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DeWeese v. Pribyla

Court of Appeals of Indiana

November 14, 2018

John DeWeese, Sr. and John DeWeese, Jr., Individually and d/b/a John & John Associates, Inc., Appellants/Cross-Appellees -Defendants/Counter-Plaintiffs,
v.
Karen J. Pribyla, Appellee/Cross-Appellant-Plaintiff/Counter-Defendant.

          Appeal from the Clay Circuit Court The Honorable Joseph D. Trout, Judge Trial Court Cause No. 11C01-1410-PL-620

          Attorney for Appellants John K. McDavid Hostetter & Associates Brownsburg, Indiana.

          Attorneys for Appellee Eric D. Somheil Katherine S. Brown Brown & Somheil Brazil, Indiana.

          Najam, Judge.

         Statement of the Case

         [¶1] John & John Associates, Inc. ("John & John"), a real property improvement supplier under Indiana Code Section 24-5-11-6 (2018), [1] agreed to improve the residential property of Karen J. Pribyla, a senior consumer under Indiana Code Section 24-5-0.5-2(a)(9). However, John & John never provided Pribyla with a written real property improvement contract, which failure was contrary to Indiana Code Sections 24-5-11-10, -11, and -12. As a matter of law, John & John's failure to provide Pribyla with a written contract in conformity with Sections 24-5-11-10, -11, and -12 was a deceptive act, see I.C. § 24-5-11-14, subject to the remedies and penalties of Indiana's Deceptive Consumer Sales Act, I.C. §§ 24-5-0.5-0.1 to -12 ("the DCSA"). And the DCSA authorizes the award of treble damages for uncured deceptive acts against senior consumers. I.C. § 24-5-0.5-4(i). For those and other reasons, the trial court entered an award of treble damages for Pribyla based on John & John's uncured deceptive acts.

         [¶2] John & John raises several issues on appeal, but we need only address the following dispositive issue:

1. Whether the trial court erred when it ordered John & John to pay treble damages under the DCSA for John & John's failure to provide a senior consumer with a written contract in conformity with Indiana Code Sections 24-5-11-10, -11, and -12.

         On cross-appeal,[2] Pribyla raises the following issue[3] for our review:

2. Whether the trial court erred when it concluded that John DeWeese, Sr. ("DeWeese, Sr.") and John DeWeese, Jr. ("DeWeese, Jr."), the only shareholders of John & John, were not personally liable to Pribyla.

         [¶3] We affirm.

         Facts and Procedural History

         [¶4] In November of 2013, Pribyla, who was sixty-nine years old at the time, hired John & John to remodel the kitchen at her residence in Brazil. John & John never provided Pribyla with a written contract for the work to be done. Pribyla later directed John & John to do additional work around her home, for which, again, John & John did not provide a written contract.

         [¶5] Pribyla believed that the home improvement work would be done by the end of 2013 and paid invoices as John & John sent them to her. However, in January of 2014, Pribyla approached John & John about the rising costs of the still- uncompleted work, and John & John, for the first time, gave Pribyla a written estimate for the work. The estimate was hand-written and stated that more than $38, 000 would be required to complete the remainder of the work. Pribyla and John & John reached an impasse shortly thereafter, and, in May, Pribyla asked John & John ...


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