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COA upholds award of attorney fees but orders damages amount reduced against construction company

February 27, 2013

A claimed scrivener’s error on the Secretary of State’s website should not be held against the couple filing the lawsuit against a company, the Indiana Court of Appeals held. The error involving an incorrect address on the website was made by an employee of the company being sued more than two years before the suit was filed.

A representative of Storm Damage Specialists of America solicited Porter County couple Melissa and Michael Johnson to repair their roof for suspected hail damage. The Johnsons agreed to hire the company and their insurer sent a check for $4,224.78 to the company to perform the work. SDS never repaired the roof and refused to refund the insurance proceeds.

The Johnsons sued SDS and sent the summons to the name and Gary address listed on the Secretary of State’s website. SDS never replied or appeared in court, so the trial court granted default judgment to the Johnsons. They received $23,936.94 for compensatory damages, treble damages, prejudgment interest, costs, and reasonable attorney fees, plus statutory interest at 8 percent per annum.

After the judgment was entered, SDS filed a motion to correct error, citing lack of service and an error in the judgment amount as grounds to set aside the award. It claimed an accountant sent the wrong address to the SOS’s office two years prior to the Johnsons’ lawsuit, but never corrected the error. The Johnsons had no reason to believe the address was an error because someone signed the return receipt at the address.

“The Johnsons complied with our rules of trial procedure when they sent the complaint and summons to Storm Damage Specialists’ acknowledged registered agent at the address it provided to the Indiana Secretary of State,” Judge John Baker wrote in Storm Damage Specialists of America d/b/a America's SDS Construction, Inc. v. Melissa A. Johnson and Michael B. Johnson, 64A03-1209-CT-386. “In our view, the fact that the registering of that particular address is claimed to be a scrivener’s error on the part of Storm Damage Specialists’ accountant is a burden that should be born by the company.”

But the amount of damages should be reduced, the judges ruled and the Johnsons conceded, because the trial court erred in quadrupling rather than trebling the compensatory damages that were awarded. The damage award should be reduced by $4,224.78. The amount of attorney fees awarded was affirmed.

 

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