Kotsopoulos v. Peters Broadcast Engineering, Inc.
962 N.E.2d 97
| Ind. Ct. App. | 2012Background
- PBE was retained by Three Amigos, led by Britt and Kotsopoulos, to design and build a studio; retainer $600/month plus hourly charges for additional work; invoices sent by email or hand-delivery with no objections until litigation.
- In 2006-2008, Three Amigos’ transmitter suffered lightning damage; FAA advised shutdown due to interference; insurance paid $39,800 jointly to Three Amigos and PBE for replacement and repairs; check issued to both entities and deposited.
- Kotsopoulos directed use of insurance funds to repair the transmitter rather than replace it; PBE estimated repairs at about $26,312 and performed them per Kotsopoulos’ instructions; repairs used some second-hand parts and were not warrantied beyond six months.
- Three Amigos owed PBE approximately $14,651.45 for past work; oral agreement contemplated settling repairs for $21,000 if past-due balance was paid; later, Three Amigos issued $17,000 with promise to pay remainder, which PBE applied to oldest balances.
- In August 2008, a second lightning strike destroyed a module; PBE repaired some modules; insurer issue and a forged signature later surfaced; Peters discovered a $39,800 insurance check endorsement forgery in 2009.
- PBE sued in 2009 for conversion, statutory damages, accounts stated and due, and, via a bank action, statutory conversion; after settlements and substitutions, the trial court entered judgment in PBE’s favor and awarded damages and fees; Kotsopoulos appealed seeking relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the judgment is supported by sufficient evidence | PBE contends evidence supports account stated and conversion findings. | Kotsopoulos argues inconsistencies and lack of proof undermine the judgment. | Judgment supported; findings not clearly erroneous. |
| Whether forged signature and conversion findings were properly supported | PBE asserts forged endorsement and improper deposit caused conversion and theft. | Kotsopoulos challenges credibility and admissibility of testimony about forgery. | Court upheld findings of forgery and conversion; credibility determinations left to trial court. |
| Whether invoices and attorney-fee submissions were properly admitted and evaluated | PBE argues invoices and fees are admissible and reasonable under the circumstances. | Kotsopoulos claims improper authentication and excessive fees. | Evidence properly admitted; fee award within trial court’s discretion. |
| Whether Kotsopoulos is personally liable for the judgment | PBE seeks recovery against Kotsopoulos as individual guarantor for Three Amigos’ debts. | Kotsopoulos contends no personal liability should attach. | Remand to amend judgment to strike Kotsopoulos’ individual liability; judgment otherwise affirmed. |
Key Cases Cited
- Romine v. Gagle, 782 N.E.2d 369 (Ind. Ct. App. 2003) (negative judgments require evidence that points to a different conclusion)
- Collins v. State, 540 N.E.2d 85 (Ind. Ct. App. 1989) (appellate role limited to not reweighing credibility of witnesses)
- Auffenberg v. Bd. of Trs. of Columbus Reg'l Hosp., 646 N.E.2d 328 (Ind. Ct. App. 1995) (prima facie proof and burden shifting on account stated)
- Mason v. Mason, 561 N.E.2d 809 (Ind. Ct. App. 1990) (contingency fee agreements cannot determine reasonable attorney fees for nonparties)
- Franklin Coll. v. Turner, 844 N.E.2d 99 (Ind. Ct. App. 2006) (trial court has discretion on attorney-fee awards and evidence must support amount)
- Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018 (Ind. Ct. App. 2005) (damages need not be mathematically precise; supported by record)