ALTUS REALTY GROUP LLC v. JOHNSON (2025)

MEMORANDUM DECISION

Case Summary

[1] Altus Realty Group, LLC (“Altus”) appeals the trial court's grant of summary judgment for Antoine Johnson on Altus’ complaint for damages. We reverse and remand.

Facts and Procedural History 1

[2] Altus sued Premier Region Real Estate, LLC (“Premier”), Clarence Webb, and Johnson alleging breach of contract, unjust enrichment, and civil conversion. The complaint alleged Johnson, Webb, and Dion DePaoli were “associates of Premier,” a property management company. Appellant's App. Vol. 2 at 4. In 2021, DePaoli left Premier and created Altus, a competing property management company. Premier agreed to transfer to Altus “all responsibility for management of properties, deposits, funds, and all records” of Premier accounts whose owners executed agreements assigning their accounts to Altus by January 11, 2022. Id. at 5.² “[A]ll properties, deposits, funds, historical account and records associated” with those accounts were to be transferred from Premier to Altus “with no further demand no later than January 15, 2022.” Id. Real Estate Assignments transferring management of certain properties from Premier to Altus were attached to the complaint as exhibits. The Assignments were signed by various property owners, DePaoli as Managing Broker/Owner of Altus, and Webb as Managing Member of Premier. See id. at 9–16. Altus alleged Premier breached their agreement by failing to transfer the accounts by January 15, 2022, and was unjustly enriched by retaining possession of accounts and deposits that should have been transferred to Altus. Altus also alleged that Webb and Johnson committed civil conversion by using those retained funds for their own personal purposes. Altus sought treble damages, costs, and attorney fees.

[3] A little over a year later, Altus moved for default judgments against Premier, Webb, and Johnson for failure to appear and/or timely file an answer or other responsive pleading. The trial court granted the motion the same day it was filed and entered default judgments against all three defendants in the amount of $374,156. 67.³

[4] Johnson successfully petitioned the court to set aside the default judgment against him and then moved for summary judgment. His designated evidence included the Premier Operating Agreement showing Premier was formed on February 18, 2018, and its initial members were Webb and Amaru Enterprises. Johnson, as “member-manager of Amaru Enterprises,” and Webb were given signing authority for Premier. Id. at 35. The Operating Agreement was signed on March 8, 2018, by Webb and Johnson on behalf of Amaru Enterprises. Johnson also designated his own affidavit ⁴ in which he asserted he—in his individual capacity—was “not a partner or investor in Premier”; had “no ownership interest or managerial role” in Premier; was not a party to any transactions between Premier, Webb, and Altus; and had not participated in “any decisions or activities that have led to this civil suit.” Id. at 30. Johnson asserted he was entitled to judgment as a matter of law on all claims. First, he claimed Altus had not alleged facts to support piercing the corporate veil to hold him personally liable. And second, he claimed Altus had not sufficiently alleged fraud to support a claim for treble damages.

[5] Altus filed a response to Johnson's motion and designated evidence in opposition. Altus’ designated evidence included a “Change of Officer” document approved and filed by the Indiana Secretary of State showing effective June 27, 2019, the members of Premier were Webb and Johnson. Id. at 71. Altus also designated an “Application for Reinstatement” form approved and filed by the Secretary of State showing Premier was administratively dissolved in 2020 and applied for reinstatement listing Webb and Johnson as members. Id. at 73. And Altus designated two “Business Entity Reports”—one approved and filed by the Secretary of State in 2022 and one in 2024—showing the members of Premier were Webb and Johnson. Id. at 76, 78. Altus claimed this designated evidence created a genuine issue of material fact as to whether Johnson was a member of Premier who could be sued for personally participating in conversion. Altus also claimed it was not required to pierce the corporate veil for its conversion claim against Johnson, nor was it required to plead fraud to recover treble damages. Inherent in Altus’ argument is a concession that Altus was seeking to hold Johnson personally liable only on the conversion claim, not the breach of contract or unjust enrichment claims.

[6] After a hearing at which Altus did not appear, the trial court granted Johnson's motion for summary judgment.⁵ Altus then filed this appeal.⁶

Standard of Review

[7] We first note Johnson has not filed an appellate brief. When an appellee has not filed a brief, “we need not undertake the burden of developing an argument on the appellee's behalf.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). “[W]e will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.” Id. Prima facie error is error “at first sight, on first appearance, or on the face of it.” Id. (citation omitted). If an appellant is unable to meet this burden, we will affirm.

[8] We review a trial court's summary judgment decision de novo, applying the same standard as the trial court. U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204 N.E.3d 215, 220 (Ind. 2023). In doing so, we consider only the evidence designated to the trial court and draw all reasonable inferences in the non-movant's favor. Ebert v. Ill. Cas. Co., 188 N.E.3d 858, 863 (Ind. 2022). A party seeking summary judgment must establish that “the designated evidentiary matter shows ․ there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.” T.R. 56(C). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).

[9] If the movant meets its initial burden of demonstrating the absence of any genuine issue of fact as to a determinative issue, the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact. See id. The non-moving party, however, cannot “rest upon the mere allegations or denials of his pleading.” T.R. 56(E). Instead, the party opposing summary judgment must, by affidavit or other evidence, “set forth specific facts showing that there is a genuine issue for trial.” Id. “And ‘[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court.’ ” Hughley, 15 N.E.3d at 1003 (quoting McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909–10 (Ind. 2009)).

The trial court erred in granting summary judgment.7

[10] As noted above, Altus’ response to Johnson's motion for summary judgment addressed only the civil conversion claim. The same is true of its appellate brief. See Appellant's Br. at 7 (stating “Altus alleges a claim of Civil Conversion against Johnson”).⁸ Accordingly, we address the ruling on that claim alone.

[11] Altus acknowledges the limited personal liability of corporate officers and the “severe” burden on a party seeking to pierce the corporate veil and hold a shareholder personally liable. See id. at 10. A corporate officer may be held personally liable if they commit a tortious act, however. Ind. Dep't of Transp., 737 N.E.2d 799, 802 (Ind. Ct. App. 2000), trans. dismissed; see Ind. Code § 23-1-26-3(b) (1986) (stating a “shareholder may become personally liable by reason of the shareholder's own acts or conduct”). In such a case, the officer's position alone does not lead to personal liability; rather, personal liability of a corporate officer is triggered by an additional personal connection with the tort. Roake v. Christensen, 528 N.E.2d 789, 791–92 (Ind. Ct. App. 1988).

[12] Here, Altus alleged in its complaint that Premier was supposed to hold certain funds in escrow and transfer them to Altus by a certain date but did not do so. Altus further alleged Johnson, as a member of Premier, converted those funds to his own use and is personally liable for the tort. Therefore, Johnson's relationship with Premier is a material fact. See Hughley, 15 N.E.3d at 1003 (explaining a fact is material “if its resolution would affect the outcome of the case”).

[13] On summary judgment, Johnson claimed he is not a member of Premier, designating the Premier Operating Agreement from 2018 showing he was associated with a corporate member of Premier rather than directly associated with Premier as a member. He also asserted in his affidavit that he was “not a partner or investor” in Premier, had “no ownership interest or managerial role” within Premier, and had not “participated in any ․ activities that have led to this civil suit.” Appellant's App. Vol. 2 at 30. In response, Altus designated corporate documents showing Johnson personally became a member of Premier in 2019 and continued to be a member at the time of the alleged conversion.

[14] Construing the designated evidence in Altus’ favor as the nonmovant and recognizing Altus only needs to show prima facie error because Johnson has not filed a brief on appeal, we conclude there is a genuine issue of material fact as to whether Johnson was a member of Premier and amenable to personal liability for conversion of the funds Altus was supposed to receive from Premier. Johnson was not entitled to summary judgment on Altus’ claim for civil conversion. We reverse the trial court's entry of summary judgment for Johnson on the civil conversion claim and remand to the trial court for further proceedings on that claim.

Conclusion

[15] The trial court's grant of summary judgment to Johnson on Altus’ civil conversion claim is reversed and this case is remanded for further proceedings.

[16] Reversed and remanded.

FOOTNOTES

2.   It is unclear if the “agreement” to which Altus refers was a written or oral contract. If it was a written contract, Altus did not comply with Indiana Trial Rule 9.2(A) which requires the document to be attached to the complaint.

3.   This amount represents three times the loss alleged in Altus’ motion for default.

4.   Johnson's affidavit states, “I, Antoine Johnson, ․ MAKE OATH AND SAY THAT: ․” Appellant's App. Vol. 2 at 30. As Altus did not challenge whether this was a sufficient affirmation, we consider the statements therein to be verified. See Ind. Trial Rule 11(B) (stating “it shall be sufficient if the subscriber simply affirms the truth of the matter to be verified by an affirmation ․ in substantially the following language: ‘I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true.’ ”).

5.   Altus did not request a transcript of the summary judgment hearing be prepared.

6.   Although not clear on the face of the record provided by Altus, there are default judgments and a determination of damages against Premier and Webb that were not set aside. Summary judgment for Johnson therefore resolved all claims as to all parties and the summary judgment order is a final judgment. See App. R. 2(H)(1).

8.   In other words, Altus does not claim it showed or even alleged that the corporate form should be ignored to hold Johnson personally liable for breach of contract or unjust enrichment. The breach of contract and unjust enrichment claims were resolved by the default judgment against Premier.

Kenworthy, Judge.

Foley, J., and Scheele, J., concur.