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First Response Servs., Inc. v. Cullers

Court of Appeals of Indiana

April 30, 2014

VINCENT A. CULLERS, Appellee-Defendant, VINCENT A. CULLERS, Counterclaim Plaintiff,
FIRST RESPONSE SERVICES, INC., Counterclaim Defendant

APPEAL FROM THE JOHNSON SUPERIOR COURT. The Honorable Kevin M. Barton, Judge. Cause No. 41D01-1101-PL-79.

ATTORNEY FOR APPELLANT: PAUL J. CARROLL, Mercer Belanger, P.C., Indianapolis, Indiana.

ROBB, Judge. BARNES, J., and BROWN, J., concur.

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ROBB, Judge

Case Summary and Issue

First Response Services, Inc. ("First Response") provided water remediation services for Vincent Cullers at his home and filed a complaint for breach of contract and unjust enrichment when Cullers did not pay its $7,722.43 invoice. The trial court found that First Response's contract with Cullers violated the provisions of the Indiana Home Improvement Contract Act ("HICA"), but First Response was entitled to payment for its services in the amount of $3,780.38. Because it found a violation of the statute, however, the trial court denied First Response's request for attorney fees pursuant to its contract. First Response appeals the trial court's judgment, raising two issues for our review that we consolidate and restate as one: whether the trial court erred in denying attorney fees based upon its determination that First Response had violated HICA. Concluding the trial court did not err, we affirm.

Facts and Procedural History

On July 4, 2010, Vincent Cullers and his wife returned home after several days away to find that their sump pump had malfunctioned and water had infiltrated their basement. The carpet was wet, wood flooring had buckled, the bottoms of doors had warped, the baseboards had water stains and spots of mildew, and the house smelled musty. Cullers and his family moved boxes and furniture out of the basement and began vacuuming water from the carpet. Cullers also contacted a carpet company he was familiar with, which referred him to First Response. Cullers called First Response on July 4 and left a message. Mark Mauck, president of First Response, returned his phone call in the late afternoon of July 4 and said the company was closed July 4 and 5 for the Independence Day holiday, but he would have someone contact Cullers. On the evening of July 5, Chris Wright representing First Response came to the residence to assess the situation. Wright and the Cullerses discussed removing the carpet and pad and because no one knew how long the water had been in the basement, Wright recommended checking for moisture

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in the drywall and discarding anything that had been in the basement. No contract or other document describing the work to be done was prepared, and no estimate for the cost of the work was given at that time.

On the morning of July 6, a dumpster was delivered to the residence which Cullers had not expected. Thereafter, employees of First Response arrived and began removing the carpet. Sometime after work began, one of the employees presented two documents for Cullers to sign: a "Third Party Work Authorization" form and a "Customer Communication/Work Authorization" form listing "[i]nstructions and authorization for the restoration of your property." Appendix of Appellant at 52, 53-55. The Third Party Work Authorization form states, in pertinent part:

This authorization is made this 6[1] day of June,[2] 2010 by and between First Response Services, Inc. hereinafter referred to as (First Response), and Vincent Cullers presently residing at [address] herein after [sic] referred to as Customer.

The Customer authorizes First Response to proceed with its recommended procedures to preserve, protect and secure from further damage the property located at [address] and with the understanding that Vincent Cullers is hereby responsible for all services and charges to be performed by First Response, as authorized by Vincent Cullers, and the Customer further authorizes and directs State Farm to pay First Response direct.

It is fully understood that the Customer is personally responsible for and [sic] charges, deductible, and depreciation not covered by State Farm.

. . . In the event any legal proceedings must be instituted First Response shall be entitled to recover the cost of collection including reasonable attorney's fees. All charges and costs are due upon completion of work. Late charges of 1.5% per month (minimum of $1.00) will be charged on any unpaid balance after thirty (30) days.

Id. at 52. The document is signed by "Vincent Cullers" on both the line for "Authorized Signature" by "Property Owner/Claimant" and the line for "First Response Services, Inc." Id. The Customer Communication/Work Authorization form consists of three pages with several paragraphs, each preceded by a box for the customer to initial indicating his agreement or understanding. This document includes paragraphs describing the effects of abnormal water and how to reduce mildew growth and damage, paragraphs describing the drying equipment to be used and safety measures to be observed during the remediation process, and the following paragraphs relevant to this dispute:

Authorization: I the Owner/Agent for the job site listed below, authorize First Response Services to enter my property, furnish materials, supply all equipment and perform all labor necessary to preserve and protect my property from further damage, and to perform all restoration procedures necessary to repair and restore the carpet, furniture, structure and other furnishings.

Prices: I understand that water damage is a progressive condition and that drying time varies depending on the types of materials, quantity of water,

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degree of saturation, airflow volume and velocity, temperature and the indoor and outdoor humidity. Therefore, I understand it is impractical to give an accurate quote for services before completion. I have been supplied with First Response Services' standard price list and agree to pay the prices listed. First Response Services agrees to keep accurate records and provide documentation if requested.

Id. at 54-55. Cullers initialed all the relevant boxes and signed the document.

Cullers left the residence while the work was being performed. When he returned, First Response employees were gone, the carpet and pad had been removed, and there were several pieces of drying equipment in the basement, " which [he] did not expect," transcript at 337, and which he " had not given any authorization to have," id. at 338. Cullers left a voice mail with First Response asking to have the equipment removed. Cullers spoke with two representatives of First Response on July 7 about having the equipment removed. On July 8, Mauck removed the drying equipment. At that time, Mauck requested that Cullers sign a statement that the equipment was being removed against First Response's advice; Cullers refused. Cullers offered Mauck a check for $1,200 as payment in full; Mauck declined. The dumpster was removed several days later. All parties agree no estimate was ever provided: Cullers insists he and his wife requested an estimate multiple times and expected to be given an estimate before work commenced; Mauck testified that First Response cannot tell just from a visual inspection the severity of the water intrusion and that it " never give[s] out any sort of numbers right off the bat until we can totally assess what's happening in there . . . until we know exactly what it's going to take to dry out." Id. at 32.

In August 2010, Cullers received an invoice from First Response for water mitigation services in the amount of $7,722.43. Cullers again offered the $1,200 check as payment in full; First Response again declined to accept it. On November 4, 2010, First Response filed a complaint for damages against Cullers,[3] alleging breach of contract and unjust enrichment. Cullers filed an answer, alleging as an affirmative defense that First Response failed to comply with HICA, and a counterclaim, alleging First Response's delivery of the dumpster had caused damage to his driveway.[4] ...

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