Portage Indiana School Const. Corp. v. A. V. Stackhouse Co., 471A86

• Docket Nº: No. 471A86
• Citation: 287 N.E.2d 564, 60 A.L.R.3d 478, 153 Ind.App. 366
• Case Date: October 02, 1972
• Court: Court of Appeals of Indiana

Page 564

287 N.E.2d 564 153 Ind.App. 366, 60 A.L.R.3d 478 PORTAGE INDIANA SCHOOL CONSTRUCTION CORP., Appellant
(Defendant and Counterclaimant Below),
v.
A. V. STACKHOUSE CO., Appellee (Plaintiff and Counterdefendant Below). No. 471A86. Court of Appeals of Indiana, Third District. Oct. 2, 1972.
Rehearing Denied Nov. 13, 1972.

[153 Ind.App. 367]

Page 565

Palmer C. Singleton, Jr., Hammond, Joel Yonover, Gary, for appellant.

E. C. Ulen, Jr. (Baker & Daniels, Indianapolis, of counsel), for appellee.

SHARP, Judge.

This case grew out of a construction contract between the Appellant, Portage Indiana School Construction Corporation, and the Appellee, A. V. Stackhouse Company, signed on September 22, 1960, for the erection and construction of certain improvements by the Appellee on property of the Appellant located in Gary, Indiana.

Page 566

The Appellee originally filed a complaint for account and application for the appointment of a receiver on December 26, 1962. The prayer in the Appellee's complaint was in the sum of $67,512.75. The Appellant filed answer to the Appellee's complaint generally in admission and denial and the Appellant further filed a counterclaim. The counterclaim generally alleged that the Appellee had not performed his contract and that the Appellee had erected said building in an unskillful and negligent manner requiring numerous repairs to make the building tenantable as contracted for. The prayer in the counterclaim was in the sum of $45,000.00. The Appellee denied the allegations of the counterclaim.

[153 Ind.App. 368] This case was tried without the intervention of a jury and on June 18, 1970 the trial court entered judgment for the Appellee and against the Appellant on the Appellee's complaint in the sum of $47,677.27, plus an amount which has been designated as 'prejudgment interest' in the sum of $24,315.41.

(Although neither counsel could give a definitive answer in oral argument, it appears that the amount of prejudgment interest was computed by the trial court from the date of the filing of the complaint on December 26, 1962 and that it was computed on the amount of $47,677.27.

The judgment further provided that the Appellant take nothing by its counterclaim and entered judgment for the Appellee on said counterclaim. The Appellant filed motion to correct errors which was overruled by the trial court and this appeal has resulted.

The motion to correct errors presents two basic questions which are urged on this appeal. The first issue presented for review was whether or not the trial court erred in refusing to allow Appellant's counterclaim alleging defective and incomplete performance of the contract. The second issue relates to the allowance of the sum of $24,315.41 as prejudgment interest.

JUDGMENT ON COUNTERCLAIM

The contract in question was executed in September 1960 and stipulated a contract price of $160,000.00. All estimates were made on the basis of incomplete plans that showed only one finished office space. The plans called for a shell building which would be filled in by more specific plans and specifications to conform with the needs and desires of the lessees of said building. Work commenced on the building in September of 1960. Throughout the construction of the building the Appellant presented the Appellee with numerous charge orders which required reworking and revising of both existing and [153 Ind.App. 369] proposed portions of the building. As a result of these charge orders by the Appellant, which were deviations from the preliminary plans, the actual labor and material cost of the building was $189,038.07, to which a ten per cent contractor's fee of $18,903.81 was added pursuant to the agreement. Between May and October of 1961 various tenants occupied the building and the construction was completed on October 23, 1961. During the time of construction progress payments of $141,300.00 had been requested by the Appellee and paid by the Appellant. On June 19, 1962 the Appellee tendered an invoice to the Appellant, the body of which was as follows:

 "BILLING #10
                 TOTAL COSTS 191,931.79
                10/31/60 Less Billing #1 26,190.00
                11/30/60 " " #2 30,798.00
                12/31/60 " " #3 19,782.00
                1/31/61 " " #4 22,815.00
                2/28/61 " " #5 25,110.00
                3/31/61 " " #6 9,405.00
                4/30/61 " " #7 7,200.00
                11/30/61 " " #8 18,700.00
                2/28/62 " " #9 1,066.42 161,066.42
                 --------- ------------
                 Amount of this Invoice $ 30,865.37"
                

The decision of the trial court denying relief on the counterclaim is a negative decision against one having the burden of proof. Although the Appellant attempts to attack this negative decision, inter alia, as not being supported by sufficient

Page 567

evidence, such ground is not a proper basis on which to attach such a negative decision. See Langford v. Anderson Banking Company, Ind.App., 258 N.E.2d 60 (1970), and Industrial Laundry v. Review Board of Indiana Employment Security Division, Ind.App., 258 N.E.2d 160 (1970). It is elementary that in attacking the trial court's negative decision and failing to grant the relief requested in the counterclaim all of the factual inferences must be considered in the light most favorable to the [153 Ind.App. 370] trial court's decision and the Appellant here must conclusively prove as a matter of law such decision was erroneous. The trial court may have determined that the Appellant failed to sustain its burden of proof on its counterclaim. It may have determined that the Appellant failed to prove by evidence of probative value that the difficulties described were caused by any acts or omission of the Appellee which were a breach of said agreement. There was a wide variety of evidence relating to subsequent difficulties with the building which evidence was in conflict and which evidence was susceptible to different inferences. There is a basis evidentiary dispute as to the cause of certain of these difficulties. The reviewing court will disregard conflicting evidence and assume that evidence to support the finding is true and will give it every inference reasonable and favorable to be drawn from it. The reviewing court will not weigh the evidence or pass upon the credibility of witnesses. See Allstate Ins. Co. v. Morrison, Ind.App., 256 N.E.2d 918 (1970). See also Echterling v. Jack Gray Transport, Inc., Ind.App., 267 N.E.2d 198 (1971), Glidden v. Nasby, Ind.App., 262 N.E.2d 548 (1970), and Pontious v. Littleton, Ind.App., 255 N.E.2d 684 (1970).

Having in mind that the Appellant had the burden of proof on its counterclaim and considering the evidence introduced with...