest at the rate
               of eight percent (8%) per annum from November 2, 2012.


               b. Interior is awarded $40,062.54 in compensatory damages
               from [V.P.] for unpaid fees earned on eight construction projects
               in 2012, plus court costs and prejudgment interest at the rate of
               eight percent (8%) per annum from October 25, 2012.


               c. Interior is awarded $30,800.00 in compensatory and punitive
               damages from Julie [] for her willful breach of fiduciary duty and
               tortious interference with Interior’s prospective advantage, plus
               court costs and prejudgment interest at the rate of eight percent
               (8%) per annum from November 5, 2012.


               d. Interior is awarded $92,400.00 in statutory treble damages,
               $25,225.25 in reasonable attorney’s fees and $395.77 in costs
               from Julie . . . under Ind. Code § 34-24-3-1 for her intentional
               conversion of Interior’s mechanic’s liens.


       (Appellants’ App. Vol. II at 25.) Appellants argue Appellees did not present

       evidence to support the trial court’s computation of damages and that the

       damage amounts were a windfall for Appellees.


[17]   Appellants’ arguments are invitations for us to reweigh the evidence and judge

       the credibility of witnesses, which we cannot do. See Samples, 12 N.E.2d at 950

       (appellate court will not reweigh evidence or judge the credibility of witnesses).

       Geisler testified she owed, as owner of Interior, $96,179.53 in back taxes to the

       Internal Revenue Service; $5,984.78 to the Indiana Department of Revenue;
       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 10 of 16
       and $64,282.20 in unpaid union dues. (See Tr. Vol. II at 15-16.) Those

       amounts total $166,446.43, which is the amount the trial court awarded.

       Giesler testified to the amounts she believed Interior was owed for the eight

       projects, an amount which totaled $40,062.54, which also matches the amount

       the trial court awarded. Additionally, the trial court admitted copies of the

       mechanic’s liens that were fraudulently waived by Julie, which totaled

       $30,800.00 - the amount awarded for Julie’s torts. Finally, it was within the

       trial court’s discretion to award prejudgment interest on all of the amounts. 4

       See Hayes v. Chapman, 894 N.E.2d 1047, 1054 (Ind. Ct. App. 2008)

       (prejudgment interest may be awarded where the amount of damages can be

       ascertained by simple mathematical computation), trans. denied.



                                                  Conclusion
[18]   The trial court did not err when it ordered Appellants to pay various damages

       to Appellees. Those arguments not waived by Appellants are impermissible

       requests for our court to reweigh evidence and judge the credibility of witnesses.

       Accordingly, we affirm.


[19]   Affirmed.




       4
        Appellants challenge the trial court’s award of attorney’s fees in their reply brief. As an argument cannot be
       advanced for the first time in a reply brief, the issue is waived. See Crossmann Communities, Inc. v. Dean, 767
       N.E.2d 1035, 1044 (Ind. Ct. App. 2002) (issues raised for the first time in a reply brief are waived); and see
       Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 11 of 16
Mathias, J., concurs


Riley, J., dissent with separate opinion.




Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 12 of 16
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       V.P. Construction Co, Inc.,                              Court of Appeals Case No.
       Steven Rilenge, and Julie                                49A02-1712-CC-2851
       Rilenge,
       Appellants,

       (Defendant/Counterclaim-Plaintiffs

       and Third-Party Plaintiff below),

               v.

       Interior Renovation & Design,
       Inc. and Patricia A. Geisler,
       Appellees,

       (Plaintiff/Counterclaim-Defendant and

       Third-Party Defendant below)



       Riley, Judge, dissenting.


[20]   I respectfully dissent from the majority’s determination to consider the

       Appellants’ claims on the merits. The crux of the Appellee’s action at trial was

       for the recovery of damages for breach of contract with respect to unpaid and

       underpaid projects. The bulk of the Appellants’ brief focuses on whether the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 13 of 16
       liens were valid instead of discussing why the trial court’s award of damages

       was erroneous. Consequently, I find the Appellants’ argument on the validity

       of the liens is not of material assistance in determining whether the trial court’s

       judgment on damages was erroneous. Pursuant to Indiana Appellate Rule

       46(A)(8)(a), the argument section of an appellant’s brief should “contain the

       contentions of the appellant on the issues presented, supported by cogent

       reasoning. Each contention must be supported by citations to the authorities,

       statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”


[21]   This court has previously stated:


               We demand cogent argument supported with adequate citation
               to authority because it promotes impartiality in the appellate
               tribunal. A court which must search the record and make up its
               own arguments because a party has not adequately presented
               them runs the risk of becoming an advocate rather than an
               adjudicator. A brief should not only present the issues to be
               decided on appeal, but it should be of material assistance to the
               court in deciding those issues. On review, we will not search the
               record to find a basis for a party’s argument . . . nor will we
               search the authorities cited by a party in order to find legal
               support for its position.


       Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (internal citations

       omitted). Although its prefered to dispose of cases on their merits, where an

       appellant fails to substantially comply with the appellate rules, then dismissal of

       the appeal is warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App.

       2004). This court has discretion to dismiss an appeal for the appellant’s failure

       to comply with the Rules of Appellate Procedure. See Miller v. Hague Ins.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CC-2851 | September 28, 2018 Page 14 of 16
       Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (“Although we will

       exercise our discretion to reach the merits when violations are comparatively

       minor, if the parties commit flagrant violations of the Rules of Appellate

       Procedure we will hold issues waived, or dismiss the appeal.”), reh’g denied.


[22]   Here, I find that the Appellants have failed to advance their arguments with

       cogent reasoning on the issue of whether the trial court’s judgement with

       respect to damages was erroneous, and I find that addressing Appellants claims

       on the merits would require this court to make and advance arguments for

       them. See Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016).

       Accordingly, I would dismiss this appeal for the foregoing reasons.




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