CAPITAL DRYWALL SUPPLY INC. v. JAI JAGDISH INC., 71A03-1004-PL-189.
| Decision Date | 29 September 2010 |
| Docket Number | No. 71A03-1004-PL-189.,71A03-1004-PL-189. |
| Citation | 934 N.E.2d 1193 |
| Parties | CAPITAL DRYWALL SUPPLY, INC. and Old Fort Building Supply Company, Inc., Appellants, v. JAI JAGDISH, INC. and Ranjan Amin, Appellees. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Edward P. Benchik, Shedlak & Benchik Law Firm LLP, South Bend, IN, Jeffery A. Johnson, Christopher R. Putt, Jennifer L. Elbenni, May Oberfell Lorber, Mishawaka, IN, Attorneys for Appellants.
James A. Masters, Nemeth, Feeney, Masters & Campiti, P.C., South Bend, IN, Attorney for Appellees.
Capital Drywall Supply, Inc. (“Capital Drywall”) and Old Fort Building Supply Company, Inc. (“Old Fort”) appeal the trial court's order, following a hearing, that granted the cross-motion for summary judgment filed by Jai Jagdish, Inc. (“JJI”) and Ranjan Amin (“Amin”) on Capital Drywall's and Old Fort's cross-claims to foreclose on mechanic's liens. We consider the following issues for review:
1. Whether the trial court abused its discretion by limiting the admissibility of the Affidavit of Pamela Hartman, which was designated by Old Fort in response to JJI and Amin's cross-motion for summary judgment.
2. Whether the trial court erred when it denied Capital Drywall's and Old Fort's motions for summary judgment and granted JJI and Amin's cross-motion for summary judgment. 1
We hold that any error in the trial court's ruling that limited the admissibility of the Hartman Affidavit was harmless because the lien claimants did not comply or substantially comply with the mechanic's lien statute. We also hold that the lien claimants did not perfect their liens because they both used an incorrect owner's name in their notices of intent to hold a mechanic's lien. And we hold that the lien claimants did not substantially comply with the mechanic's lien statute when they listed an incorrect owner's name in their lien notices, even if such information was obtained by telephone from the public office designated by statute.
We affirm.
In 2008, Capital Drywall and Old Fort supplied materials to Complete Construction & Demolition, Inc. (“the Contractor”) for the reconstruction of a hotel on U.S. Highway 31 in South Bend (“the Real Estate”). Neither Capital Drywall nor Old Fort received payment for those materials. On September 9, Pamela Hartman, an Old Fort employee, “contacted the St. Joseph County Auditor's Office to obtain the name of the owner of record” of the Real Estate. Old Fort's App. at 107. In a subsequently prepared affidavit (“Hartman Affidavit”), Hartman avers that the “St. Joseph County Auditor's Office records indicated that Ranjan J. Amin was the owner of record” of the Real Estate. Id. at 108. On September 11, Old Fort filed in the St. Joseph County Recorder's Office a “Notice of Mechanic's Lien” directed to Amin and the Contractor. Id. at 67. Old Fort's Notice of Mechanic's Lien did not list any other owner of the Real Estate.
Similarly, on April 25, 2008, former Capital Drywall employee Hollie Flint “placed a call to the St. Joseph County Assessor's Office to inquire as to the name of the owner” of the Real Estate. Old Fort's App. at 128. 3 In a subsequently prepared affidavit (“Flint Affidavit”), Flint avers that she “was informed that Rahan [sic] Amin was the record owner of the parcel[.]” Id. Six months later, on October 24, 2008, Capital Drywall filed its “Notice of Intention to Hold Construction Lien” directed to “Rahan [sic] J. Amin.” Id. at 42. Capital Drywall's notice also did not list any other owner of the Real Estate.
At the time Old Fort and Capital Drywall filed their notices of intent to hold a mechanic's lien, JJI was the record owner of the Real Estate. Amin was the former owner and had transferred his interest in the Real Estate to JJI on February 12, 2008. The Warranty Deed showing that transaction was recorded March 12, 2008.
On January 3, 2009, D & B Plumbing LLC (“D & B”) filed its complaint to foreclose on a mechanic's lien (“Complaint”) against the Real Estate. The Complaint named as defendants JJI, Amin, Capital Drywall, Old Fort, and others. On January 30, Old Fort filed its answer, cross-claim, counterclaim, and third-party complaint to foreclose on its mechanic's lien. And on March 11, Capital Drywall filed its answer, cross-claim, and counterclaim, seeking to foreclose on its mechanic's lien. On April 30, JJI and Amin filed their answer to Capital Drywall's cross-claim and Old Fort's cross-claim and third party complaint. 4 On July 16, Old Fort obtained a default judgment against the Contractor and Russell Aker on the third-party complaint in the amount of $15,638.69.
On August 26, Old Fort filed a motion for summary judgment seeking to foreclose on its mechanic's lien. On September 28, JJI and Amin filed a joint response in opposition to Old Fort's summary judgment motion and a cross-motion for summary judgment. On December 22, Old Fort filed its response to JJI and Amin's cross-motion for summary judgment. Old Fort's response designated the Hartman Affidavit as evidence.
During the same time frame, on September 30, JJI and Amin filed a motion for summary judgment against Capital Drywall. On December 23, Capital Drywall filed its response to JJI and Amin's motion for summary judgment. In support of its response, Capital Drywall designated the Flint Affidavit as evidence.
On January 5, 2010, JJI and Amin filed a motion to strike paragraphs 6 and 7 of the Hartman affidavit and paragraphs 4, 5, and 6 of the Flint Affidavit, arguing that those paragraphs contained inadmissible hearsay. On February 25, the trial court conducted a hearing on the summary judgment motions and then took the matter under advisement. On March 5, the court entered its order on the summary judgment motions and motions to strike (“Order”). The Order provides, in relevant part, that:
[JJI] and Amin's Motion to strike paragraphs 6 and 17[sic] of the Affidavit of Pamela Hartman is denied. However, these paragraphs are considered only for the purpose of the affiant's statements as to contacts she made, not as to the information she was allegedly provided by the contacts in question.
[JJI] and Amin's Motion to strike paragraphs 4 and 5 of the Affidavit of Hollie Flint is denied. However, these paragraphs are considered only for the purpose of the affiant's statements as to contacts she made, not as to the information she was allegedly provided by the contacts in question. [JJI] and Amin's Motion to strike paragraph 6 of the Affidavit of Hollie Flint is granted.
Old Fort's motion for summary judgment is denied. The Cross Motion for Summary Judgment filed by [JJI] and Amin is granted. Judgment is entered for [JJI] and Amin on Old Fort's Complaint.
The Cross [sic] Motion for Summary Judgment filed by [JJI] and Amin is granted. Judgment is entered for [JJI] and Amin on Capital Drywall's Complaint.
Capital Drywall's App. at 85; Old Fort's App. at 8. Capital Drywall and Old Fort now appeal. 5
Old Fort contends that the trial court abused its discretion when it limited the admissibility of the Hartman Affidavit, which Old Fort had designated in opposition to JJI and Amin's cross-motion for summary judgment. Specifically, Old Fort argues that the trial court should have considered paragraphs six and seven of the Affidavit “to show that Ms. Hartman received the information [from the Auditor's Office and Area Plan Commission] (incorrect as that may have been) and why Old Fort ultimately identified Ranjan Amin as the owner of the Real Estate at issue.” Old Fort's Brief at 8. JJI and Amin counter that those paragraphs of the Hartman Affidavit contain hearsay and, therefore, the trial court properly limited its consideration of them.
Indiana Trial Rule 56(E) provides in relevant part that affidavits submitted in support of or in opposition to a summary judgment motion “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” “The requirements of T.R. 56(E) are mandatory-therefore, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits.” Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind.Ct.App.2005) (citing Interstate Auction, Inc. v. Cent. Nat'l Ins. Group, Inc., 448 N.E.2d 1094, 1101 (Ind.Ct.App.1983)). Supporting and opposing affidavits also must present admissible evidence that should follow substantially the same form as though the affiant were giving testimony in court to comply with the requirements of T.R. 56(E). Comfax Corp. v. N. Am. Van Lines, 638 N.E.2d 476, 481 (Ind.Ct.App.1994) (citing Coghill v. Badger, 430 N.E.2d 405, 406 (Ind.Ct.App.1982)).
Hearsay is not admissible except as provided by law or by other court rules. Ind. Evidence Rule 802. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Evidence Rule 602 further provides that a “witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”
In her affidavit, Hartman averred in relevant part:
6. The St. Joseph County Auditor's Office records indicated that Ranjan J. Amin was the owner of record of the Real Estate.
7. I further verified this information with the Area Plan Commission because the Real Estate was in the process of being annexed.
Old Fort's App. at 108. Again, the trial court denied JJI and Amin's motion to strike the Hartman Affidavit but considered these two paragraphs “only for the purpose of the affiant's statements as to contacts she made, not as to the information she was allegedly provided by the...
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