Robert Burgner, et al., Appellants-Plaintiffs v. Jeremy Swenson, et al., Appellees-Defendants (2026)

MEMORANDUM DECISION

Case Summary

[1] Robert Burgner (Burgner) and his wife, Stephanie (collectively the Burgners), contracted with Jeremy Swenson and his construction company, SwenCrest, LLC (the LLC), to perform work on a property. Eventually, the Burgners filed a complaint against Swenson, his wife, and the company, which by then had been converted to SwenCrest, Inc., raising a number of claims, including breach of contract, constructive fraud, and fraud.

[2] Following a bench trial, the trial court entered judgment, including treble damages and attorney's fees, in favor of the Burgners. The trial court determined that piercing the corporate veil was not warranted and thus entered judgment against SwenCrest, Inc. only. The Burgners appeal the trial court's decision not to also hold Swenson personally liable.

[3] We reverse and remand.

Facts & Procedural History

[4] In 2022, Swenson operated the LLC, an Indiana limited liability company of which he was the sole member, engaging in construction work in the Fountain County area. The Burgners own a piece of property, which includes a house and garage, on Harrison Street in Veedersburg. In early 2022, Burgner reached out to Swenson about making repairs and improvements to the structures located on the Harrison Street property.¹ Swenson prepared a written quote (the contract), on the LLC's letterhead, that generally outlined the projects to be completed and the estimated cost of materials. Among other things, the contract provided for the use of 2x4 5:12 pitch “GOLDSTAR manufactured trusses.” Exhibits Vol. 4 at 4. The total quote was $25,286.75; all labor costs were “marked as zero,” with the parties agreeing that payment would be made via Burgner's transfer of a 2005 Ford F-350 truck.² Exhibits Vol. 5 at 25. In April 2022, Burgner and Swenson signed the contract.

[5] On April 22, 2022, the Burgners paid the LCC $9,000 by check, which was to be used to purchase trusses and other materials from Ferguson Lumber. On July 22, 2022, they wrote another check to the LLC for $6,000 for roofing materials. In or around July 2022, Burgner discovered that the trusses had never been ordered. Burgner and Swenson then met at Ferguson Lumber, and Swenson placed the order, with the trusses scheduled to arrive in November. At some point, and unbeknownst to Burgner, Ferguson Lumber canceled the order, which according to a Ferguson Lumber employee, was due to Swenson having an unpaid account. Ferguson Lumber informed Swenson that the order had been canceled.

[6] In September 2022, Swenson took possession of the F-350 truck and Burgner gave Swenson the title, which “was assigned to SwenCrest, LLC,” and issued a temporary tag for it. Transcript Vol. 2 at 200. On October 29, 2022, the Burgners wrote a check in the amount of $2,023.36 that, at Swenson's direction, was made payable to Swenson personally.

[7] In November of 2022, Burgner began looking for the trusses and learned from Ferguson Lumber that it had canceled the order. Burgner drove to Swenson's home and discovered, in the backyard, trusses being constructed that were intended to be used in the Burgners’ project. Burgner rejected the trusses.

[8] In January 2023, Swenson converted the LLC to a corporation, SwenCrest, Inc., adding his wife as an officer. In the next few months, limited work was done on the project for various reasons, some of which were not associated with Swenson. During that time, Burgner and Swenson conversed back and forth about the truck's title, with Swenson claiming that he was having trouble at the BMV with getting it titled.

[9] On June 9, 2023, counsel for the Burgners sent a letter to Swenson that, among other things, terminated the contract, demanded repayment of $17,000 paid for materials that were never ordered, and demanded payment of $10,000 in damages caused by faulty workmanship.

[10] Later that month, the Burgners filed a complaint, amended in May 2024, against Swenson, his wife, and SwenCrest, Inc., alleging breach of contract, violation of Indiana Home Improvement Contracts Act, unjust enrichment, civil conversion, constructive fraud, and fraud, seeking damages, including treble damages and attorney's fees. A special judge was appointed and presided over a bench trial held on April 4 and May 9, 2025.

[11] Burgner and Swenson testified at trial. In addition, the Burgners called as witnesses: a Ferguson Lumber employee, two Veedersburg police officers, a contractor who the Burgners hired to repair and work on the project, and a woman who also hired Swenson to do construction work on a house in Veedersburg.

[12] Swenson testified that he was the sole member of the LLC, which utilized an email address of jeremyswencrestllc@gmail.com. Swenson explained that he converted the LLC to a corporation “for tax purposes and loan purposes.” Transcript Vol. 2 at 169. He testified that he retained the formation documents for both entities, such as the articles of organization and articles of incorporation, that the entities had a federal tax identification number (TIN), that he paid workers “1099 style” and by W-2 after incorporating, and that he carried business insurance. Id. at 164. He testified that the corporation currently had a business checking account at Centier Bank and that, since incorporating, he “had [ ] payroll checks and taxes and everything taken out” of the business account.  ³ Id. He stated that neither the LLC nor SwenCrest, Inc. owned any property, and no vehicles were titled in the company name.

[13] As to corporate records, Swenson acknowledged that he did not keep minutes or a corporate book and testified that some documents had been kept in cardboard boxes that got damaged when it rained during a move. As a result, Swenson produced in discovery information that he obtained from his QuickBooks account, which was admitted by stipulation at trial and consisted of around one hundred pages of scanned receipts, sales orders, invoices, and other documents. Swenson was not able to confirm the completeness or accuracy of those records and acknowledged that some documents were unrelated to the Burgners’ project and instead were associated with other properties, and some were duplicates. Swenson identified about $500 in receipts that he could definitively tie to the Burgners’ project.

[14] Bank statements for the LLC's account at Fountain Trust from December 2021 to December 2022 were admitted into evidence by stipulation. Many months had checks made out to cash, some of which lacked a memo line description, totaling monthly amounts ranging between $3,200 and $21,400; one $9,000 check was payable to Swenson's wife. The statements included expenditures to VUDU (a streaming service), Legoland, Nintendo gaming, Attica Vapors, Fandango, Prime Video, and Paramount+. Swenson acknowledged that personal expenses appeared on the LLC business account but claimed that some were associated with work trips and others were paid from that account in error, and he testified that some of the checks for cash were payment for labor or represented “salary” based on his accountant's advice. Id. at 61. The LLC's Fountain Trust bank account was closed in December 2022 with a negative balance of $964.97.⁴

[15] Swenson was asked about the Burgners’ October 29, 2022 check in the amount of $2,023.36 that was made payable to him personally. Swenson acknowledged that he processed that check twice, first by electronic mobile deposit into his QuickBooks account on November 1, and then later cashing the check in person at the Burgners’ bank. While Swenson testified that he took it to the bank because the mobile deposit still was not processing after “a week or two,” bank records showed that the check was cashed at the bank four days later, on November 2. Transcript Vol. 3 at 16. Swenson repaid the Burgners about thirty days after Burgner brought the matter to his attention.

[16] Swenson testified that he had sought a building permit for the Burgners’ project and that, after it was approved, he gave it to Burgner. Burgner presented business records, which were admitted for impeachment purposes, from the Town of Veedersburg showing that neither Swenson, his wife, SwenCrest LLC, nor SwenCrest, Inc. had filed an application for a building permit for the Harrison Street property.

[17] Swenson testified that he was never able to title the Ford F-350 because of issues he encountered at the BMV. He said the truck went missing in July 2023 while he was away from it for a couple of hours, and he assumed that, given the lawsuit, Burgner had re-taken possession of it. Swenson testified that he did not report it as stolen because it was never titled to him. Burgner testified that he did not take the truck and had no idea where it was.

[18] On July 28, 2025, the trial court issued an Order Following Trial (Order), which determined, in part, that SwenCrest ⁵ breached the contract and “made material and fraudulent misrepresentations during the course of the parties’ dealings” and that an award of treble damages was appropriate “due to [SwenCrest's] material misrepresentations” to the Burgners. Appendix at 3. However, the court found that SwenCrest had not “failed to observe corporate formalities to the extent that the piercing of the corporate veil is appropriate in this case” and entered judgment against SwenCrest, Inc. only. Id.

[19] Specifically, the trial court ordered that SwenCrest, Inc. was liable for: $17,023.26 the Burgners had paid; $6,150 the Burgners paid to another contractor for repairs to Swenson's work and continued work on the project plus an additional $3,000 for estimated future repairs; $3,500 in attorney's fees; and $185 in filing fees. After trebling damages, the trial court entered judgment for the Burgners and against SwenCrest, Inc. in the amount of $82,020.08 plus costs.

[20] On August 26, 2025, the Burgners filed an Ind. Trial Rule 59 Motion to Correct Error, asking the trial court to also enter judgment against Swenson. The Burgners argued that the evidence established multiple of the factors considered in a veil-piercing analysis, including undercapitalization, commingling of assets, and failure to observe corporate formalities. The Burgners agreed with the court's determination that material and fraudulent misrepresentations had been made but argued that it was Swenson that did so. The trial court summarily denied the motion.

[21] The Burgners now appeal the trial court's refusal to hold Swenson personally liable for the judgment. Additional facts will be provided below as needed.

Discussion & Decision

[22] The Burgners appeal the trial court's denial of their motion to correct error.

We review the grant or denial of a ․ motion to correct error under an abuse of discretion standard. On appeal, we will not find an abuse of discretion unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or is contrary to law.

487 Broadway Co., LLC v. Robinson, 147 N.E.3d 347, 350 (Ind. Ct. App. 2020). We have recognized that, “[u]pon reviewing a motion to correct error, this court also considers the standard of review for the underlying ruling.” Luxury Townhomes, LLC v. McKinley Properties, Inc., 992 N.E.2d 810, 815 (Ind. Ct. App. 2013), trans. denied.

[23] Where, as here, neither party requested special findings and the trial court did not make any, a general judgment standard applies. We may affirm based on any legal theory supported by the evidence. Watters v. Cole, 280 N.E.3d 299, 306 (Ind. Ct. App. 2026). Any legal conclusions made by the trial court will be reviewed de novo. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).

[24] Here, the trial court entered judgment only against SwenCrest Inc. on the basis that SwenCrest did not “fail[ ] to observe corporate formalities to the extent that piercing the corporate veil is appropriate.” Appendix at 3. The Burgners are thus appealing from a negative judgment on this issue. A negative judgment will be reversed on appeal only where it is contrary to law. Comm’r, Dep’t of Env’t Mgmt. v. RLG, Inc., 755 N.E.2d 556, 559 (Ind. 2001).

[25] Under Ind. Code § 23-1-26-3(b), a shareholder of a corporation is generally not personally liable for the acts or debts of the corporation, except that the shareholder may become personally liable by reason of the shareholder's own acts or conduct. Similarly, Ind. Code § 23-18-3-3(a) provides that a member, manager, agent, or employee of an LLC is not personally liable for the debts, obligations, or liabilities of the LLC, but may be personally liable for the person's own acts or omissions.

[26] The burden is on the party seeking to pierce the corporate veil ⁶ to prove that the corporate form was so ignored, controlled, or manipulated that it was merely the instrumentality of another and that the misuse of the corporate form would constitute a fraud or promote injustice.  ⁷ Aronson v. Price, 644 N.E.2d 864, 867 (Ind. 1994). Both prongs must be satisfied. See CBR Event Decorators, Inc. v. Gates, 962 N.E.2d 1276, 1282 (Ind. Ct. App. 2012), trans. denied.

[27] In deciding whether a plaintiff has met this burden of proof, a court considers whether the plaintiff has presented evidence showing: (1) undercapitalization; (2) absence of corporate records; (3) fraudulent representation by corporation shareholders or directors; (4) use of the corporation to promote fraud, injustice, or illegal activities; (5) payment by the corporation of individual obligations; (6) commingling of assets and affairs; (7) failure to observe required corporate formalities; or (8) other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form. Blackwell v. Superior Safe Rooms LLC, 174 N.E.3d 1082, 1092-93 (Ind. Ct. App. 2021), trans. denied. The list of factors is not exhaustive, and the plaintiff need not prove all eight factors in order to pierce the corporate veil. Longhi v. Mazzoni, 914 N.E.2d 834, 839 (Ind. Ct. App. 2009), trans. denied. The veil-piercing inquiry is highly fact sensitive. Reed v. Reid, 980 N.E.2d 277, 301 (Ind. 2012). Indiana appellate courts give great deference to the trial court's determination. Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 504 (Ind. Ct. App. 2007). Our Supreme Court has characterized the burden on the party seeking to pierce the corporate veil as “severe.” Escobedo v. BHM Health Assoc., Inc., 818 N.E.2d 930, 933 (Ind. 2004).

[28] Without specific findings, we cannot know precisely on what evidence the court relied in concluding that corporate formalities had been followed to a sufficient extent that piercing of the corporate veil was not appropriate. However, we need not reach whether the court's determination was erroneous because, even if we agree that piercing the veil was not warranted on the corporate formalities basis – and we make no finding on that matter – the court's decision does not shield Swenson from liability in this case.

[29] The veil-piercing analysis also includes consideration of fraudulent representation by corporation shareholders or directors and whether the alleged injustice or fraud was caused by or resulted from the misuse of the corporate form. See Aronson, 644 N.E.2d at 867. And the trial court here expressly determined that SwenCrest “made material and fraudulent misrepresentations during the course of the parties’ dealings” and that an award of treble damages was appropriate “due to the material misrepresentations made by [ ] Swen[C]rest.” Appendix at 3. As the Burgners observe, however, “[a]ll relevant representations ․ came from one person – Jeremy Swenson[.]” Appellant's Brief at 13. The Burgners argue that “Swenson should not be able to use Swen[C]rest as a liability shield for acts he has committed.” Id. at 11. We agree.

[30] Under Indiana law, a corporate officer cannot escape liability for fraud by claiming that he acted on behalf of the corporation when he personally participated in the fraud. See Civil Rights Comm’n v. Cnty Line Park, Inc., 738 N.E.2d 1044, 1050 (Ind. 2000) (reversing grant of motion to dismiss and recognizing that a corporate officer “is personally liable for the torts in which she has participated or which she has authorized or directed”). Indeed, a corporate officer or contractor may be held personally liable based on his own personal participation in the fraudulent conduct independent of whether the corporate veil has been pierced. RLG, Inc., 755 N.E.2d at 563 (rejecting defendant's argument that he could not be held personally liable unless the corporate veil was pierced, explaining that veil-piercing “holds individuals liable for corporate actions based on the failure to observe corporate formalities,” whereas individual liability is “based on [ ] individual participation” in the wrongful conduct).

[31] Swenson was the sole member of the LLC and at all times was the sole actor who engaged in dealings with the Burgners. He made the statements, accepted payments, failed to purchase various materials, claimed to have gotten a permit for the project although the town had no record of it, did not disclose to the Burgners that the order for the trusses had been canceled, and instead attempted to make them in his backyard despite the contract calling for specific manufactured trusses. Swenson's participation in the material misrepresentations renders him personally liable. See Gable v. Curtis, 673 N.E.2d 805, 809 (Ind. Ct. App. 1996) (reversing summary judgment entered in favor of the contractor, who was president, director, and shareholder of closely held corporation, on homeowner's claim for fraud because he personally participated in the alleged fraud); contrast DeWeese v. Pribyla, 114 N.E.3d 501, 507 (Ind. Ct. App. 2018) (affirming determination that shareholders were shielded from personal liability where trial court had found that the two shareholders of the home improvement company “personally had very little, if anything, in regard to the personal responsibility for the actual work done or not done”).

[32] The trial court's judgment against SwenCrest, Inc. only is contrary to law. We reverse the trial court's decision not to hold Swenson personally liable to the Burgners and remand with instructions that judgment be entered against both Swenson and SwenCrest, Inc.

[33] Judgment reversed and remanded.

FOOTNOTES

1.   The house had been unoccupied for a number of years.

2.   Burgner is an automobile dealer.

3.   Those statements were not offered or admitted at trial.

4.   The Burgners obtained the bank records through third-party discovery; Swenson stated that he did not produce them in discovery because he no longer had access to them.

5.   In its Order, the trial court explained it would use “Swen[C]rest” to refer both to the LLC and the corporation.

6.   Veil-piercing is an equitable remedy, not an independent cause of action. Elpers Bros. Constr. & Supply v. Smith, 230 N.E.3d 920, 930 (Ind. Ct. App. 2024), trans. denied.

7.   The same analysis applies to LLCs because the Indiana Business Flexibility Act provides protections to LLCs like those of corporations. Troutwine Ests. Dev. Co., LLC v. Comsub Design & Eng’g, Inc., 854 N.E.2d 890, 899 (Ind. Ct. App. 2006), trans. denied.

Altice, Judge.

Vaidik, J. and Foley, J., concur.