Court of Appeals of Indiana | Opinion 93A02-1501-EX-58 | September 21, 2015 Page 1 of 23

ATTORNEY FOR APPELLANT

Zachary J. Eichel 

Einterz & Einterz

Zionsville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

D & D NAPA, Inc.,

Appellant,

v.

Unemployment Insurance 

Appeals of the Indiana 

Department of Workforce 

Development,

Appellee.

September 21, 2015

Court of Appeals Case No. 

93A02-1501-EX-58

Appeal from the Department of 

Workforce Development 

Unemployment Insurance 

Appeals

The Honorable Aija Funderburk, 

Liability Administrative Law 

Judge

Case No. 58171

Brown, Judge.
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[1] D & D NAPA, Inc. (D & D Metal Products, Inc.) (“D & D”)1 appeals a 

decision of the Liability Administrative Law Judge (the “ALJ”) concluding that 

it was a partial successor of Chaffins Enterprises, Inc. (“Chaffins”) for the 

purpose of calculating its unemployment benefit contributions. D & D raises 

one issue, which we revise and restate as whether the ALJ erred as a matter of 

law in its conclusion. We affirm. 

Facts and Procedural History

[2] D & D sells automotive parts supplied by NAPA Auto Parts and operates 

sixteen stores in Illinois and Indiana. In May 2010, D & D purchased certain 

property from Chaffins for approximately $38,077.29. According to the bill of 

sale, D & D purchased “[a]ll currently classified stock-in-trade, merchandise

and inventories of [Chaffins’s] store, totaling [$20,798.292] or the value as 

physically inventoried prior to the closing” and “[t]he furniture, fixtures, and 

 

1 At the October 14, 2014 hearing, Roger Dittrich indicated he was the president of D & D and that the 

company changed its name from D & D Metal Products, Inc., to D & D NAPA, Inc. 

2 The bill of sale initially showed an amount of $75,000, but the amount was struck and the handwritten 

amount of $20,798.29 was inserted. Dittrich, the president of D & D, testified that the initial amount was 

based on information he was given regarding the inventory level, that at the time of purchase a physical 

inventory was completed and the actual number was $20,798.29, and that a person with NAPA’s corporate 

office inserted the handwritten figures on the bill of sale. 
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miscellaneous equipment used in [Chaffins’s] store . . . totaling [$17,2793].” 

Exhibits at 90. 

[3] In February 2013, Chaffins filed a Report of Inactivation with the Indiana 

Department of Workforce Development (the “DWD”) stating that it had 

discontinued operations and that the date of its last payroll was on September 

30, 2011. In March 2013, Chaffins filed the completed form “Report of 

Transfer – Complete Sale” with the DWD. Exhibits at 53. In the area to 

specify the reason for filing the form, the box next to “Other” was marked, and 

the explanation stated “lease of building” and “purchase of retail business.”4 Id. 

Chaffins indicated that the effective date of the change and the date its 

operations ceased was April 23, 2010, and that the date of its last payroll was 

April 24, 2010. 

[4] On July 5, 2013, the DWD issued a notice that it made a determination that 

there had been a complete disposition to acquirer as of December 31, 2010.5 

 

3 The bill of sale initially showed an amount of $16,509, but the amount was struck and the handwritten 

amount of $17,279 was inserted. 

4

In addition to “Other,” the options included, among others, “Sale of Complete organization” and 

“Partnership change (50% or more).” Exhibits at 53. 

5 The DWD presented testimony that Chaffins submitted a contribution report indicating it had “payroll, one 

employee on the twelfth of the month through the fourth quarter of 2010,” that the DWD had “a lot of dates 

being used by Chaffins and no [] tangible information received from [D & D],” and that the DWD could not 

hold that the disposition occurred any earlier than December 31, 2010 “because the employer told [it] that 

through the twelfth day of December 2010 at a minimum they had one employee working.” Transcript at 57. 
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The DWD recalculated D & D’s employer rate to reflect the acquisition of 

Chaffins, resulting in a rate increase for D & D for 2012. 

[5] On September 10, 2013, the DWD sent notice and demand statements to D & 

D for each of the four quarters in 2012.6 Specialized Accounting Services LLC

(“SAS”), on behalf of D & D, sent a letter dated September 13, 2013, to the 

DWD stating: “Although [Chaffins] ceased its operations and is closed, [D & 

D] did NOT acquire this business. D & D simply purchased the assets of the 

business and hired the employees.” Id. at 59. SAS sent a letter dated October 

15, 2013, to DWD stating that D & D did not purchase Chaffins and that it 

“merely purchased the remaining assets after it was closed (the assets were 

$200k) and did not even hire any of the prior employees.” Id. at 70. The letter 

also stated that D & D had acquired the assets and employees of another 

company in 2012, that the company had a much better experience rating with 

the State, and that it was expected that the information would help lower D & 

D’s rate for 2013. 

[6] On October 14, 2014, a hearing was held before the ALJ at which the parties 

appeared by counsel and presented testimony and evidence. The DWD 

presented the testimony of Jennifer Chappell, Director of U.I. Tax 

Administration for DWD, and Mary Lisa Bickley and Dawn Bottoms, audit 

examiners for DWD, and D & D presented the testimony of Roger Dittrich, 

 

6 The sum of the amounts due on the four statements is $6,391. 
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President of D & D. The ALJ admitted documentary evidence which included 

the report of transfer, records of telephone inquiries, employee wage detail 

reports, correspondence from SAS, the notice and demand statements, printouts 

of employer rate detail screens, experience balance reconciliation worksheets, 

and the bill of sale. According to a record of telephone inquiry dated 

September 13, 2013, an agent for D & D called DWD, confirmed that the 

company had purchased two stores in 2010, and asked why the company’s rate 

had increased significantly “just for taking on maybe 30” employees, and the 

DWD representative explained the timing of the acquisition and that D & D’s 

rate had been recalculated and blended with the disposer’s rate. Id. at 56. 

[7] Bickley testified that she processed the acquisition involving D & D based on 

the report of transfer and that she had spoken with Katherine Chaffins of 

Chaffins regarding the acquisition. Bickley testified that Chaffins had been 

doing business as NAPA North Judson and had an address on Talmer Avenue,

that D & D was also an auto parts store with the same address on Talmer 

Avenue, and that D & D used the same telephone numbers used by Chaffins. 

[8] Bottoms testified that she reviewed wage detail reports and found that two 

employees who had worked for Chaffins, Kenneth Reed and Brad Chaffins, 

later worked for D & D. Bottoms testified there was a gap in employment of 

the employees and that, even where there is a gap between when employees 

stop working for a disposer and start with an acquirer, the transfer of the 

employees could indicate that there was a transfer of business. She stated that 

the DWD looks at employee movement once it receives notification there has 
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been a sale, and that a lot of businesses will tell the DWD that the employees 

were let go and after that the other entity interviewed and rehired them, but that 

was still considered a transfer of an employee. 

[9] Chappell testified that one of her responsibilities, when an employer protests a 

determination of successorship, is to review the records and make a judgment 

call regarding whether the agency’s determination was correct based on the best 

information available under the statute. She testified that D & D did not 

dispute that there was a transfer of assets and that it had hired employees of 

Chaffins, that D & D purchased those assets and hired the employees “to 

operate the same business in the same location under the same DBA that the 

former entity had used,” that “both of these are considered Napa,” that 

Chaffins used “Napa North Judson Roger’s Precision Auto Supply,” and that

D & D “is Napa North Judson.” Transcript at 34. She stated that Chaffins 

reported that it completely ceased its operation, and that she checks the internet 

to “see whether or not you can get from one business, the old business to the 

new business seamlessly. So that there is an appearance of continuation for 

what’s offered to the public.” Id. 

[10] Chappell further testified that an acquisition may or may not have an impact on 

the acquiring company and that a company may acquire a business with a 

lower experience balance, a higher experience balance, or the same experience 

balance. She stated the notice and demand statements are based on an 

employer’s own reporting of their taxable wages multiplied by the merit rate 

notice issued by the DWD, that the purchase of remaining assets after a 
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business closes can affect the DWD’s determination in certain circumstances, 

including the nature and length of time of closure and other factors, and that the 

DWD looks at public records and determines, for intent and purpose, whether 

the new entity is a different business or essentially a continuation of all or part 

of the pre-existing business. She testified that in this case Chaffins stated it was 

in operation at the time of the acquisition, that D & D leased the building that 

Chaffins was in and took over its operations, and that in searching online for 

Roger’s Precision Auto Supply she was directed to NAPA at North Judson 

which appeared to be the business being operated by D & D. 

[11] Additionally, Chappell testified that she could not “find anything in any of the 

filings or in the public record that shows that the business, which used [to] be 

Chaffins [], Napa North Judson, Roger’s Precision Auto Supply, is not in 

actuality functioning under that same identity at this time with or without the 

same employee. If the identity continues, the business continues, there’s a 

continuation of trade or business, the statute is satisfied. There should be a 

successorship by the agency and the experience balance should follow the 

business from one owner to the other owner.” Id. at 47. Chappell also testified 

that the determination of successorship is not predicated on a transfer of the 

workforce and that the determination is whether the business trade or 

organization was continued in part or in whole and whether it is essentially the 

same business being operated regardless of whether it was operated with the 

same employees. She noted that the DWD used the case of Indianapolis 

Concrete, Inc. v. Unemployment Ins. Appeals of Indiana Dep’t of Workforce Dev., 900 
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N.E.2d 48 (Ind. Ct. App. 2009), in training its audit examiners, and stated that 

“everything I looked at showed that the business operated seamlessly between 

these two [entities]. That is a Napa location before. It was a Napa location 

after, and it never ceased to be a Napa location.” Id. at 69. 

[12] Dittrich testified that he was the president of D & D, he had personal 

knowledge that the amounts on the bill of sale were accurate for the value of the 

inventory of Chaffins, and that he did not purchase any right to hire employees 

or use a phone number through the bill of sale. He testified that D & D hired 

employees who were formerly employed by Chaffins and, when asked how he 

came to hire those employees, that the company had applications that anybody 

who wished could complete. He stated that he purchased the inventory of 

NAPA North Judson and that he then leased the building on Talmer Avenue 

from the Chaffins family. When asked if there were any other businesses 

operating on the property, Dittrich testified: “Yes, Roger’s Precision Auto 

Supply, which was a rebuilding shop or a [] service center for rebuilding motors, 

[] those types of things.” Id. at 75. He indicated he did not purchase a 

corporate name, any covenant not to compete, any goodwill, any patent rights, 

any accounts receivable, or any books and accounts from Chaffins. 

[13] Dittrich was asked the business of D & D NAPA, Inc., and D & D Metal 

Products, Inc., and he replied that each were in the business of selling auto 

parts. When asked the business activity of Chaffins, Dittrich testified that it 

“did engine repairs in their Roger’s Precision Auto in the back” and “had a very 

small parts store up in the front, and his, most of his business was rebuilding 
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motors.” Id. at 76. Dittrich was asked “[s]o the auto part store in the front, was 

that, is that the Napa North Judson,” and Dittrich testified “Yes. You can’t 

operate a store with $20,000 of inventory” and that “[y]ou wouldn’t have 

customers.” Id. He testified Chaffins was “running an engine rebuilding center 

there” and “had blades and different things to rebuild motors” and that “[t]his 

was just like a little counter in the front of there . . . .” Id. He stated that he 

thought the business was still at that location even though D & D had moved. 

When asked if D & D “had the business name Napa North Judson,” Dittrich 

replied “we answer the phone Napa North Judson.” Id. at 77. When asked the 

reason, Dittrich testified that there are six thousand NAPA dealers, and that 

“what happens is, Napa, when they have a customer that’s not doing well or is 

gonna close, they go out and find somebody to kept [sic] that territory open” 

and “[s]o they came to me said look we have this opportunity in North Judson 

we’d like you to look at.” Id. Dittrich testified D & D was not a franchisee but 

that it bought NAPA parts, that it used the NAPA name, and that it sold only 

auto parts and only NAPA auto parts. When asked if he had another location 

besides the North Judson location, Dittrich testified “[w]e have eleven in 

Illinois and five in Indiana” and that they were all NAPA stores. Id. at 78. 

[14] On cross-examination, when asked if D & D had purchased furniture and 

fixtures from Chaffins, Dittrich testified: “(inaudible) where you purchase the 

racking that the stuff sits on, the counter, the computers. That would be what 

we considered that $17,000 number. The gondulas [sic] in the front of the store 

where you put your oil and your car wash stuff.” Id. at 79. When asked about 
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the October 15, 2013 letter referencing that $200,000 of assets were purchased, 

he said “[t]hat’s because of the amount of auto parts that we needed to put in 

the store before we opened it.” Id. Dittrich further testified that, at the time he 

looked at the business, there were no employees other than Roger’s wife, the 

company provided applications for any public person to fill out, they

interviewed and hired Roger’s son and another person, and that D & D was not 

still leasing the building from Chaffins because it moved to a bigger and better 

location. 

[15] When asked if, when he first operated the store on Talmer Avenue, he used the 

same signage as Chaffins, Dittrich indicated it was a NAPA brand logo and 

that he did not change the sign. He said that the website was maintained by 

NAPA Corporate in Atlanta, Georgia, that the website flags any store that uses 

the NAPA name, and that D & D has nothing to do with and does not pay for 

the website. He indicated that D & D did not have a store-specific website, 

NAPA territories are not protected, and that how many NAPA stores are in an 

area depends on the population. When asked what specifically D & D was 

protesting, Dittrich testified “I’m protesting the rate. . . . I mean, for a $37,000 

investment to go through what I’m doing today? No way. I wouldn’t even had 

attempted to do it. I don’t need it. . . . I bought his assets, not his liabilities and 

had I known that this was hanging out there, I would not have moved forward 

with it.” Id. at 84. 

[16] In closing, the DWD’s counsel asked the ALJ to find that D & D was a 

successor employer under Ind. Code § 22-4-10-6 or, in the alternative, that D & 
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D did at least acquire a distinct and segregable portion of the organization 

under Ind. Code § 22-4-10-6(b). D & D asked the ALJ to overturn the 

determination that was made by the DWD. 

[17] On January 5, 2015, the ALJ issued a Decision of Liability concluding that D & 

D acquired Chaffins’s auto parts retail business only and became a successor 

employer pursuant to Ind. Code § 22-4-10-6(b). The ALJ’s decision provides in 

part: 

The . . . issue involved in this case is whether [D & D] made a 

complete acquisition and became a successor employer to Chaffins. In 

cases of disposition/acquisition, the [DWD] is bound by specific 

statutes, which establish whether a disposition/acquisition results in a 

successorship. In applying those statutes, if the [DWD] determines 

that a successorship transfer exists, a successor employer’s liabilities, 

experience balance, and contribution rate is to be determined based 

upon the applicable statutory provisions. . . . 

* * * * *

In this case, [D & D] and Chaffins were registered employers with the 

[DWD] at the time of the transfer of assets at issue. Both entities were 

engaged in the automotive parts retail business. [D & D] acquired 

Chaffins’ stock-in-trade, merchandise, inventory, furniture, fixtures, 

and miscellaneous equipment used in Chaffins’ store. [] [D & D] took 

possession of Chaffins’ business location and Chaffins’ NAPA signage 

and phone numbers. [D & D] also hired two employees that once 

worked for Chaffins. [D & D] used all of those things to operate its 

automotive parts retail business. Accordingly, the [ALJ] concludes 

that [D & D] acquired Chaffins’ auto parts retail organization, trade,

or business. 

Nevertheless, [D & D] provided testimony that Chaffins also had a 

service center in the back of the store. On the Report of Transfer 

Form, Ms. Chaffins marked that the sale was an “other” transaction, 

instead of a sale of the complete organization. Ms. Chaffins also wrote 

an explanation of the “other” designation on the form as a “lease of 
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building” and “purchase of retail business.” [] Moreover, the [ALJ] 

notes that Ms. Chaffins reported the effective date of the transfer from 

Chaffins to [D & D] as April 23, 2010 but submitted a Report of 

Inactivation form stating the Chaffins discontinued operations and 

issued its last payroll on September 30, 2011. 

Accordingly, the [ALJ] concludes that [D & D] made a partial 

acquisition of Chaffins’ business. Specifically, [D & D] acquired 

Chaffins’ retail business only. [D & D] did not acquire the service 

center portion of Chaffins’ business. Based on the foregoing 

conclusions, the statutes and rules relating to partial transfers /

successorships and employer contribution rates, under Indiana 

unemployment law, are applicable to the transfer at issue. The 

[DWD’s] successorship determination is MODIFIED in favor of [D & 

D] and the resulting assessment of contributions, penalty and interest 

must be recalculated. 

Exhibits at 94. D & D now seeks review of the decision of the ALJ. 

Discussion

[18] The issue is whether the conclusion of the ALJ that D & D is a partial successor

of Chaffins under Ind. Code § 22-4-10-6 is correct as a matter of law. The 

DWD did not file an appellee’s brief. When an appellee fails to submit a brief, 

we do not undertake the burden of developing its arguments, and we apply a 

less stringent standard of review, that is, we may reverse if the appellant 

establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App.

2006). This rule was established so that we might be relieved of the burden of 

controverting the arguments advanced in favor of reversal where that burden 

properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct.

App. 2002). Questions of law are still reviewed de novo. McClure v. Cooper, 893 

N.E.2d 337, 339 (Ind. Ct. App. 2008). 
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[19] Under Ind. Code § 22-4-32-9, “[a]ny decision of the liability administrative law 

judge shall be conclusive and binding as to all questions of fact.” The decision 

of the liability administrative law judge may be appealed “solely for errors of 

law under the same terms and conditions as govern appeals in ordinary civil 

court.” Franklin Elec. Co. v. Unemployment Ins. Appeals of Ind. Dep’t of Workforce 

Dev., 953 N.E.2d 1066, 1069 (Ind. 2011). The liability administrative law 

judge’s legal conclusions are not entitled to the same deference. Id. 

[20] D & D maintains the ALJ’s determination that it was a successor of Chaffins 

was improper and argues that it did not purchase substantially all of the assets 

of Chaffins and that its experience rating should be recalculated to reflect this 

incorrect determination. D & D contends that the facts in this case follow 

closely those of Indianapolis Concrete, in that it did not acquire any corporate 

name, goodwill, work in progress, patent rights, licenses, trademarks, trade 

names, technical data, or book of accounts from Chaffins, and that in fact D & 

D acquired even less assets than in Indianapolis Concrete because it did not 

acquire any of Chaffins’s customers. 

[21] D & D further contends that the primary business of Chaffins was the auto 

repair shop, that D & D did not and does not provide any auto repair services, 

and that its business is solely the sale of automobile parts. It states that “[t]he 

only asset purchase from Chaffins which benefits this business is the purchase 

of inventory constituting only approximately 20% of the inventory necessary for 

D & D to conduct its business,” that “[a]ll other inventory was purchased from 

other suppliers so that D & D could conduct its business,” and that “[a]s a 
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primary auto parts store, the assets purchased from Chaffins were utterly 

insufficient to conduct D & D’s chosen business.” Appellee’s Brief at 4. D & D 

argues that, in applying the definition used by the court in Indianapolis Concrete, 

it is not a successor employer. 

[22] Unemployment insurance in Indiana is financed by a tax on Indiana employers. 

Franklin Elec., 953 N.E.2d at 1069. Employer contributions are charged 

proportionally against an employer’s experience account. Id. (citing Ind. Code 

§ 22-4-11-1(a)). As a result, the more unemployment claims that are filed 

against an employer, the more that employer must contribute to the 

unemployment fund. Id. 

[23] Each year, the Department of Workforce Development determines the 

contribution rate applicable to each employer, and the contribution is then 

credited to an “experience account” established for each employer by the 

Department. UTLX Mfg., Inc. v. Unemployment Ins. Appeals of Ind. Dep’t of 

Workforce Dev., 906 N.E.2d 889, 892 (Ind. Ct. App. 2009) (citing Ind. Code § 22-

4-11-2(a), (e)). An employer’s experience account is charged when a qualifying 

employee receives unemployment benefits based upon unemployment with that 

employer. Id. The experience account contribution rate for an employer is 

determined, in part, by the balance in its experience account. Id. Therefore, 

when a company’s employees file more unemployment claims, its contribution 

rate will also increase. Id. 
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[24] In the event of a sale of a company, the DWD is responsible for determining the 

successorship status of an acquiring employer when either a total or partial 

acquisition occurs between employers. Id. (citing Indianapolis Concrete, 900 

N.E.2d at 50). A successor employer assumes the resources and liabilities of 

the experience account of the predecessor employer with respect to that portion 

of the organization, trade or business acquired. Id. The successor employer’s 

contribution rate is then adjusted based upon the new balance in its experience 

account. Id. If an acquiring employer is denied successor employer status, its 

experience account balance does not change after the acquisition and the 

employer’s contribution rate is calculated based upon that unchanged balance. 

Id. 

[25] An “Employer” in Indiana’s unemployment compensation system includes any

“employing unit” which acquires the organization, trade, or business of another 

employer and any employing unit which “acquires substantially all the assets

within this state of such an employer used in or in connection with the 

operation of such trade or business,” Ind. Code § 22-4-7-2(a), as well as any 

employing unit which “acquires a distinct and segregable portion of the 

organization, trade, or business within this state of another employing unit . . . 

.” Ind. Code § 22-4-7-2(b). 

[26] Ind. Code § 22-4-10-6 governs successor employers, and subsection (a) of the 

statute applies in part where there is an acquisition of substantially all the assets 

of another employer and provides in part:
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when:

(1) an employing unit (whether or not an employing unit at the 

time of the acquisition) becomes an employer under IC 22-4-7-

2(a);

(2) an employer acquires the organization, trade, or business, or 

substantially all the assets of another employer; or

(3) an employer transfers all or a portion of the employer’s 

trade or business (including the employer’s workforce) to 

another employer as described in IC 22-4-11.5-7;

the successor employer shall, in accordance with the rules prescribed 

by the department, assume the position of the predecessor with respect 

to all the resources and liabilities of the predecessor’s experience 

account. 

[27] Subsection (b) of Ind. Code § 22-4-10-6 applies in part where there is an 

acquisition of a “distinct and segregable portion” of the business of another 

employer and provides in part: 

when:

(1) an employing unit (whether or not an employing unit at the 

time of the acquisition) becomes an employer under IC 22-4-7-

2(b); or

(2) an employer acquires a distinct and segregable portion of the 

organization, trade, or business within this state of another 

employer;

the successor employer shall assume the position of the predecessor 

employer with respect to the portion of the resources and liabilities of 

the predecessor’s experience account as pertains to the distinct and 

segregable portion of the predecessor’s organization, trade, or business 

acquired by the successor. . . . This portion of the resources and 

liabilities of the disposing employer’s experience account shall be 

transferred in accordance with IC 22-4-11.5.
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[28] Ind. Code §§ 22-4-11.5 relates to assignment of employer contribution rates and 

transfers of employer experience accounts, and Ind. Code § 22-4-11.5-7 

provides in part: 

(a) This section applies to a transfer of a trade or business that meets 

the following requirements:

(1) An employer transfers all or a portion of the employer’s 

trade or business to another employer.

(2) At the time of the transfer, the two (2) employers have 

substantially common ownership, management, or control.

(b) The successor employer shall assume the experience account 

balance of the predecessor employer for the resources and liabilities of 

the predecessor employer’s experience account that are attributable to 

the transfer.

(c) The contribution rates of both employers shall be recalculated, and 

the recalculated rate made effective on the effective date of the transfer 

described in subsection (a). . . . 

[29] In Astral Indus., Inc. v. Ind. Emp. Sec. Bd., the court noted that the word 

“substantially” in referring to a predecessor’s assets does not “indicate a 

definite, fixed amount of percentage but is an elastic term which must be 

construed according to the facts of the particular case” and that “a prime 

question in determining whether substantially all of the assets of the 

organization or the trade or business was taken over is: Did the acquisition 

result in a substantial continuation of the same or a like business?” 419 N.E.2d 

192, 197 (Ind. Ct. App. 1981) (citation omitted). 

[30] In Ashlin Transp. Servs., Inc. v. Ind. Unemployment Ins. Bd., the court addressed 

the meaning of “distinct and segregable” as used in Ind. Code § 22-4-10-6(b) 

and noted that employees are assets, at least in a practical business sense, and 
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that when a company acquires employees it may acquire a distinct and 

segregable portion of the organization, trade, or business of another employer. 

637 N.E.2d 162, 167 (Ind. Ct. App. 1994). 

[31] In Indianapolis Concrete, the court observed that, in determining whether one 

employer has acquired substantially all of the assets of another under Ind. Code 

§ 22-4-10-6(a), courts have considered several factors, including acquisition of 

manufacturing equipment and machinery, office equipment, corporate name, 

inventories, covenants not to compete, possession of premises, goodwill, work 

in progress, patent rights, licenses, trademarks, trade names, technical data, lists 

of customers, sales correspondence, books of accounts, and employees 

transferred. 900 N.E.2d at 51. The court noted that Indianapolis Concrete had 

hired a number of another employer’s former employees, acquired two of the

other business’s clients, and acquired certain assets of the other business 

including its phone number, two trucks, and other equipment. Id. at 52. The 

court also observed, however, that the owner of Indianapolis Concrete supplied 

his own equipment and leased further equipment as well as ten vehicles, that 

the work of Indianapolis Concrete was more diverse than the other business’s 

work, that the other business had no ongoing projects, and that Indianapolis 

Concrete did not acquire the other business’s premises, office equipment, 

computers, bank accounts, or goodwill. Id. The court concluded that, in light 

of the factors discussed, Indianapolis Concrete did not acquire substantially all 

of the assets of the other company but rather acquired assets from which it built 

a new business. Id. 
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[32] In UTLX Mfg., Union Tank restructured its business into three units, namely, 

leasing, manufacturing, and repair, and later UTLX became responsible for 

Union Tank’s manufacturing unit. 906 N.E.2d at 893. Union Tank transferred 

its manufacturing assets, including machinery, equipment, rail trackage, real 

estate, and inventory, as well as hundreds of employees, to UTLX. Id. at 890-

893. The DWD initially determined that UTLX acquired a portion of Union 

Tank’s business but later determined, after tracking UTLX’s wage reports, that 

the transfer between the disposer and the employer had been a total transfer, 

not a partial transfer, and therefore constituted a full successorship. Id. at 891. 

On appeal, UTLX argued there had not been a total transfer instead of a partial 

sale. Id. The court concluded that UTLX had become an employer to a 

distinct and segregable portion of Union Tank and then also went on to hold, 

based on the hundreds of wage records showing that virtually all of Union 

Tank’s employees in its Indiana manufacturing unit were transferred to UTLX 

in addition to machinery, rail trackage, and some buildings and inventory, that 

UTLX had acquired substantially all of its predecessor’s assets. Id. at 893-894. 

[33] In this case, the ALJ concluded that D & D acquired Chaffins’s auto parts retail 

business only and became a successor employer as to that particular portion of 

Chaffins’s business. We thus do not examine whether D & D acquired the 

service center portion of Chaffins’s predecessor business, such as its business of

repairing engines and rebuilding motors, or the assets attributable to the service 

center aspect of Chaffins’s business. 
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[34] We turn to whether there was a transfer of a portion or distinct and segregable 

portion of Chaffins’s trade or business, namely, its auto parts sales business, to 

D & D, and in doing so we consider the factors, to the extent they are 

applicable, identified in Indianapolis Concrete and the opinions above. We also 

note that a number of the factors set forth in Indianapolis Concrete are not 

applicable or do not tend to favor a finding that D & D did or did not acquire a 

portion of Chaffins’s business. In particular, the parties did not present 

evidence that Chaffins possessed any patent rights, trademarks, technical data, 

covenants not to compete, or work in progress and thus the fact D & D may not 

have acquired assets in these categories is not significant. 

[35] While there is no indication that D & D acquired from Chaffins any particular 

customers or lists of customers, sales correspondence, or books of accounts, and 

the bill of sale, in referring solely to inventory and furniture, reveals that D & D 

did not acquire any goodwill from Chaffins, the evidence establishes that D & 

D did acquire other assets. 

[36] D & D does not dispute that it acquired the inventories, certain office 

equipment, and shelving of Chaffins related to the auto parts sales business. 

According to the bill of sale, D & D purchased all of Chaffins’s stock-in-trade, 

merchandise, and inventories for $20,798.29 and the furniture, fixtures, and 

miscellaneous equipment used in Chaffins’s store for $17,279. While the 

purchase of all of Chaffins’s NAPA inventory may or may not have been 

adequate to fully stock D & D’s NAPA business, D & D did purchase all of 

Chaffins’s inventory. Further, Dittrich testified that D & D purchased Chaffin’s 
Court of Appeals of Indiana | Opinion 93A02-1501-EX-58 | September 21, 2015 Page 21 of 23

store racking, computers, and gondola shelving. Moreover, both Chaffins, in 

the front area of the building on Talmer Avenue, and D & D, after it leased the 

same building, were engaged in the business of selling automotive parts to retail 

customers.7 In its Report of Transfer form filed with the DWD, Chaffins 

indicated that there had been a purchase of its retail business and that it had 

ceased operations. 

[37] With respect to the store’s premises and location, the evidence establishes that 

D & D initially leased the building on Talmer Avenue from the Chaffins family 

and that it used the same signage of a NAPA brand logo as Chaffins. Dittrich 

testified that D & D used the NAPA name and sold only NAPA auto parts. 

While D & D may have relocated its store to a bigger and better location for the 

business than before the move, D & D continued to engage in the business of 

selling NAPA automotive parts to retail customers and both D & D’s initial and 

new locations were NAPA retail stores in North Judson. D & D used the same 

telephone number used by Chaffins. In short, D & D took possession of 

Chaffins’s auto parts inventory, computers, racking, shelving, business location, 

NAPA signage, and phone number. 

[38] The DWD’s wage detail reports indicate that two employees who had worked 

for Chaffins later worked for D & D. Bottoms testified there was a gap in the 

 

7 While the evidence does not indicate that D & D leased the same area of the building on Talmer Avenue 

used by Chaffins to sell auto parts, Dittrich testified that Chaffins may still operate its business from the 

location, indicating Chaffins did not vacate the back area of the building or cease its service center business 

with the sale and lease to D & D. 
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employment of the employees but that the DWD still considered the employee 

movement, “especially if it’s a similar business.” Transcript at 25. 

[39] As to the name of the business, while D & D did not acquire Chaffins’s legal 

corporate name, and Dittrich testified that D & D is not a franchisee and 

NAPA does not use territories, the evidence establishes that Chaffins used the 

NAPA name prior to the sale and D & D used the NAPA name after the sale. 

Further, Chaffins’s business was named “Napa North Judson Roger’s Precision 

Auto Supply,” and when answering the phone D & D’s employees identified 

the store as NAPA North Judson. Id. at 34. 

[40] Chappell testified that D & D purchased Chaffins’s assets and hired the 

employees “to operate the same business in the same location under the same 

DBA that the former entity had used.” Id. at 34. She also testified that “the 

business operated seamlessly between” Chaffins and D & D, that the store was 

a Napa store before and after the sale, and that “it never ceased to be a Napa 

location.” Id. at 69. Dittrich testified that NAPA presented the opportunity in 

North Judson to him and that he had five NAPA locations in Indiana and 

eleven in Illinois. 

[41] Based upon the record and the considerations discussed above, we conclude 

that the ALJ did not err in concluding that D & D acquired Chaffins’s NAPA

retail auto parts sales business and did not acquire the service center portion of 

Chaffins’s business and thus that D & D made a partial acquisition of Chaffins’s 

business. 
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Conclusion

[42] For the foregoing reasons, we affirm the decision of the ALJ. 

[43] Affirmed.

Riley, J., and Altice, J., concur.