ILNews

Reversal: Trust bears liability for builder’s nonpayment despite lien notice discrepancies

Back to TopCommentsE-mailPrintBookmark and Share

A trust that won summary judgment at the trial court against a supplier of building materials for construction of a home on Lake Michigan got the opposite result from an appeals court Friday. The trust is liable, even though it paid builders who failed to reimburse the supplier for materials provided on credit.

A panel of the Indiana Court of Appeals reversed summary judgment granted by LaPorte Superior Judge Jennifer Koethe in favor of the Margaret Lynn West trust. The panel remanded with an order to grant summary judgment for the company that supplied material in Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc. v. Chi-Tec Construction & Remodeling, Inc.; John F. Ziola, Jr.; Et Al.
46A03-1301-MI-18.

At issue is a mechanic’s lien Von Tobel recorded on the property that it sought to foreclose for nonpayment. The trial court ruled the lien was invalid because it designated “the wrong claimant” in the pre-lien notice.

“The Trust received the Pre-lien Notice from ‘Von Tobel Lumber & Home Center, Inc.’ and the Lien Notice from ‘Von Tobel Corporation,’” Judge James Kirsch wrote for the unanimous panel that also included Judge Patricia Riley and Chief Judge Margret Robb.

“The Trust does not contend that it was misled or confused by the discrepancy,” Kirsch wrote, noting the difference in names was minimal, didn’t undermine statutory policy regarding notice, and did not cause prejudice to the property owner or any third party. Indeed, the panel held that notice regarding the lien could have been used to assure “the party may take measures and direct funds accordingly.”

The trust paid homebuilder Chi-Tech Construction and its owner John Ziola, but the opinion says those payments weren’t forwarded to Von Tobel. Chi-Tech and Ziola since have declared bankruptcy, according to the court.

“Here, the property owner had notice of the potential lien early in the construction process, but failed to take appropriate measures to see that funds were properly directed. We reverse the summary judgment entered in favor of the trust and remand with instructions to enter summary judgment in favor of Von Tobel Corporation.”


 
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

ADVERTISEMENT