Lawshe v. Glen Park Lumber Co., Inc., 3-777A185

Decision Date08 May 1978
Docket NumberNo. 3-777A185,3-777A185
PartiesJohn LAWSHE and Dorothy Lawshe, Appellants (Defendants below), v. GLEN PARK LUMBER COMPANY, INC., Appellee (Plaintiff below).
CourtIndiana Appellate Court

Lowell E. Enslen, Gary K. Matthews, Hammond, Thomas R. Fadell, Gary, for appellants.

Jack W. Lund, Matthew P. Dogan, Gary, for appellee.

STATON, Judge.

John and Dorothy Lawshe appeal from a judgment entered against them as the titleholders of certain real estate and in favor of Glen Park Lumber Company, Inc. ("Glen Park"), who provided materials for the construction of a house on the Lawshes' property. The Lawshes contend that the judgment rendered by the trial court is contrary to law.

We find no error, and we affirm.

The evidence most favorable to the judgment of the trial court shows that in June of 1966, John and Dorothy Lawshe contracted with Jack Ware for the construction of a single family residence upon the Lawshes' land. Ware, in turn, subcontracted with Glen Park. Pursuant to the terms of the subcontract, Glen Park was to provide certain construction materials in exchange for payments from Ware totaling approximately $6,000. Ware managed to bring the project to a stage of completion where the house was fully framed and under roof before a dispute, which ultimately led to Ware's discharge, arose between him and the Lawshes. Most of the materials employed in bringing the house to that stage had been furnished by Glen Park. The Lawshes had made payments totaling $6,000 to Ware prior to his discharge. Ware, however, failed to make any payments to Glen Park.

On November 2, 1966, Karl Chnupa, the president and general manager of Glen Park, spoke with John Lawshe. During the course of the conversation, Chnupa informed Lawshe that Glen Park had not yet been paid. Lawshe's response was ". . . I'll see to it that your, ah, our account was (sic ) taken care of." Chnupa construed Lawshe's statement as a personal promise to pay for the materials. In reliance on that promise, Glen Park forbore the filing of a mechanic's lien.

After the family residence was completed, the Lawshes refused to pay for the materials supplied to Ware. Glen Park brought this action, presenting several theories of recovery in support of its contention that the Lawshes were obligated to pay. The trial court, after a trial on the merits rendered a general finding in favor of Glen Park. As a result of the general verdict, this court is bound to affirm the decision of the trial court on any theory before that court which is supported by the evidence. Sheraton Corporation of America v. Kingsford Packing Co., Inc. (1974), Ind.App., 319 N.E.2d 852.

The Lawshes contend that the exclusive procedure by which a materialman can obtain a personal judgment against the owner of the subject real estate is set forth in IC 1971, 32-8-3-9, Ind.Ann.Stat. § 43-709 (Burns 1965), 1 and that, because Glen Park failed to comply with the provisions of the statute, the trial court's judgment is contrary to the law. We agree that, as a general rule, compliance with the statutory procedure is a prerequisite to the obtaining of a personal judgment by a materialman against the owner of the real estate. Aetna Glass Corporation v. Mercury Builders, Inc. (1969), 145 Ind.App. 286, 250 N.E.2d 598. Compliance with that procedure, however, is not required where, as here, the materialman's cause of action is predicated on the owner's promise to pay for the materials.

The Lawshes further contend that the oral promise to pay for the materials is unenforceable because it falls within the purview of the Statute of Frauds. 2 At the outset, we note that the Statute of Frauds is an affirmative defense. Ind. Rules of Procedure, Trial Rule 8(C). In order to properly preserve an affirmative defense, the party with the burden of proving the defense (in this case, the Lawshes) must either have set forth the defense in a responsive pleading 3 or show that the defense was litigated by the parties. 4 Here, the Lawshes did neither. Therefore, the affirmative defense was not before the trial court for its consideration. It is axiomatic that such a defense cannot be raised for the first time on appeal.

Even if the Lawshes had presented and preserved the affirmative defense of the Statute of Frauds, we conclude that they could not prevail since the judgment could be affirmed upon the doctrine of equitable estoppel.

The basis for the doctrine of equitable estoppel is fraud, either actual or constructive, on the part of the person estopped. Marcum v. Richmond Auto Parts Co. (1971), 149 Ind.App. 120, 270 N.E.2d 884. Constructive fraud is fraud that arises by operation of law from conduct which, if sanctioned by the law, would secure an...

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    • United States
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    ...upon any legal theory by evidence introduced at trial." Id. at 648); McClamroch v. McClamroch, supra; Lawshe v. Glen Park Lumber Co. (1978), 176 Ind.App. 344, 375 N.E.2d 275. Compliance with Indiana's Adverse Claim Bank argues vehemently that Samocki lost any claim it may have had to Region......
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    ...future payment was held to satisfy the conduct requirement for application of equitable estoppel in Lawshe v. Glen Park Lumber Co., Inc. (1978), 176 Ind.App. 344, 347, 375 N.E.2d 275, 278: The basis for the doctrine of equitable estoppel is fraud, either actual or constructive, on the part ......
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    ...burden if sanctioned. Determining the existence of actionable conduct is a question for the trier of fact. Lawshe v. Glen Park Lbr. Co., Inc. (1978), Ind.App., 375 N.E.2d 275; Sheraton Corp. et al. v. Kingsford Pack (1974), 162 Ind.App. 470, 319 N.E.2d It is important to note that courts ar......
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