James Whitaker v. Martin C. Brunner (9/3/04 IndCtApp) [Contract]
Friedlander, Judge
James and Karl Whitaker attempted to purchase an auto parts business from Martin C. Brunner, but the Whitakers failed to perform some of their obligations under the contract. The Whitakers sued Brunner for breach of contract. Brunner counter-sued the Whitakers on the same grounds. Brunner eventually prevailed in his lawsuit. The Whitakers appeal that judgment, presenting the following restated issues for review: 1. Did the trial court err in concluding that the Whitakers breached the contract by allowing the inventory to diminish? 2. Is the amount awarded by the court for breach of contract supported by the evidence? 3. Is the award of treble damages supported by the evidence? We affirm in part, reverse in part, and remand with instructions. * * *Posted by Marcia Oddi at September 3, 2004 02:06 PMThe evidence reflects that the Whitakers charged inventory items on Brunner’s account, sold the items, and kept the proceeds. The foregoing excerpts from Brunner’s testimony permit a reasonable inference that Brunner is financially responsible for the unpaid invoices for those items. That, in turn, is sufficient to prove that the Whitakers knowingly exerted unauthorized control over Brunner’s property without any contractual basis for doing so. Therefore, Brunner established the elements of criminal conversion by a preponderance of the evidence. Judgment affirmed in part, reversed in part, and remanded with instructions to re-calculate the amount of the damage award consistent with this opinion.
BAKER, J., and BAILEY, J., concur.