Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc. ( 2014 )

FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE,
Fostcorp Heating and Cooling, Inc.:
CHARLES P. RICE
Boveri Murphy Rice, LLP THOMAS L. KIRSCH
South Bend, Indiana Thomas L. Kirsch & Associates, P.C.
Munster, Indiana
ATTORNEYS FOR APPELLEE,
Wilson Iron Works, Inc.:
PAULA E. NEFF
CHRISTINA J. MILLER
Lucas, Holcomb & Medrea
Merrillville, Indiana
ATTORNEY FOR APPELLEE,
Johnson Carpet, Inc.,
d/b/a Johnson Commercial Interiors:
TIMOTHY W. WITHERS
Philip D. Burroughs & Associates, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GOODRICH QUALITY THEATERS, INC. and ) Dec 15 2014, 10:05 am
RONCELLI, INC. )
)
Appellants-Defendants, )
)
vs. ) No. 64A03-1308-PL-318
)
FOSTCORP HEATING AND COOLING, INC., )
WILSON IRON WORKS, INC., )
JOHNSON CARPET, INC., d/b/a JOHNSON )
COMMERCIAL INTERIORS, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William Alexa, Judge
Cause No. 64D02-0705-PL-4298
December 15, 2014
OPINION ON REHEARING - FOR PUBLICATION
ROBB, Judge
Goodrich Quality Theaters, Inc., leased property in Portage, Indiana, for the
purpose of building an IMAX movie theater. Roncelli, Inc. was the general contractor on
the project and engaged Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc.,
and Johnson Carpet, Inc. d/b/a Johnson Commercial Interiors (collectively, “the
appellees”), to perform work on the theater. Disputes arose during and following the
construction, and the appellees each recorded a mechanic’s lien and ultimately filed a
lawsuit seeking to foreclose the mechanic’s liens and asserting various other claims. The
trial court granted judgment to each of the appellees on their claims and also awarded
attorney fees to each of them against Roncelli. Roncelli appealed, arguing in part that the
trial court erred in awarding attorney fees to the appellees. In a decision dated August 20,
2014, we affirmed the judgments in favor of each of the appellees, but reversed the
awards of attorney fees. Goodrich Quality Theaters, Inc. v. Fostcorp Heating and
Cooling, Inc., 16 N.E.3d 426, 441 (Ind. Ct. App. 2014). The appellees have each filed a
petition for rehearing on the sole issue of the attorney fees.
As noted above, each of the appellees had recorded a mechanic’s lien against the
property. During the litigation, Roncelli posted a bond pursuant to Indiana Code section
32-28-3-11 providing that it would pay any judgment recovered in the action to foreclose
the liens. The trial court approved the undertaking and the property was discharged from
the lien. Goodrich and Roncelli were then able to close their transaction, Roncelli was
paid under its contract with Goodrich, and the litigation proceeded. Roncelli noted in its
initial brief that the sole basis for the appellees’ claims for attorney fees was pursuant to
Indiana Code section 32-28-3-14 and argued that because Goodrich had paid the contract
consideration for the construction of the theater, section 32-28-3-14 did not entitle the
appellees to recover attorney fees. None of the appellees disputed that section 32-28-3-
14 was the only basis for their attorney fee claims. In fact, all of the appellees based their
arguments for affirming the award of attorney fees on that statute, specifically arguing
that subsection (a) makes the award of attorney fees mandatory when a mechanic’s lien is
foreclosed, and that subsection (b) is an exception that applies only to property owners
and therefore does not apply to Roncelli. In reversing the trial court’s award of attorney
fees, we held that Indiana Code section 32-28-3-14 as a whole applies only to property
owners and as Roncelli is not a property owner in this instance, the appellees’ mechanic’s
liens and attorney fees claims based on those liens cannot be enforced against Roncelli.
Id.On rehearing, the appellees all contend that because Roncelli posted a bond to
release the lien on the real estate that provided for payment of any judgment recovered
“including costs and attorney’s fees allowed by the court,” Ind. Code § 32-28-3-11(b),
they are entitled to recover attorney fees against the bond. Notably, none of the appellees
argue Goodrich, as an owner of the property, is liable for their attorney fees. And they all
agree their original claim to fees was based solely on the mechanic’s lien statute which,
as we held previously, applies only to property owners. Although Roncelli’s undertaking
assures payment of any judgment plus costs and fees allowed by the court, it does not
give the appellees greater rights or impose greater liability on Roncelli than the
underlying obligation. Because Roncelli is not an owner of the property or the structure,
it is not liable for attorney fees under the mechanic’s lien statute and cannot be liable for
them under the bond. We therefore re-affirm our previous decision that the trial court
erred in awarding attorney fees to the appellees.
BRADFORD, J., concurs.
RILEY, J., would deny rehearing.