Ziese & Sons Excavating, Inc. v. Boyer Construction Corp.
2012 Ind. App. LEXIS 143
Ind. Ct. App.2012Background
- Ziese sues Corporation and Group for breach of contract on the Knode Creek project after work completed but unpaid.
- Corporation formed in 1988; in 2003-2004 Ziese contracted for labor/materials; Corporation allegedly failed to pay.
- Group formed in 2006; shortly after, Group purchased selected assets of Corporation for $100,000 and used Corporation’s branding assets.
- Group began operating with similar name, website, trademark, and project history publicly attributed to Group as its own.
- In 2007-2008, corporate ownership shifts occur while Group continues operations; Corporation dissolves administratively in 2008.
- Ziese asserts Group is alter ego of Corporation and successor liable for Corporation’s debt; trial court granted summary judgment to Group on liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Group is alter ego of Corporation | Ziese asserts intermingling and common control justify piercing the veil. | Group contends alter ego does not apply since Group didn't exist when the contract formed. | Genuine issue of material fact; summary judgment improper on alter ego. |
| Whether Group is a successor liable for the debt via fraudulent asset sale | Assets were transferred with no consideration and liabilities shifted to Group. | No clear fraudulent sale proven; separate entities and asset purchase stayed within contract terms. | Issue for trial; genuine issue of material fact exists on fraudulent asset sale. |
| Whether Group is a mere continuation of Corporation | Shareholders/officers, overlapping structure, and continuation of business indicate mere continuation. | Arguments insufficient to establish continuation as a matter of law. | Genuine issue of material fact; remand for determination. |
Key Cases Cited
- Escobedo v. BHM Health Assocs., Inc., 818 N.E.2d 930 (Ind. 2004) (piercing corporate veil burden and equity principles)
- Oliver v. Pinnacle Homes, Inc., 769 N.E.2d 1188 (Ind.Ct.App. 2002) (alter ego factors and avoiding unfairness)
- Aronson v. Price, 644 N.E.2d 864 (Ind.1994) (list of veil-piercing factors including control and commingling)
- Greater Hammond Cmty. Servs., Inc. v. Mutka, 735 N.E.2d 780 (Ind.2000) (alter ego doctrine applied to avoid injustice in enterprise)
- Lee's Ready Mix and Trucking, Inc., v. Creech, 660 N.E.2d 1033 (Ind.Ct.App. 1996) (badges of fraud for asset sale when considering successor liability)
- Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274 (Ind. 2009) (mere continuation analysis—shareholders/directors/officers continuity)
- Sorenson v. Allied Prods. Corp., 706 N.E.2d 1097 (Ind.Ct.App. 1999) (four successor-liability exceptions including fraudulent sale)
- Cmty. Care Ctrs., Inc. v. Hamilton, 774 N.E.2d 559 (Ind.Ct.App. 2002) (highly fact-specific inquiry for summary judgment on veil piercing)