Benge v. Miller

• Court: Indiana Appellate Court
• Writing for the Court: Hoffman
• Citation: Benge v. Miller, 855 N.E.2d 716 (Ind. App. 2006)
• Decision Date: 24 October 2006
• Docket Number: No. 49A02-0412-CV-1066.,49A02-0412-CV-1066.
• Parties: Paul E. BENGE and Vickie Benge d/b/a Raceway Construction, Appellants-Defendants, v. Lonja MILLER, Appellee-Plaintiff.

855 N.E.2d 716

Paul E. BENGE and Vickie Benge d/b/a Raceway Construction, Appellants-Defendants, v. Lonja MILLER, Appellee-Plaintiff.

No. 49A02-0412-CV-1066.

Court of Appeals of Indiana.

October 24, 2006.

Mark Small, Indianapolis, IN, Attorney for Appellant.

Donald F. Foley, Eric C. Bohnet, Indianapolis, IN, Attorneys for Appellee.

OPINION

HOFFMAN, Senior Judge.

Defendants-Appellants Paul and Jackie Benge, d/b/a Raceway Construction, appeal the trial court's judgment in favor of plaintiff-appellee Lonja Miller on four counts of Miller's seven-count complaint against the Benges as well as on the Benges' counterclaim. We affirm.

The Benges raise six issues, which we consolidate and restate as:

I. Whether the trial court erred in entering judgment in favor of Miller on the breach of contract and negligence counts;

II. Whether the trial court erred in entering judgment in favor of Miller on the home improvement contracts act count;

III. Whether the trial court erred in entering judgment in favor of Miller on the home improvement fraud count;

IV. Whether the trial court erred in granting judgment in favor of Miller on the Benges' counterclaim; and

V. Whether the trial court erred in ordering the Benges to pay Miller's attorney fees.

In her appellate brief, Miller asks this court to order the Benges to pay her appellate attorney fees.

We affirm the trial court and remand the case to the trial court for a determination of appellate attorney fees generated in Miller's defense of the award of damages and attorney fees under both the Home Improvement Fraud and the Home Improvement Contracts Acts.

On September 9, 2002, the Benges and Miller entered into a written home improvement contract. Pursuant to the terms of the contract, the Benges agreed to construct a 20-foot by 20-foot sunroom addition to Miller's house as well as a 20-foot by 20-foot concrete patio. The Benges also agreed to install doors and windows in the sunroom and to install a brick exterior that matched as closely as possible the existing brick on Miller's house.

Miller and the Benges subsequently entered into a contract addendum for the construction of an extension to Miller's garage. The Benges agreed to pour a concrete slab in the garage and a new sidewalk at the side of the house that would connect to an existing sidewalk. Miller told the Benges that she wanted the new sidewalk to match the existing sidewalk because the two sidewalks would meet at the corner of the house. Miller also contracted with the Benges to install the wiring for a Jacuzzi that was to be placed on the concrete patio, and to renovate her kitchen, including the installation of a laminate floor in both the kitchen and sunroom. The contract for the kitchen project was not in writing.

The Benges gave Miller copies of the contract and addendum without her signature. Further, neither the contract nor the addendum included approximate start or completion dates, or a statement of contingencies that would materially change the approximate completion date.

Miller, who paid the Benges $64,775.30 for the work, was not satisfied with its quality. In May 2003, Miller sent the Benges a letter seeking correction of the defective work as well as the return of $4,202.33 in overpayments. The Benges apparently failed to correct their work or return the overpayments to Miller, and in May 2004, she filed an amended seven-count complaint against the Benges for 1) breach of contract, 2) negligence, 3) fraud; 4) constructive fraud; 5) violation of the home improvement contracts act; 6) home improvement fraud; and 7) violation of the deceptive consumer practices act. The Benges filed a counterclaim alleging that Miller still owed them $4,300.00.

At trial, Miller testified that before she entered into the contract with the Benges, she told them that she wanted to be sure that the brick on the sunroom matched the existing brick on the house. The Benges told Miller that they could match the brick. Miller also asked the Benges if she should wait until spring when the weather warmed up to have the work done. The Benges told Miller that they could get the work before it got too cold.

However, when the Benges completed the sunroom, the new brick did not match the existing brick. According to Miller, the new brick was a different texture and color from the existing brick, and the mismatch decreased the value of her home. Benge agreed about the decrease in the home's value. Contractor Richard Light testified that he could take corrective action to match the bricks for $3,120.00.

Miller also testified that the concrete on the 20-foot by 20-foot patio and new sidewalk was discolored, spalled and pitted. According to Miller, when she complained about the condition of the sidewalk to the Benges, they said they could laminate it. Miller told the Benges that she did not want the sidewalk laminated because she wanted it to match the existing sidewalk. Nevertheless, without Miller's approval, the Benges painted a gray sealant on the new sidewalk, which resulted in a difference in the two sidewalks.

Contractor Buddy Nenedjian, who was responsible for constructing Miller's 20-foot by 20-foot concrete patio and sidewalk, testified that the discoloration in the concrete was due to the high calcium content that was used in cold weather to help with freezing temperatures. He also testified that he did not cover the concrete with concrete blankets or plastic to protect it from the cold temperature. It was 34 degrees the evening the concrete was poured for Miller's patio and sidewalk.

Nenedjian further testified that he told the Benges that he was willing to tear out and replace the concrete patio and sidewalk. He did not know, however, if the Benges had passed on his offer to Miller. Contractor Scott Rose testified that he could tear out and redo Miller's patio and sidewalk for $9180.00.

Miller also testified that the sunroom was only 19.5 feet by 18.5 feet, and that she was overcharged $3,522.03 for it. She further complained that she had to pay other contractors $76.00 to adjust a door in the sunroom that had been improperly hung and $225 to rewire the Jacuzzi.

Lastly, Miller pointed out that although she initially contracted for a $4500.00 laminate floor for the kitchen and sunroom, she later selected carpet, which cost approximately $3000.00 less than the laminate floor. Although the Benges installed the carpet, they did not credit Miller the $3000.00 difference between the carpet and the laminate floor.

Miller asked the court to award her $16,885.50 in damages, which included the overcharge for the sunroom and the carpet as well as charges to repair the door in the sunroom, the rewiring of the Jacuzzi, the concrete patio and sidewalk replacement, and the brick repair. Miller also asked the court to award her $7,104.40 in attorney fees. The trial court awarded the damages and attorney fees that Miller requested, and entered judgment in favor of Miller on the Benges' counterclaim. The Benges appeal.

As neither party requested the trial court to enter special findings, we will treat the judgment as a general verdict and will affirm it if it can be sustained upon any legal theory consistent with the evidence. Schwartz v. Gary Community School Corp., 762 N.E.2d 192, 196 (Ind.Ct. App.2002), trans. denied. In reviewing the trial court's judgment, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom. Walker v. Elkin, 758 N.E.2d 972, 974 (Ind.Ct.App.2001). We will neither reweigh the evidence nor assess the credibility of the witnesses. Id.

The Benges first argue that the trial court erred in entering judgment in favor of Miller on the breach of contract and negligence counts. In a contract for work, there is an implied duty to do the work skillfully, carefully, and in a workmanlike manner. INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 576 (Ind.Ct.App.2003), trans. denied, (quoting Homer v. Burman, 743 N.E.2d 1144, 1147 (Ind.Ct.App.2001)). Negligent failure to do so is a breach of contract as well as a tort. Id.

Here, the Benges claim that they did not breach the contract and were not negligent because: 1) Benge told Miller that the brick he used was the closest match he could find, and she approved its use; 2) dimensions of room expansions are expressed in exterior rather than interior dimensions, and the exterior measurements of the sunroom are 20-feet by 20-feet; 3) the concrete patio and sidewalk were not defective; and 4) the sealer that the Benges placed on the sidewalk was the color that Miller wanted. These arguments, however, are nothing more than an invitation for us to reweigh the evidence and assess the credibility of witnesses, which we cannot do. See Walker, 758 N.E.2d at 972. The trial court did not err in granting judgment in favor of Miller on the breach of contract and negligence claims.

The Benges next claim that the trial court erred in granting judgment in favor of Miller on her home improvement contracts act claim. The home improvement contracts act, ("the Act"), requires home improvement suppliers performing any alteration, repair, or modification to a residential home property in an amount greater than $150.00 to provide the customer with a home improvement contract. Ind. Code § 24-5-11-1; 24-5-11-3; 24-5-11-4; 24-5-11-6; 24-5-11-10. The Act also requires the following provisions to be included in the contract before it is signed by the consumer: 1) the name and address of the consumer and residential property; 2) the name and address of the home improvement supplier; 3) the date of the contract; 4) a reasonably detailed description of the work to be done; 5) the approximate start and stop dates; 6) a statement of contingencies that would materially change the approximate completion date; 7) the contract price; and 8) signature lines for the supplier and the consumer, with a legible printed or typed version of...