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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA split Court of Appeals of Indiana sorted out a dispute between a Northern Indiana couple and a well-drilling company in a 48-page opinion Friday, reversing some of the damages awarded to the pair but affirming most all others.
In 2018, Robert and Cindy Willis of Lafayette asked for a second opinion about their well pump from Dilden Brothers Inc. after a valve began leaking. A representative from Dilden told Robert he needed work done, but the homeowner said he wanted to think about it.
However, Dilden Brothers came back and allegedly replaced the well pump and other plumbing without the consent of the homeowners.
The company later filed a complaint against the Willises in small claims court, seeking $3,254.74 plus $232.74 in interest and $600 in attorney fees. Dilden obtained a dismissal with prejudice of its action against the Willises in January 2019, but no financial resolution was reached.
The Willises then filed a four-count complaint against Dilden Brothers alleging the company’s employees violated several consumer protection statutes by doing work without their consent and without a written contract and by attempting to collect an invalid debt. The counts included:
- Count 1: Alleging Dilden violated Indiana Code Chapter 24-4.6-6, which allows a senior consumer to bring an action against a person who knowingly and by deception or intimidation obtains control over the property of the consumer.
- Count 2: Allegiing Dilden violated Indiana Code Section 34-24-3-1 by knowingly or intentionally exerting unauthorized control over their property, including the pump, tank and “associated plumbing.”
- Count 3: Alleging Dilden violated Indiana Code Chapter 24-5-0.5 by committing various “deceptive acts.”
Count 4: Alleging Dilden violated Indiana Code Chapter 24-5-11 by failing to provide them with a completed real property improvement contract as required by Indiana Code Section 24-5-11-10.
Dilden filed a motion for partial summary judgment on Count 4, which the Tippecanoe Circuit Court granted. After a trial, the jury ruled in favor of the Willises and awarded them damages on all counts, including $115,000 on Count 4.
Dilden then filed a motion to correct error as to Counts 2 and 4, alleging the damages were excessive. Based on its concern that the jury improperly included attorney fees in its damages award on Count 4, the trial court vacated that award sua sponte and denied Dilden’s motion to correct error.
The Willises then filed a motion for recusal, which the trial court also denied.
After a bench trial on statutory damages and attorney fees, the trial court awarded the Willises additional damages on Counts 1 and 3, $15,000 in damages on Count 4 and over $103,000 in attorney fees.
On appeal, the Willises argued the trial court erred in vacating the jury’s damages award on Count 4, in granting partial summary judgment for Dilden on that count, in denying their motion for recusal and in determining the amount of the attorney fees award. Dilden cross-appealed, arguing the trial court erred in denying its motion to correct error as to Count 2 and in awarding damages on Counts 3 and 4.
On Count 3, the Court of Appeals reversed. While it found the trial court didn’t abuse its discretion in awarding damages for an incurable deceptive act to Robert, it did abuse its discretion in awarding damages for an uncured deceptive act to Cindy.
Regarding Count 4, the COA determined the trial court abused its discretion in impeaching the jury’s verdict based on the juror’s comment about attorney fees, but it did not abuse its discretion in reducing the award to $15,000, affirming the damages award.
Count 1 was summarily affirmed by the COA, and the appellate court also affirmed the trial court didn’t err in denying Dilden’s motion to correct as to Count 2. Additionally, the COA found the trial court didn’t abuse its discretion in denying the Willises’ motion for recusal or in determining the amount of the attorney fees award.
Judge L. Mark Bailey concurred in part and dissented in part from the majority opinion.
“I respectfully dissent with respect to the award under the Crime Victim’s Relief Act. With respect to the Home Improvement Contracts Act claim … I believe that an award of statutory damages for failure to produce a written contract is warranted, however, I believe that damages in excess of this amount are unsupported by the law and the evidence,” Bailey wrote. “As for damage awards under the Senior Consumer Protection Act … and the Deceptive Consumer Sales Act … I concur in the result reached by the majority.”
The case is Robert D. Willis and Cindy L Willis v. Dilden Brothers Inc., 21A-CT-378.
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