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

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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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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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