Henderlong Lumber Co., Inc. v. Zinn, 3-1077A280
| Decision Date | 25 June 1980 |
| Docket Number | No. 3-1077A280,3-1077A280 |
| Citation | 406 N.E.2d 310 |
| Parties | HENDERLONG LUMBER CO., INC., Intervening Plaintiff-Appellant, v. Rex L. ZINN and Elizabeth G. Zinn, Husband and Wife, and Gary National Bank, Intervening Defendants-Appellees. |
| Court | Indiana Appellate Court |
James Patterson, Timothy S. Schafer, Francis J. Schafer, Merrillville, for intervening plaintiff-appellant.
Fred M. Cuppy, Gerald K. Hrebec and J. Philip Klingeberger, Merrillville, for intervening defendants-appellees.
Henderlong Lumber Co., Inc. appeals the granting of summary judgment in favor of Rex L. and Elizabeth G. Zinn. Henderlong contends that the trial court erred (1) when it found that the written notice of lien rights was not timely filed and (2) granted summary judgment in favor of the Zinns. We affirm.
The Zinns contracted with George Stahl to build a residential building upon their lot. On April 23, 1976, Henderlong began supplying materials for the construction of the building.
On July 21, 1976, Henderlong mailed two written notices to Rex L. Zinn advising him that Henderlong at the request of George Stahl would be supplying materials on credit with an estimated value of Twenty Thousand Dollars ($20,000.00) for the construction of the residence and as a result Henderlong held the right to file a lien on the property. Within fourteen (14) days of this notice, Henderlong supplied materials of a value of $18,248.08 to the Zinn property the last delivery occurring on October 4, 1976. On October 19 and December 1, 1976, Henderlong filed its Notice of Intention to Hold a Mechanics' Lien in the amount of $20,177.47 and $20,775.53 respectively. Suit was subsequently filed and summary judgment in favor of the Zinns resulted.
Crucial to the determination of this appeal is whether the trial court's construction of IC 1971, 32-8-3-1 is correct. The statute reads in part as follows Any person, firm, partnership, or corporation who sells or furnishes on credit any material, labor or machinery, for the original construction of a single or double family dwelling for the intended occupancy of the owner upon whose real estate the construction takes place to any contractor, subcontractor, mechanic or anyone other than the owner or his legal representatives shall furnish said owner a written notice of the delivery or labor and the existence of lien rights within fourteen (14) days from the date of the first delivery or labor performed. The furnishing of such notice shall be a condition precedent to the right of acquiring a lien upon such real estate or upon the improvement constructed thereon.
Henderlong urges that a reasonable interpretation of the statute is that when a supplier of materials desires to use the protective measures provided by the statute he must give notice of the delivery of materials or labor upon credit to the owner within fourteen (14) days of the date of the first delivery or labor performed upon which the existence of lien rights is claimed. This construction, Henderlong says, would protect persons who furnish materials or labor on credit from loss and put owners on notice of indebtedness by their builder. Henderlong would thus hold a lien for materials delivered to Stahl fourteen (14) days before July 21, 1976 and all materials delivered thereafter in the amount of $18,248.08.
Zinn, on the other hand, urges that the statute plainly requires that the notice to the owner must be given within fourteen (14) days of the initial delivery of materials to the contractor, citing Wallich Lumber Company v. Golds, (1965) 375 Mich. 323, 134 N.W.2d 722; Anderson v. Taylor, (1959) 55 Wash.2d 215, 347 P.2d 536 and Walton v. Dayton Hotel Company, (1931) 205 Wis. 112, 236 N.W. 595, and J. W. Copeland Yards v. Taranoff, (1964) 238 Org. 167, 392 P.2d 259 as cases construing similar notice statutes favorable to their position.
Construction of a statute is unnecessary unless the language used is ambiguous or unclear. Bowen v. Review Board of Indiana Employment Security Division, (1977) Ind. App., 362 N.E.2d 1178. "It is also a fundamental rule of statutory construction that a statute clear and unambiguous on its face need not and cannot be interpreted by a court . . . ." Johnson v. Wabash County, (1979) Ind.App., 391 N.E.2d 1139, 1143. Here the words used are clear...
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