Garage Doors of Indianapolis, Inc. v. Morton, 49A02-9603-CV-172

• Citation: 682 N.E.2d 1296
• Decision Date: 30 June 1997
• Docket Number: No. 49A02-9603-CV-172,49A02-9603-CV-172
• Parties: GARAGE DOORS OF INDIANAPOLIS, INC., Appellant-Plaintiff, v. Jerry MORTON and David E. Goff, Appellees-Defendants.
• Court: Court of Appeals of Indiana

Page 1296

682 N.E.2d 1296

GARAGE DOORS OF INDIANAPOLIS, INC., Appellant-Plaintiff, v. Jerry MORTON and David E. Goff, Appellees-Defendants.

No. 49A02-9603-CV-172.

Court of Appeals of Indiana.

June 30, 1997.

Eugene G. Ziobron, Indianapolis, for appellant-plaintiff.

Steven J. Rubick, Richard L. Poynter & Associates, Indianapolis, for appellees-defendants.

OPINION

BAKER, Judge.

Appellant-plaintiff Garage Doors of Indianapolis, Inc. (Garage Doors) appeals the trial court's dismissal of its complaint to foreclose a mechanic's lien against appellee-defendant David Goff and its award of attorney fees to Goff. Garage Doors raises numerous issues for our review, which we combine and restate as: 1) whether the master commissioner was properly qualified and had the authority to enter a final appealable order; 2) whether the court erroneously dismissed its complaint for foreclosure and unjust enrichment; and 3) whether the court erroneously awarded attorney fees. In response, Goff requests this court to impose sanctions against Garage Doors and award appellate attorney fees.

FACTS ¹

On July 14, 1992, Garage Doors supplied Jerry Morton with materials to install an automatic garage door opener at the home of Charles E. Goff and Ovah S. Williams at 3116 Centre Parkway, Indianapolis, Indiana. When it did not receive payment for the materials, Garage Doors filed a notice of its intention to hold a mechanic's lien against the property on September 10, 1992. Then, on September 3, 1993, Garage Doors filed a complaint against Charles and Ovah to foreclose on the mechanic's lien.

Thereafter, the attorney for Ovah's Estate notified Garage Doors that Charles and Ovah were deceased. As a result, Garage Doors filed an amended complaint which substituted David Goff, the successor in interest to the Centre Parkway property, as the defendant. ² In its complaint, Garage Doors sought foreclosure of the lien and damages due to unjust enrichment.

On September 20, 1994, Goff filed a motion to dismiss Garage Doors' amended complaint, which the trial court granted on February 6, 1995. As a result, on March 20, 1995, Garage Doors filed a second amended complaint against Goff which alleged the same facts and grounds as its previous complaint. Goff then filed a motion to dismiss the second amended complaint and a request for attorney fees. Thereafter, a hearing was held before a master commissioner on August 25, 1995, after which the court granted the motion to dismiss. The court then ordered a subsequent hearing regarding Goff's request for attorney fees. Prior to this hearing, however, Garage Doors filed motions for Judge Gerald S. Zore to act as presiding judge over the proceedings and to set aside the master commissioner's entry. Judge Zore denied the motions.

Thereafter, on September 18, 1995, Garage Doors filed its third amended complaint against Goff, which again alleged the same grounds as the previous two complaints, and a motion for change of judge. ³ The trial court denied the motion for change of judge. Then, at the hearing on Goff's request for attorney fees, Garage Doors moved for disqualification of the master commissioner. In response, the master commissioner announced that she would rule on the motion for disqualification before October 13, 1995. She then requested the parties to submit proposed findings of fact and conclusions of law on the issue of Goff's attorney fees. Without ruling on the motion for disqualification, the master commissioner submitted recommended findings of fact and conclusions of law to the trial court, in which she determined that Garage Doors' second amended complaint against Goff was precluded by res judicata because of the order dismissing his first amended complaint on February 6, 1995. Additionally, the master commissioner found that Garage Doors' claim was frivolous, unreasonable and groundless and, as a result, Goff was entitled to $4,756.93 in attorney fees. The master commissioner's recommended findings were subsequently approved by Judge Zore. On November 27, 1995, Garage Doors filed a motion to correct errors, which was denied. Garage Doors now appeals.

DISCUSSION AND DECISION ⁴

I. Master Commissioner

Initially, Garage Doors raises several challenges to the appointment and authority of the master commissioner. Specifically, Garage Doors contends as follows: 1) the master commissioner was not properly appointed; 2) she did not have the authority to enter a final appealable order; and 3) she erroneously failed to rule on the motion to disqualify herself. In a related argument, Garage Doors also contends that Judge Zore erroneously refused to preside over the case.

First, Garage Doors contends that the master commissioner was not properly appointed. In particular, Garage Doors argues that the trial court failed to appoint the master commissioner pursuant to the mandates of T.R. 53(A). As a result, Garage Doors argues that all rulings by the master commissioner are void as a matter of law.

We note, however, that Garage Doors failed to properly preserve this issue for appeal. As our supreme court stated in Floyd v. State, 650 N.E.2d 28, 32 (Ind.1994), when faced with a challenge to the authority of a court officer, the reviewing court must first ascertain whether the challenge was properly made in the trial court so as to preserve the issue for appeal. The Floyd court specifically noted:

[I]t has been the long-standing policy of this court to view the authority of the officer appointed to try a case not as affecting the jurisdiction of the court. Therefore, the failure of a party to object at trial to the authority of a court officer to enter a final appealable order waives the issue for appeal. We conclude that it is improper for a reviewing court to dismiss an appeal on these grounds where no showing has been made that the issue was properly preserved. Instead, the reviewing court should deny relief on grounds of waiver.

Id.

Here, we find no indication in the record that Garage Doors objected to the authority of the master commissioner to preside over the dismissal hearings. Although Garage Doors contends that it objected during a hearing held off the record, such an objection is insufficient to preserve error for review. See State ex rel. Metropolitan Thoroughfare Authority of Marion County v. Nutting, 246 Ind. 105, 107, 203 N.E.2d 192, 194 (1964) (where record is silent as to existence of objection to petition to intervene, appellant waived any question as to correctness of trial court ruling). Further, as previously noted, it is the responsibility of the party claiming error to present a complete record for review. Thus, because Garage Doors failed to preserve its alleged objection to the appointment of the master commissioner, it has waived any error on appeal.

Next, Garage Doors argues that the master commissioner did not have the authority to enter an order dismissing its claim and awarding attorney fees. Although we agree with Garage Doors' contention that a master commissioner cannot enter a final appealable order, IND. CODE § 33-4-7-7; Dearman v. State, 632 N.E.2d 1156 (Ind.Ct.App.1994), trans. denied, the record in the instant case does not reveal that the master commissioner in fact entered a final appealable order. Instead, the record shows that the master commissioner submitted recommended findings and conclusions to the trial judge, who adopted and signed them. R. at 87. This procedure has been repeatedly approved by Indiana's appellate courts. See Mid-West Federal Savings Bank v. Epperson, 579 N.E.2d 124, 126-27 (Ind.Ct.App.1991) (trial court's adoption of magistrate's findings and recommendations was proper exercise of judicial power). We find no error.

Garage Doors also claims that the master commissioner erred in failing to rule on its motion that she disqualify herself. As a result, Garage Doors contends that the master commissioner violated her judicial oath and failed to discharge her duties as an attorney at law. Appellant's Brief at 30-31.

Beyond this blanket assertion, however, Garage Doors does not suggest, and the record does not reveal, the grounds on which it moved for the master commissioner's disqualification or how it was prejudiced by the master commissioner's failure to rule. As a result, we are unable to determine whether the master commissioner erred in not disqualifying herself. Further, a trial court's failure to rule on a procedural issue, such as a request for disqualification, is not reversible error where the court has disposed of all substantive matters. See Comer v. Gohil, 664 N.E.2d 389, 393 (Ind.Ct.App.1996) (trial court's failure to rule on various motions, including motion to strike, motion to dismiss, amended motion to dismiss and motion to consolidate, was not reversible error where court had ruled on all substantive issues), trans. denied. Therefore, the master commissioner's failure to rule does not entitle Garage Doors to relief. ⁵

In its final challenge to the procedure utilized by the trial court, Garage Doors contends that Judge Zore erroneously refused its request to preside over the proceedings. Specifically, Garage Doors argues, without citation to authority, that a "trial court judge cannot refuse to preside over an assigned case upon request by counsel." Appellant's Brief at 49. Although Garage Doors cites numerous Judicial Canons and the Indiana and United States Constitutions for this provision, none of these materials support its contention. As we have repeatedly stated, it is within the trial judge's discretion to refer matters to commissioners or magistrates provided the judge still performs the necessary judicial act of entering the final rulings. Mid-West Federal Savings Bank, 579 N.E.2d at 127. We find no abuse of discretion.

II. Motion to Dismiss

Next, Garage Doors challenges the trial court's dismissal of its second amended complaint to foreclose its mechanic's lien and for unjust enrichment....