G. Cowser Const., Inc. v. Nicksic

• Decision Date: 28 October 1993
• Docket Number: No. 45A04-9211-CV-409,45A04-9211-CV-409
• Parties: G. COWSER CONSTRUCTION, INC., Appellant-Plaintiff, v. John M. NICKSIC and Mary Nicksic, Husband and Wife, American Savings, FSB, A United States Corporation, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1007

622 N.E.2d 1007

G. COWSER CONSTRUCTION, INC., Appellant-Plaintiff, v. John M. NICKSIC and Mary Nicksic, Husband and Wife, American

Savings, FSB, A United States Corporation,

Appellees-Defendants.

No. 45A04-9211-CV-409.

Court of Appeals of Indiana,

Fourth District.

Oct. 28, 1993.

Michael L. Muenich, Hand, Muenich, Wilk & Reid, Highland, for appellant-plaintiff.

John M. Sedia, Tweedle & Sedia, Highland, Harold Abrahamson, Abrahamson, Reed & Adley, Hammond, for appellees-defendants.

CONOVER, Judge.

Plaintiff-Appellant G. Cowser Construction, Inc. (Cowser) appeals the Lake Superior Court, Room Five's judgment in its favor foreclosing a mechanic's lien and awarding money damages against Defendants-Appellants John M. Nicksic and Mary Nicksic, husband and wife, and American Savings, FSB, a United States Corporation (collectively, Nicksic).

We affirm.

The issues presented by this appeal are whether

(a) the judgment in Nicksic's favor on his counterclaim against Cowser is contrary to law and the evidence, and

(b) the trial court erred by failing to award damages for

1. properly chargeable interest, and

2. reasonable attorney fees for Cowser's counsel.

Nicksic, a homeowner, and Cowser, a cement contractor, entered into a contract for Cowser to do some cement work on Nicksic's house during the winter. Nicksic acted as his own general contractor.

While doing the cement work, Cowser neglected to lay down required underlayment before pouring the basement floor, and laid up some cement work without dewatering, but in general did those things it was required to do under the contract's provisions. Also, some of the cement work was damaged when it was afforded no protection while setting up during sub zero weather, i.e., it froze. After completion, some of Cowser's cement work leaked.

When Nicksic did not pay Cowser, it filed a mechanic's lien, then this suit seeking its foreclosure and damages for breach of contract. Nicksic counterclaimed asserting Cowser's workmanship was substandard. After trial, the court entered findings of fact and conclusions of law upon request of Cowser and judgment favoring Cowser on its complaint and favoring Nicksic on his poor workmanship counterclaim which allowed Nicksic a $2,140 setoff against Cowser's judgment.

Cowser appeals. Further facts, as necessary, appear below.

Cowser first attacks the sufficiency of the evidence ¹ supporting the underlined portion of the trial court's finding numbered 24. It reads:

24. ... Photographs presented in evidence by the Defendant reveal many defects that were complained of, that is, windows not being square, one of which was replaced by Cowser, but another by Nicksic, at a cost of $124.66; obvious leaks in the concrete walls that had been patched, requiring the expenditure of $2,140.00 by Nicksic for waterproofing; .... (Emphasis supplied).

(R. 22-23). The parties also argued as to the nature of the judgment appealed from, i.e., whether the judgment on Nicksic's counterclaim was or was not a negative judgment as to Cowser. It was not a negative judgment as to Cowser. Nicksic bore the burden of proof on his counterclaim. Cowser's issue here then is whether the evidence is sufficient to support that portion of the trial court's finding numbered 24 underlined above.

It is the appellant's obligation when challenging the sufficiency of the evidence at trial to present us with a record containing all the evidence, not just those parts thereof which it believes supports its position. Without all the evidence presented at trial, we cannot do a complete review to determine whether substantial evidence or reasonable inferences arising therefrom exist which support the challenged finding or judgment. Thus, an insufficiency of the evidence issue whether directed at trial court findings or as support for a judgment generally, is waived on appeal if the record does not contain all the evidence presented at trial. Here, Cowser filed only a partial record, but we gave Cowser time to supplement the record filed with a full transcript of the evidence at trial. Only in this manner could we review its insufficiency of the evidence claim on the merits. Because Cowser now has filed a full transcript of the evidence, we are in a position to review its insufficiency claim.

When we review a trial court's findings, we apply a two-tiered standard of review. First, we must determine whether the evidence supports the findings, and then, we must determine whether the findings support the judgment. Special findings will be set aside only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them. Kaminszky v. Kukuch (1990), Ind.App., 553 N.E.2d 868, 870, trans. denied.

When reviewing the evidence at trial pursuant to a claim of insufficiency by the appellant, we will not reweigh the evidence nor judge the credibility of the witnesses. Rather, we look to the evidence which best supports the finding or judgment and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value supporting the trial court's finding or judgment, it will not be overturned. Eyler v. Eyler (1986), Ind., 492 N.E.2d 1071, 1075; Pierce v. Drees (1993), Ind.App., 607 N.E.2d 726, 722; In re Paternity of Tompkins (1989), Ind.App., 542 N.E.2d 1009, 1013; Parrish v. Anne Selig Marek, P.C. (1989), Ind.App., 537 N.E.2d 39, 42, trans. denied.

In essence, Cowser's arguments on sufficiency are two:

(a) the trial court erroneously must have considered hearsay contained in Defendant's Exhibits 2 and 3 regarding leaks in the concrete although it had admitted them only to prove the amount Nicksic paid a third party for waterproofing, and

(b) the trial court did not find Cowser's concrete work was defective, and could not because all the evidence presented at trial was to the contrary. We disagree with both assertions.

Initially we note Cowser's argument on its insufficiency issue is nothing more than an implied invitation to this court to re-weigh the evidence and re-judge the credibility of the witnesses. We cannot do so. Such functions are the sole province of the finder of fact. In sufficiency matters, we review only to determine if there is substantial evidence having probative value which supports the trial court's finding. If there is, that is the end of the matter under the applicable standard of review noted above.

Nothing in this record indicates the trial court considered Defendant's Exhibits 2 and 3 for anything other than the amount Nicksic paid U.S. Waterproofing for its work. Only Cowser's bald assertion it must be so because no other credible evidence proves the walls leaked due to Cowser's poor workmanship appears of record. That assertion is incorrect. There is substantial evidence there were "obvious" leaks in the concrete walls Cowser constructed due to Cowser's substandard construction techniques.

Nicksic himself testified:

Well, among other things--first of all, when I first spotted one crack and possibly two cracks, that was the day it was backfilled ... And that morning we went over there and they were shoring up the walls and they pointed out the crack, the big--the main crack. And I believe that at that time there is another crack, too, where the beam pocket went. But the main one, that's what caught our eye.

. . . . .

But during this period, it was obvious there was a lot of cold joints and honeycomb in the surface. Honeycomb, deep honeycomb under the southwest window, an opening where I could stick my hand through, okay?

. . . . .

(Partial R. 100-101). This testimony was admitted without objection. Even standing alone, it supports the trial court's finding in this regard. ² However, there is more.

Cowser's witness Natelborg testified he saw shrinkage cracks at normal places like the corner of windows. (R. 78). Shrinkage cracks can happen regardless of the precautions taken. When water dissipates from the concrete from a large pour, "the surface contracts and you are going to get cracks...." (R. 91).

Finally, Defendant's Exhibit 4, a display of 23 photographs, was admitted into evidence without objection. (R. 167). ³ Regarding that exhibit, Nicksic testified:

Q: Some of those photographs, Mr. Nicksic, show, I believe, the one you took immediately after the pour show some sort of material on one of the walls of your foundation; is that correct?

A: Right.... And it's right by that window that we had all the problems with where you see where there was an opening underneath....

Q: Is there anything else in those pictures that were taken right after that's over the wall in the foundation?

A: Also if you notice on those pictures, there is Visqueen stretched on that whole south wall and wraps around the west wall. That corresponds--that is the wall--those are the walls I had most of the trouble with, most of the cold joints and honeycombs.

Q: You didn't have many problems or any problems with the other walls or--

A: The north walls and the east wall I had one problem. One problem, and that was a section of old joint and honeycomb, again, that Mr. Cowser patched up and everything. But it still leaked and that's the joint I had epoxied. And there is a picture of that.

(R. 167-168).

Cowser's allegation the trial court's findings do not state its workmanship regarding the concrete walls was defective is without merit. Finding number 24 reads, in part, as follows:

24. ... Photographs presented in evidence by the Defendant reveal many defects that were complained of, ...; obvious leaks in the concrete walls that had been patched, requiring the expenditure of $2,140.00 by Nicksic for waterproofing; ... (Emphasis supplied).

(R. 23-24). Such finding necessarily implies Cowser's workmanship was defective because waterproofing by a third party to repair Cowser's work was required. Substantial evidence supports the trial court's finding numbered 24.

Cowser next claims the trial court erred...