Marilyn Odendahl for www.theindianalawyer.com
Subcontractors successful in their dispute against the general contractor over the construction of a northern Indiana IMAX movie theater are not entitled to attorney fees, the Indiana Court of Appeals has reaffirmed.
Fostcorp Heating and Cooling Inc., Wilson Iron Works Inc. and Johnson Carpet Inc. were each granted judgment on their complaint to foreclose mechanic’s liens and asserting other claims. In addition, Porter Superior Court awarded the trio attorney fees.
The general contractor, Roncelli Inc., appealed and in an August decision a unanimous Court of Appeals reversed the awarding of fees.
The subcontractors filed a petition for rehearing on the sole issue of the attorney fees but the Court of Appeals reaffirmed the ruling in Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc, et al., 64A03-1308-PL-318.
On rehearing, the subcontractors argued that Roncelli had posted a bond that would pay any judgment recovered including costs and attorney fees. The Court of Appeals reiterated its original decision that the mechanic’s lien statute applies only to property owners and since Roncelli is not the owner of the property, it is not liable for attorney fees.
“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,†Judge Margret Robb wrote for the majority.
Judge Cale Bradford concurred. Judge Patricia Riley voted to deny rehearing.
