Matthew Koselke, Appellant/Cross-Appellee-Defendant, v. Niki Galanos, Appellee/Cross-Appellant-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Matthew Koselke appeals the trial court's judgment in favor of Niki Galanos following a bench trial on Galanos’ complaint and Koselke's counterclaim, both of which alleged a breach of contract following some home remodeling work Koselke performed for Galanos. Galanos cross-appeals, asserting an error in the court's award of damages. Concluding the judgment is not clearly erroneous but the court erred in awarding damages, we affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

[2] The parties entered into a bare-bones contract in April 2020 for the construction of a wooden deck around Galanos’ pool at her home in Illinois. The parties’ agreement sets forth an unitemized amount of $10,470.67, inclusive of labor and materials. See Ex. Vol. 1, p. 12 (Ex. 4). Things subsequently went awry, and Galanos filed a complaint for breach of contract. Koselke counterclaimed, asserting Galanos owed him for labor and materials.

[3] A bench trial was held, after which the court issued findings and conclusions and entered judgment for Galanos. The parties filed cross motions to correct error, and, following a hearing, the court denied both motions. The parties now appeal.

Discussion and Decision

Issue on Appeal

[4] Koselke appeals from the denial of his motion to correct error. We review the denial of a motion to correct error for an abuse of discretion. Kobold v. Kobold, 121 N.E.3d 564, 570 (Ind. Ct. App. 2019), trans. denied. An abuse of discretion occurs when the decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Id.

[5] Prior to trial, Koselke requested the court issue special findings of fact and conclusions thereon pursuant to Trial Rul 52(A). We apply a two-tiered standard of review to such findings and conclusions: (1) whether the evidence supports the findings and (2) whether the findings support the judgment. Alifimoff v. Stuart, 192 N.E.3d 987, 998 (Ind. Ct. App. 2022), trans. denied. We will set aside a court's findings and conclusions only if they are clearly erroneous. Id.; T.R. 52(A). A judgment is clearly erroneous when the record contains no facts or inferences to support it, and a review of the record leaves us firmly convinced a mistake has been made. Id. In this evaluation, we do not reweigh the evidence or reassess the credibility of witnesses but view the evidence most favorably to the judgment. Hazelett v. Hazelett, 119 N.E.3d 153, 157 (Ind. Ct. App. 2019).

[6] Koselke argues the court erred in denying his motion to correct error in which he challenged the court's finding that “[Galanos] testified credibly at trial that, in late August, 2023, she drove to the Menard's store where [Koselke] said he paid for the wood but that they could not find any paid receipt for such a purchase.” Appellant's App. Vol. 2, p. 50 (Motion to Correct Error, ¶ 2); p. 11 (Order & Judgment Upon Bench Trial). In his motion to correct error, Koselke further contested the court's Conclusion #2 as being a direct result of the challenged finding. Conclusion #2 states: “[Koselke] breached the deck contract by failing to purchase all the materials needed with the $8,000.00 [Galanos] paid.” Id. at 51 (¶ 4); Id. at 13.

[7] At trial, Galanos testified that on April 30, four days after entering into the agreement with Koselke, she gave him $8,000 at his request to buy the wood for the deck project because it was on sale. On May 20, Galanos texted Koselke asking for an itemized receipt of the material for the deck, and he sent her a “picking list.” She explained that a picking list results when “you can go in Menards and you can pick things, but it doesn't mean you have purchased them until you actually have a receipt attached to it.” Tr. Vol. 2, p. 36. She further testified that she went to Menards with the picking list Koselke had sent her, but Menards was not able to find a scanned or paid version of the list. Id. at 68; Ex. Vol. 1, p. 70 (Ex. 23). Presumably this is the testimony upon which the court based its finding that Koselke now challenges.

[8] We observe several things about Galanos’ testimony on this subject. First, though Koselke now claims the testimony was based on hearsay, he did not object on any basis at trial to Galanos’ testimony that she went to Menards and discovered there was no evidence of payment for the “picking list.” See Tr. Vol. 2, p. 68. Second, Galanos was testifying from Exhibit 23, which contained copies of text messages between Galanos and Koselke in which Galanos stated, “Matt did you check out with this list? Menards can't find a scan/paid version of this.” Ex. Vol. 1, p. 70. As with Galanos’ testimony, Koselke did not object to this part of Exhibit 23.¹

[9] Koselke, on the other hand, testified that he paid for and took delivery of everything on the picking list. Tr. Vol. 2, p. 184. However, the court specifically found that Galanos “testified credibly at trial” on this issue and further that it “did not find [Koselke]’s testimony regarding the purchase of the wood to be credible.” Appellant's App. Vol. 2, p. 11 (Order & Judgment Upon Bench Trial).

[10] Koselke and Galanos gave conflicting testimony at trial, and Koselke's argument on appeal is a request for this Court to reassess witness credibility. Yet, our well-established standard of review neither permits us to reweigh the evidence nor reassess witness credibility. See Hazelett, 119 N.E.3d at 157. Further, our review of the record discloses that the facts and inferences support both the challenged finding and conclusion. Thus, we cannot say the judgment is clearly erroneous.

Issue on Cross-Appeal

[11] On cross-appeal, Galanos alleges a mathematical error in the court's award of damages in its original judgment.² See Appellee's Br. p. 12. “A party injured by a breach of contract is limited in its recovery to the loss actually suffered[ ] and may not be placed in a better position than the party would have enjoyed had the breach not occurred.” Ind. Bureau of Motor Vehicles v. Ash, Inc., 895 N.E.2d 359, 368 (Ind. Ct. App. 2008). “ ‘[D]amages must be proven with reasonable certainty[,]’ ” and the plaintiff has the burden of proof. Id. (quoting Noble Roman's, Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind. Ct. App. 2002)).

[12] On appeal, we are limited in our evaluation of a damages award, which we review for abuse of discretion. Ind. Bureau of Motor Vehicles, 895 N.E.2d at 368. We will not reweigh the evidence or assess the credibility of the witnesses, and we consider only the evidence favorable to the award. Farah, LLC v. Architura Corp., 952 N.E.2d 328, 337 (Ind. Ct. App. 2011).

[13] In its judgment following trial, the court concluded:

8. Thus, the court FINDS and HOLDS that a reasonable and equitable result in this case should be and is as follows:

․

b. [Galanos] is entitled to damages for [Koselke]’s breach of contract for the deck in the amount of $5,000 (the $8,000 she paid for materials minus $3,000 spent on materials used in building the joists), plus $2,000 (estimated cost of labor by follow-up contractor for leveling the joists)

c. [Galanos] is entitled to $500.00 as a reasonable amount for the various items broken by [Koselke] (wheelbarrow, pool cover, etc.)

․

e. [Koselke] is entitled to $1,525.00 for the miscellaneous work performed and not paid for ($2,035.00 minus the cost charged for installation of tile and tub).

Appellant's App. Vol. 2, pp. 13-14 (Order & Judgment Upon Bench Trial).

[14] Thus, pursuant to the court's order, the amount awarded to Galanos is as follows:

$ 5,000 Damages for breach of contract

2,000 Est. cost of labor for follow-up contractor

+ 500 Damages for broken items

= $ 7,500 Damages awarded to Galanos

- 1,525 Set-off to Koselke for work performed

= $ 5,975 Total award to Galanos

However, in the concluding paragraph of its judgment, the court stated: “Using the amount that [Koselke] is entitled to as an offset to what [Galanos] is entitled to, the court FINDS and HOLDS that [Galanos] is entitled to a judgment in the amount of $7,500.00 minus $2,035.00, or $5,465.00.” Id. at 14. It appears the court mistakenly used the wrong amount from sub-paragraph e of Conclusion #8 and set off $2,035 instead of the $1,525 it specifically designated. In light of this oversight, we reverse the court's award of damages to Galanos.

Conclusion

[15] We conclude the record supports the trial court's finding and conclusion as to the breach of the parties’ contract due to Koselke's failure to purchase the wood with the $8,000 he received from Galanos. Accordingly, we conclude the trial court properly denied Koselke's motion to correct error. However, the court mistakenly used the wrong amount it set off to Koselke when it calculated its award of damages to Galanos. Thus, we reverse the court's award of damages and remand for entry of the correct amount as set forth by the court in paragraph 8 of its Order & Judgment Upon Bench Trial of February 2, 2024.

[16] Affirmed in part, reversed in part, and remanded for correction of the amount of the damages award in accord with this opinion.

FOOTNOTES

1.   Exhibit 23 consists of two parts on one page. The first part is a picture of the picking list from Menards with a few sentences of commentary by Galanos regarding the checks for the wood clearing at the bank, and the second part is a copy of some texts from Galanos to Koselke and his response. See Ex. Vol. 1, p. 70. When Galanos moved to admit Exhibit 23 at trial, Koselke stated, “the only concern that I have with twenty-three is that it includes commentary by the witness[ ]” and that he had no objection “if I can cross examine as to the commentary.” Tr. Vol. 2, p. 52. The court admitted the exhibit and permitted Koselke to cross examine Galanos on it. See id.

2.   While this is a somewhat different argument than the one Galanos made in her motion to correct error, she may still raise it here. See Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999) (holding that party does not waive its right to appeal claim by omitting same from its motion to correct error), trans. denied; see also Trial Rule 59(A) (providing that only two issues must be addressed in motion to correct error before they may be appealed to this Court: newly discovered material evidence and claims that jury verdict is excessive or inadequate).

Baker, Senior Judge.

Judges Pyle and Foley concur. Pyle, J., and Foley, J., concur.