412 N.E.2d 295 | Ind. Ct. App. | 1980
Plaintiff-appellant Suburban Electric Company, Inc., a subcontractor who provided labor and materials for the installation of electrical service in apartments in which all defendant-appellees share an interest, appeals the grant of partial summary judgment holding its mechanic’s lien null and void.
Cognizant that summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law, Ind. Rules of Procedure, Trial Rule 56(C), Whipple v. Dickey, (1980) Ind.App., 401 N.E.2d 787, we review the facts before the trial court casting them in the light most favorable to Suburban Electric, the non-moving party. The relevant and undisputed facts show that Suburban Electric contracted on November 20, 1974 with Krughoff Company, general contractor for the construction of Concord Square Apartments, to supply electrical service to the apartments. Mr. Lynn Redding, as its president, acted on behalf of Krughoff. The real estate was owned by Concord Square Unit # 1, an Indiana limited partnership in which Mr. Redding was a general partner. The partnership conveyed the property on December 15,1975 to Lake County Trust, as Trustee of Trust No. 2298. Lake County Trust, however, did not record its deed until January 8, 1976 at 10:20 A.M. Suburban Electric completed work on the apartment project January 7, 1976 and filed a Notice of Intent to Hold a Mechanic’s Lien January 8,1976 at 8:40 A.M., one hour and forty minutes before Lake County Trust recorded its deed. Thus, the title of record when Suburban Electric filed its lien was still in the partnership’s name. Nonetheless, Suburban Electric addressed its statutory lien notice to Mr. Lynn Redding c/o Krughoff Builders, Inc. and attached to its lien notice copies of two deeds each containing the legal description of the land, one of which was a copy of the deed to Concord Square.
Suburban Electric argues that its designation of Lynn Redding as owner in
We next consider whether by attaching a copy of the Concord Square deed containing'the record titleholder’s name to the notice of lien, substantial compliance with Ind. Code 32-8-3-3 was achieved. As earlier stated, Suburban Electric attached copies of two deeds describing the real estate upon which the lien was claimed. One was the Concord Square deed; the other was an earlier deed for the same real estate. The record, however, does not show nor can we infer that the attachment in any way affected the clerk’s recording of the lien notice. It appears the deeds were at
Finding no genuine issue of material fact regarding the name listed in the lien notice to preclude summary judgment and finding such designation inadequate as a matter of law to create a valid lien, we affirm the partial summary judgment of the trial court holding the lien null and void.
. Trial continues on charges of fraud, breach of contract and unjust enrichment.
. Ind. Code 32-8-3-3 provides in pertinent part:
Any person who wishes to acquire a lien . . . shall file in the recorder’s office of the county, at any time within sixty [60] days after performing such labor ... a sworn statement in duplicate of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth the amount claimed, the name and address of the claimant and the name of the owner .... The name of the owner and legal description . . . will be sufficient if they are substantially as set forth in the latest entry in the county auditor’s transfer books .... [Emphasis added]
The deed to Concord Square was duly entered for taxation by the Porter County Auditor on January 10, 1974. We therefore presume that the county auditor’s transfer books listed Concord Square as the owner of the property.
. This fact situation thus critically differs from that found in Beneficial Finance where a majority of this court concluded that designation of one spouse as owner of what is entireties property in a lien notice could not possibly mislead or prejudice any third party.
.We note that the real estate was conveyed by Concord Square to a third party, Lake County Trust. Lake County Trust, in answer to interrogatories from Suburban Electric states that its first knowledge of the mechanic’s lien came from the complaint and summons it received in this foreclosure action. Thus, it is possible that Lake County Trust was misled, if it searched the public records, by the inaccuracy of Suburban’s designation of owner in its lien notice. We do not however rest this decision upon the presence or absence of actual prejudice. Rather, we hold that the incorrect designation of the owner in the lien notice, creating as it does the potential for prejudice to third parties, prevents the creation of a valid lien. Beneficial Finance, 402 N.E.2d 41, rehearing denied with opinion, 403 N.E.2d 1150 (the opinion on rehearing supports this analysis).