Repp & Mundt, Inc. v. Hitzelberger Supply Co., Inc.

• Citation: 353 N.E.2d 547,170 Ind.App. 539
• Decision Date: 02 September 1976
• Docket Number: No. 2--1075A264,2--1075A264
• Parties: REPP AND MUNDT, INC., an Indiana Corporation, et al., Appellants (Defendants below), v. HITZELBERGER SUPPLY CO., INC., an Indiana Corporation, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 547

353 N.E.2d 547

170 Ind.App. 539

REPP AND MUNDT, INC., an Indiana Corporation, et al Appellants (Defendants below), v. HITZELBERGER SUPPLY CO., INC., an Indiana Corporation Appellee (Plaintiff below).

No. 2--1075A264.

Court of Appeals of Indiana, First District.

Sept. 2, 1976.

Rehearing Denied Sept. 30, 1976.

Thompson & Jones, Columbus, DeFur, Voran, Hanley, Radcliff & Reed, Muncie, for appellants.

John D. Raikos, Raikos, Martenet, Deal & Raikos, Indianapolis, Ralph E. Dennis, Jr., Dennis, Cross, Raisor, Jordan & Marshall, Muncie, for appellee.

LYBROOK, Judge.

Defendants-appellants, Repp and Mundt, Inc., an Indiana Corporation; State Teachers Board and Ball State University Board of Trustees, appeal from the trial court's granting of a Motion for Summary Judgment. ² Plaintiff-appellee, Hitzelberger Supply Co., Inc., an Indiana Corporation, initiated this action to foreclose a mechanic's lien and for an amount stated and for damages. Defendants raise eight issues for our consideration which generally allege that the trial court erred in granting plaintiff's motion for summary judgment.

The facts most relevant to these issues reveal that on November 23, 1970, Repp and Mundt entered into a construction contract with Ball State University for the construction of apartment buildings on the college campus. On September 2, 1971, Hitzelberger Supply Co., Inc., a supplier of materials, filed a Notice of Intent to Hold a Mechanic's Lien on the property for the amount of $42,186.96. On November 12, 1971, Hitzelberger filed a complaint to foreclose the mechanic's lien. From a granting of summary judgment in favor of Hitzelberger, defendants appeal.

The only issue requiring consideration is whether a mechanic's lien can attach to a public building under Indiana law. If not, the granting of the summary judgment must necessarily be reversed.

Defendants illustrate through a list of cases that historically mechanic's liens could not be acquired or enforced upon or against public property held for public use because public policy and public necessity alike forbid the acquisition or enforcement of such a lien. See: Board of County Commissioners of Parke County v. O'Conner (1882), 86 Ind. 531; Fatout v. The Board of School Commissioners of the City of Indianapolis, et al. (1885), 102 Ind. 223, 1 N.E. 389; Townsend, et al. v. Cleveland Fireproofing Co., et al. (1897), 18 Ind.App. 568, 47 N.E. 707; Jeffries v. Myers (1899), 9 Ind.App. 563, 37 N.E. 301.

Plaintiff contends that although 'generally speaking' it is a correct statement of the law that mechanic's liens cannot attach to public buildings, under the facts of this case, this rule is inapplicable. The plaintiff argues that Perkins v. State of Indiana (1969), 252 Ind. 549, 251 N.E.2d 30, a decision rejecting sovereign immunity for the negligent acts of the sovereign while performing proprietary acts where someone has been tortiously injured, should be utilized to determine that mechanic's liens can attach to public buildings. Plaintiff categorically assumes that the basis of the precedent that mechanic's liens cannot attach to public buildings is sovereign immunity.

We do not agree.

A search of the authorities fails to reveal sovereign immunity discussed as the basis for this rule. Public policy and public necessity were cited as the reasons for not permitting mechanic's liens to attach to public buildings. We believe that it is...