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William David Bonesteel, Resides in Concord, CA. We affirm upon concluding that Thalheimer waived his claim that the Halums spoliated evidence; the economic loss doctrine did not preclude the Halums's negligence claim; the trial court did not abuse its discretion in finding that Thalheimer's conduct negated the warranty in the contract; and the trial court did not abuse its discretion in finding that Thalheimer's work was of poor quality.
We deny the Halums's request for appellate attorney fees. Facts and Procedural History 1. On June 8, , the Halums entered into a written contract with Thalheimer for his compensation to remove carpet and tiles in the Halums's living room, entryway, and at least one hallway, and to install new tiles. Thalheimer completed the work in late June, the Halums conducted an initial review 2 of his work, and Thalheimer and the Halums made a verbal agreement for Thalheimer to return at some unspecified later date to fix about six of the tiles which were unsatisfactory to the Halums.
Over the next several months, Thalheimer and the Halums corresponded by email to negotiate when and how many tiles Thalheimer would adjust when he returned to the Halums's home because the Halums identified additional tiles with which they were dissatisfied. At some point, the Halums became frustrated with the negotiations, hired another contractor to redo the flooring, and retained an attorney.
A little over a year after the contract was signed, on June 16, , the Halums filed suit against Thalheimer, alleging breach of contract, negligence, and violation of an implied warranty of habitability. Following a bench trial, the trial court entered an order which states:. Thalheimer filed a motion to correct error, which the trial court denied in an order which states:. The Court rejects [Thalheimer]'s arguments on the Motion to Correct Error and hereby denies the same.
The contract was performed by [Thalheimer] and he was paid in full by the [Halums]. The contract was also supposed to be performed in a " good and workmanlike manner". The tile floor installation was done improperly, installed in an unworkmanlike manner, and was a poor quality job. The [Halums] attempted to have [Thalheimer] complete repair to the floor for several months, to no avail, and ended up having the entire floor replaced. Renovations, Inc. Gunkel is applicable to the facts of this case because the loss to [the Halums] was not purely economic.
Tort law is therefore pertinent and should have been applied. Expert testimony was presented by [the Halums]'s witness, Jeremy Keenan, that the tile floor installation was of poor quality and needed to be redone in its entirety due to tile color and texture differences found in each new tile lot. He also found that he could not insure that the replacement of the offending tiles, by themselves, would not cause further damage to the floor during installation due to cracking and misalignment when placed next to the other non-offending tiles.
Keenan was qualified as a skilled witness to establish the standard of care in installing this type of floor. That standard should have been met by [Thalheimer] in his initial installation and was not which supports the finding in favor of [the Halums]. Error alleged by [Thalheimer] that relates to spoliation of evidence and standing to sue were waived by [Thalheimer] and therefore not considered in this order.
In reviewing an order in which the trial court makes findings of fact and conclusions of law, our standard of review is well-settled:. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment.
In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Challengers must establish that the trial court's findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a.
However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard.
Witte's allegations surrounding Jennifer Bonesteel center on his claim of her unfounded and directly contradicted belief that I was an attorney. Showalter] did not try to impose upon my judgment and on at least one occasion [Mr. Showalter] refused to give [client] legal advice. Just as Witte alleged in regards to Craig Scarberry he now alleges that this phantom client was represented by an attorney also — this time Bonesteel. This is because the purpose of a requirement for specific legal training, the Bar exam, and a law license is to protect the public from the potential affects of lay opinion about matters of such vital legal interest such as the custody of children or potential incarceration.
Witte, in effect, is alleging that thus far Falk and Bonesteel either lack the competence or integrity to protect their clients' interests from my inquisitiveness about their legal strategies.
The count for parents that I am assisting with Child Custody Life Coaching who are represented by attorneys is now two for two. Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients. Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given. First Name. Last Name. No comments:. Newer Post Older Post Home. Subscribe to: Post Comments Atom. About Me Stuart Showalter - Child Custody Advisor As a child custody policy advisor I have written and had child custody related legislation passed into law.
My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year.
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