Decision Date05 November 2001
Docket NumberNo. 49A02-0101-CV-10.,49A02-0101-CV-10.
Citation758 N.E.2d 931
PartiesHARCO, INC. OF INDIANAPOLIS, Appellant-Plaintiff/Counterdefendant, v. PLAINFIELD INTERSTATE FAMILY DINING ASSOCIATES, Appellee-Defendant/Counterclaimant.
CourtIndiana Appellate Court

Michael L. Einterz, Indianapolis, IN, Attorney for Appellant.

E. Scott Treadway, David A. Shelton, Lowe Gray Steele & Darko, Indianapolis, IN, Attorneys for Appellee.


BAILEY, Judge.

Case Summary

Appellant-Plaintiff-Counterdefendant Harco, Inc. of Indianapolis ("Harco") appeals the denial of its summary judgment motion, the involuntary dismissal of its claims and the award of attorney fees in favor of Appellee-Defendant-Counterclaimant Plainfield Interstate Family Dining Associates ("Plainfield"). We affirm the denial of summary judgment, the involuntary dismissal of claims, and the decision to award attorney fees. We reverse the order for trebled attorney's fees.


Harco presents five issues for review, which we restate as:

I. Whether the trial court properly denied Harco's motion for summary judgment;

II. Whether the trial court properly dismissed Harco's claims against Plainfield;

III. Whether Plainfield established a claim supporting its entitlement to attorney fees;

IV. Whether the trial court erred by awarding attorney fees to Plainfield when the fees were paid by a separate corporate entity; and

V. Whether the trial court erroneously trebled the award of attorney fees.

Facts and Procedural History

The instant litigation was commenced by Harco, an Indianapolis paving company and sub-contractor, after it paved the parking lot of a Burger King site, but received no payment from either the general contractor, Lane Tuck Construction ("Lane Tuck"), or from Plainfield, the owner of the Burger King. Neither Lane Tuck nor Plainfield complained that Harco's work was incomplete or unsatisfactory. However, Plainfield and Harco intensely disputed whether Harco performed any work at the Burger King site within sixty days of filing a mechanic's lien. Plainfield's amended counterclaim alleges that Harco mistakenly pursued legal action against the owner of another Burger King until the statutory period for filing a mechanic's lien expired and, upon discovery of the mistake, fabricated a timesheet indicating timely performance at the correct Burger King site.

During 1997, Lane Tuck constructed a commercial building designed for the operation of a Burger King restaurant, located at 8570 Northwest Boulevard in Indianapolis, Indiana.1 The land and building were owned by Plainfield. On April 8, 1997, Harco entered into a subcontract agreement with Lane Tuck, whereby Harco agreed to pave and stripe the parking lot for the contract price (as amended) of $28,682.00. The paving was completed on schedule and, on May 2, 1997, Plainfield opened the Burger King restaurant for business.

Lane Tuck did not pay Harco any of the $28,682.00 contract amount. On June 17, 1997, Harco recorded a mechanic's lien, naming Lane Tuck and MWM Partnership, the owner of a Burger King with an address of 3303 West 86th Street in Indianapolis. On August 27, 1997, Harco commenced an action to foreclose the mechanic's lien. On October 7, 1997, Harco was granted a default judgment. Counsel for MWM Partnership informed Harco's counsel that the lien and default judgment were directed toward a different Burger King than the Burger King where Harco had performed labor. Harco filed a Satisfaction and Release of Judgment on January 29, 1998.

On December 11, 1997, Harco served Plainfield with a Notice of Personal Liability. On December 15, 1997, Harco recorded a mechanic's lien naming Plainfield as the owner of the Northwest Boulevard Burger King. On December 31, 1997, Plainfield's counsel informed Harco that Plainfield was holding $5,369.59 as an outstanding contract sum due Lane Tuck. Additionally, Plainfield disputed the validity of the mechanic's lien by claiming that it was untimely. On January 13, 1998, Plainfield served upon Harco its "Notice to Mechanic's Lien Claimant to File Suit" pursuant to Indiana Code § 32-8-3-10.2 On January 28, 1998, Harco commenced a lien foreclosure action against Plainfield. Harco alleged that it had last performed work at the Plainfield Burger King within sixty days of December 15, 1997. Plainfield filed an Answer, a Counterclaim, and a Third-Party Complaint against Paul Harding, the owner of Harco ("Harding").

On September 8, 1998, Harco filed a Motion for Summary Judgment. On March 5, 1999, Plainfield filed a Motion for Leave to File Amended Counterclaim and Third Party Complaint; the motion to amend was granted by the trial court on June 1, 1999. The amended counterclaim and third-party complaint included claims against Harco and Harding for slander of title, abuse of process, pursuit of a frivolous lawsuit and deception. On May 28, 1999, Harco sought leave to file an amended complaint. The motion was granted on June 1, 1999. No answer to the amended complaint was filed.

On July 12, 1999, the trial court denied Harco's Motion for Summary Judgment. A bench trial was conducted on October 3, 4 and 5, 2000. On October 3, at the conclusion of Harco's case-in-chief, the trial court involuntarily dismissed Harco's claims pursuant to Indiana Trial Rule 41. The trial court entered judgment in Plainfield's favor on its counterclaim. Plainfield was awarded attorney fees in the amount of $67,485.87 and an additional amount of $130,971.74, resulting in trebled attorney fees. Harco now appeals.

Discussion and Decision
I. Summary Judgment
A. Standard of Review

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. We employ the same standard used by the trial court when reviewing the grant or denial of summary judgment. Crossno v. State, 726 N.E.2d 375, 378 (Ind.Ct.App.2000). We must determine whether there is a genuine issue of material fact requiring trial, and whether the moving party is entitled to judgment as a matter of law. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Id. A party seeking summary judgment bears the burden of showing the absence of a factual issue and his entitlement to judgment as a matter of law. Colen v. Pride Vending Service, 654 N.E.2d 1159, 1162 (Ind.Ct.App.1995).

B. Analysis

During the relevant time period, Indiana Code section 32-8-3-3 provided that a mechanic's lien could be filed within sixty days after the claimant performed labor or furnished materials to benefit the property sought to be liened.3 The designated materials before the trial court, in support of the motion for summary judgment and in opposition to the motion for summary judgment, revealed a factual dispute regarding when Harco last performed work at the Burger King site.4 Accordingly, Harco did not meet its burden of demonstrating the absence of a factual issue. The trial court appropriately denied Harco's motion for summary judgment.

II. Involuntary Dismissal of Harco's Claims
A. Standard of Review

Trial was commenced on the contentions contained in Harco's Amended Complaint. At the conclusion of Harco's case-in-chief, the trial court involuntarily dismissed each of Harco's claims. Motions for involuntary dismissal are governed by Indiana Trial Rule 41(B), which provides in pertinent part:

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

Pursuant to the foregoing rule, a trial court may weigh the evidence, determine the credibility of witnesses and decide whether the party with the burden of proof has established a right to relief during the case-in-chief. TMC Transp., Inc. v. Maslanka, 744 N.E.2d 1052, 1054 (Ind.Ct.App. 2001), reh. denied. On review, we will not disturb the trial court's judgment unless it is clearly erroneous. Id.

Harco contends that the trial court could not dismiss its claims pursuant to Trial Rule 41(B) because all its allegations were deemed admitted in the absence of Plainfield's response to the Amended Complaint. We disagree. An allegation left uncontested is deemed admitted under Indiana Trial Rule 8(D).5 Whisler v. Bank of Henry County, 554 N.E.2d 17, 20 (Ind. Ct.App.1990). Here, however, the allegations of the Amended Complaint were fully litigated at trial, without objection. This Court will not deem allegations admitted that were vigorously contested without objection at trial. Id.

B. Harco's Personal Liability Claim

Pursuant to Indiana Code section 32-8-3-9, a subcontractor may give written notice to a property owner that the subcontractor is holding the owner responsible for an amount owed by an employer or lessee to the subcontractor, to the extent that payment is due or may become due from the owner to the employer or lessee. A subcontractor stands in the shoes of the general contractor, and thus does not enjoy rights superior to those of the general contractor. Blade Corp. v. American Drywall, Inc., 400 N.E.2d 1183, 1186 (Ind.Ct.App.1980). Recovery can be had only from funds owed by the owner to a contractor for work done on his property, and if the owner has already paid all of the money due to the general contractor, he cannot be forced to pay a second time to a subcontractor. Indianapolis...

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