Haimbaugh Landscaping, Inc. v. Jegen

CourtCourt of Appeals of Indiana
Citation653 N.E.2d 95
Docket NumberNo. 49A02-9407-CV-452,49A02-9407-CV-452
PartiesHAIMBAUGH LANDSCAPING, INC., Appellant (Plaintiff), v. Lawrence A. JEGEN, III, and, Janet M. Jegen, Appellees/Cross Appellants (Defendants).
Decision Date28 June 1995
OPINION

SULLIVAN, Judge.

Haimbaugh Landscaping, Inc. (Haimbaugh) appeals the trial court's grant of summary judgment in favor of Lawrence A. Jegen, III, and Janet M. Jegen (the Jegens) upon their second motion for summary judgment. The Jegens cross appeal the trial court's denial of their first motion for summary judgment. 1 We reverse in part and affirm in part.

This case presents two issues:

(1) whether a contractor is entitled to a mechanic's lien for the services and material supplied in conjunction with an ornamental landscaping project; and

(2) whether Indiana's mechanic's lien statute, I.C. 32-8-3-1 et seq. violates the Due Process Clause of the United States Constitution and the Due Course of Law Clause of the Indiana Constitution.

Haimbaugh is a landscape contracting company. The Jegens are owners of a residence in Marion County, Indiana. The Jegens contracted with Haimbaugh to provide landscaping services at the Jegens' residence. Among other miscellaneous landscaping services, Haimbaugh planted grass, ornamental evergreen trees, decorative plants and shrubs. Haimbaugh moved earth and installed railroad ties and edging. Haimbaugh also maintains that it supplied over $8,000 in materials in conjunction with the landscaping project, including several trees and shrubs. Haimbaugh's bill further indicates that it provided clay, soil, grass seed, gravel, peat moss, 230 feet of steel edging, two railroad ties, over eleven tons of boulders, nearly two tons of Chestnut stepping stones and fifteen additional stepping stones. None of the services or materials Haimbaugh provided were part of the original construction of the residence.

The Jegens maintain that roughly twenty-five percent of the trees and plants Haimbaugh planted began to die within a few weeks after the parties entered into the contract. The Jegens contend that Haimbaugh failed to provide adequate drainage and to properly match the plants and trees with the clay soil, which caused the plants to drown in groundwater trapped by the clay. 2 When Haimbaugh presented the Jegens with a bill for $14,197.96, the Jegens paid only $9,000 of that amount, leaving a balance of $5,197.96.

Haimbaugh demanded the full amount. The Jegens refused to pay the balance, asserting that Haimbaugh had overbilled them and had breached the contract. On October 24, 1991, within sixty days after the completion of the project, Haimbaugh filed a Sworn Statement and Notice of Intent to File a Mechanic's Lien against the Jegens' real estate in the amount of $5,197.96 pursuant to I.C. 32-8-3-1 (Burns Code Ed.Repl.1980). 3 Later, Haimbaugh filed a claim to foreclose the lien.

The Jegens then filed two motions for summary judgment, the first of which challenged the constitutionality of Indiana's procedure for acquiring a mechanic's lien against real property. The Jegens' second motion contended that Haimbaugh could not properly obtain a mechanic's lien for landscaping services. The trial court denied the Jegens' first motion, determining that Indiana's real estate mechanic's lien statute does not violate either the federal or Indiana's constitution. The trial court granted the Jegens' second motion, however, holding that Haimbaugh could not obtain a mechanic's lien for the particular services it provided. Haimbaugh appeals the trial court's decision to grant the second motion and the Jegens appeal the trial court's denial of their first motion. 4 We address both appeals.

The parties in this case appeal both a grant and a denial of summary judgment. We use the same standard in ascertaining the propriety of summary judgment as does the trial court. 5 Miller v. West Lafayette Community School Corp. (1995) 2d Dist. Ind.App., 645 N.E.2d 1085, 1087; Newhouse v. Farmers National Bank of Shelbyville (1989) 1st Dist. Ind.App., 532 N.E.2d 26, 28. We will view all of the materials designated to the trial court in the light most favorable to the non-moving party in order to determine whether there is a genuine issue of material fact. Board of School Trustees of Salem Community Schools v. Robertson (1994) 5th Dist. Ind.App., 637 N.E.2d 181, 184, trans. denied. The fact that both parties requested summary judgment does not alter our standard of review. We must separately consider each motion to determine whether 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. denied.

I. ACQUIRING A MECHANIC'S LIEN FOR LANDSCAPING SERVICES
A. Haimbaugh's Belated Brief

The Jegens' second motion for summary judgment maintained that Indiana law precludes Haimbaugh from obtaining a mechanic's lien for the landscaping services performed. The trial court agreed, and granted the motion. Haimbaugh then decided to appeal that determination. However, Haimbaugh filed its Appellant's Brief thirty-one days after it filed the record, one day beyond the thirty-day period Indiana Appellate Rule 8.1(A) specifies for such filings. In an effort to cure the deficiency, Haimbaugh also filed a Motion for Leave to File a Belated Brief, which this court granted. 6

The Jegens contend that we must dismiss Haimbaugh's appeal because its brief was not timely filed. We disagree. Rule 8.1(A) provides that "[t]he appellant shall have thirty (30) days after filing the record in which to file his brief.... Failure to file appellant's brief within the time limited herein, or any extension of time granted therefor, shall subject the appeal to summary dismissal." Rule 8.1(A) does not mandate an automatic dismissal when an appellant has not timely filed its brief. Dismissal for the late filing of an appellant's brief is within the discretion of this court, rather than mandatory as it was under former rules. 7 The Third District of this court recognized the change in Meyer v. Northern Indiana Bank and Trust Co. (1986) 3d Dist. Ind.App., 490 N.E.2d 400. 8

We disagree with the Jegens' contention that Meyer, supra, is at odds with our Supreme Court's decision in Doe v. Hancock County Board of Health (1982) Ind., 436 N.E.2d 791. 9 In Doe, the appellees filed their brief one day late due to an error in calculating the filing deadline. The First District of this court denied their verified petition to file a belated brief. Our Supreme Court granted transfer and, effectively affirming the decision of the Court of Appeals, dismissed the case. The fact that a majority of our Supreme Court chose to not disturb the First District's determination does not make it inconsistent with Meyer. Doe does not require this court to dismiss all appeals which do not comport with our appellate rules. Meyer recognizes and makes clear that this court retains discretion to determine those appeals which will suffer dismissal because of a late filing.

We will hold issues waived, or dismiss appeals when parties commit flagrant violations of the Rules of Appellate Procedure. However, because we prefer to decide a case upon its merits, e.g., Town of Rome City v. King (1983) 3d Dist. Ind.App., 450 N.E.2d 72, 76, we exercise our discretion to reach the merits when violations are comparatively minor. Terpstra v. Farmers and Merchants Bank (1985) 3d Dist. Ind.App., 483 N.E.2d 749, trans. denied; Viccaro v. City of Ft. Wayne (1983) 4th Dist. Ind.App., 449 N.E.2d 1161, 1162 n. 1. Here, Haimbaugh has not committed a flagrant violation of our appellate rules, nor has it failed to make a good faith effort to substantially comply with those rules. See Meyer, supra, 490 N.E.2d at 404; Terpstra, supra at 752-53. The Jegens' arguments did not initially persuade this court that it should dismiss Haimbaugh's appeal, nor do they do so now. 10

B. Whether Haimbaugh's Labor and Materials are Within the Purview of Indiana's Mechanic's Lien Law

Haimbaugh contends that the labor and materials it provided to the Jegens entitles it to a mechanic's lien pursuant to I.C. 32-8-3-1. We agree. I.C. 32-8-3-1 reads, in pertinent part as follows:

"Contractors, ... laborers and all other persons performing labor or furnishing materials ... for the erection, altering, repairing or removing any house, mill, manufactory, or other building, bridge, reservoir, systems of waterworks, or other structures, or for construction, altering, repairing, or removing any walk or sidewalk, whether such walk or sidewalk be on the land or bordering thereon, stile, well, drain, drainage ditch, sewer or cistern or any other earth-moving operation may have a lien separately or jointly upon the [items mentioned above] which they may have erected, altered, repaired, moved, or removed or for which they may have furnished materials or machinery of any description, and on the interest of the owner of the lot or parcel of land on which it stands or with which it is connected to the extent of the value of any labor done, material furnished, or either...."

The above portion of Indiana's statute remains virtually identical to the version in effect at the turn of the century. Because the above statute derogates common law, Indiana courts have strictly construed it when determining its scope, and, accordingly, those persons entitled to acquire and enforce such liens. City of Evansville v. Verplank Concrete & Supply (1980) 1st Dist. Ind.App., 400 N.E.2d 812, 818; Hough v. Zehrner (1973) 3d Dist., 158 Ind.App. 409, 302 N.E.2d 881, 883; Aetna Glass...

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