Nelson v. Marchand

• Decision Date: 19 February 1998
• Docket Number: No. 64A03-9704-CV-108,64A03-9704-CV-108
• Citation: 691 N.E.2d 1264
• Parties: Donald V. NELSON, Appellant-Plaintiff/Counter Defendant, v. Hector J. MARCHAND and Debra M. Marchand, Appellees-Defendants/Counter Plaintiffs.
• Court: Indiana Appellate Court

Page 1264

691 N.E.2d 1264

Donald V. NELSON, Appellant-Plaintiff/Counter Defendant, v. Hector J. MARCHAND and Debra M. Marchand,

Appellees-Defendants/Counter Plaintiffs.

No. 64A03-9704-CV-108.

Court of Appeals of Indiana.

Feb. 19, 1998.

Dave Welter, Valparaiso, for Appellant-Plaintiff/Counter Defendant.

Ann K. Staley, Petry & Fitzgerald, Hebron, for Appellees-Defendants/Counter Plaintiffs.

OPINION

STATON, Judge.

Donald Nelson appeals from a $19,022.82 judgment in favor of Hector and Debra Marchand. Nelson raises several issues on appeal which we restate as:

I. Whether the Marchands were precluded from recovering because Nelson prevailed on his mechanic's lien.

II. Whether pre-trial and trial conduct of the Marchands prevented Nelson from receiving a fair trial.

III. Whether there is evidence supporting the trial court's findings that Nelson breached construction warranties.

IV. Whether the evidence supports the trial court's awards.

V. Whether the trial court erred by not awarding Nelson attorney's fees.

We affirm in part, reverse in part and remand.

Nelson contracted to build the Marchands' home. Nelson completed the home as specified in the contract, also performing several changes to the original plans at added expense. Nelson submitted a bill for the changes to the original home plan.

In the interim, the Marchands submitted a "punch list" ¹ to Nelson, requesting that he remedy the items on the list. Nelson agreed to address some of the items on the punch list, but did not feel responsible for all of them. The Marchands also complained of several problems with their home which they characterize as either inadequacies with the workmanlike quality of construction or deficiencies associated with materials used. Specifically, the Marchands refer to a cracked and crumbling driveway, leaks in the basement, an improperly vented bathroom fan, failure to termite proof under the basement floor and inadequate insulation on the floor of a room over the garage. Citing these problems with their home, the Marchands withheld payment from Nelson.

Nelson eventually filed a mechanic's lien against the Marchands' home. The Marchands' response included counterclaims for the above construction inadequacies. Nelson was granted summary judgment on his mechanic's lien for a total of $10,661.43 including interest, attorney's fees and costs. However, the Marchands later prevailed on their counterclaims, resulting in a net award for them. This appeal ensued.

Before addressing the merits of this appeal, we note our standard of review. The trial court, sua sponte, entered specific findings of fact and conclusions of law. When a party has requested specific findings of fact and conclusions thereon pursuant to Ind. Trial Rule 52(A), the reviewing court cannot affirm the judgment on any legal basis; rather, this Court must determine whether the trial court's findings are sufficient to support the judgment. Vanderburgh Co. Bd. of Commissioners v. Rittenhouse, 575 N.E.2d 663, 665 (Ind.Ct.App.1991), trans. denied. In reviewing the judgment, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. Id. The judgment will be reversed only when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind.Ct.App.1991), trans. denied. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id.

This same standard of review applies when the trial court gratuitously enters specific findings of fact and conclusions, with one notable exception. When the trial court enters such findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. In re Marriage of Snemis, 575 N.E.2d 650, 652 (Ind.Ct.App.1991). We may affirm a general judgment on any theory supported by the evidence adduced at trial. Id.

I. Effect of Mechanic's Lien

The Marchands admitted that they owed Nelson money for the extra work and modifications he performed on their house. Accordingly, Nelson was granted summary judgment on his mechanic's lien. Nelson contends that since he was granted summary judgment on his lien, the trial court necessarily found that the Marchands repudiated the contract and that he was justified in suspending performance. Accordingly, Nelson concludes that it is contrary to law to permit the Marchands to recover on their counterclaims.

This line of argument is not well taken. First, even assuming the Marchands repudiated the contract, the Marchands' counterclaims do not arise from any suspension of performance by Nelson. In fact, Nelson did not suspend performance at all. The home was completed when this dispute arose, albeit not satisfactorily to the Marchands. Rather, the Marchands alleged unworkmanlike construction and/or defects in materials: allegations regarding warranties. In short, the Marchands' claims do not concern failure to perform. Instead, the Marchands' claims concern failure to perform as warranted.

Second, it has long been the law in Indiana that a homeowner may offer evidence of faulty construction as a set-off or counterclaim against a mechanic's lien. ² See Korellis Roofing, Inc. v. Stolman, 645 N.E.2d 29 (Ind.Ct.App.1995); G. Cowser Constr. v. Nicksic, 622 N.E.2d 1007 (Ind.Ct.App.1993); Clark's Pork Farms v. Sand Livestock Systems, Inc., 563 N.E.2d 1292 (Ind.Ct.App.1990); Burras v. Canal Constr. and Design Co., 470 N.E.2d 1362 (Ind.Ct.App.1984); Orto v. Jackson, 413 N.E.2d 273 (Ind.Ct.App.1980). The viability of these counterclaims is unaffected by the fact that the homeowner has breached the contract by withholding payment due to dissatisfaction with the work. See Korellis, 645 N.E.2d at 30 (homeowner recovered on counterclaim although entire payment initially withheld); Cowser, 622 N.E.2d at 1009 (successful counterclaim notwithstanding entire payment withheld); Clark's Pork, 563 N.E.2d at 1295 (viable counterclaim although final $80,000 payment withheld); Burras, 470 N.E.2d at 1364 (homeowner recovered on counterclaim although homeowner breached contract by unilaterally altering payment schedule); Orto, 413 N.E.2d at 275 (homeowner counterclaims viable notwithstanding refusal to pay contractor). Accordingly, we conclude that the Marchands' counterclaims, which allege violation of warranties regarding workmanlike construction and materials, survive their refusal to pay Nelson.

II. Pre-trial and Trial Misconduct

Nelson cites several acts by the Marchands before and during trial which he characterizes as misconduct impairing a fair and just adjudication of this cause. We agree with Nelson that the first incident is appropriately characterized as misconduct of the highest order, but we cannot conclude the trial court erred by not granting Nelson the relief he sought.

During a recess, Mr. Marchand approached Thomas Wright, a witness who was to testify on behalf of Nelson. Wright performed lawn care services for Mr. Marchand. Mr. Marchand fired Wright during the recess. Mr. Marchand testified that it was his intent to intimidate Wright's testimony by firing him. Wright stated that he felt he was fired because he was testifying. Nelson immediately moved for dismissal of the Marchands' counterclaims which the trial court took under advisement and ultimately denied.

It appears that Nelson requests us to reverse the trial court's decision not to dismiss the Marchands' claims. Whether to dismiss as a sanction for misconduct is reviewed under an abuse of discretion standard. See Benton v. Moore, 622 N.E.2d 1002 (Ind.Ct.App.1993), reh. denied (failure to prosecute); Wozniak v. Northern Indiana Public Svc. Co., 620 N.E.2d 33 (Ind.Ct.App.1993), trans. denied (discovery sanction). An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind.1993). In this case, the trial court noted that Wright still testified on Nelson's behalf, stating that he did not feel pressured by Mr. Marchand to change his testimony. Since Mr. Marchand's attempt at intimidating Wright appeared unsuccessful, the trial court ultimately denied Nelson's motion to dismiss. Under our standard of review, we cannot conclude the trial court erred. ³

The remainder of Nelson's brief concerning alleged misconduct reads as a laundry list of disjointed grievances, none of which is placed in an appropriate legal context. Nelson first cites failure to comply with discovery deadlines. However, Nelson never asked that there be any type of sanction imposed for discovery abuse. ⁴ In fact, Nelson's brief is unclear as to what type of relief he seeks from us. In any event, a party may not request relief on appeal for which he made no claim to the trial court. Tomahawk Village Apartments v. Farren, 571 N.E.2d 1286, 1294 (Ind.Ct.App.1991).

Nelson did object to the introduction of a document at trial claiming that he never received it during discovery. The challenged document was the "punch list" discussed above. The trial court found that Nelson knew of this document and its contents since he received it around the time of closing on the house and had performed some of the tasks on the list. Under an abuse of discretion standard, Wozniak, 620 N.E.2d 33, we cannot conclude the trial court erred by finding that failure to re-supply this document during discovery is not the type of trial...