FILED
May 18 2016, 8:12 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Patti J. Taylor Stephen R. Snyder
Taylor Law Office, P.C. Randall L. Morgan
Warsaw, Indiana Snyder Morgan LLP
Syracuse, Indiana
Karl L. Mulvaney
Margaret M. Christensen
Jessica Whelan
Bingham Greenebaum Doll LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Craig Neibert, May 18, 2016
Appellant-Petitioner, Court of Appeals Case No.
43A03-1503-CC-99
v. Interlocutory Appeal from the
Kosciusko Superior Court
Jody A. Perdomo, The Honorable Joe V. Sutton,
Appellee-Respondent Judge
Trial Court Cause No.
43D03-1202-CC-100
Crone, Judge.
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Case Summary
[1] In this interlocutory appeal, Craig Neibert challenges the trial court’s grant of
involuntary dismissal of his implied contract and unjust enrichment claims
against his ex-girlfriend Jody A. Perdomo, arising out of the renovation of one
house and the construction of another. He submits that the trial court erred in
(1) granting Perdomo’s motion for involuntary dismissal before he had rested
his case; (2) concluding that he had not presented evidence of breach of implied
contract and/or unjust enrichment sufficient to survive Perdomo’s motion for
involuntary dismissal; (3) excluding an expert witness’s report concerning the
value of Neibert’s renovation, excavation, and construction services; (4) failing
to issue special findings of fact as part of its interlocutory order; and (5) failing
to address his claim for replevin in its interlocutory order. 1 Finding that the
uncontroverted evidence is sufficient to support Neibert’s contractual claims,
we conclude that the trial court clearly erred in granting Perdomo’s motion for
involuntary dismissal. Finding this issue dispositive, we need not address the
remaining issues, except for the admissibility of Neibert’s expert witness’s
report, as it relates to the record on remand. As such, we reverse and remand
for proceedings consistent with this opinion.
1
Perdomo concedes the replevin issue and agrees that Neibert’s replevin claim is appropriate for
consideration on remand.
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Facts and Procedural History 2
[2] In 2000, childhood friends Neibert and Perdomo began a romantic relationship.
At that time, Perdomo resided in Florida and worked as a hairstylist. Neibert
resided in Indiana and worked mainly in construction, while also performing
side jobs at his parents’ mobile home park. In 2001, Perdomo and her daughter
moved to Indiana to reside with Neibert and his daughter in Neibert’s home. A
year later, Perdomo and Neibert spent a few weeks in Florida fixing up
Perdomo’s house to prepare it for sale. Neibert later described his work on the
Florida house as a “gift,” in recognition that neither he nor Perdomo was
wealthy or “blessed with extra money.” Tr. at 59.
[3] In 2003, Neibert bought Perdomo a ring and asked her to be his “best friend
and partner.” Id. at 26, 146. Later that year, Perdomo’s father passed away
and left her cash, his house (“Father’s House”), and a sixty-five-acre plot of
farmland with some dilapidated structures on it. In recognition of his
friendship with Neibert, he left Neibert $15,000. At the end of that year,
Perdomo and Neibert began a renovation project on Father’s House, which had
been deemed uninhabitable and uninsurable and had a value of about $71,000.
Perdomo paid for most of the materials, and Neibert provided the vast majority
of the labor, with some help from his son and a few friends. The renovation
project took over a year to complete, after which Father’s House was listed for
2
We held oral argument at Valparaiso University Law School on April 15, 2016. We commend counsel on
their excellent advocacy and thank our hosts for their hospitality.
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sale for between $150,000 and $160,000. Perdomo believed it to be worth
around $180,000. A sale was never consummated, and Perdomo leased
Father’s House at $200 per week. She did not share the rental proceeds with
Neibert or pay him for his work on Father’s House.
[4] In 2006, Neibert and Perdomo decided to build a home on the farmland (“the
New House”). Their plan was to live there together and make it their dream
home. After researching plans on the Internet, the couple settled on a plan for
the New House. Perdomo applied for a building permit and listed Neibert as
the contractor. The project also required excavation work, which Neibert
performed. The project took five years to complete, but the couple moved from
Neibert’s house into the largely unfinished New House in 2007. Neibert
continued to work almost full time on the project and averaged around $7000 to
$10,000 in annual income from other sources. In the ensuing years, the
couple’s relationship began to sour, and, at one point, Perdomo threw her ring
at Neibert and told him to keep it. Neibert continued to reside with Perdomo
and to work on the New House. In August 2011, with the New House ninety-
percent finished, the couple ended their relationship and Neibert moved out.
He did not receive payment for any construction or excavation services
performed on the New House.
[5] Neibert filed an action against Perdomo, seeking damages based on implied
contract or unjust enrichment for labor, equipment, and materials he provided
in renovating Father’s House and in constructing the New House. He also
sought replevin, claiming that Perdomo was in possession of several items of his
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personal property at the New House and had threatened him with violence if he
entered the property. Perdomo filed a counterclaim, alleging that Neibert had
been unjustly enriched by living rent-free in the New House.
[6] At the ensuing bench trial, Neibert presented evidence concerning the couple’s
relationship, their decade of cohabitation, and his expectation of co-ownership
of the properties. He also presented evidence regarding his customary rates and
work hours connected to both the renovation of Father’s House and the
excavation and construction on the New House project, as well as evidence that
Perdomo receives rental income from Father’s House. He testified that
Perdomo had not paid him rent while living in his house and that he had not
paid Perdomo rent while living in the New House. Id. at 178. Near the end of
his case in chief, he stated his intent to call Perdomo as a witness but said that
he would proceed out of order in the interest of efficiency and examine her
during her presentation of evidence. The trial court said, “Okay it is your call,”
and passed the case to Perdomo, who immediately moved for an involuntary
dismissal pursuant to Indiana Trial Rule 41(B). Id. at 600. The trial court went
off record and received legal authority from both parties concerning their
respective positions on Perdomo’s motion. The court put the remainder of the
trial on hold while it took the matter under advisement.
[7] Two months later, the trial court sua sponte issued a notice granting Neibert
time to file a response to Perdomo’s motion to dismiss. Thereafter, Neibert
filed a “Response to Motion for Involuntary Dismissal and Request for
Findings.” Appellant’s App. at 47. In his response, for the first time, he
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submitted that he had not rested his case in chief but had reserved his
examination of Perdomo until her testimony during her presentation of
evidence. He also asserted that the evidence he presented was nevertheless
sufficient to survive dismissal. Perdomo filed a response claiming that she
never acquiesced to Neibert’s request to reserve her testimony as alleged.
[8] The trial court subsequently issued a half-page interlocutory order granting
Perdomo’s motion for involuntary dismissal and dismissing Neibert’s implied
contract and unjust enrichment claims. The order did not include
comprehensive findings of fact and conclusions thereon. Rather, the trial court
specified that it found that Neibert “did rest on his case in chief,” that he had
the “opportunity to call [] Perdomo … but elected to wait for cross
examination,” and that Perdomo “did not agree to ‘reserve’ [her] testimony for
cross examination … but remained silent.” Appellant’s App. at 60. With
respect to Neibert’s substantive contract claims, the trial court stated, “[T]he
Court adopts and reiterates [Perdomo’s] position with respect to no recovery
under a contract theory and no recovery under a theory of unjust enrichment.”
Id. The order did not address Neibert’s replevin claim or Perdomo’s
counterclaim.
[9] Neibert filed a motion for entry of final judgment, an alternative request for
certification of the order for interlocutory appeal, and a request for stay
pursuant to Indiana Trial Rule 54(B) and Appellate Rule 14(B). The trial court
certified the order for interlocutory appeal, and we accepted jurisdiction.
Additional facts will be provided as necessary.
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Discussion and Decision
Section 1 – Neibert presented evidence sufficient to
survive the involuntary dismissal of his contractual
claims.
[10] Neibert contends that the trial court erred in granting Perdomo’s motion for
involuntary dismissal pursuant to Trial Rule 41(B), which reads in pertinent
part,
After the plaintiff or party with the burden of proof upon an
issue, in an action tried by the court without a jury, has
completed the presentation of his evidence thereon, the opposing
party, without waiving his right to offer evidence in the event the
motion is not granted, may move for a dismissal on the ground
that upon the weight of the evidence and the law there has been
shown no right to relief. The court as trier of the facts may then
determine them and render judgment against the plaintiff or may
decline to render any judgment until the close of all the evidence.
If the court renders judgment on the merits against the plaintiff or
party with the burden of proof, the court, when requested at the
time of the motion by either party shall make findings if, and as
required by Rule 52(A). Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision
… operates as an adjudication upon the merits.
[11] We review the grant or denial of a Trial Rule 41(B) motion to dismiss using a
clearly erroneous standard. In re M.D., 906 N.E.2d 931, 932 (Ind. Ct. App.
2009), trans. denied. In conducting such review, we neither reweigh evidence
nor judge witness credibility. Id. We reverse only when the evidence is not
conflicting and points unerringly to a conclusion different from the one reached
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by the trial court. Id. “[I]n Indiana there is a marked judicial deference for
deciding disputes on their merits and for giving parties their day in court,
especially in cases involving material issues of fact, substantial amounts of
money, or weighty policy determinations.” Wright v. Miller, 989 N.E.2d 324,
328 (Ind. 2013) (citation omitted).
[12] More specifically, Neibert maintains that he presented sufficient evidence of his
contractual claims to survive the involuntary dismissal of those claims. Because
the parties did not have a written contract, Neibert sought recovery under the
theories of unjust enrichment and implied contract.
[13] “Also referred to as quantum meruit or quasi-contract, unjust enrichment
requires a party who has been unjustly enriched at another’s expense to make
restitution to the aggrieved party.” Reed v. Reid, 980 N.E.2d 277, 296 (Ind.
2012). To recover for unjust enrichment, the plaintiff must show that (1) he
rendered a measurable benefit to the defendant at the defendant’s express or
implied request; (2) he expected payment from the defendant; and (3) allowing
the defendant to retain the benefit without restitution would be unjust. Id.
Equitable principles prohibit the unjust enrichment of a person who accepts the
unrequested benefits provided by another despite having the opportunity to
decline those benefits. Bright v. Kuehl, 650 N.E.2d 311, 316 (Ind. Ct. App.
1995).
[14] Similarly, to recover under implied contract, the plaintiff generally must
establish that the defendant impliedly or expressly requested the benefits
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conferred. Id. at 315. “Any benefit, commonly the subject of pecuniary
compensation, which one, not intending it as a gift, confers upon another who
accepts it, is an adequate foundation for a legally implied or created promise to
render back its value.” Id.
[15] A contract can be implied from the relationship between parties. Id. at 313.
Here, the parties were involved in a romantic relationship during the relevant
timeframe, having cohabited for approximately one decade. A person who
cohabits with another person without ever marrying is entitled to relief if he
establishes an express contract, an implied contract, or unjust enrichment.
Turner v. Freed, 792 N.E.2d 947, 950 (Ind. Ct. App. 2003).
[16] Historically, couples who cohabited without marriage were excluded from
equitable relief upon a showing of the expectation of shared ownership of
property acquired during their cohabitation. The seminal cases allowing
recovery for cohabiting couples involved circumstances in which the couples
cohabited either before marriage or after divorce. See Glasgo v. Glasgo, 410
N.E.2d 1325 (Ind. Ct. App. 1980) (with court narrowly tailoring its holding to
circumstances where couple cohabited after divorce and evidence supported an
agreement to share ownership of possession acquired during cohabitation
portion of relationship), trans. denied; see also Chestnut v. Chestnut, 499 N.E.2d
783, 787 (Ind. Ct. App. 1986) (where couple cohabited before marriage and
court expressly “reserve[d] for another day the question of whether premarital
cohabitation without subsequent marriage gives rise to potential relief.”). Later,
the Bright court would expressly eliminate the exclusion from relief for couples
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who cohabit without ever marrying. 650 N.E.2d at 315. However, the court
found that the cohabitant was not entitled to relief under the facts of that case.
Id. Thereafter, the Turner court granted equitable relief based on the parties’
expectation of shared ownership of property acquired during a cohabitation that
did not result in marriage. 792 N.E.2d at 950. We emphasize that Glasgo and
its progeny do not create a new legal theory of recovery. Rather, these cases
simply eroded and eventually eliminated an exclusion for cohabitants seeking
relief on theories of implied contract and unjust enrichment in a previously
prohibited context. Therefore, while we resolve the case based on the elements
of unjust enrichment and implied contract, we note that the cohabitation
relationship is important to the extent that it provides evidence of the couple’s
relative expectations.
[17] In Turner, Freed filed a petition for palimony after the end of her ten-year
cohabitation with Turner. She claimed that she was entitled to part of the value
of Turner’s business under a theory of unjust enrichment for the domestic
services that she had provided him during their cohabitation. Id. at 948. The
trial court agreed and awarded her $18,000. Turner appealed, and another
panel of this Court found that Freed had presented evidence sufficient to
support the trial court’s finding that Turner would be unjustly enriched if Freed
were awarded no part of the value of the assets that Turner had acquired solely
in his name during their cohabitation. 792 N.E.2d at 951. The Turner court
reasoned that although Turner had provided more financially during the
relationship, he also had received a substantial benefit in the form of Freed’s
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homemaking and housekeeping services, childcare for their child and
sometimes for Turner’s other child, and her help with Turner’s delivery routes,
all of which enabled him to develop his business. Id. at 950.
[18] Turner is procedurally distinct in that it involves the appeal of a final judgment
rather than an interlocutory appeal of an involuntary dismissal order.
However, it is factually similar to this case in that it also involves the alleged
unjust enrichment of one cohabitant who holds assets solely in his/her name
but whose ability to acquire and grow those assets has been greatly enhanced by
the contributions from the other. Both Freed and Neibert conferred a
substantial benefit in the form of services, equipment, and materials contributed
in furtherance of the relationship. If anything, Neibert’s services, in the nature
of renovation, excavation, and construction, were more easily quantifiable in
dollars and cents than were Freed’s (though Freed’s were certainly no less
important). Perhaps most importantly, Turner illustrates that to prevail, the
aggrieved party need not establish an expectation of monetary payment for the
services rendered.
[19] Here, Neibert admits that he never asked Perdomo for monetary compensation
for his services in renovating Father’s House and in excavating and constructing
the New House. Perdomo maintains that Neibert performed these services
gratuitously. She cites as support Neibert’s testimony that he had previously
helped her fix up her Florida home as a “gift,” in recognition that neither of
them was wealthy or “blessed with extra money.” Tr. at 59. However, he
made no similar statement of donative intent when he performed the labor on
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Father’s House and the New House. 3 In fact, he specifically testified that he did
not intend these services to be a gift, insisting rather that he performed these
services with the expectation of being a joint owner in the property based on his
relationship with Perdomo. Id. at 58, 146. When asked whether he could have
afforded to spend the hours and money for materials on Father’s House and the
New House without any compensation, he responded, “No.” Id. at 60.
Neibert also recounted an incident after he moved out when he went to the
New House to get one of the couple’s three grills: “[Perdomo] came running
out of the house pushing around on me, telling me not to get worked up and
she says it would be worth at least two hundred thousand dollars to get rid of
my .… A-S-S.” Id. at 530.
[20] Ron Speigle, a friend with whom Neibert bartered services, testified about a
conversation in which Perdomo had told him, “I told [Neibert] he gets half the
farm.” Id. at 231. He also testified that both Neibert and Perdomo used the
term “our property” when referencing the New House. Id. at 234. Michael
Atkinson testified concerning conversations in his presence in which Perdomo
and Neibert indicated their intent to live together in the New House and that
“they were building it large enough to when they got older to have the bottom
[floor] suitable for wheelchair access.” Id. at 257-58. Due to Perdomo’s motion
3
“A gift will be valid only if the donor had the present intent to make a gift—if, that is, the donor intended to
make a gift at the time of delivery.” Lucas v. Frazee, 471 N.E.2d 1163, 1169 (Ind. Ct. App. 1984) (Young, J.
dissenting) (citing Lewis v. Burke, 248 Ind. 297, 304, 226 N.E.2d 332, 336 (1967)).
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for involuntary dismissal, Perdomo did not testify at trial and thus did not
controvert any of this testimony on the record.
[21] As for the value of his services, Neibert presented evidence concerning his
normal hourly rate and his estimated number of hours spent on the two
projects. He also presented evidence showing that Father’s House went from
previously uninhabitable and uninsurable and worth about $71,000 to worth at
least $155,000 after he renovated it. An insurance policy application listed the
value of the previously nonexistent New House at $261,000. Moreover,
Neibert’s expert Roger Bruce testified extensively concerning the value of
Neibert’s labor. He described the unique features of the New House, including
the roof slopes, forty-five-degree corners, tile work, and framing, and provided
detailed figures concerning the value of the structure and labor, beginning with
the foundation and working upwards. Id. at 304-23, 355. He estimated that he
could sell the New House project for $269,601.51. Id. at 348. This included
adjustments for aspects of the job that had not been completed when Neibert
moved out and ceased work on the project. Bruce’s extensive testimony
concerning the number of hours to complete the New House spanned over a
hundred pages of transcript and provided in-depth analysis of the photographic
exhibits. We acknowledge Perdomo’s claim that Neibert’s friends provided
some of the labor on the projects, but we also note the friends’ testimony that
they had a practice of helping each other without remuneration in exchange for
services on their respective projects.
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[22] In sum, the uncontroverted evidence shows with respect to Neibert’s unjust
enrichment claim that he (1) rendered a measurable benefit to Perdomo in the
form of construction and excavation services, materials, and equipment at
Perdomo’s implied request as evidenced on the building permit application, in
her selection of plans, and in her continued participation in purchasing
materials and cleaning up the job site; (2) he expected a proprietary interest in
the property in exchange; and (3) allowing Perdomo to retain (a) the rental
income and/or increase in value due to the renovation of Father’s House and
(b) the sole ownership of the New House, without restitution would be unjust.
Similarly, with respect to his implied contract claim, the evidence shows that
Neibert (1) conferred a benefit; (2) in the form of services commonly the subject
of pecuniary compensation; (3) not intending the services as a gift; (4) and
which services were accepted by Perdomo, thus laying “an adequate foundation
for a legally implied or created promise to render back its value.” Bright, 650
N.E.2d at 315.
[23] Based on the foregoing, we conclude that Neibert presented uncontroverted
evidence sufficient to survive involuntary dismissal of his contractual claims,
and as such, the trial court clearly erred in granting Perdomo’s Rule 41(B)
motion. Consequently, we reverse and remand for completion of the trial on
the merits.
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Section 2 – The trial court abused its discretion in
excluding Neibert’s expert witness’s report on the value
of Neibert’s services.
[24] Because of its implications on remand, we address Neibert’s challenge to the
trial court’s exclusion of Plaintiff’s Exhibit 15, Roger Bruce’s written report
concerning the value of Neibert’s renovation, excavation, and construction
services. We use an abuse of discretion standard when reviewing a trial court’s
ruling on the admissibility of expert testimony. Estate of Borgwald v. Old Nat’l
Bank, 12 N.E.3d 252, 256 (Ind. Ct. App. 2014). Indiana Evidence Rule 702(a)
states, “If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.” The trial court is to
control the admission of proffered expert testimony rather than admitting what
is offered and leaving it to the trier of fact to determine weight to be accorded to
the testimony. WESCO Distrib., Inc. v. ArcelorMittal Ind. Harbor LLC, 23 N.E.3d
682, 696 (Ind. Ct. App. 2014), trans. dismissed (2015). Once the expert’s opinion
is deemed admissible under Rule 702, “then the accuracy, consistency, and
credibility of the expert’s opinions may properly be left to vigorous cross-
examination, presentation of contrary evidence, argument of counsel, and
resolution by the trier of fact.” Estate of Borgwald, 12 N.E.3d at 257 (quoting
Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001)).
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[25] Here, the trial court was the trier of both law and fact. After extended
questioning and argument on the record, the trial court qualified Bruce as an
expert concerning the value of renovation, excavation, and construction
services, and Bruce was examined at length. However, when it came to ruling
on Exhibit 15, Bruce’s written estimate of the value of Neibert’s services, the
trial court was clearly concerned that Bruce had not personally inspected the
quality of Neibert’s workmanship or even visited the New House and thus
lacked personal knowledge. Neibert maintains that because the trial court
deemed Bruce an expert, it should have admitted Exhibit 15 and accorded it
weight commensurate with its method of preparation. We agree.
[26] As for the trial court’s concern that Bruce had not personally inspected the New
House, such is the nature of an expert witness. See Bunch v. Tiwari, 711 N.E.2d
844, 848 (Ind. Ct. App. 1999) (“an expert may utilize hearsay information in
forming his opinion.”); see also Ind. Evidence Rule 703 (“An expert may base an
opinion on facts or data in the case that the expert has been made aware of or
personally observed. Experts may testify to opinions based on inadmissible
evidence, provided that it is a type reasonably relied upon by experts in the
field.”) (emphasis added). Bruce testified at length concerning his extensive
experience estimating projects. See Tr. at 185-92 (testifying that out of the two
to three houses he built per year and the ten to twenty remodels he had done
per year, about half of the projects had required him to submit a written
estimate). He described his process for compiling an estimate, stating that he
used a formal checklist and that, in the case of his estimate for Neibert, he
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actually had “more information because it was already built and … we didn’t
have to guess.” Id. at 189, 92. He later detailed his experience at valuing
projects within the county and explained the sources of the figures contained in
Exhibit 15, which included not only information obtained directly from Neibert
but also blueprints, photos of the exterior, and aerial site photos. Id. at 277-89.
When asked whether he needed to see the actual work in person in order to
determine a project’s value, he replied, “No.” Id. at 280.
[27] The trial court also expressed concern that Bruce had not prepared the final
written document himself but instead had delegated the data entry to Carl Siler,
a former employee with a software program that would compile the
information and calculate the figures listed in the estimate. Perdomo objected
to Exhibit 15 based in part on her inability to examine Siler concerning the
reliability of the software program that he used to generate the estimate. In
response, Neibert cited Bruce’s testimony that he had personally supplied all the
data used in generating the estimate and that Siler’s role was merely to input
Bruce’s figures into the program, which merely did “the math.” Id. at 345.
Bruce also explained that he had reviewed the estimate and made corrections
after Siler generated the initial report. He likened the arrangement to a real
estate appraiser providing all the information to an employee or agent, who
actually prepares the appraisal.
[28] In short, as trier of both law and fact, the trial court accepted Bruce as an
expert, heard his extensive testimony concerning his written estimate, and
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should have admitted the estimate and weighed it accordingly. The trial court
abused its discretion in excluding Exhibit 15.
[29] Reversed and remanded.
Vaidik, C.J., and Barnes, J., concur.
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