Bradley S. Foster v. Just A Garden Center LLC d/b/a Not Just A Garden Center and Brett Parks (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 10 2019, 8:48 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Vincent M. Campiti Frank J. Agostino
South Bend, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradley S. Foster, July 10, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-PL-2390
v. Appeal from the St. Joseph
Superior Court
Just A Garden Center LLC The Honorable David C.
d/b/a Not Just A Garden Center Chapleau, Judge
and Brett Parks, Trial Court Cause No.
Appellees-Defendants 71D06-1610-PL-342
Altice, Judge.
Case Summary
[1] Bradley S. Foster appeals the trial court’s award of $22,000 in attorney’s fees to
Just a Garden Center, LLC d/b/a Not Just a Garden Center and Brett Parks
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(collectively, the Garden Center) pursuant to Ind. Code § 32-28-3-14, the
mechanic’s lien statute. Foster argues that the trial court’s award of attorney’s
fees is contrary to law as most of the Garden Center’s attorney’s fees were
incurred in pursuing and defending in personam claims, not foreclosure of its
mechanic’s lien.
[2] We affirm and remand with instructions.
Facts & Procedural History
[3] Parks is the sole owner of Just a Garden Center, LLC d/b/a Not Just a Garden
Center, which he operates as a retail garden center and as a contractor
providing design and installation services for landscaping and hardscape
projects. In June 2016, Foster contacted the Garden Center about an extensive
landscaping and hardscape project at his home. On June 10, 2016, Foster met
with the Garden Center and explained that he wanted to make his property less
maintenance intensive. Foster desired to remove existing vegetation, concrete
patios, and hardscapes and replace it all with brick pavers for the patio and pool
areas, new hardscapes, brick stairs, and two fire pits. At that time, Foster was
unsure about what he wanted to do with a pond that was also on his property.
At some point Foster and the Garden Center also discussed construction of an
outdoor kitchen that would include an opening for a grill and a pizza oven.
Foster claims he advised the Garden Center that he wanted the project
completed by August 6, which was his daughter’s birthday. The Garden Center
denies that the parties agreed to a specific deadline.
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[4] Ultimately, Foster and the Garden Center agreed that the Garden Center would
perform labor and provide materials on a time and materials basis and that they
would initially forgo the design process so work on the project could begin
immediately. The Garden Center proceeded to remove the existing landscaping
and hardscapes (including trees, shrubs, concrete steps, concrete patios, and
free-standing brick walls). Eventually, the Garden Center provided a design to
Foster. The Garden Center then started the installation of the paver patios and
construction of the outdoor kitchen. Foster made lump-sum payments as
requested by the Garden Center. 1 The Garden Center did not, however,
complete the project by August 6. In September, Foster confronted the Garden
Center about the delay in completion of the project. Foster also voiced
concerns that certain aspects were not completed according to plan and that the
completed work was shoddy. The parties exchanged counter proposals for
completion of the project but failed to come to an agreement. On September
27, 2016, Foster informed the Garden Center that it was no longer welcome on
his property.
[5] On October 4, 2016, the Garden Center filed a Statement and Notice of
Intention to Hold Mechanic’s Lien, asserting that Foster still owed $72,841.31
for work it had performed and supplies it had furnished as part of the
landscaping project at Foster’s home. On October 12, 2016, Foster filed a
complaint against the Garden Center for breach of contract, conversion, slander
1
Throughout the course of the project, Foster paid the Garden Center $70,000.
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of title, fraud, defamation, and treble damages. The Garden Center filed its
answer to the complaint as well as a counterclaim for breach of contract, unjust
enrichment, and enforcement of its mechanic’s lien.
[6] A three-day jury trial commenced on May 9, 2018. Prior to jury selection, the
parties agreed that the mechanic’s lien and the matter of treble damages would
not be presented to the jury as they were equitable matters for the court to
decide. The remaining claims were then tried to the jury. At the conclusion of
Foster’s case-in-chief, the trial court granted the Garden Center’s motion for a
directed verdict as to Foster’s claims for slander of title, fraud, defamation, and
treble damages. At the conclusion of all of the evidence, the jury returned a
verdict finding in favor of Foster on his breach of contract and conversion
claims and awarded him $27,000 and $1000 in damages, respectively. The jury
also found in favor of the Garden Center on its breach of contract claim and
found its damages to be $40,000. After offsetting the damage awards, the trial
court entered judgment in favor of the Garden Center for $12,000. The court
stated that “the issues of foreclosure of mechanic’s lien and other issues are to
be set for further hearing.” Transcript Vol. 3 at 164.
[7] On May 18, 2018, the Garden Center filed a motion for attorney’s fees pursuant
to the mechanic’s lien statute. Before the court could hold a hearing on that
motion, the Garden Center filed a motion to correct error challenging the jury’s
verdict in favor of Foster on his breach of contract claim.
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[8] At a July 24, 2018 hearing, the court heard argument on the Garden Center’s
motion to correct error, which it denied. The court also considered the Garden
Center’s request for attorney’s fees. Counsel for the Garden Center submitted
an itemized list of legal services rendered, which included time spent on
discovery, trial preparation, and attendance at the jury trial. Counsel testified
that he had been a practicing attorney in the area for twenty-three years, that he
had expended 126.75 hours on the case, and that based on his experience, he
charged a fair hourly rate of $250, for a total amount of attorney’s fees of
$31,687.50. The Garden Center requested that because it was successful on five
of seven claims, that it be awarded five-sevenths of this amount, or
approximately $22,000.
[9] Foster objected to the Garden Center’s request for attorney’s fees pursuant to
the mechanic’s lien statute, arguing that the majority of the attorney’s fees
identified were not incurred in pursuing foreclosure of the mechanic’s lien, but
rather separate, independent claims. Over Foster’s objection, the trial court
awarded the Garden Center $22,000 in attorney’s fees. Foster filed a motion to
correct error concerning the award of attorney’s fees, which the court
summarily denied. Foster now appeals. Additional facts will be provided as
needed.
Discussion & Decision
[10] Before we address Foster’s challenge to the trial court’s award of attorney’s fees,
we note that there is nothing in the record indicating that the trial court entered
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judgment on the Garden Center’s claim to foreclose on its mechanic’s lien,
which is the basis upon which the Garden Center is entitled to attorney’s fees.
Because the lien at issue exists to secure payment of the debt that the jury
determined Foster owed the Garden Center, the trial court was required to
order that the lien be foreclosed in the judgment amount to comply with the
statute. See Clark v. Hunter, 861 N.E.2d 1202 (Ind. Ct. App. 2007) (remanding
to trial court with instructions to foreclose on mechanic’s lien where trial court
entered judgment only on plaintiff’s claim for breach of contract). We must
therefore remand to the trial court with instructions that the court enter a
judgment foreclosing the Garden Center’s mechanic’s lien.
[11] This brings us to Foster’s challenge to the amount of attorney’s fees that can
properly be awarded to the Garden Center. “[I]n an action to enforce a
[mechanic’s] lien . . . , a plaintiff or lienholder who recovers a judgment in any
sum is entitled to recover reasonable attorney’s fees. The court shall enter the
attorney’s fees as a part of the judgment.” I.C. § 32-28-3-14(a). We have
explained that
[t]he award of attorney’s fees in an action to foreclose on a
mechanic’s lien is not an attempt to compensate the attorney for
all the legal services performed in connection with the lien;
rather, the amount of the award is intended to reflect the amount
the lienholder reasonably had to expend to foreclose on the lien.
Such awards should be made with caution so that excessive
awards of attorney’s fees do not discourage property owners from
challenging defective workmanship on the part of lien holders.
The amount awarded as attorney’s fees therefore should be
reasonable in relation to the amount of the judgment secured.
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Ponziano Const. Servs. Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 877 (Ind. Ct.
App. 2012) (internal citation omitted).
[12] Foster argues that the Garden Center’s attorney’s fees, at most, “can only
reasonably include attorney services for preparing of the lien and filing it.”
Appellant’s Brief at 13. In this vein, he notes that he elected to file an action for
breach of contract and other claims in an in personam proceeding and that those
claims are “fundamentally different” from enforcement of a mechanic’s lien,
which is an in rem action. Id. at 10. Foster therefore maintains that the Garden
Center was not entitled to attorney’s fees incurred in defending and/or pursing
the in personam claims that were tried to the jury because such were independent
causes of action that were completely separate and distinct from the mechanic’s
lien foreclosure.
[13] Foster’s argument puts form over substance. In Clark, supra, an electrical
contractor filed a notice of intent to hold a mechanic’s lien against the
landowner’s property. The contractor then filed suit for breach of contract and
to foreclose on its lien. The landowner filed an answer and a counterclaim
alleging breach of contract. Following a bench trial, the trial court entered
judgment in favor of the contractor on its breach of contract claim and denied
the landowner’s counterclaim. The court made no findings and did not enter a
judgment on the contractor’s claim to foreclose on its lien.
[14] On appeal, the contractor argued that the trial court, having found that it was
entitled to recover, was obligated to foreclose on the mechanic’s lien so the
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contractor could collect what was owed. The landowner responded that
because the contractor recovered on its legal (in personam) claim for breach of
contract, the trial court need not have reached the equitable remedy afforded by
the mechanic’s lien. In rejecting the landowner’s attempt to distinguish
between legal and equitable principles behind the contractor’s complaint, the
court stated:
Indiana mechanic’s liens are purely statutory creations and in
derogation of the common law. The legislature has determined
that, when labor or materials are provided to improve real estate,
money damages, the remedy at law, are inadequate. Further, as
we have stated, “[t]he necessary allegations to support an action
to foreclose a mechanic’s lien [include the requirement that] the
complaint must show that [the] plaintiff had a contract to furnish
the labor or materials with the owner of real estate, and that the
work and materials were furnished under the contract.” Prewitt v.
Londeree, 141 Ind. App. 291, 216 N.E.2d 724, 733 (1966). Of
course, if the contract were paid in full, there would be no need
to foreclose on the lien. Thus, to deny foreclosure on the theory
that damages were awarded would eviscerate the mechanic’s lien
statute.
Clark, 861 N.E.2d at 1209 (some citations omitted).
[15] Here, we similarly reject Foster’s attempt to distinguish between the legal and
equitable principles underlying the claims presented in the parties’ pleadings so
as to preclude recovery of attorney’s fees. The usual case is that the lienholder
files suit and the action proceeds in equity. Here, however, Foster beat the
Garden Center to the courthouse, leaving the Garden Center to file a
counterclaim to foreclose on its mechanic’s lien. The parties agreed to have
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their dispute tried by a jury but reserved the issue of foreclosure of the
mechanic’s lien for the trial court, as it is a matter of equity. With respect to an
award of attorney’s fees pursuant to the mechanic’s lien statutory scheme, we
find it of no consequence that Foster initiated the underlying in personam action
or that a jury resolved the dispute. To hold otherwise would countenance a
race to the courthouse.
[16] Foster does not challenge the trial court’s entry of a directed verdict on his
claim for slander of title and does not otherwise argue that the Garden Center’s
mechanic’s lien is invalid. As noted above, when a lienholder recovers a
judgment “in any sum,” the lienholder “is entitled to recover reasonable
attorney’s fees” incurred to foreclose on the lien. I.C. § 32-28-3-14(a). Here, in
light of the fact that the underlying claims were determined after a three-day
jury trial, we conclude that $22,000 is a reasonable amount of attorney’s fees
attributable to enforcement of the Garden Center’s mechanic’s lien. Thus,
upon remand, the trial court is instructed to enter a judgment foreclosing on the
mechanic’s lien in the amount of $12,000 and to include in such judgment
$22,000 in attorney’s fees. See I.C. § 32-28-3-14(a) (“The court shall enter the
attorney’s fees as a part of the judgment.”).
[17] Judgment affirmed and remanded with instructions.
Kirsch, J. and Vaidik, C.J., concur.
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