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COA upholds grant of treble damages, denial of liability

November 14, 2018

The Indiana Court of Appeals has affirmed the award of more than $56,000 in treble damages to a senior woman deprived of a written contract by a remodeling company while also finding the men who owned the company conducting the work were not personally liable to her. 

In November 2013, Karen Pribyla, 69years old at the time, hired John & John Associates to remodel her kitchen. She received no written contract for the kitchen remodel, nor a contract for additional work she requested that John & John perform around her home. Instead, Pribyla paid invoices as they were sent to her and expected the work to be completed by the end of the year.

But when Pribyla inquired why the job had not been not completed by January 2014 as she expected, John & John produced a contract estimating that more than $38,000 would be required to complete the remainder of the work.  In response, Pribyla’s counsel informed John & John  the following September that the company had engaged in numerous deceptive acts under Indiana law and requested that John & John to cure those acts, which they declined to do. Pribyla thereafter filed a complaint against John & John as well as against John DeWeese, Sr. and John DeWeese, Jr., the only two shareholders of the company.

The Clay Circuit Court ultimately entered judgment for Pribyla on her claim against John & John, but ruled against her claim that the DeWeeses were personally liable. John & John was ordered to pay Pribyla treble damages in the amount of $56,647.73.

Both parties cross appealed the trial court’s decision, with John & John arguing against the order to pay treble damages under the Indiana Deceptive Consumer Sales Act and Pribyla contending the trial court erred in not finding both men personally liable. Specifically, John & John argued the evidence did not show that it possessed the requisite intent to defraud necessary to prove an “incurable” deceptive act, and, thus, its “mere violation” of the DCSA did not support an award of treble damages.

The appellate court denied their argument, however, instead finding John & John presented neither cogent reasoning or citations to authority.

“As relevant here, the trial court awarded Pribyla treble damages because John & John did not cure its deceptive acts and because she was a senior consumer,” Judge Edward Najam wrote. “…Instead of curing its deceptive acts, John & John refused Pribyla’s certified letter.

“John & John does not challenge the trial court’s findings in this regard other than to baldly state that John & John had quit the job, which somehow converted curable deceptive acts into ‘incurable’ deceptive acts and, as such, would deprive Pribyla of her claim for treble damages,” Najam continued. “We reject John & John’s argument, which is not supported with either cogent reasoning or citations to authority.”

The appellate court also found that the trial court did not err in finding that the facts did not support Pribyla’s claim to pierce the corporate veil when she argued the DeWeese men were personally liable to her.

“…(T)he trial court found, as a matter of fact, that ‘[c]learly the evidence . . . shows that [Pribyla’s] business dealings were with John & John Associates, Inc.’ and that DeWeese, Sr. and DeWeese, Jr. ‘personally had very little, if anything, in regard to the personal responsibility for the actual work done or not done,’” Najam concluded.

The case is John DeWeese, Sr. and John DeWeese, Jr., Individually and d/b/a John & John Associates, Inc. v. Karen J. Pribyla, 18A-PL-1505.

 

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