Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                   Nov 26 2014, 9:34 am
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:

JOHN S. MERLAU
New Palestine, Indiana




                                IN THE
                      COURT OF APPEALS OF INDIANA


SCOTT WILLIAMS and                                 )
GEOFFREY BOND,                                     )
                                                   )
        Appellants-Defendants,                     )
                                                   )
                vs.                                )    No. 55A05-1404-SC-186
                                                   )
APRIL BOOMER,                                      )
                                                   )
        Appellee-Plaintiff.                        )


                      APPEAL FROM THE MORGAN SUPERIOR COURT
                          The Honorable Jane Spencer Craney, Judge
                         The Honorable Brian H. Williams, Magistrate
                               Cause No. 55D03-1306-SC-926


                                        November 26, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Scott Williams and Geoffrey Bond (“the Appellants”) appeal the small claims court’s

entry of judgment against them on a claim filed by April Boomer. We reverse.

                                           Issues

       The Appellants raise one issue, which we restate as whether the small claims court

properly entered judgment against them in their personal capacities.

                                           Facts

       In 2004, Boomer and her husband entered into a contract with G&S Custom Builders,

LLC, (“G&S”) for the construction of a home in Mooresville. Williams and Bond were the

two members of G&S. The contract included a warranty against major structural defects for

ten years.

       In 2010, G&S was dissolved. In 2012, Boomer noticed the front porch of her home

appeared to be “twisting off the foundation.” Tr. p. 3. Boomer had the porch inspected by a

structural engineer, who concluded there was a structural problem with it.

       In June 2013, Boomer filed a small claims action against the Appellants seeking to

recover the “cost to repair structural defect and resulting damage to plaintiff’s home.” App.

p. 4. The small claims court held a hearing at which Boomer, Williams, and Bond testified.

On March 20, 2014, the small claims court entered an order concluding in part:

                     There is no dispute the LLC entity would be liable under
              the evidence presented. The Defendants Williams and Bond
              assert they are shielded from personal liability due to the
              existence of the defunct LLC. Both Defendants were active
              principals in the LLC. All work by the LLC was subcontracted
              to other construction vendors by the principals.
                                             2
App. p. 5. Relying on Greg Allen Const. Co. v. Estelle, 762 N.E.2d 760, 766 (Ind. Ct. App.

2002), the small claims court went on to conclude:

              As in Allen, the Defendants are subject to the common law duty
              to perform its work in a workmanlike manner, and a conclusion
              that the company breached its duty necessarily constitutes a
              conclusion that Defendants were negligent in tort. Under this
              analysis the Defendants are personally liable for their company’s
              negligent failure to do the job in a workmanlike manner to the
              extent that they participated in, authorized or directed negligent
              conduct. The Court finds they directed the conduct and are
              personally liable.

Id. at 6. The small claims court entered judgment against the Appellants personally in the

amount of $6,000. The Appellants filed a motion to correct error, which the small claims

court denied. They now appeal.

                                           Analysis

       As an initial matter, Boomer did not file an appellee’s brief. In that circumstance, we

do not undertake to develop arguments for her. See Morton v. Ivacic, 898 N.E.2d 1196, 1199

(Ind. 2008). Rather, we will reverse upon the Appellants’ prima facie showing of reversible

error. See id. Prima facie error means at first sight, on first appearance, or on the face it. Id

       “Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate

review of facts determined in a bench trial with due regard given to the opportunity of the

trial court to assess witness credibility.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065,

1067 (Ind. 2006). Our supreme court has explained that this deferential standard of review is

particularly important in small claims actions, where the sole objective is dispensing speedy

justice according to the rules of substantive law. Id. at 1067-68. However, this deferential
                                               3
standard does not apply to the substantive rules of law, which are reviewed de novo. Id. at

1068.

        In Greg Allen Construction, the Estelles contracted with Greg Allen Construction,

Inc., for renovations to their home. Greg Allen, president, shareholder, and employee of

Allen Construction, signed the contract in his representative capacity. He then performed

work on the project and supervised other work. The Estelles began questioning the quality of

work, and litigation ensued. The Estelles alleged that Allen Construction and Greg Allen

breached the contract and were negligent. The trial court found that Allen was not

individually liable to the Estelles because he was acting on behalf of Allen Construction.

The Estelles appealed, and a panel of this court held:

              Thus, when a person contracts to perform services, failure to
              perform in a workmanlike manner may constitute both a breach
              of contract and the tort of negligence. Wilson v. Palmer, 452
              N.E.2d 426, 429 (Ind. Ct. App. 1983). Accordingly, since Allen
              Construction was subject to the common law duty to perform its
              work in a workmanlike manner, the trial court’s conclusion that
              the company breached this duty necessarily constitutes a
              conclusion that Allen Construction was negligent. Under the
              rule from State of Indiana Civil Rights Comm’n set out above,
              Allen could have been personally liable for his company’s
              negligent failure to do the job in a workmanlike manner to the
              extent that he participated in, authorized or directed Allen
              Construction’s negligent conduct.

Greg Allen Const. Co., 762 N.E.2d at 776.

        However, our supreme court granted transfer and vacated that portion of the opinion.

See Greg Allen Const. Co. v. Estelle, 798 N.E.2d 171 (Ind. 2003). Our supreme court

distinguished between a breach of contract claim and a tort claim in a construction setting


                                             4
and explained, “The whole of the alleged wrong, deficient home improvements, centered on

the performance required by the contract created by Allen Construction and the Estelles. Any

duty Allen had to perform his individual duties flowed solely from this contract.” Id. at 173.

                     The basic theory underlying the distinction between
              contract and tort is that tort liability is imposed by law and that
              contract liability is the product of an agreement of the parties.
              But only the principal, who is a party to the contract, has agreed
              to perform the obligations of the agreement. To impose “the
              same” liability on the agent is to make the agent the promisor
              when the parties had arranged their affairs to put the principal,
              and only the principal, on the line.
                     A defendant’s exposure to tort liability is best framed in
              terms of what the defendant did. The proper formulation of the
              reason Allen is not liable here is that his negligence consisted
              solely of his actions within the scope of his authority in
              negligently carrying out a contractual obligation of the
              corporation as his employer. Nothing he did, and therefore
              nothing the corporation did, constituted an independent tort if
              there were no contract. Under those circumstances the Estelles
              should be remitted to their contract claim against the principal,
              and they should not be permitted to expand that breach of
              contract into a tort claim against either the principal or its agents
              by claiming negligence as the basis of the breach.

Id. The court concluded, “The rule of law is that a party to a contract or its agent may be

liable in tort to the other party for damages from negligence that would be actionable if there

were no contract, but not otherwise.” Id. at 175.

       Here, Boomer sought the costs to repair the structural defect and resulting damage to

her home, a claim that arose out of her construction contract with G&S. She did not allege

that G&S, Williams, and/or Bond were negligent, nor was evidence of such presented at the

hearing. Because Boomer’s claim is for breach of contract, the Appellants have made a



                                               5
prima facie showing that they may not be held personally liable pursuant to our supreme

court’s opinion in Allen.

                                      Conclusion

       Because Boomer’s claim is based in contract, not tort, the Appellants have made a

prima facie showing that they are not personally liable for G&S’s breach. We reverse.

       Reversed.

BRADFORD, J., and BROWN, J., concur.




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