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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.

FILED
Jan 25 2012, 8:53 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JAMES A. McENTARFER Stout & McEntarfer, P.C. Angola, Indiana

ATTORNEY FOR APPELLEE: ADAM C. SQUILLER Squiller Law Office, P.C. Auburn, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN WALSH, Appellant-Defendant, vs. CHRIS SWEENEY CONSTRUCTION, INC., Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 17A05-1107-PL-370

APPEAL FROM THE DEKALB SUPERIOR COURT The Honorable Monte L. Brown, Judge Cause No. 17D02-0910-PL-64

January 25, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-defendant Kevin Walsh ("Walsh") appeals the trial court's order foreclosing Appellee-plaintiff Chris Sweeney Construction, Inc.'s ("Sweeney Construction") mechanic's lien on his home, awarding Sweeney Construction unjust enrichment damages for unpaid labor services and attorney's fees, and denying his counterclaims against Sweeney Construction. We affirm and remand for correction of scrivener's error. Issues Walsh presents three issues for our review, which we restate as: I. Whether the trial court erred in interpreting the Indiana Home Improvement Contract Act ("HICA") because it: (a) Allowed Sweeney Construction to pursue foreclosure of its mechanic's lien and unjust enrichment damages, even though it did not provide a written contract to Walsh that complied with the HICA; and (b) Denied his counterclaim based upon Sweeney Construction's noncompliance with HICA; II. Whether the trial court erred by foreclosing on Sweeney Construction's mechanic's lien; and Whether the trial court's computation of unjust enrichment damages is supported by evidence in the record. Facts and Procedural History Chris Sweeney ("Sweeney") is the President of Sweeney Construction, a company that performs miscellaneous construction projects primarily in Steuben County, Indiana. Walsh owns a house on the other side of a lake from Sweeney's residence. In August 2008, Sweeney heard from Walsh's mother that Walsh was planning a renovation project on his

III.

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home, so Sweeney met with Walsh, Walsh's parents, and Walsh's friend, Frank Affatigato ("Affatigato") to discuss the project. Sweeney submitted a bid for certain portions of the work, but Walsh rejected it because it was too high. Sometime later, Walsh called Sweeney, the two met, and Walsh asked Sweeney to submit bids for other parts of the renovation project. Sweeney submitted two written bids, one to frame the garage and breezeway for $7,100 and the other to frame the proposed screened patio area on the back of the house for $8,300. Walsh accepted the bids, but Sweeney did not draw up a written contract and Walsh never asked for one. Sweeney began work, but the job was "a disaster" because the renovation project was disorganized, and "things would change all the time." Tr. 24-25. One of Sweeney's employees testified that "[he] didn't quite know what was going on...from one day to the next" and "there was...no one running the show." Tr. 86. Although Affatigato claimed at trial to be the project's general contractor, Sweeney testified that he didn't know what Affatigato's role was on the project, and that Affatigato did not act like the general contractor and he did not consider him as such. Instead, Affatigato performed his own job on the site, the stone and masonry work, and did not provide Sweeney with instructions on a daily basis. During the construction, Walsh did not live in the house,1 and instead visited on weekends to inspect the project. After these weekend inspections, Walsh made several changes to the original plans that both he and Affatigato conveyed to Sweeney. Sweeney informed Walsh that changes in the work would require a price increase, but Walsh replied that he wanted the

1

Walsh's primary residence is in Valparaiso, Indiana. He also owns a business and real estate in Illinois.

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changes and that Sweeney should go ahead and make them, without asking for specifics on the price increases. Sweeney continued to work on Walsh's home and billed him for labor. Walsh paid Sweeney a total of $20,000, but when Sweeney sent Walsh another invoice in late November 2008, Walsh requested a meeting with Sweeney. At the meeting, Walsh told Sweeney that it would be best if they cut ties, and Sweeney told Walsh that Walsh still owed him $9,500. Sweeney offered to take $4,150 for his services and to walk away. Walsh never paid Sweeney any money on the final invoice, and dismissed him from the jobsite. Sweeney Construction stopped working on Walsh's home on November 25, 2008, and filed a "Notice of Intention to Hold Mechanics [sic] Lien" in the amount of $4,150 in the Steuben County Recorder's Office on January 21, 2009. On August 5, 2009, Sweeney Construction filed a complaint in Steuben County Superior Court seeking foreclosure of the mechanics lien, alleging breach of contract, and seeking damages for unjust enrichment. Walsh answered the complaint and filed counterclaims on September 17, 2009. His specific counterclaims were that Sweeney Construction's complaint was frivolous thereby entitling him to attorney's fees, Sweeney Construction's lien was improper and slandered Walsh's title to the property, Sweeney Construction's decision to stop work resulted in a cost to Walsh of $4,000 to comply with county codes, Sweeney Construction's work was negligent, Sweeney Construction committed fraud by deceiving Walsh as to its competency, Sweeney Construction converted Walsh's money, and Sweeney Construction violated the HICA and therefore committed a deceptive act against Walsh.

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On October 27, 2009, the case was transferred to DeKalb Superior Court. A bench trial commenced on April 19, 2011, and at the beginning of the trial, Sweeney Construction orally dismissed Count II of its complaint, the breach of contract claim. The parties submitted written final arguments following the trial, and on June 24, 2011, the trial court issued its final order. In that order, the trial court foreclosed on Sweeney Construction's mechanic's lien, ordered that Walsh pay Sweeney Construction $4,150 "for services rendered" and $10,585.09 for attorney's fees, and denied Walsh's counterclaims. App. 23. Walsh now appeals. Discussion and Decision Standard of Review When a trial court enters findings of fact and conclusions of law sua sponte, as it did here, we employ a two-tiered standard of review. Cyr v. J. Yoder, Inc., 762 N.E.2d 148, 150 (Ind. Ct. App. 2002). We first determine whether the evidence supports the findings, and then whether the findings support the judgment. Id. The specific findings control only the issues they cover, while a general judgment standard applies to any issue upon which the trial court has not entered findings. Id. A general judgment may be affirmed upon any legal theory supported by the evidence. Humphries v. Ables, 789 N.E.2d 1025, 1030 (Ind. Ct. App. 2003). We will set aside findings only if they are clearly erroneous, meaning that the record contains no facts to support them, either directly or by inference. Hayes v. Chapman, 894 N.E.2d 1047, 1052 (Ind. Ct. App. 2008), trans. denied. A judgment is also clearly erroneous

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if it applies the wrong legal standard to properly found facts. Id. We do not reweigh the evidence or assess witness credibility, and instead consider the evidence that supports the judgment and the reasonable inferences that may be drawn therefrom. Id. As always, however, questions of law are reviewed de novo. Id. Interpretation of the HICA Non-compliance as a Defense to Sweeney Construction's Claims Walsh argues that Sweeney Construction's failure to provide Walsh with a written contract for its labor that complied with the HICA should preclude Sweeney Construction from foreclosing on its mechanic's lien and claiming an unjust enrichment recovery. In resolving this issue, we first recognize that the purpose of the HICA is to protect consumers by placing specific minimum requirements on the contents of home improvement contracts...[because] few consumers are knowledgeable about the home improvement industry or of the techniques that must be employed to produce a sound structure. The consumer's reliance on the contractor coupled with well-known abuses found in the home improvement industry, served as an impetus for the passage of [HICA], and contractors are therefore held to a strict standard. Id. (quoting Benge v. Miller, 855 N.E.2d 716, 720 (Ind. Ct. App. 2006)). HICA therefore requires home improvement suppliers2 performing any alteration, repair, or modification to the residential property of a consumer3 for an amount greater than $150 to provide the consumer with a written home improvement contract. I.C.

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