ILNews

COA rules on home improvement fraud

Jennifer Nelson
January 1, 2007
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When two parties knowingly enter into a contract for home improvements that will not be done, the contractor cannot be charged with home improvement fraud under Indiana Code 35-43-6-12(a)(4), the Court of Appeals ruled today.

In Lawrence Golladay v. State of Indiana, 08A02-0701-CR-93, the court reversed Golladay's conviction for home improvement fraud under subsection (4)(a), which states, "A home improvement supplier who enters into a home improvement contract and knowingly: uses or employs any deception, false pretense, or false promise to cause a consumer to enter into a home improvement contract ... commits home improvement fraud[.]"

Max Starkey signed a contract with Golladay to replace the roofs on Starkey's house and barn, replace siding on the house, and move an electrical box from outside to inside the house. Weeks after Golladay began working on the house, Starkey told him that his insurer was telling him to sue Golladay for not completing the work fast enough. Golladay eventually walked off the job, citing the threat of a lawsuit from Starkey as the reason.

After he walked off, Starkey and his wife did sue Golladay; Golladay failed to respond to the lawsuit and default judgment was entered against him. He was charged with home improvement fraud as a Class C felony under I.C. 35-43-6-12(a)(3), which states: "A home improvement supplier who enters into a home improvement contract and knowingly promises performance that the home improvement supplier does not intend to perform or knows will not be performed" commits home improvement fraud.

Golladay claimed that Starkey asked Golladay to include siding in the contract but because he had already spent a portion of the insurance money, asked that Golladay paint the house instead. Starkey denied the claim. The trial court found Golladay guilty of violating subsection (a)(4) of the Indiana Code, not (a)(3), the statute under which he was charged.

The Court of Appeals reversed Golladay's conviction under subsection (a)(4) for two reasons. Judge Ezra Friedlander wrote that in order for someone to be charged under subsection (a)(4), the homeowner had to have been deceived by the home improvement supplier. In this case, Starkey and Golladay discussed including new siding in the contract even though Starkey only wanted the house painted because he had already spent some of the insurance money.

The goal of the statute is to protect homeowners; if one knowingly enters a contract where work will not be completed, then the homeowner is not deceived.

Golladay's conviction also violates his due process rights because he was charged under subsection (a)(3) but convicted under subsection (a)(4). Subsection (a)(4) is not inherently included under subsection (a)(3), because (a)(4) requires the defendant to use deception to get a consumer to sign a contract, wrote Judge Friedlander.

The court reversed the conviction and remanded with instructions to enter a judgment of acquittal.
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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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