Templeton v. Sam Klain & Son, Inc.
Decision Date | 31 August 1981 |
Docket Number | No. 881S222,881S222 |
Citation | 425 N.E.2d 89 |
Parties | G. C. TEMPLETON, Jr., Defendant-Appellant, v. SAM KLAIN & SON, INC., Plaintiff-Appellee. |
Court | Indiana Supreme Court |
Charles G. Reeder, Johnson & Weaver, Indianapolis, for defendant-appellant.
Marvin Mitchell, Eskenazi, Mitchell, Yosha & Hurst, Indianapolis, for plaintiff-appellee.
Plaintiff, Appellee, Sam Klain & Son, Inc., formerly the Sam Klain & Son Partnership (Klain) recovered a judgment against the defendant, Appellant (Templeton) in the sum of $9,071.90 principal and interest, plus attorneys' fees in the sum of $3,200.00, for a total of $12,271.90, together with an order of foreclosure and sale, pursuant to its suit upon a mechanic's lien held under Ind.Code § 32-8-3-1 (Burns 1973). Thereafter, Templeton initiated appellate proceedings and Klain petitioned for and was awarded an additional sum for attorney's fees in the sum of $2500.00, secured by the lien and payable in the same manner as the judgment, in defense of the judgment on appeal.
Templeton's appeal was perfected and resulted in an affirmance of the trial court's judgment, except with respect to the award of the additional attorneys fees, and in this regard, it was reversed. The decision and opinion of the Court of Appeals, First District, may be found at 400 N.E.2d 1198.
The matter is now before us upon the petitions to transfer filed by both parties, and transfer is now granted pursuant to Ind.R.App.P. 11(B)(2)(b) in that the Court of Appeals has erroneously decided a new question of law, i. e. the entitlement to attorneys fees under Ind.Code § 32-8-3-14 (Burns 1973) incidental to the defense on appeal of the initial judgment; and the aforesaid decision and opinion of the Court of Appeals is now ordered vacated.
The appeal presents four (4) issues:
(1) Did the trial court err in finding that the materials furnished had not been paid for?
(2) Did the trial court err in holding, under the facts of this case, that evidence of delivery of the materials to the job site established a presumption that they were incorporated into the improvements for which they were furnished?
(3) Did the trial court err in holding that Templeton was personally liable for the amount secured by the lien?
(4) Did the trial court err in awarding Klain attorney's fees incidental to the defense, on appeal, of the initial judgment?
The facts necessary for understanding the issues are as related in the opinion of the Court of Appeals, authored by Judge Robertson; and we adopt the opinion of that Court upon Issues One (1), Two (2) and Three (3), as follows:
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...case law, we believe that this statutory provision for "reasonable" attorney fees encompasses appellate fees. See Templeton v. Sam Klain & Son, Inc., (1981) Ind., 425 N.E.2d 89 (in mechanics lien statute, "reasonable attorneys fees" includes appellate fees). Counsel for the Capelses filed a......
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