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Filed: 7/12/2023 10:25 AM
Clerk
Porter County, Indiana
STATE OF INDIANA ) IN THE PORTER SUPERIOR COURT 5
) SS: SITTING IN VALPARAISO, INDIANA
COUNTY OF PORTER )
SAGE-POPOVICH, INC., )
Plaintiff, )
)
vs. ) CAUSE NO. 64D05-2304-PL-003077
)
MICHIGAN SPECIALTY COATINGS, )
INC., d/b/a MSC FLOORS, )
Defendant. )
PLAINTIFF’S MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
Plaintiff, Sage-Popovich, Inc. (“SPI”), by counsel, Jaime L. Turley Perz, for its
memorandum in support of its motion for summary judgment states as follows:
I. Statement of Case and Facts
SPI is an Indiana corporation with its principal place of business in Valparaiso, Indiana,
but operates part of its aviation business at a hangar located at the Gary/Chicago International
Airport (“Gary Airport”). Nick Popovich serves as the Chairman of SPI and previously served
as its President. A:1; F.
Michigan Specialty Coatings, Inc. (“MSC”) is a Michigan corporation and does business
throughout the Midwestern United States, installing industrial and commercial flooring for
industrial and commercial customers. A:1.
SPI entered into a lease agreement with the Gary Airport under which the Gary Airport
constructed a new hangar for SPI’s use. A; F; G. MSC subsequently entered into a contract with
the Gary Airport in which MSC would apply a premium coating over the floor on the newly
constructed hangar (“flooring contract”). Id. SPI was the intended beneficiary of the flooring
contract between the Gary Airport and MSC. Id. The Gary Airport and SPI agreed that SPI
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would pay a monthly rent higher than what was originally quoted to SPI to account for the
premium floor coating. Id.
MSC installed the floor coating for the first time in the spring of 2019, prior to the time
that SPI moved into the newly constructed hangar. Id. That before Plaintiff even moved into the
hangar, the floor began to bubble and peel, and roller marks appeared all over the hangar floor.
Id.
MSC was notified by SPI of the flooring coating failures and agreed that the flooring
needed to be redone and corrected. A:2; B; C; F. MSC attempted to fix the flooring failures on
May 9, 2020, but the second attempt to install the coating appeared worse than the first attempt
as debris on the floor was painted over as well as cabinets, walls and baseboards. A:2; E; F; G.
The bubbles and roller marks remained on the floor after the second attempt to install the
coating, and the coating was uneven. Id.
SPI notified the Gary Airport of the problems with the second attempt at the coating
installation. Id. SPI then retained an expert to examine the flooring issues. A; E; F. MSC
reached out to SPI via email multiple times and admitted the problems with the coating and
discussed options to resolve the problems. B; C; D; E; F; G. MSC even scheduled three
different times with SPI to come out to the hangar to attempt to fix the flooring, but never
followed through nor even showed up to attempt a repair and has yet to fix the flooring. A:3; F;
G.
MSC’s actions in attempting to fix the negligent flooring after the first failed attempt, and
subsequent offers to fix the flooring coating after the second failed attempt establish MSC’s clear
admission of liability. The flooring contract has been breached and liability lies with the
Defendant.
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II. Standard of Review
Summary judgment is appropriate where the designated evidence shows that there is no
genuine issue of material fact. Ind. Tr. R. 56(C). The party moving for summary judgment
must make a prima facie showing that no genuine issues of material fact exist and that it is
entitled to judgment as a matter of law. Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d
633, 637 (Ind. 2012).
III. Breach of Contract
The elements of breach of contract in Indiana are the existence of a contract, the breach
of that contract, and damages. Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind. Ct. App. 1993).
When applied to the case at hand, the facts establish Defendant’s liability as a matter of
law. First, it is uncontested that Defendant installed the coating on the hangar floor pursuant to
the flooring contract. A; B; C; F; G. It is uncontested that the floor coating was defective, not
one but two times, after Defendant exclusively worked on it. MSC thus breached the flooring
contract by failing to properly install the premium coating on the hangar floor after two negligent
installations. After the first negligent installation, the flooring began to bubble and peel, and
there were roller marks visibly present throughout the entire hangar floor. A; E; F; G. After the
second negligent installation, there was visible debris which was painted over and the coating
was uneven. Id. Additionally, cabinets, walls and baseboards were all erroneously painted over
and damaged. Finally, the bubbles and roller marks which appeared after the first installation
remained after the second failed installation. Id.
Plaintiff suffered significant damages, financial and otherwise, as a result of the
negligent floor coating installations by Defendant, including, but not limited to: costs resulting
from the business interruption while Plaintiff was not allowed access to the hangar, the costs of
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experts, and the costs to move out of the hangar. A; E; F. Additionally, Plaintiff will incur
additional move out costs and business interruption losses if Plaintiff has to vacate the hangar
again for future repair work. E; F. Moreover, Plaintiff’s reputation has been damaged as in the
private aviation community, image and presentation are of crucial importance, and the
substandard flooring on the multimillion dollar hangar floor is a disgrace to Plaintiff’s image. A;
E; F.
In sum, Defendant’s actions in attempting to repair the first negligent floor coating
installation, and subsequent attempts to offer to work on the coating a third time demonstrate
Defendant’s admission of liability. Defendant breached the flooring contract and Plaintiff has
not received the benefit of its bargain; namely it has been paying higher rent for a premium floor
coating which it has not received.
IV. Conclusion
In closing, SPI has suffered severe monetary and other damages as a result of
Defendant’s breach of the flooring contract. As a result, SPI should be granted partial summary
judgment in its favor, finding the Defendant liable to the Plaintiff and this matter shall be set for
further proceedings on the issue of damages.
Respectfully submitted,
/s/ Jaime L. Turley Perz
Jaime L. Turley Perz, #24429-53
Post Office Box One
Valparaiso, IN 46384
Attorney for Plaintiff
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CERTIFICATE OF SERVICE
I certify that on July 12, 2023, I electronically filed and served the foregoing document
using the Indiana E-File System upon each party or attorney of record herein.
andrew.hahn@selective.com
By: /s/ Jaime L. Turley Perz
Jaime L. Turley Perz
Attorney for Plaintiff
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Preview
Filed: 7/12/2023 10:25 AM Clerk Porter County, Indiana STATE OF INDIANA ) IN THE PORTER SUPERIOR COURT 5 ) SS: SITTING IN VALPARAISO, INDIANA COUNTY OF PORTER ) SAGE-POPOVICH, INC., ) Plaintiff, ) ) vs. ) CAUSE NO. 64D05-2304-PL-003077 ) MICHIGAN SPECIALTY COATINGS, ) INC., d/b/a MSC FLOORS, ) Defendant. ) PLAINTIFF’S MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Sage-Popovich, Inc. (“SPI”), by counsel, Jaime L. Turley Perz, for its memorandum in support of its motion for summary judgment states as follows: I. Statement of Case and Facts SPI is an Indiana corporation with its principal place of business in Valparaiso, Indiana, but operates part of its aviation business at a hangar located at the Gary/Chicago International Airport (“Gary Airport”). Nick Popovich serves as the Chairman of SPI and previously served as its President. A:1; F. Michigan Specialty Coatings, Inc. (“MSC”) is a Michigan corporation and does business throughout the Midwestern United States, installing industrial and commercial flooring for industrial and commercial customers. A:1. SPI entered into a lease agreement with the Gary Airport under which the Gary Airport constructed a new hangar for SPI’s use. A; F; G. MSC subsequently entered into a contract with the Gary Airport in which MSC would apply a premium coating over the floor on the newly constructed hangar (“flooring contract”). Id. SPI was the intended beneficiary of the flooring contract between the Gary Airport and MSC. Id. The Gary Airport and SPI agreed that SPI 1 would pay a monthly rent higher than what was originally quoted to SPI to account for the premium floor coating. Id. MSC installed the floor coating for the first time in the spring of 2019, prior to the time that SPI moved into the newly constructed hangar. Id. That before Plaintiff even moved into the hangar, the floor began to bubble and peel, and roller marks appeared all over the hangar floor. Id. MSC was notified by SPI of the flooring coating failures and agreed that the flooring needed to be redone and corrected. A:2; B; C; F. MSC attempted to fix the flooring failures on May 9, 2020, but the second attempt to install the coating appeared worse than the first attempt as debris on the floor was painted over as well as cabinets, walls and baseboards. A:2; E; F; G. The bubbles and roller marks remained on the floor after the second attempt to install the coating, and the coating was uneven. Id. SPI notified the Gary Airport of the problems with the second attempt at the coating installation. Id. SPI then retained an expert to examine the flooring issues. A; E; F. MSC reached out to SPI via email multiple times and admitted the problems with the coating and discussed options to resolve the problems. B; C; D; E; F; G. MSC even scheduled three different times with SPI to come out to the hangar to attempt to fix the flooring, but never followed through nor even showed up to attempt a repair and has yet to fix the flooring. A:3; F; G. MSC’s actions in attempting to fix the negligent flooring after the first failed attempt, and subsequent offers to fix the flooring coating after the second failed attempt establish MSC’s clear admission of liability. The flooring contract has been breached and liability lies with the Defendant. 2 II. Standard of Review Summary judgment is appropriate where the designated evidence shows that there is no genuine issue of material fact. Ind. Tr. R. 56(C). The party moving for summary judgment must make a prima facie showing that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). III. Breach of Contract The elements of breach of contract in Indiana are the existence of a contract, the breach of that contract, and damages. Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind. Ct. App. 1993). When applied to the case at hand, the facts establish Defendant’s liability as a matter of law. First, it is uncontested that Defendant installed the coating on the hangar floor pursuant to the flooring contract. A; B; C; F; G. It is uncontested that the floor coating was defective, not one but two times, after Defendant exclusively worked on it. MSC thus breached the flooring contract by failing to properly install the premium coating on the hangar floor after two negligent installations. After the first negligent installation, the flooring began to bubble and peel, and there were roller marks visibly present throughout the entire hangar floor. A; E; F; G. After the second negligent installation, there was visible debris which was painted over and the coating was uneven. Id. Additionally, cabinets, walls and baseboards were all erroneously painted over and damaged. Finally, the bubbles and roller marks which appeared after the first installation remained after the second failed installation. Id. Plaintiff suffered significant damages, financial and otherwise, as a result of the negligent floor coating installations by Defendant, including, but not limited to: costs resulting from the business interruption while Plaintiff was not allowed access to the hangar, the costs of 3 experts, and the costs to move out of the hangar. A; E; F. Additionally, Plaintiff will incur additional move out costs and business interruption losses if Plaintiff has to vacate the hangar again for future repair work. E; F. Moreover, Plaintiff’s reputation has been damaged as in the private aviation community, image and presentation are of crucial importance, and the substandard flooring on the multimillion dollar hangar floor is a disgrace to Plaintiff’s image. A; E; F. In sum, Defendant’s actions in attempting to repair the first negligent floor coating installation, and subsequent attempts to offer to work on the coating a third time demonstrate Defendant’s admission of liability. Defendant breached the flooring contract and Plaintiff has not received the benefit of its bargain; namely it has been paying higher rent for a premium floor coating which it has not received. IV. Conclusion In closing, SPI has suffered severe monetary and other damages as a result of Defendant’s breach of the flooring contract. As a result, SPI should be granted partial summary judgment in its favor, finding the Defendant liable to the Plaintiff and this matter shall be set for further proceedings on the issue of damages. Respectfully submitted, /s/ Jaime L. Turley Perz Jaime L. Turley Perz, #24429-53 Post Office Box One Valparaiso, IN 46384 Attorney for Plaintiff 4 CERTIFICATE OF SERVICE I certify that on July 12, 2023, I electronically filed and served the foregoing document using the Indiana E-File System upon each party or attorney of record herein. andrew.hahn@selective.com By: /s/ Jaime L. Turley Perz Jaime L. Turley Perz Attorney for Plaintiff 5