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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, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANTS: ROBERT R. FAULKNER Evansville, Indiana ATTORNEY FOR APPELLEE: JAMES E. GENTRY, JR. Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
DENNIS CONWELL, FRANK SPLITTORFF AND PIECE OF AMERICA, L.P., Appellants-Defendants, vs. GRAY LOON OUTDOOR MARKETING GROUP, INC., Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) ) )

No. 82A04-0609-CV-488

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Robert J. Pigman, Judge Cause No. 82D03-0503-CP-1340

SEPTEMBER 7, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION HOFFMAN, Senior Judge

Defendants-Appellants Frank Splittorff ("Splittorff") and Piece of America, L.P. ("POA") appeal the trial court's judgment in favor of Plaintiff-Appellee Gray Loon Outdoor Marketing Group, Inc. ("Gray Loon"). 1 We affirm. Defendants-Appellants raise three issues for our review, which we consolidate and restate as: I. Whether the trial court erroneously created a forfeiture not provided for in the contract between the parties when it found that Gray Loon was not liable for conversion of POA's property. Whether the trial court erroneously enforced a nonexistent change order.

II.

This case was tried as a bench trial, and the trial court made findings of facts and conclusions of law. Pertinent findings and conclusions are incorporated into the

statement of facts below. Gray Loon is an advertising agency that provides marketing and communication services, including interactive website design. In August of 2003, Gray Loon was

contacted by Gloria Wood, a POA representative, regarding a proposal for the development of a website. POA was a limited partnership attempting to market one-inch by one-inch pieces of property in all fifty states, and it wanted a website which would allow customers to purchase these properties on-line. Purchasers of the property would receive a deed for the property and a book about the state where property was located. (Trial Court's Finding of Fact #6). Splittorff, Dennis Conwell, and Robert Aswell were

1

Dennis Conwell was also a defendant below. However, the trial court did not enter judgment against him, and he is not a party to this appeal.

2

POA's general partners, and they determined that novelty packages would be sold online for $49.95. (Trial Court's Findings of Fact ##5 and 6). After a meeting with POA's general partners, Gray Loon sent a web development estimate to POA on September 22, 2003, which was accepted by Conwell on behalf of POA. Conwell informed Gray Loon that it was imperative that the website be completed by December of 2003 because there would be radio advertising being broadcasted on the East Coast at that time. (Trial Court's Finding of Fact #8). Gray Loon immediately began developing the website, and during the development process it provided POA with access to enable POA to provide feedback. Gray Loon timely completed the website under the contract and put the site online. (Trial Court's Finding of Fact #9). POA, which had previously made a fifty percent down payment, paid the remainder of the $8,500 contract price. (Trial Court's Findings of Fact ##7 and 9). In 2004, however, POA requested new functionality and new features on the website, including the capability for customers to make two payments of $24.95. (Trial Court's Findings of Fact ##10 and 11). There was no discussion of the cost of such changes at the time, and as was its practice in ongoing business relationships, Gray Loon proceeded to make changes to the website without first issuing an estimate. Gray Loon subsequently billed for this work in the amount of $5,224.50. (Trial Court's Finding of Fact #14). When POA failed to pay the invoice for the modifications done at its direction, Gray Loon contacted Conwell who stated that he had no issues with the invoice but needed more time to pay. (Trial Court's Finding of Fact #15). During July, August, and 3

September of 2004, Gray Loon placed the completed website online, and per agreement, billed POA a monthly hosting fee of $75.00. The hosting fees had previously been paid by Gray Loon, and POA failed to pay the invoice. (Trial Court's Finding of Fact #16). In August of 2004, Conwell advised Gray Loon that he was no longer managing the website project and that Splittorff was now POA's contact person. Even though there were numerous conversations between Splittorff and Gray Loon about the failure to pay for the modifications and the hosting fees, POA failed to submit payment. (Trial Court's Findings of Fact ##17 and 18). Finally, in September of 2004, Gray Loon sent a letter by certified mail to advise POA that if payment was not made by October 6, 2004, Gray Loon would take the website off the internet. Payment was not made, and Gray Loon shut down the website. (Trial Court's Finding of Fact #19). Gray Loon filed a suit for non-payment of the services rendered in the modification of the website and of the hosting fees. (Trial Court's Finding of Fact #20). Thereafter, POA filed a counter-claim alleging that Gray Loon "unlawfully misappropriated and refused to allow [POA] the benefit of property and services for which it has paid prior to the arising of the within dispute," an action which POA characterized as criminal and common law conversion. POA argued that it was entitled to treble damages, costs, expenses, and attorney fees under Ind. Code

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