947 N.E.2d 421
Ind. Ct. App.2011Background
- Contract for recycled concrete base for a 150x200 ft parking area; price reduced from $13,500 to $12,000.
- Moore began work and supplied samples; Hawa paid $5,000 to start; remaining balance due on completion milestones.
- Hawa expressed dissatisfaction with the recycled concrete and refused the second $5,000 payment, demanding more work completed or different product.
- Bank inspection was arranged; Moore moved the power rake blender to the site; bank did not attend the inspection.
- Moore walked off the job after five days with the blender idle; Hawa filed a breach claim in small claims court; Moore counterclaimed for payment.
- Small claims court awarded Moore $4,745; Hawa appeals alleging error in judgment, damages, and due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moore proved repudiation due to lack of adequate assurance | Hawa argues Moore failed to provide adequate assurance of payment | Moore claims Hawa's repudiation allowed demand for assurance and deemed breach when not provided | Repudiation found; Moore entitled to counterclaim |
| Whether damages were properly calculated and the duty to mitigate | Hawa challenges inclusion of certain costs and argues mitigation should reduce damages | Moore argues all incurred costs are recoverable within mitigation framework | Damages reduced on mitigation grounds; remanded for $750 deduction; total 3,995 |
| Whether Hawa's due process rights were violated by limited evidentiary opportunity | Hawa contends he was denied opportunity to defend against counterclaim | Moore asserts parties were offered reschedule or memos; Hawa declined | No due process violation; proceedings conducted with offered alternatives |
Key Cases Cited
- Trinity Homes, LLC v. Fang, 848 N.E.2d 1065 (Ind.2006) (clearly erroneous standard in small claims appeals; deference to trial court)
- Crider & Crider, Inc. v. Downen, 873 N.E.2d 1115 (Ind.Ct.App.2007) (damages and mitigation principles in contract breach)
- Berkel & Co. Contractors, Inc. v. Palm & Assocs., Inc., 814 N.E.2d 649 (Ind.Ct.App.2004) (mitigation and damages framework in breach actions)
- Jay Cnty. Rural Electric Membership Corp. v. Wabash Valley Power Ass'n, 692 N.E.2d 905 (Ind.Ct.App.1998) (repudiation and adequate assurances concept in non-UCC contract disputes)