Anderson v. Horizon Homes, Inc., No. 06A05-9401-CV-11

Docket NºNo. 06A05-9401-CV-11
Citation644 N.E.2d 1281
Case DateJanuary 10, 1995
CourtCourt of Appeals of Indiana

Page 1281

644 N.E.2d 1281
Terry W. ANDERSON and Kathy Anderson, Appellants,
v.
HORIZON HOMES, INC., Appellee.
No. 06A05-9401-CV-11.
Court of Appeals of Indiana,
Fifth District.
Jan. 10, 1995.
Transfer Denied April 21, 1995.

Page 1283

Michael A. Ksenak, Bowman & Ksenak, Indianapolis, for appellants.

Philip L. Gundlach, Hinkle Keck & Gundlach, Danville, for appellee.

OPINION

SHARPNACK, Chief Judge.

Terry and Kathy Anderson ("the Andersons") appeal from the trial court's entry of summary judgment in favor of Horizon Homes, Inc. ("Horizon"), awarding damages to Horizon and ordering that the Andersons should take nothing by way of their counterclaim. We affirm.

The Andersons raise two issues for our review:

1. whether the trial court erred as a matter of law in the amount of damages it awarded to Horizon; and,

2. whether the trial court erred as a matter of law in denying the Andersons' counterclaim for damages.

Horizon cross-appeals, raising a single issue for our review:

1. whether the Andersons filed a late praecipe, thereby forfeiting their right to bring this appeal. 1

In June, 1988, the Andersons purchased real estate in Plainfield, Indiana. The Andersons then contracted with Horizon for the construction of a single-family residence on the lot at a price of $89,835.00. The contract provided for a $500.00 payment to Horizon at the time of execution, with the balance to be paid in four installments.

Pursuant to the contract, Horizon assumed responsibility for obtaining permits and bonds necessary for prosecution of the work. The Andersons assumed responsibility for complying with all zoning requirements and assumed "all responsibilities and costs for

Page 1284

obtaining variances, rezonings, changes of set-back lines or easements." Record, pp. 27-28. The contract required the Andersons to give directions to Horizon for the location of the house and to provide Horizon with a staked survey. Further, the Andersons were made "solely responsible and liable for mistakes or errors in the location of the dwelling due to [the Andersons'] directions." Record, p. 28. The Andersons did not provide Horizon with a staked survey; they simply instructed Horizon to center the house from side to side on the lot. Pursuant to applicable restrictions, the house was placed at the front set-back line.

Horizon commenced construction of the house on September 16, 1988, without first obtaining a building permit. One month later, the Town of Plainfield advised Horizon to cease construction until a building permit was obtained. On October 21, 1988, Horizon submitted a building permit application. The application was denied on the grounds that the back of the house encroached into a flood plain. A second application made on November 2, 1988, was denied on the same grounds. On November 5, 1988, Horizon was paid the first draw for work completed to date.

Horizon commenced discussions with the Town of Plainfield and the Department of Natural Resources ("DNR") to find a solution to the encroachment problem. In early December, 1988, the Andersons learned of Horizon's failure to obtain a building permit and the encroachment problem, and hired counsel. On February 13, 1989, Horizon submitted an application to the DNR seeking permission to encroach into the flood plain or, in the alternative, to have the floodway line moved. Eventually, the Andersons requested their counsel to intervene in the DNR proceedings to keep apprised of the situation and, on May 25, 1989, the Andersons were added as claimant intervenors. On July 26, 1989, by means of an agreed order, the DNR moved the floodway line fifteen feet, thereby eliminating the encroachment.

A building permit was issued on September 13, 1989, and construction on the residence resumed. Subsequently, Horizon requested payment of the second draw pursuant to the contract. The Andersons refused to pay Horizon any additional sums absent a writing from Horizon assuring completion of the house by a date certain. On October 4, 1989, the Andersons went to Horizon's office and, among other things, attempted to obtain a date certain for completion of the work. Horizon refused to provide a definite date for completion. The next day, the Andersons changed the locks on the house. In early November, 1989, the Andersons attempted to negotiate a new contract with Horizon, but these negotiations were unsuccessful.

On January 19, 1990, Horizon filed a complaint for temporary injunction, to foreclose mechanic's lien, and for damages against the Andersons. Following a change of venue, the Andersons filed their answer, affirmative defenses, and counterclaim for damages. 2 On September 15, 1992, Horizon filed its motion for summary judgment. On November 9, 1992, the Andersons filed their motion for summary judgment. On May 14, 1993, the trial court entered its order granting in part and denying in part the parties' respective motions for summary judgment. 3 The order left for resolution by trial the cross-claim of the Andersons against Lincoln Federal Savings Bank and their third-party complaint against Hardin's Creekside Estates.

The trial court ruled that Horizon was not entitled to foreclosure of its mechanic's lien because it was not timely filed and that Horizon

Page 1285

was not entitled to reimbursement of sums it paid for fines arising from its failure to obtain a building permit. The trial court awarded Horizon damages of $14,587.64 on a theory of quantum meruit and $6,958.00 for expenses incurred in obtaining the agreed order. The trial court also ordered that the Andersons should take nothing by way of their counterclaim.

On June 11, 1993, a telephonic pre-trial conference among all parties and the trial court was conducted. Thereafter, the Andersons timely filed their motion to correct errors on June 16, 1993, which was denied by the trial court on September 17, 1993. See Ind. Trial Rules 59(C), 5(E), & 6(E). The Andersons filed their praecipe on October 18, 1993. Horizon filed a motion to strike the praecipe as untimely, alleging that the motion to correct errors had been denied by operation of law forty-five days after it was filed pursuant to T.R. 53.3(A) and that under I.C. § 33-1-6-3 the trial court had lost power and control over its judgment ninety days after it was entered. On November 22, 1993, in response to the Andersons' motion, the trial court ordered the correction of its docket entry of June 11, 1993, nunc pro tunc, to reflect that the parties had agreed that the time limits of T.R. 53.3(A) would not apply.

The trial court's order of November 22, 1993, for nunc pro tunc entry provides, in pertinent part:

"The Court being duly advised in the premises, now finds as follows:

1. That the Entry of the Pre-Trial Conference held telephonically on June 11, 1993, did not completely set forth the discussions and statements of the parties and the Court, and a clerical mistake was made in not accurately depicting the content of that Pre-Trial Conference as more specifically set forth below.

2. That ... [a] conversation was held between the Court and the parties regarding the Defendants' anticipated Motion to Correct Error....

* * * * * *

4. That Trial Rule 53.3 was discussed during the Pre-Trial Conference and the Court stated to the parties that it would diligently attempt to rule on said Motion to Correct Errors within the time limitation set forth in said Rule.... The Court stated that it intended to move expeditiously in its consideration of the Motion to Correct Errors, but could not state that it could issue its ruling on said Motion within forty-five (45) days of the date the Defendant [sic] filed their Motion to Correct Errors due to [a] congested court calander [sic] and vacation. The parties advised the Court that they would provide the Court with the time necessary to properly rule on the Motion to Correct Errors.

5. The Court directs the Clerk to add the statement contained in paragraph 4 to the Court's Docket Entry of June 11, 1993, Nunc Pro Tunc."

Record, pp. 392-93.

On January 13, 1994, the Andersons filed the record of proceedings for this appeal.

I

We address first the issue raised by Horizon on cross-appeal, that is, whether the Andersons filed a late praecipe, thereby forfeiting their right to bring this appeal. See Ind. Appellate Rule 2(A). Horizon argues first that the trial court's denial of the Andersons' motion to correct errors was without legal effect because the motion already had been denied by operation of law; therefore, the Andersons' praecipe, filed thirty days after the court's denial of the motion on September 17, 1993, was late. Horizon further argues the trial court had no authority to change its previous docket entry, nunc pro tunc, to reflect that the parties had agreed that the time limit in T.R. 53.3(A) would not apply. Finally, Horizon contends that even if the parties effectively waived the time limit in T.R. 53.3(A), the court was without authority to deny the Andersons' motion to correct errors on September 17, 1993, because it lost control over its judgment on August 12, 1993 pursuant to Ind.Code § 33-1-6-3.

We address first Horizon's contention that the Andersons' motion to correct errors was denied by operation of law pursuant to

Page 1286

T.R. 53.3. Indiana Trial Rule 53.3(A) provides:

"In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied...."

T.R. 53.3(A). Horizon contends that the Andersons' motion to correct errors was deemed denied pursuant to T.R. 53.3(A) forty-five days after it was filed, i.e., on July 31, 1993 and, therefore, the Andersons' praecipe, filed October 18, 1993, was not timely. The time limit in T.R. 53.3(A) does not apply, however,...

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33 practice notes
  • Haimbaugh Landscaping, Inc. v. Jegen, No. 49A02-9407-CV-452
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1995
    ...the moving party is entitled to judgment as a matter of law. See, e.g., Anderson v. Horizon Homes, Inc. (1995) 5th Dist. Ind.App., 644 N.E.2d 1281, 1289, trans. denied; Laudig v. Marion County Board of Voters Registration (1992) 5th Dist. Ind.App., 585 N.E.2d 700, trans. I. ACQUIRING A MECH......
  • Tyler v. Trs. of Purdue Univ., No. 4:08–CV–00090 JD.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 18, 2011
    ...interpreted as to relieve a party of a liability fairly within the scope of the contract's terms.” Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281, 1290 (Ind.Ct.App.1995) (citing Radio Picture Show P'ship v. Exclusive Int'l Pictures, Inc., 482 N.E.2d 1159, 1167 (Ind.Ct.App.1985)). In this ......
  • Tyler v. Trustees of Purdue Univ., No. 4:08-CV-00090 JD
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 18, 2011
    ...interpreted as to relieve a party of a liability fairly within the scope of the contract's terms." Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281, 1290 (Ind. Ct. App. 1995) (citing Radio Picture Show P'ship v. Exclusive Int'l Pictures, Inc., 482 N.E.2d 1159, 1167 (Ind. Ct. App. 1985)). In......
  • Humbert v. Smith, No. 18A04-9504-CV-149
    • United States
    • Indiana Court of Appeals of Indiana
    • September 28, 1995
    ...and a procedural rule adopted by the supreme court, the latter shall take precedence. Anderson v. Horizon Homes (1995), Ind.App., 644 N.E.2d 1281, 1288, trans. denied; see, e.g., Augustine v. First Fed. Sav. & Loan Ass'n of Gary (1979), 270 Ind. 238, 241, 384 N.E.2d 1018, 1020; Neeley v. St......
  • Request a trial to view additional results
33 cases
  • Haimbaugh Landscaping, Inc. v. Jegen, No. 49A02-9407-CV-452
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1995
    ...the moving party is entitled to judgment as a matter of law. See, e.g., Anderson v. Horizon Homes, Inc. (1995) 5th Dist. Ind.App., 644 N.E.2d 1281, 1289, trans. denied; Laudig v. Marion County Board of Voters Registration (1992) 5th Dist. Ind.App., 585 N.E.2d 700, trans. I. ACQUIRING A MECH......
  • Tyler v. Trs. of Purdue Univ., No. 4:08–CV–00090 JD.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 18, 2011
    ...interpreted as to relieve a party of a liability fairly within the scope of the contract's terms.” Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281, 1290 (Ind.Ct.App.1995) (citing Radio Picture Show P'ship v. Exclusive Int'l Pictures, Inc., 482 N.E.2d 1159, 1167 (Ind.Ct.App.1985)). In this ......
  • Tyler v. Trustees of Purdue Univ., No. 4:08-CV-00090 JD
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 18, 2011
    ...interpreted as to relieve a party of a liability fairly within the scope of the contract's terms." Anderson v. Horizon Homes, Inc., 644 N.E.2d 1281, 1290 (Ind. Ct. App. 1995) (citing Radio Picture Show P'ship v. Exclusive Int'l Pictures, Inc., 482 N.E.2d 1159, 1167 (Ind. Ct. App. 1985)). In......
  • Humbert v. Smith, No. 18A04-9504-CV-149
    • United States
    • Indiana Court of Appeals of Indiana
    • September 28, 1995
    ...and a procedural rule adopted by the supreme court, the latter shall take precedence. Anderson v. Horizon Homes (1995), Ind.App., 644 N.E.2d 1281, 1288, trans. denied; see, e.g., Augustine v. First Fed. Sav. & Loan Ass'n of Gary (1979), 270 Ind. 238, 241, 384 N.E.2d 1018, 1020; Neeley v. St......
  • Request a trial to view additional results

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