Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

JOHN S. MERLAU

New Palestine, Indiana

IN THE

COURT OF APPEALS OF INDIANA

SCOTT WILLIAMS and )

GEOFFREY BOND, )

)

Appellants-Defendants, )

)

vs. ) No. 55A05-1404-SC-186

)

APRIL BOOMER, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MORGAN SUPERIOR COURT

The Honorable Jane Spencer Craney, Judge

The Honorable Brian H. Williams, Magistrate

Cause No. 55D03-1306-SC-926

November 26, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
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Case Summary

Scott Williams and Geoffrey Bond (“the Appellants”) appeal the small claims court’s 

entry of judgment against them on a claim filed by April Boomer. We reverse.

Issues

The Appellants raise one issue, which we restate as whether the small claims court 

properly entered judgment against them in their personal capacities.

Facts

In 2004, Boomer and her husband entered into a contract with G&S Custom Builders, 

LLC, (“G&S”) for the construction of a home in Mooresville. Williams and Bond were the 

two members of G&S. The contract included a warranty against major structural defects for 

ten years. 

In 2010, G&S was dissolved. In 2012, Boomer noticed the front porch of her home 

appeared to be “twisting off the foundation.” Tr. p. 3. Boomer had the porch inspected by a 

structural engineer, who concluded there was a structural problem with it. 

In June 2013, Boomer filed a small claims action against the Appellants seeking to 

recover the “cost to repair structural defect and resulting damage to plaintiff’s home.” App. 

p. 4. The small claims court held a hearing at which Boomer, Williams, and Bond testified. 

On March 20, 2014, the small claims court entered an order concluding in part:

There is no dispute the LLC entity would be liable under 

the evidence presented. The Defendants Williams and Bond 

assert they are shielded from personal liability due to the 

existence of the defunct LLC. Both Defendants were active 

principals in the LLC. All work by the LLC was subcontracted 

to other construction vendors by the principals. 
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App. p. 5. Relying on Greg Allen Const. Co. v. Estelle, 762 N.E.2d 760, 766 (Ind. Ct. App. 

2002), the small claims court went on to conclude:

As in Allen, the Defendants are subject to the common law duty 

to perform its work in a workmanlike manner, and a conclusion 

that the company breached its duty necessarily constitutes a 

conclusion that Defendants were negligent in tort. Under this 

analysis the Defendants are personally liable for their company’s 

negligent failure to do the job in a workmanlike manner to the 

extent that they participated in, authorized or directed negligent 

conduct. The Court finds they directed the conduct and are 

personally liable. 

Id. at 6. The small claims court entered judgment against the Appellants personally in the 

amount of $6,000. The Appellants filed a motion to correct error, which the small claims 

court denied. They now appeal. 

Analysis

As an initial matter, Boomer did not file an appellee’s brief. In that circumstance, we 

do not undertake to develop arguments for her. See Morton v. Ivacic, 898 N.E.2d 1196, 1199 

(Ind. 2008). Rather, we will reverse upon the Appellants’ prima facie showing of reversible 

error. See id. Prima facie error means at first sight, on first appearance, or on the face it. Id

“Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate 

review of facts determined in a bench trial with due regard given to the opportunity of the 

trial court to assess witness credibility.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 

1067 (Ind. 2006). Our supreme court has explained that this deferential standard of review is 

particularly important in small claims actions, where the sole objective is dispensing speedy 

justice according to the rules of substantive law. Id. at 1067-68. However, this deferential 
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standard does not apply to the substantive rules of law, which are reviewed de novo. Id. at 

1068. 

In Greg Allen Construction, the Estelles contracted with Greg Allen Construction, 

Inc., for renovations to their home. Greg Allen, president, shareholder, and employee of 

Allen Construction, signed the contract in his representative capacity. He then performed 

work on the project and supervised other work. The Estelles began questioning the quality of 

work, and litigation ensued. The Estelles alleged that Allen Construction and Greg Allen 

breached the contract and were negligent. The trial court found that Allen was not 

individually liable to the Estelles because he was acting on behalf of Allen Construction. 

The Estelles appealed, and a panel of this court held:

Thus, when a person contracts to perform services, failure to 

perform in a workmanlike manner may constitute both a breach 

of contract and the tort of negligence. Wilson v. Palmer, 452 

N.E.2d 426, 429 (Ind. Ct. App. 1983). Accordingly, since Allen 

Construction was subject to the common law duty to perform its 

work in a workmanlike manner, the trial court’s conclusion that 

the company breached this duty necessarily constitutes a 

conclusion that Allen Construction was negligent. Under the 

rule from State of Indiana Civil Rights Comm’n set out above, 

Allen could have been personally liable for his company’s 

negligent failure to do the job in a workmanlike manner to the 

extent that he participated in, authorized or directed Allen 

Construction’s negligent conduct.

Greg Allen Const. Co., 762 N.E.2d at 776.

However, our supreme court granted transfer and vacated that portion of the opinion. 

See Greg Allen Const. Co. v. Estelle, 798 N.E.2d 171 (Ind. 2003). Our supreme court 

distinguished between a breach of contract claim and a tort claim in a construction setting 
5

and explained, “The whole of the alleged wrong, deficient home improvements, centered on 

the performance required by the contract created by Allen Construction and the Estelles. Any 

duty Allen had to perform his individual duties flowed solely from this contract.” Id. at 173. 

The basic theory underlying the distinction between 

contract and tort is that tort liability is imposed by law and that 

contract liability is the product of an agreement of the parties. 

But only the principal, who is a party to the contract, has agreed 

to perform the obligations of the agreement. To impose “the 

same” liability on the agent is to make the agent the promisor 

when the parties had arranged their affairs to put the principal, 

and only the principal, on the line. 

A defendant’s exposure to tort liability is best framed in 

terms of what the defendant did. The proper formulation of the 

reason Allen is not liable here is that his negligence consisted 

solely of his actions within the scope of his authority in 

negligently carrying out a contractual obligation of the 

corporation as his employer. Nothing he did, and therefore 

nothing the corporation did, constituted an independent tort if 

there were no contract. Under those circumstances the Estelles 

should be remitted to their contract claim against the principal, 

and they should not be permitted to expand that breach of 

contract into a tort claim against either the principal or its agents 

by claiming negligence as the basis of the breach.

Id. The court concluded, “The rule of law is that a party to a contract or its agent may be 

liable in tort to the other party for damages from negligence that would be actionable if there 

were no contract, but not otherwise.” Id. at 175. 

Here, Boomer sought the costs to repair the structural defect and resulting damage to 

her home, a claim that arose out of her construction contract with G&S. She did not allege 

that G&S, Williams, and/or Bond were negligent, nor was evidence of such presented at the 

hearing. Because Boomer’s claim is for breach of contract, the Appellants have made a 
6

prima facie showing that they may not be held personally liable pursuant to our supreme 

court’s opinion in Allen. 

Conclusion

Because Boomer’s claim is based in contract, not tort, the Appellants have made a 

prima facie showing that they are not personally liable for G&S’s breach. We reverse.

Reversed. 

BRADFORD, J., and BROWN, J., concur.