Jill Hendricks and Beverly Hendricks, Appellants-Defendants v. LLC (2025)

MEMORANDUM DECISION

Case Summary

[1] Jill and Beverly Hendricks appeal the trial court's grant of Elite Clean Restoration LLC's (Elite) motion for summary judgment. The Hendrickses raise four issues on appeal, which we consolidate and restate as (1) whether the trial court abused its discretion in denying two motions to reconsider and (2) whether the trial court erred in granting Elite's motion for summary judgment. We affirm.

Facts and Procedural History

[2] In June 2020, Jill Hendricks obtained durable power of attorney over her mother, Beverly Hendricks. Jill was thereby granted general authority to act on Beverly's behalf with respect to fiduciary transactions, real estate, and legal matters. See Ind. Code §§ 30-5-2-7 (2009), 30-5-5, et seq.

[3] In April 2022, the Hendrickses lived together at 3823 Ashbourne Lane, Indianapolis, IN 46226. Beverly owned the property, and Jill had no ownership interest in the property at that time. Elite is a water damage restoration company. On April 26, Jill contacted Elite after a flood occurred at the property. Perry Pickens, Elite's owner, visited the residence and discussed water damage restoration work with Jill. She informed Pickens that she had durable power of attorney over Beverly.

[4] On Beverly's behalf, Jill contracted with Elite to perform water damage restoration work.¹ The contract authorized Elite to perform emergency water extraction, dehumidification services, and removal of damaged materials. It did not include a specified price for the work to be performed. On the same day, Jill signed a work authorization form on Beverly's behalf that provided:

I understand that water damage is a progressive condition and that drying time varies depending on the types of materials, quantity of water, degree of saturation, airflow volume and velocity, temperature and the indoor and outdoor humidity. Therefore, I understand it is impractical to give an accurate quote for services before completion. I have been supplied with Elite Clean Restoration standard price list and I agree to pay the prices listed.

Appellee's App. Vol. II p. 55. The contract incorporated the work authorization form by reference. The contract further detailed that Elite would provide specifications for any work “in writing, prior to the commencement of the Work if reasonably practical except in the case of emergency services.” Id. at 53.

[5] Beverly designated American Family Insurance as the company insuring the property; a claim for damages was opened. The insurance company received Elite's estimate and completed an independent estimate for the cost to complete the restoration work. Beverly authorized and directed any and all insurance proceeds related to the restoration work to be paid to Elite.

[6] Elite satisfactorily completed the contracted work and furnished an invoice for $19,684.29 on May 3. American Family Insurance paid $25,000 to the Hendrickses, the full amount covered by the insurance policy, and left satisfaction of Elite's outstanding invoice “in the hands of Jill Hendricks[.]” Appellants’ Br. p. 11. Elite never received payment from Jill or Beverly. Elite recorded a mechanic's lien against the property with the Marion County Recorder's Office on June 21. Pursuant to Indiana Code section 32-28-3-10, the Hendrickses sent Elite a notice to commence suit on July 18, 2022.

[7] On August 19, Elite sued Beverly to foreclose its mechanic's lien on the Property and raised an unjust enrichment claim against her. Elite named Jill as a defendant to the foreclosure “to show whatever interest she may have in the real estate.” Appellants’ App. Vol. II p. 25. While litigation was ongoing, a quitclaim deed that gave Jill an ownership interest in the property was recorded with the Marion County Recorder's Office on March 1, 2023.

[8] On January 4, 2023, Jill attempted to file one joint answer and multiple joint motions on her and her mother's behalf. Elite moved to strike Jill's filings and filed a “Motion to Establish Authority” in which it argued that Jill could not represent Beverly in court. Id. at 62 (formatting altered). Before the trial court issued a ruling, Jill also filed a brief in support of summary judgment but did not file an accompanying motion for summary judgment. The trial court struck the Hendrickses’ answer, denied Jill's brief in support of summary judgment, and admonished Jill that she could represent herself but not Beverly. The trial court gave Jill and Beverly a new deadline of July 27 to individually answer Elite's complaint.

[9] Jill timely answered Elite's complaint on July 25, 2023. The following day, Jill filed a motion requesting the trial court appoint a guardian ad litem for Beverly. The trial court denied Jill's motion on August 2 in a written order stating, “Defendant Jill Hendricks already has durable power of attorney for Beverly Hendricks.” Id. at 150. Beverly did not timely file an answer to Elite's complaint.

[10] On November 10, Beverly, proceeding pro se, filed a motion to dismiss due to her alleged incompetence. Therein, Beverly argued the trial court should dismiss Elite's claims against her because she was incompetent and had no knowledge of Elite's contract and work. Following a hearing, the trial court denied Beverly's motion in March 2024. Beverly also filed a motion to reconsider, which the trial court denied on April 15.²

[11] On April 10, Elite filed a motion for leave to amend its complaint and a proposed amended complaint. Elite sought to add the mortgage company, Mutual Omaha Mortgage, Inc., as a defendant to the foreclosure due to its interest in the property and restated its claims for breach of contract, unjust enrichment, and promissory estoppel against Beverly. Elite also named Jill as a defendant to the foreclosure due to the interest she acquired in the property in 2023. The trial court granted Elite's motion on April 22. On April 30, Jill filed a motion regarding an alleged lack of service for Elite's motion for leave to amend its complaint. Elite's counsel indicated that Elite provided an electronic service (E-Service) copy to the same email Jill and Beverly used throughout the case. The trial court denied Jill's motion in May and proceeded to deny her subsequent motion to reconsider on July 2.³

[12] On June 19, Elite filed a motion for summary judgment on its foreclosure claim against the Hendrickses and its breach-of-contract claim against Beverly. Elite designated evidence demonstrating that it contracted with Jill on Beverly's behalf to repair the property by performing emergency water extraction, dehumidification, and removal of damaged materials. The designated contract and work authorization form indicated that Elite was performing “emergency services” and would not provide an initial contract price. Appellee's App. Vol. II p. 53. Elite also designated its invoice charging $19,684.29, and Pickens’ affidavit, in which he asserted that the price was reasonable and “compliant with industry standards[.]” Id. at 42. Finally, Elite designated evidence that it timely recorded a mechanic's lien with the Marion County Recorder's Office after not receiving payment.

[13] Following a motion for an enlargement of time, Jill responded to Elite's motion for summary judgment and designated two exhibits as evidence.  ⁴ The first exhibit is a document detailing the $25,000 insurance limit on the property for sewer and septic backup, and the second is an unverified email from a purported insurance adjuster stating the insurance company and the policyholder could not agree on the appropriate cost for completion of the work, it approved at least partial coverage amount for the work completed, and nevertheless paid Beverly the full amount covered under the policy ($25,000). Beverly never responded to Elite's motion for summary judgment after the trial court denied her belated motion for an enlargement of time.

[14] In September 2024, Jill obtained legal guardianship over Beverly through a separate probate action. On September 14, Jill filed a Trial Rule 17(C) motion requesting the trial court appoint her as Beverly's next friend. Jill also requested that the trial court reopen the pleadings for Beverly and set a new deadline for her to respond to Elite's motion for summary judgment. The trial court held a hearing on September 23 on Elite's motion for summary judgment and Jill's motion. The trial court granted Jill's motion to appoint her as next friend but denied her request to reopen the pleadings and set a new deadline for Beverly. Contemporaneously, the trial court granted Elite's motion for summary judgment, found there was no just reason for delay, and entered final judgment. Jill and Beverly now appeal.

Discussion and Decision

[15] Jill and Beverly argue the trial court erred in denying their motions to reconsider and in granting Elite's motion for summary judgment. Elite argues the Hendrickses waived their arguments on appeal by repeatedly violating the Appellate Rules of Procedure and failing to provide cogent reasoning or cite to the Record on Appeal. Despite Appellants’ numerous procedural errors, we choose to exercise our authority to deviate from the Appellate Rules under Indiana Appellate Rule 1, addressing the merits of the Hendrickses’ claims in the interest of judicial economy. See Morales v. State, 19 N.E.3d 292, 296 (Ind. Ct. App. 2014), trans. denied; see also Clemons v. State, 260 N.E.3d 1010, 1014 (Ind. Ct. App. 2025).

I. Motions to Reconsider

[16] Jill and Beverly contend the trial court erred in denying their motions to reconsider. We review the denial of a motion to reconsider for an abuse of discretion. In re Est. of Lewis, 123 N.E.3d 670, 673 (Ind. 2019) (citing In re Est. of Hammar, 847 N.E.2d 960, 962 (Ind. 2006)). An abuse of discretion occurs “only if the trial court's ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Hancz-Barron v. State, 235 N.E.3d 1237, 1246 (Ind. 2024) (quoting McCoy v. State, 193 N.E.3d 387, 390 (Ind. 2022)).

A. Beverly's Motion to Reconsider

[17] First, the Hendrickses argue the trial court abused its discretion in its April 15 order that denied Beverly's motion to reconsider following the denial of her motion to dismiss. In her motion to dismiss, Beverly argued she could not consent to the work Elite performed because she is allegedly incompetent and, thus, cannot be a party to this case. However, Jill contracted with Elite on Beverly's behalf as her attorney in fact, which Indiana law permits. See Ind. Code § 30-5-5-2 (1991). To the extent Beverly argues she cannot be a party to a lawsuit due to her alleged incompetence, she is incorrect as Trial Rule 17(C) provides that an “incompetent person may sue or be sued in any action ․ in [her] own name[.]” Thus, the trial court did not abuse its discretion in denying Beverly's motion to reconsider its denial of her motion to dismiss.  ⁵

B. Jill's Motion to Reconsider

[18] Jill also contends the trial court abused its discretion in its July 2 order denying her motion to reconsider following the denial of her motion regarding Elite's alleged failure of service. In her initial motion, Jill asked the trial court to set aside its order granting Elite's motion to amend, alleging Elite failed to electronically serve her. However, Elite indicated in its response that Jill consented to receive electronic copies at an email address, and Elite transmitted an electronic copy of its motion to the same email address. See Ind. Trial Rule 5(B)(3)(c) (“Service by electronic means ․ shall be deemed complete upon transmission.”); see also Ind. Trial Rule 86(B)(3)(a) (“Users must serve all documents in a case upon every other party who is a User through E-Service using the [Indiana E-Filing System]. E-Service has the same legal effect as service of an original paper document.”). Elite properly served Jill with a copy of its motion, and the trial court did not abuse its discretion in declining Jill's motion.

II. Summary Judgment

A. Standard of Review

[19] Jill and Beverly contend the trial court erred in granting Elite's motion for summary judgment. Summary judgment is appropriate only “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “When reviewing a trial court's ruling on a motion for summary judgment, this court stands in the shoes of the trial court and applies the same standards in deciding whether to affirm or reverse the ruling.” Longest ex rel. Longest v. Sledge, 992 N.E.2d 221, 225 (Ind. Ct. App. 2013), reh'g denied, trans. denied. The movant bears the burden of showing that no genuine issues of material fact exist and it is entitled to judgment as a matter of law. Johnson v. Harris, 176 N.E.3d 252, 255 (Ind. Ct. App. 2021), trans. denied. Summary judgment is improper if the movant failed to meet that burden. Id. After the movant meets this burden with a prima facie showing, the burden then shifts to the non-movant to establish that a genuine issue of material fact does exist. Osadchuk v. Rice, 203 N.E.3d 493, 504 (Ind. Ct. App. 2023) (citation omitted). We construe all factual inferences in favor of the non-movant and all doubts as to the existence of a genuine issue of material fact against the movant. Id.

[20] We initially note that Beverly failed to timely respond to Elite's motion for summary judgment. Although a “party who does not respond to a motion for summary judgment may be limited to the facts established by the movant's submissions, such failure to respond does not preclude argument of the relevant law on appeal.” Murphy v. Curtis, 930 N.E.2d 1228, 1234 (Ind. Ct. App. 2010), trans. denied. Even so, “[a] trial court is not required to grant an unopposed motion for summary judgment; summary judgment is awarded on the merits of the motion, not on technicalities.” Quirk v. Delaware Cnty., 91 N.E.3d 1008, 1014 (Ind. Ct. App. 2018) (citing Murphy, 930 N.E.2d at 1233).

B. Breach of Contract

[21] First, we address whether the trial court erred in granting Elite's motion for summary judgment as to its breach-of-contract claim against Beverly. A breach-of-contract claim requires proof of three elements: (1) the existence of a contract, (2) breach thereof by the defendant, and (3) damages resulting from the breach. Berg v. Berg, 170 N.E.3d 227, 231 (Ind. 2021). “The basic requirements for a contract are offer, acceptance, consideration, and a meeting of the minds of the contracting parties.” Conwell v. Gray Loon Outdoor Mkt. Grp., Inc., 906 N.E.2d 805, 812-13 (Ind. 2009) (citing Rosi v. Bus. Furniture Corp., 615 N.E.2d 431 (Ind. 1993)). “Whether a contract exists is a question of law.” Id. at 813 (citing Orr v. Westminster Vill. N., Inc., 689 N.E.2d 712 (Ind. 1997)). “All that is required to render a contract enforceable is reasonable certainty in the terms and conditions of the promises made, including by whom and to whom; absolute certainty in all terms is not required.” Id. (citing Illiana Surgery & Med. Ctr., LLC. v. STG Funding, Inc., 824 N.E.2d 388 (Ind. Ct. App. 2005)). “[I]f a contract is uncertain as to a material term such as price then Indiana courts may impute a reasonable price.” Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 309 (Ind. 2012) (emphasis removed).

[22] On appeal, the Hendrickses argue the contract is void because it did not provide a price, violating the Home Improvement Contract Act (HICA). In response, Elite contends that Jill cannot raise a HICA argument because she is not a consumer subject to the contract under the HICA. The HICA defines a “consumer” as “a person that owns, leases, or rents the residential real property that is the subject of a real property improvement contract.” Ind. Code § 24-5-11-2 (2017). We agree that Jill is not a consumer under the HICA because she was not a party to Elite's contract with Beverly and she had no interest in the property when the contract was executed. Thus, a HICA defense is not available to Jill.

[23] Further, we observe that Beverly failed to raise any HICA argument before this appeal ensued. “It is well settled that an issue not raised before the trial court on summary judgment cannot be argued for the first time on appeal and is waived.” Benziger v. Radabaugh, 267 N.E.3d 1149, 1156 n.7 (Ind. Ct. App. 2025) (citing Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004)). Accordingly, we need only consider whether Elite met its burden by demonstrating no genuine issues of material fact existed and that it was entitled to summary judgment as a matter of law. See Quirk, 91 N.E.3d at 1014 (citing Murphy, 930 N.E.2d at 1233).⁶

[24] Here, Elite designated evidence that Jill contracted on Beverly's behalf to pay Elite for emergency water extraction, dehumidification, and removal of damaged materials. The contract incorporated a work authorization form in which Beverly acknowledged that it was “impractical to give an accurate quote for services before completion” and further that “I have been supplied with Elite Clean Restoration standard price list and I agree to pay the prices listed.” Appellee's App. Vol. II p. 55. The contract also provided that Elite would not provide specifications for work “in the case of emergency services.” Id. at 53. The Hendrickses do not dispute that Elite satisfactorily completed its work, fulfilling its obligation under the contract. Elite tendered an invoice for $19,684.29, and later designated evidence indicating it charged a fair and appropriate rate for the work performed. Thus, the trial court could impute $19,684.29 to be a reasonable price. See Allen, 980 N.E.2d at 309. Beverly breached the contract by failing to pay Elite. Therefore, the trial court did not err in granting Elite's motion for summary judgment for its breach-of-contract claim in the amount of $19,684.29.

C. Foreclosure of Mechanic's Lien

[25] Elite also moved for entry of summary judgment as to its foreclosure claim on its mechanic's lien. “When a contractor supplies labor or materials to improve real property, Indiana provides a statutory remedy to secure the resulting debt—a lien on the improved property, which when enforced may compel the property's sale to pay the debt.” EdgeRock Dev., LLC v. C.H. Garmong & Son, Inc., 261 N.E.3d 192, 202-03 (Ind. 2025) (citing Ind. Code § 32-28-3-1 et seq.; Mann v. Schnarr, 95 N.E.2d 138, 141 (Ind. 1950)), reh'g. denied. Mechanic's liens are “ ‘simply a method of collecting a debt or a means of receiving payment,’ and they are ‘not the claim upon which the lien is founded.’ ” Id. at 203 (quoting 53 AM. Jur. 2d Mechanics’ Liens § 1 (2025)).

[26] A contractor may record a mechanic's lien on the interest of an owner of real estate to the extent of any labor done or material furnished, including any use of leased equipment and tools. Ind. Code § 32-28-3-1(b) (2020). A property owner must have consented to the improvements to the property for the mechanic's lien to be valid. EdgeRock Dev. LLC, 261 N.E.3d at 207. “This consent must be more than inactive or passive consent and the lien claimant's burden to prove active consent is especially important when the improvements are requested by someone other than the landowner.” Cho v. Purdue Research Found., 803 N.E.2d 1161, 1168 (Ind. Ct. App. 2004). In determining whether an owner actively consents, “the focus is not solely on the degree of the owner's active participation in the decisions and the actual construction. Instead, the focus is also on how closely the improvements in question resemble a directly bargained-for benefit.” Id. (internal citation omitted). A claimant must also file in duplicate a sworn statement and notice of the person's intention to hold a lien upon the property in the recorder's office of the county not more than ninety days after performing labor or furnishing materials. Ind. Code § 32-28-3-3 (2008).

[27] Here, Jill, as Beverly's power of attorney, contracted on Beverly's behalf for Elite to perform emergency restoration for water damage. Elite completed the work, which improved and repaired the property by restoring it “to a sound healthy state.” Midwest Biohazard Servs., LLC v. Rodgers, 893 N.E.2d 1074, 1078 (Ind. Ct. App. 2008) (internal quotation omitted), trans. denied. Because Elite's work repaired the property, its improvements were a directly bargained-for benefit. See id.; see also Cho, 803 N.E.2d at 1168. Accordingly, Beverly, through the contract for services executed by Jill on her behalf, actively consented to Elite repairing the property. Elite's mechanic's lien is valid.

[28] Further, Elite's designated evidence demonstrates that it complied with the statutory requirements for enforcing a mechanic's lien and was entitled to foreclosure of its mechanic's lien as a matter of law. The Hendrickses’ other arguments consist of factual disputes they raised to the trial court in their pleadings but are not supported by appropriate designated evidence. Such unsworn statements, arguments, and allegations are not evidentiary material for purposes of a motion for summary judgment. See 487 Broadway Co., LLC v. Robinson, 147 N.E.3d 347, 353 (Ind. Ct. App. 2020). Thus, the Hendrickses have failed to raise a genuine issue of material fact. The Hendrickses have not met their burden in persuading us that the grant of summary judgment was erroneous.

[29] Affirmed.

FOOTNOTES

1.   Pickens swore in his affidavit that “Jill physically signed the Service Contract[,]” but the contract appears to bear Beverly's name and signature. Appellee's App. Vol. II p. 40.

2.   Beverly's motion was filed as a motion to correct error. Because this motion was filed before the entry of final judgment, it is properly considered a motion to reconsider. See Snyder v. Snyder, 62 N.E.3d 455, 458-59 (Ind. Ct. App. 2016).

3.   Jill filed her motion as a motion to correct error. Again, this motion is properly considered a motion to reconsider. See Snyder, 62 N.E.3d at 458-59.

4.   The Hendrickses failed to include Elite's memorandum in support of its motion for summary judgment or any evidence designated by Elite or Jill in their appendix, all of which is necessary for deciding whether the trial court erred in granting Elite's motion for summary judgment. See Appellate Rule 50(A)(2)(f); see also id. 50(A)(2)(g), (h). We rely on Elite's appendix, which includes its memorandum and designated evidence. Pursuant to Indiana Appellate Rule 27 and Indiana Evidence Rule 201, we take judicial notice of Jill's designated evidence, which is not included in either appendix. See Horton v. State, 51 N.E.3d 1154, 1556 (Ind. 2016) (taking judicial notice under Evidence Rule 201 of documents that were part of the Record on Appeal as defined in Appellate Rule 27).

5.   Beverly and Jill also claim the trial court violated Beverly's due process rights by denying Jill's motion to appoint a guardian ad litem for Beverly. However, the trial court's order denying Jill's motion to appoint a guardian ad litem is not properly before us on appeal. The Hendrickses failed to designate the trial court's order denying the motion or attach a copy of the order to their notice of appeal. See Ind. Appellate Rule 9(F)(3). Further, the Hendrickses failed to raise this argument to the trial court, thereby waiving the issue on appeal. See Israel v. Israel, 189 N.E.3d 170, 177 (Ind. Ct. App. 2022) (“[A]n issue raised by an appellant for the first time on appeal is waived.”), reh'g denied, trans. denied.

6.   Jill's inapplicability and Beverly's waiver notwithstanding, their HICA argument fails. A consumer may “authorize the commencement of work on the real property before the consumer or insured consumer receives complete specifications” if the contract expense is to be paid in whole or in part from the proceeds of an insurance policy. Ind. Code § 24-5-11-10(c)(5) (2017). Here, estimates were submitted to American Family Insurance. See Appellants’ App. Vol. II p. 111. American Family Insurance initially agreed to cover the repairs in the amount of $9,890.59 and, ultimately, issued the full amount of the policy ($25,000) to Beverly. See Id. at 143. Elite's contract with Beverly was not required to list an initial price and did not violate the HICA. Cf. First Response Servs., Inc. v. Cullers, 7 N.E.3d 1016, 1022-23 (Ind. Ct. App. 2014) (holding Indiana Code section 24-5-11-10(c)(5) did not apply when contractor began work before obtaining consumer's insurance information and no insurance claim was filed or proceeds issued).

Scheele, Judge.

Foley, J., and Kenworthy, J., concur.