United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING IN PART DEFENDANT TOM'S MOTION FOR
Patrick Hanlon United States District Judge.
David Gardner and Diane Herron filed this lawsuit after a
home they were having built was not completed. Defendant Kyle
Tom II has moved for summary judgment. Dkt. . For the
reasons below, that motion is GRANTED except
on part of Mr. Gardner and Ms. Herron's
Facts and Background
Rule 56(a), the Court views and recites the evidence
“in the light most favorable to the non-moving party
and draw[s] all reasonable inferences in that party's
favor.” Zerante v. DeLuca, 555 F.3d 582, 584
(7th Cir. 2009) (citation omitted).
25 years in the Cleveland, Ohio area, Mr. Gardner and Ms.
Herron retired and decided to move back to Ms. Herron's
hometown of Richmond, Indiana. Dkt. 65-1 at 22 (Herron Dep.
at 83). In March 2016, Mr. Gardner and Ms. Herron contracted
with Paul Bisker's company, Paul Bisker Contracting,
Inc., to build their retirement home. Dkt. 65-1 at 22 (Herron
Dep. at 83); dkt. 65-3. Financing was through West End Bank,
which provided draws on Mr. Gardner and Ms. Herron's
construction loan. Dkt. 65-1 at 7 (Herron Dep. at 22-24);
Paul Bisker and his company arranged with Mr. Tom to deposit
several draws on the construction loan into a bank account
belonging to KT Property Group LLC-a company controlled by
Mr. Tom. Dkt. 65-7 at 11-12 (Paul Bisker Dep. at 38-41); dkt.
65-10 at 1 (Paula Bisker Dep. at 16). Mr. Tom then made
payments from that account for Mr. Bisker. See Dkt.
12; dkt. 13.
and Mr. Bisker also collaborated on other business endeavors.
Another company controlled by Mr. Bisker, Sandbridge LLC,
conveyed several subdivision lots to KT Property Group in
2016. Dkt. 65-9; dkt. 65-11 at 29-31 (Tom Dep. at 110-19).
That same year, KT Property Group and Paul Bisker
Contracting, Inc. were listed as the seller and contractor in
another homebuilding contract. Dkt. 65-14.
early 2017, Mr. Bisker informed Mr. Gardner and Ms. Herron
that he would not be able to complete their home as agreed.
Dkt. 65-6 at 5 (Paul Bisker Dep. at 15-16). Mr. Gardner and
Ms. Herron sued Mr. Tom, Mr. Bisker, and Paul Bisker
Contracting, Inc., asserting claims for: (1) breach of
contract, (2) common law conversion, (3) criminal conversion,
(4) criminal deception, (5) money had and received, and (6)
negligence. Dkt. 1. Mr. Tom moved for summary judgment. Dkt.
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party must inform the court
“of the basis for its motion” and specify
evidence demonstrating “the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must “go beyond the
pleadings” and identify “specific facts showing
that there is a genuine issue for trial.” Id.
ruling on a motion for summary judgment, the Court views the
evidence “in the light most favorable to the non-moving
party and draw[s] all reasonable inferences in that
party's favor.” Zerante, 555 F.3d at 584
judgment on Mr. Gardner and Ms. Herron's breach of
contract, criminal deception, and negligence claims turns on
whether Mr. Tom was in a partnership or joint venture-and is
thus jointly liable-with Mr. Bisker or Paul Bisker
Contracting, Inc. Dkt. 64 at 30, 32-35; dkt. 69 at 16-19. The
remaining counts-conversion and money had and received-are
against Mr. Tom directly. Dkt. 64 at 30-35; dkt. 69 at
17-120. The Court begins with the partnership or joint
venture issue, then turns to the remaining counts. Indiana
law governs all issues. See Wallace v.
McGlothan, 606 F.3d 410, 418 (7th Cir. 2010).