ILNews

COA rules on home improvement fraud

Jennifer Nelson
January 1, 2007
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  2. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

  3. She must be a great lawyer

  4. Ind. Courts - "Illinois ranks 49th for how court system serves disadvantaged" What about Indiana? A story today from Dave Collins of the AP, here published in the Benton Illinois Evening News, begins: Illinois' court system had the third-worst score in the nation among state judiciaries in serving poor, disabled and other disadvantaged members of the public, according to new rankings. Illinois' "Justice Index" score of 34.5 out of 100, determined by the nonprofit National Center for Access to Justice, is based on how states serve people with disabilities and limited English proficiency, how much free legal help is available and how states help increasing numbers of people representing themselves in court, among other issues. Connecticut led all states with a score of 73.4 and was followed by Hawaii, Minnesota, New York and Delaware, respectively. Local courts in Washington, D.C., had the highest overall score at 80.9. At the bottom was Oklahoma at 23.7, followed by Kentucky, Illinois, South Dakota and Indiana. ILB: That puts Indiana at 46th worse. More from the story: Connecticut, Hawaii, Minnesota, Colorado, Tennessee and Maine had perfect 100 scores in serving people with disabilities, while Indiana, Georgia, Wyoming, Missouri and Idaho had the lowest scores. Those rankings were based on issues such as whether interpretation services are offered free to the deaf and hearing-impaired and whether there are laws or rules allowing service animals in courthouses. The index also reviewed how many civil legal aid lawyers were available to provide free legal help. Washington, D.C., had nearly nine civil legal aid lawyers per 10,000 people in poverty, the highest rate in the country. Texas had the lowest rate, 0.43 legal aid lawyers per 10,000 people in poverty. http://indianalawblog.com/archives/2014/11/ind_courts_illi_1.html

  5. A very thorough opinion by the federal court. The Rooker-Feldman analysis, in particular, helps clear up muddy water as to the entanglement issue. Looks like the Seventh Circuit is willing to let its district courts cruise much closer to the Indiana Supreme Court's shorelines than most thought likely, at least when the ADA on the docket. Some could argue that this case and Praekel, taken together, paint a rather unflattering picture of how the lower courts are being advised as to their duties under the ADA. A read of the DOJ amicus in Praekel seems to demonstrate a less-than-congenial view toward the higher echelons in the bureaucracy.

ADVERTISEMENT