Contech Architects and Engineers, Inc. v. Courshon, No. 2-777

Docket NºNo. 2-777
Citation387 N.E.2d 464, 180 Ind.App. 77
Case DateMarch 29, 1979
CourtCourt of Appeals of Indiana

Page 464

387 N.E.2d 464
180 Ind.App. 77
CONTECH ARCHITECTS AND ENGINEERS, INC., and MEP Corporation,
Appellants (Defendants-Intervenors Below),
v.
Jack R. COURSHON, as Nominee of the Trustees of First
Mortgage Investors, a Massachusetts Business Trust, First
Mortgage Investors, a Massachusetts Business Trust, the
Fourteen and Twenty Four Corporation, an Indiana
Corporation, Robert L. Yost, Betty A. Yost, Environmental
Contractors, Inc., Chicago Title Insurance Company, and
Wayne Asphalt and Construction Company, Inc.,
Appellees(Plaintiff, Defendants-Intervenors Below).
No. 2-777 A 276.
Court of Appeals of Indiana, Second District.
March 29, 1979.

[180 Ind.App. 78]

Page 465

Thomas S. Locke, James A. Federoff, Fort Wayne, for appellants.

Stephen E. Lewis, George E. Fruechtenicht and Martin T. Fletcher, John R. Clifton, Jr., Lindy G. Moss, Stephen H. Trexler, Fort Wayne, for appellees.

YOUNG, Judge.

First Mortgage Investors (FMI) sued to foreclose its mortgage. The defendants were the Fourteen & Twenty-Four Corp. (the mortgagor) and Robert and Betty Yost, guarantors of the underlying promissory note. The trial court ordered foreclosure. That portion of the judgment is not challenged on this appeal. The issues before us spring from certain proceedings which were tried simultaneously with the foreclosure action. These proceedings included actions to foreclose [180 Ind.App. 79] mechanic's liens on the mortgaged property and actions to recover personal judgments for work performed on the property. We agree with the trial court's resolution of these issues and affirm.

The real estate secured by the mortgage was used for the development of the Park West Shopping Center in Fort Wayne, Indiana. To carry out the necessary construction, the Fourteen & Twenty-Four Corp. entered into various agreements with subcontractors. Appellant Contech Architects & Engineers, Inc. (Contech) signed a contract with the corporation to render certain architectural and engineering services. After the suit to foreclose had been filed, Contech allegedly performed additional work on the shopping center and then filed a lien against the property. Contech intervened in the foreclosure proceeding in order to enforce its lien. The trial court determined that the lien was not valid. Contech challenges this decision and also raises some additional questions addressed in the course of this opinion.

A second subcontractor was the co-appellant MEP Corporation (MEP). MEP entered into a verbal agreement with the general contractor, the Yost Cos., to perform plumbing, heating and air conditioning work. After the suit to foreclose had been filed, MEP allegedly performed additional work on the shopping center. MEP then filed two liens against the property and intervened in this action to enforce them. The trial court denied enforcement. In this appeal MEP attacks this determination and raises other questions addressed below.

Environmental Contractors, Inc. (Environmental), a co-appellee, subcontracted with MEP. The trial court rendered judgment in favor of Environmental and against MEP for work performed by Environmental. This branch of the judgment gives rise to the remaining issues to be considered on this appeal.

Contech and MEP have each filed a brief with this court. They have also filed a joint reply brief. The Fourteen & Twenty-Four Corp., which is now in receivership, has not filed any brief. The appeal as it relates to Environmental and MEP has been separately briefed. Finally, co-appellee Chicago Title Ins. Co. (Chicago Title), the title insurer for FMI, has briefed this appeal insofar as the issues relate to FMI. With the parties thus aligned, we turn to the issues before us.

[180 Ind.App. 80]

Page 466

A.

Contech challenges the trial court's decision that Contech's lien was not valid. The court found that Contech's lien was filed on May 28, 1976. However, the court denied enforcement of the lien because it was not filed within the sixty-day period required by IC 1971, 32-8-3-3 (Burns Code Ed.).

The burden was on Contech to prove that it complied with the statute. Stanray Corp. v. Horizon Const. Co., (1976) Ind.App., 342 N.E.2d 645, 652; Van Wells v. Stanray Corp., (1976) Ind.App., 341 N.E.2d 198, 200. In the case at hand, Contech failed to carry the burden and suffered a negative judgment. Consequently, the decision of the trial court cannot be reversed unless it is contrary to law. The decision is contrary to law only if the evidence was without conflict and pointed to one conclusion, but the trial court reached the opposite conclusion. Stanray Corp. v. Horizon Const. Co., supra. In making this assessment we neither weigh the evidence nor evaluate the credibility of witnesses. Umbreit v. Chester B. Stem, Inc., (1978) Ind.App., 373 N.E.2d 1116, 1117. We consider only the evidence which is favorable to the judgment. Blankenship v. Huesman, (1977) Ind.App., 362 N.E.2d 850, 852. For the most part, Contech ignores this standard of review and merely invites us to reweigh certain items of evidence sifted from the record.

Turning to the evidence, the record discloses that the lien was filed May 28, 1976. Contech directs our attention to certain time cards (introduced into evidence by Chicago Title) which Contech argues demonstrate that work was performed by it in April, 1976, and within sixty days prior to May 28, 1976. Contech couples to this the testimony of Mr. Kriesel, its president, that entries on the cards indicate that work was performed in April, 1976. In further support of its position, Contech introduced an invoice dated May 6, 1976, addressed to the Fourteen & Twenty-Four Corp. and in the amount of $123.25.

However, the trial court could reasonably conclude that the weight of these items of evidence was minimal. Mr. Kriesel, on cross-exam, was not able to articulate the precise work performed in April, 1976, or to produce any work product to substantiate the work allegedly performed [180 Ind.App. 81] by Contech. Furthermore, the trial court's attention was directed to the fact that Contech's time card for April, 1976, did not pinpoint the exact week in which the alleged work was performed. In contrast, the other cards maintained by Contech contained weekly tabulations. These circumstances cast suspicion on Kriesel's testimony and on Contech's claim that it performed work in April, 1976. Furthermore in oral argument on this appeal, Contech expressly acknowledged that the work which allegedly served as the basis for Contech's lien may have been performed outside the sixty-day limit.

Viewing the evidence in the light most favorable to the judgment, and in light of Contech's concession, we cannot believe that a reasonable person would be forced to conclude that Contech complied with IC 32-8-3-3. Moreover, and only with respect to our resolution of this issue, the trial court alternatively was justified in concluding that any work allegedly performed by Contech within the sixty days preceding May 28, 1976, was "incidental" and therefore insufficient to tack the lien to work completed outside the sixty-day limit. "It is a general, recognized rule of law that where the time has elapsed for the filing of a mechanic's lien for labor and material furnished by such claimant, that the claimant cannot revive the limitation period by the doing of some act incidental thereto." Ellis v. Auch, (1954) 124 Ind.App. 454, 118 N.E.2d 809, 813; See Gooch v. Hiatt, (1975) Ind.App., 337 N.E.2d 585, 588.

Accordingly, we find no error in the trial court's decision that Contech's lien was invalid.

B.

Contech argues that its lien has priority over FMI's mortgage. Contech also argues that it is entitled to attorneys' fees. Both these arguments are predicated upon the validity of the lien. We have heretofore

Page 467

determined that the trial court could justifiably conclude the lien was invalid. Thus, the issues of priority and of attorneys' fees must be resolved against Contech. They need not be further considered by us.

C.

The trial court rendered a money judgment in favor of Contech and [180 Ind.App. 82] against the Fourteen & Twenty-Four Corp. Contech argues that the damages are inadequate and that the award should be increased by the sums of.$460.25 and $21,000.

The.$460.25 allegedly owed to Contech was for work which Contech claims to have performed in the spring of 1976. This includes some of the same work which was crucial to a determination of the validity of Contech's lien.

With respect to this item of damages, Contech is again appealing from a negative judgment. Consequently, we may reverse only if a reasonable person would be forced to conclude that Contech is entitled to recover the disputed amount. We have examined the pages of the testimony which Contech cites to support its position. Our examination discloses nothing more than weak and equivocal testimony by Mr. Kriesel. The trial court's decision to discredit this evidence was certainly within the bounds of reason. Accordingly, the trial court did not err by failing to award Contech the additional amount of.$460.25.

We turn now to consider Contech's argument with respect to the sum of $21,000. This sum represents the amount of rent which the trial court determined to be owed by Contech to the Fourteen & Twenty-Four Corp. The trial court, therefore, deducted this sum from the amount of damages which Contech recovered from the Fourteen & Twenty-Four Corp.

Contech argues in its motion to correct errors that the deduction was improper for the sole reason that "said money judgment erroneously included a set-off of Twenty One Thousand Dollars ($21,000.00) for back rent due, even though a claim for same was never asserted in any pleading filed with this Court . . . ." No other reason is included either in the motion or the accompanying memorandum.

Contech's argument is without merit. The issue raised by Contech could easily have been mooted at trial by amending the...

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10 practice notes
  • Weisman v. Hopf-Himsel, Inc., HOPF-HIMSE
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Marzo 1989
    ...were sufficient to create a prima facie case in an action on open account. Contech Architects and Engineers v. Courshon (1979), 180 Ind.App. 77, 87, 387 N.E.2d 464, 470; and see, Building Systems, Inc. v. Rochester Metal Products, Inc. (1976), 168 Ind.App. 12, 16, 340 N.E.2d 791, 794. Howev......
  • S.M.V. v. Littlepage, No. 1-880A205
    • United States
    • Indiana Court of Appeals of Indiana
    • 21 Diciembre 1982
    ...the questions properly presented and decide the case on its merits. Contech Architects and Engineers, Inc. v. Courshon, (1979) Ind.App., 387 N.E.2d 464. We have the benefit of an able brief submitted by Amicus Curiae Allstate Insurance Company, which insured the defendant in the wrongful de......
  • Biggs v. Marsh, No. 3-981A237
    • United States
    • Indiana Court of Appeals of Indiana
    • 22 Marzo 1983
    ...a prima facie showing of error, and we have discretion in its invocation. Contech Architects & Engineers v. Courshon (1979), Ind.App., 387 N.E.2d 464, 473. In this case we will not reverse merely for the failure to file Secondly, plaintiffs point out that the summary judgments granted, exce......
  • Radio Picture Show Partnership v. Exclusive Intern. Pictures, Inc., No. 1-684A141
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Septiembre 1985
    ...raised, or argued at the trial level. Therefore, this issue is waived. As stated in Contech Architects and Engineers v. Courshon, (1979) 180 Ind.App. 77, 387 N.E.2d 464, "Consequently, the law does not permit Contech now to writing this entirely new argument from its motion to correct error......
  • Request a trial to view additional results
10 cases
  • Weisman v. Hopf-Himsel, Inc., HOPF-HIMSE
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Marzo 1989
    ...were sufficient to create a prima facie case in an action on open account. Contech Architects and Engineers v. Courshon (1979), 180 Ind.App. 77, 87, 387 N.E.2d 464, 470; and see, Building Systems, Inc. v. Rochester Metal Products, Inc. (1976), 168 Ind.App. 12, 16, 340 N.E.2d 791, 794. Howev......
  • S.M.V. v. Littlepage, No. 1-880A205
    • United States
    • Indiana Court of Appeals of Indiana
    • 21 Diciembre 1982
    ...the questions properly presented and decide the case on its merits. Contech Architects and Engineers, Inc. v. Courshon, (1979) Ind.App., 387 N.E.2d 464. We have the benefit of an able brief submitted by Amicus Curiae Allstate Insurance Company, which insured the defendant in the wrongful de......
  • Biggs v. Marsh, No. 3-981A237
    • United States
    • Indiana Court of Appeals of Indiana
    • 22 Marzo 1983
    ...a prima facie showing of error, and we have discretion in its invocation. Contech Architects & Engineers v. Courshon (1979), Ind.App., 387 N.E.2d 464, 473. In this case we will not reverse merely for the failure to file Secondly, plaintiffs point out that the summary judgments granted, exce......
  • Radio Picture Show Partnership v. Exclusive Intern. Pictures, Inc., No. 1-684A141
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Septiembre 1985
    ...raised, or argued at the trial level. Therefore, this issue is waived. As stated in Contech Architects and Engineers v. Courshon, (1979) 180 Ind.App. 77, 387 N.E.2d 464, "Consequently, the law does not permit Contech now to writing this entirely new argument from its motion to correct error......
  • Request a trial to view additional results

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