CSI Protective Services LLC v. Paragon Properties Company a/k/a Paragon Properties LLC, and Justin Dunckel (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 10 2020, 9:51 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Fred Pfenninger Steven E. Runyan
Pfenninger & Associates Kevin D. Koons
Indianapolis, Indiana Portia Bailey-Bernard
Kroger, Gardis & Regas, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CSI Protective Services LLC, June 10, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CC-2643
v. Appeal from the Marion Circuit
Court
Paragon Properties Company The Honorable Sheryl L. Lynch,
a/k/a Paragon Properties LLC, Judge
and Justin Dunckel, Trial Court Cause No.
Appellees-Defendants 49C01-1705-CC-17418
Baker, Judge.
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[1] CSI Protective Services LLC (CSI) appeals the trial court’s order granting
summary judgment in favor of Paragon Properties Company (Paragon) and
Justin Dunckel on CSI’s complaint for breach of contract. Finding no error, we
affirm.
Facts
[2] Before September 2015, Chapel Hill Apartments in Indianapolis was an
apartment complex owned by Chapel Hill Indiana, LLC. In 2015, MF Blue
Valley Apartments LLC (Blue Valley) purchased Chapel Hill Apartments at a
Sheriff’s sale. Blue Valley recorded the Sheriff’s Deed on September 3, 2015.
[3] Paragon is a limited liability company that performs property management
services. Dunckel is the president of Paragon. At some point, Blue Valley
engaged Paragon to manage Chapel Hill Apartments; in that capacity, Paragon
was authorized to enter into agreements on Blue Valley’s behalf.
[4] On September 14, 2015, CSI, a limited liability company that provides security
services for apartment complexes, executed a contract (the Contract) to provide
security services to Chapel Hill. The Contract, which was drafted by CSI, states
that it is between CSI and Chapel Hill Apartments. Chad Butts, CSI’s CEO,
signed for CSI; Dunckel signed on behalf of “Chapel Hill Apartments
Management,” in his capacity as president of Paragon. Appellant’s App. Vol.
II p. 166.
[5] CSI and Paragon had a business relationship prior to the Contract, as CSI had
provided security services for other properties managed by Paragon over the
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course of several years. In multiple communications before the execution of the
Contract, Butts confirmed CSI’s knowledge that Paragon was a third-party
property manager that did not actually own Chapel Hill Apartments.
[6] On May 2, 2017, CSI filed a complaint against Paragon for breach of contract,
alleging that CSI had not been paid for its security work at Chapel Hill
Apartments. CSI later added Dunckel, in his personal capacity, as a defendant.
On September 6, 2018, Paragon and Dunckel filed a motion for summary
judgment. Following briefing and a hearing, the trial court granted summary
judgment in favor of Paragon and Dunckel on October 10, 2019. In relevant
part, the trial court found and concluded as follows:
26. The parties do not dispute Paragon, through Justin
Dunckel, acted on behalf of Blue Valley, owner of Chapel
Hill Apartments, when it executed the Contract with CSI.
27. CSI disputes that it knew the specific identity of Paragon’s
principal, Blue Valley, saying that Paragon’s principal was
“undisclosed.”
***
44. . . . Paragon provided the identity of the complex (and
address) which was sufficient to identify the principal
because the owner of the complex (the principal) was
readily available through property records.
45. The Sheriff’s deed is public information where the owner
of Chapel Hill Apartments is identified as Blue Valley.
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Thus, Paragon was not withholding the identify of the
principal or that a principal exists.
***
Conclusion
The Court . . . now finds that the evidence is undisputed
that Justin Dunckel, president of Paragon, signed the contract
engaging the services of CSI in his capacity as agent of Chapel
Hill Apartments. Chapel Hill Apartments, and its owner, Blue
Valley[,] is a separate and distinct entity from its property
management provider, Paragon. This information was readily
apparent and ascertainable both before and after the Contract
was executed. Therefore, CSI’s argument that Paragon’s
principal was undisclosed fails.
Appealed Order p. 5-10. CSI now appeals.
Discussion and Decision
[7] CSI argues that there is an issue of fact rendering summary judgment improper.
Specifically, CSI contends that it did not know that Paragon, as agent, was
acting on behalf of Blue Valley, as principal, when executing the Contract.
[8] Our standard of review on summary judgment is well settled:
The party moving for summary judgment has the burden of
making a prima facie showing that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
Once these two requirements are met by the moving party, the
burden then shifts to the non-moving party to show the existence
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of a genuine issue by setting forth specifically designated
facts. Id. Any doubt as to any facts or inferences to be drawn
therefrom must be resolved in favor of the non-moving
party. Id. Summary judgment should be granted only if the
evidence sanctioned by Indiana Trial Rule 56(C) shows there is
no genuine issue of material fact and that the moving party
deserves judgment as a matter of law. Freidline v. Shelby Ins.
Co., 774 N.E.2d 37, 39 (Ind. 2002).
Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
[9] To avoid personal liability, an agent must, at the time of contracting, disclose
the capacity in which he acts and the existence and identity of his principal.
Brown v. Owen Litho Serv., Inc., 179 Ind. App. 198, 201, 384 N.E.2d 1132, 1135
(1979). Generally, whether there is an agency relationship is a question of fact,
but if the evidence is undisputed, summary judgment may be appropriate.
Rogers v. Sigma Chi Int’l Fraternity, 9 N.E.3d 755, 764 (Ind. Ct. App. 2014).
[10] With respect to Dunckel in his individual capacity, the evidence is undisputed
that at all times, he acted as an agent for Paragon and that CSI knew that
Dunckel was acting as such. Dunckel is not named in or identified as a party to
the Contract. The signature block bearing his signature identifies that he was
providing a “Signature for Client” and reflects that he was signing in an official
capacity as president of Paragon. Appellant’s App. Vol. II p. 166. Nothing in
the record remotely suggests that there was any confusion about the fact that
Dunckel was acting on behalf of Paragon. Consequently, the trial court did not
err by granting summary judgment in favor of Dunckel as an individual.
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[11] Next, with respect to Paragon, CSI seems to argue that it did not know that
Paragon was acting as an agent. The record belies that argument. CSI had
prior dealings with Paragon and was aware that Paragon was a third-party
property manager. In fact, it is undisputed that CSI knew that Paragon was
acting as an agent in its operation of Chapel Hill Apartments. Indeed, CSI
drafted the Contract, which stated that the contracting parties were CSI and
Chapel Hill Apartments. Paragon is not named in or identified as a party to the
Contract.
[12] It is somewhat unclear from the brief, but CSI appears to be arguing that even if
it was aware that Paragon was acting as an agent, CSI did not actually know
the identity of Blue Valley as Paragon’s principal. This Court has explained
what evidence is necessary for an agent to avoid personal contractual liability:
It is well-established that an agent, in order to avoid personal
liability, must, at the time of contracting, disclose both the
capacity in which he acts and the existence and identity of his
principal. It is not sufficient that the third person
has knowledge of facts and circumstances which would, if
reasonably followed by inquiry, disclose the existence
and identity of the principal. It is not the duty of third persons to
seek out the identity of the principal. Rather, the weight of
authority holds that the duty to disclose the identity of the
principal is upon the agent. Thus, unless the third person knows
or unless the facts are such that a reasonable person would know of the
principal’s existence and identity, the agent must be held to be acting
for an undisclosed principal and is held liable in the same manner
as if he were the principal. Actual knowledge brought by the
agent or, what is the same thing that which to a reasonable man
is equivalent to actual knowledge is the criterion of the law.
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Brown, 179 Ind. App. at 201-02, 384 N.E.2d at 1135 (internal citations and
footnotes omitted) (emphasis added).
[13] Here, as noted above, CSI was actually aware that Paragon was acting as a
third-party property manager—in other words, as an agent. It is possible that
CSI may not have been aware that the apartment complex had been purchased
by Blue Valley,1 but it was certainly aware that the complex was owned by an
entity other than Paragon. In other words, Paragon did not attempt to hide the
proverbial ball, and CSI did not operate under a mistaken impression. The
parties were on the same page when executing the Contract, understanding that
Dunckel signed on behalf of Paragon, which entered into the agreement on
behalf of the owner of the apartment complex—Blue Valley.
[14] In sum, the evidence is undisputed that CSI was aware that Paragon was acting
on behalf of the property owner and that, in drafting the Contract, CSI did not
include Paragon as a contracting party. It is likewise undisputed that Paragon
was acting as an agent on behalf of Blue Valley and, as such, cannot be held
liable for any alleged breaches of the Contract.
[15] The judgment of the trial court is affirmed.
Bradford, C.J., and Pyle, J., concur.
1
The recorded Sheriff’s Deed was a public record that was available before the Contract was executed.
Therefore, had CSI conducted a search, it would have learned that the apartment complex had been sold to
Blue Valley.
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