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Gardner v. Paul Bisker Contracting, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

June 27, 2019

DAVID GARDNER, DIANE HERRON, Plaintiffs,
v.
PAUL BISKER CONTRACTING, INC., PAUL BISKER, KYLE R. TOM, II, Defendants.

          ORDER GRANTING IN PART DEFENDANT TOM'S MOTION FOR SUMMARY JUDGMENT

          James Patrick Hanlon United States District Judge.

         Plaintiffs 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. [51]. For the reasons below, that motion is GRANTED except on part of Mr. Gardner and Ms. Herron's money-had-and-received claim.

         I. Facts and Background

         Under 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).

         After 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); dkt. 65-5.

         Defendant 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.

         Mr. Tom 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.

         In 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. 51.

         II. Applicable Law

         Summary 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. at 324.

         In 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 (citation omitted).

         III. Discussion

         Summary 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).

         A. Partnership ...


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