Gilliana v. Paniaguas, 45A03-9805-CV-237

• Decision Date: 16 April 1999
• Docket Number: No. 45A03-9805-CV-237,45A03-9805-CV-237
• Citation: 708 N.E.2d 895
• Parties: Robert GILLIANA and Robert Gilliana d/b/a Gilliana Pool Service, Appellants-Defendants, v. John S. PANIAGUAS and Kathy Paniaguas, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 895

708 N.E.2d 895

Robert GILLIANA and Robert Gilliana d/b/a Gilliana Pool Service, Appellants-Defendants, v. John S. PANIAGUAS and Kathy Paniaguas, Appellees-Plaintiffs.

No. 45A03-9805-CV-237.

Court of Appeals of Indiana.

April 16, 1999.

J. Michael Katz, Katz & Brenman, Merrillville, Indiana, Attorney for Appellants.

Mitchell A. Peters, Gouveia & Miller, Merrillville, Indiana, Attorney for Appellees.

OPINION

RILEY, Judge

STATEMENT OF THE CASE

Appellants-Defendants Robert Gilliana and Robert Gilliana d/b/a Gilliana Pool Service (collectively "Gilliana") appeal the jury verdict finding in favor of John S. Paniaguas and Kathy Paniaguas (collectively "Paniaguases") for breach of contract and fraudulent control of the Paniaguases' property.

We affirm.

ISSUES

Gilliana raises three issues for our review which we restate as follows:

1. Whether Gilliana's placement and construction of the Paniaguases' swimming pool was a material breach of contract or an oral modification.

2. Whether Kathy Paniaguas was a third party beneficiary of the contract with Gilliana.

3. Whether Gilliana's actions violated the Indiana crime victim's relief statute entitling the Paniaguases to relief under the statute. Ind.Code § 34-24-3-1.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the judgment follow. The Paniaguases contracted with Gilliana for the construction of a swimming pool at their residence. The contract price was $15,500 for a 16 by 40 foot in-ground pool at a location in accordance with a site plan drawn by Kathy.

The Paniaguases elected to install a 16 by 32 foot pool, and the price was set at $14,500. When Gilliana began to install the pool, he located the pool in a different place than that originally specified by the Paniaguases. The Paniaguases testified that Gilliana misrepresented to them that the pool could not be constructed in the location they chose. Gilliana testified that the Paniaguases orally agreed to modify the contract and install the pool in the location in which it was installed. The Paniaguases paid a total of $14,000 to Gilliana.

A disagreement arose between the parties and Gilliana discontinued construction of the pool and did not return to complete the project. The Paniaguases claim that Gilliana breached the pool contract by failing to install a swimming pool in accordance with the terms of the contract. Gilliana claims that he and the Paniaguases orally modified the contract.

The Paniaguases then contracted with another pool contractor who installed a 16 by 32 foot swimming pool at the location originally desired by the Paniaguases. The removal of the pool and installation of the new pool cost $16,678.

The Paniaguases claimed treble damages under the Indiana crime victim's relief statute. Ind.Code § 34-24-3-1. The jury found in favor of the Paniaguases in the sum of $40,000. Gilliana made a motion for judgment on the evidence and that motion was denied. The trial court entered its judgment on the verdict. This appeal ensued.

DISCUSSION AND DECISION

I. Breach of Contract

Gilliana argues that the evidence presented at trial did not establish that he materially breached his contract with the Paniaguases. Instead, Gilliana contends that by their words and conduct, the Paniaguases agreed to an oral modification of the original terms of the contract regarding the location and construction of the pool. Gilliana claims that he received oral reassurances that the Paniaguases wanted the pool constructed according to the modified standards and that he also received monetary consideration from the Paniaguases before he began digging. The Paniaguases counter with a contention that Gilliana breached the pool contract because the pool was not located and constructed in accordance with the site location survey and site plan, their stakes and markings, and contrary to the permit for construction. Furthermore, after the Paniaguases had already paid Gilliana $14,000, on September 5, 1994, Gilliana abandoned construction of the pool and failed to perform his contractual obligations.

Gilliana and the Paniaguases could mutually modify their contract, and it is not always necessary to prove the oral modification of a contract because modification of a contract can be implied from the conduct of the parties. Skweres v. Diamond Craft Co., 512 N.E.2d 217, 220-221 (Ind.Ct.App.1987). However, questions regarding the modification of a contract are ones of fact, and are to be determined by the jury upon the evidence in each case. Id. at 221.

In the present case, after presentation of evidence and arguments of counsel, the jury returned a verdict in favor of the Paniaguases and against Gilliana in the sum of $40,000. However, the trial court withheld entry of judgment on the verdict pending Gilliana's motion for judgment on the evidence, or in the alternative remittitur or a new trial. Gilliana's motion was denied and the trial court entered judgment on the verdict. Thus, Gilliana essentially contends that the evidence was insufficient to support the jury's verdict. The purpose of a motion for judgment on the evidence is to test the sufficiency of the evidence. Nesvig v. Town of Porter, 668 N.E.2d 1276, 1282-83 (Ind.Ct.App.1996). When we review the sufficiency of the evidence to support the trial court's judgment, we do not reweigh the evidence or judge the credibility of the witnesses. We consider only the evidence and the reasonable inferences from the evidence which supports the jury's verdict. Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind.Ct.App.1996). Where the jury returns a verdict for the plaintiff in a civil action, and the trial court enters judgment on the verdict, we will not reverse unless there is no evidence or reasonable inferences from the evidence on an essential element of the plaintiff's case. Id.

The evidence most favorable to the jury's verdict reveals that on or about July 21, 1994, the Paniaguases entered into a swimming pool contract with Gilliana for the construction of a 16 foot by 40 foot in-ground swimming pool to be installed in accordance with a site location survey and site plan at the Paniaguases residence.

The Paniaguases decided, however, that they did not like the location and angle that Gilliana had proposed, and Kathy notified Gilliana that they wished to proceed with the original proposal of a 16 foot by 32 foot pool installed at the location on Kathy's site plan, to which Gilliana replied "[n]o problem." (R. 610). Gilliana submitted a site survey to secure a building permit with the Crown Point Building Department that depicted the pool location at the rear of the property and parallel to the house. On the morning Gilliana came to dig for the swimming pool, he told Kathy that the pool could not go where she had it marked and that he was going to construct it at a different angle. Kathy informed Gilliana that she did not want the pool constructed at a different location. However, Gilliana partially installed a 16 foot by 32 foot pool at an angle close to the house rather than toward the rear of the property at an angle parallel to the house as depicted on the site plan sketch. When John asked Gilliana why the pool could not be placed where they wanted, Gilliana stated, "[t]rust me. I'm the pool expert. You'll have to defer to my judgment on this." (R. 373). Because the Paniaguases lacked experience and expertise regarding pool construction, they trusted Gilliana and relied on his expertise. Subsequently, the Paniaguases attempted to contact Gilliana to complete construction of the pool. However, Gilliana indicated that he would not complete the pool without a release from any liability and claimed that the location of the pool requested by the Paniaguases would result in a substandard product. On March 3, 1995, the Paniaguases' counsel attempted to contact Gilliana to complete construction of the pool, but Gilliana never responded. Gilliana, who had been paid $14,000, never completed the pool and never returned any money he had been paid. Therefore, the Paniaguases contacted a different swimming pool company to discuss construction of a pool in the location and at an angle that they desired. Frank Giberson (Giberson) of Caribbean Pools met with the Paniaguases and informed them that there was no reason that a swimming pool could not be installed in accordance with Kathy's site plan sketch. In fact, Giberson testified that the cost savings to Gilliana in placing the pool where he did was between $1,000 and $1,500, thereby increasing his profit under the contract.

Therefore, we find that the evidence most favorable to the verdict adequately reveals that there was no oral modification to the contract regarding the location and angle of the swimming pool. The trial court properly ruled that Gilliana breached the pool contract by failing to construct the pool in accordance with the location and angle specified by the site survey, site plan, the Paniaguases stakes and markings, and the building permit.

II. Third Party Beneficiary

Gilliana contends that Kathy Paniaguas was not a third party beneficiary to the pool contract, and therefore was not a proper party to this lawsuit. Specifically, Gilliana argues that the contract language failed to clearly intend to impose a duty of performance on behalf of Kathy because she did not sign the contract and she is not mentioned anywhere in the contract as having separate duties owed to her by Gilliana. We disagree. We find that Kathy Paniaguas is a proper third party beneficiary.

A third party beneficiary contract exists when: (1) the parties intend to benefit the third party, (2) the contract imposes a duty on one of the parties in favor of the third party, and (3) the performance of the terms of the contract renders a direct benefit to the third party intended by the parties to the contract. Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991, 995-996 (Ind.Ct.App.1998). Here, the evidence demonstrates that Kathy...