McCorry v. G. Cowser Construction, Inc.

644 N.E.2d 550, 1994 Ind. LEXIS 208, 1994 WL 703146

• Court: Indiana Supreme Court
• Decided: December 16, 1994
• Docket: 45S05-9412-CV-1212
• Status: Published

Opinions

On Petition To Transfer

DICKSON, Justice.

The question presented is whether attorney fees are recoverable under Indiana Code Section 32-8-3-9, the personal lability seetion of the mechanic's lien statute. The Court of Appeals determined that such fees cannot be recovered. McCorry v. G. Cowser Const. Co., Inc. (1994), Ind.App., 636 N.E.2d 1273, 1279-80. One of the plaintiff-appellees, Snow-N'-Son, Inc., seeks transfer on grounds that the decision of the Court of Appeals conflicts with prior opinions of the Court of Appeals. See Gibson Lewis Corp. v. NIPSCO, (1988), Ind.App., 524 N.E.2d 1316, 1319 n. 4; Zeigler Bldg. Materials, Inc. v. Parkison, (1980), Ind.App., 398 N.E.2d 1330, 1332; Indianapolis P & L Co. v. Southeastern Supply Co., (1970) 146 Ind.App. 554, 257 N.E.2d 722. Transfer is granted.

While a mechanic's lien must be filed within a specified period of time, there is no such time limitation in the personal responsibility statute, which makes no mention of a lien on real estate and does not separately provide for the recovery of attorney fees. McCorry, 636 N.E.2d 1273. The Court of Appeals held that a recovery based on the personal responsibility provisions of the mechanic's len statute does not constitute a len and therefore attorney fees are not available. Id.

We agree. To resolve the apparent conflict between the present and prior opinions of the Court of Appeals, we now expressly adopt the opinion of the Court of Appeals pursuant to Ind.Appellate Rule 11(B)B). The judgment of the trial court, as modified therein, is affirmed.

SHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur. SULLIVAN, J., concurs with separate opinion.