Preview:

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: CHRISTOPHER S. ROBERGE ELIZABETH A. ROBERGE ELIZA K. BRADLEY Roberge & Roberge Indianapolis, Indiana

ATTORNEY FOR APPELLEE: DONALD D. LEVENHAGEN Cohen & Malad, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
R.T.B.H., INC., d/b/a MCANDREWS WINDOWS ) & GLASS COMPANY, ) ) Appellant, ) ) vs. ) ) SIMON PROPERTY GROUP, ) ) Appellee. )

No. 41A01-0512-CV-551

APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Kevin M. Barton, Judge Cause No. 41D01-0412-CC-1141

June 27, 2006 OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary R.T.B.H., Inc., d/b/a McAndrews Windows & Glass Company ("McAndrews"), appeals the trial court's entry of partial summary judgment and final judgment in favor of Simon Property Group, L.P. ("Simon"). We affirm. Issue The issue before us is whether the trial court properly concluded that McAndrews did not establish the existence of a valid mechanic's lien on Simon's interest in property it owns. Facts On February 20, 2003, Dick's Sporting Goods, Inc. ("Dick's"), entered into a lease with Simon for property Simon owned at the Greenwood Park Mall. The lease was for the express purpose of Dick's demolishing an MCL Cafeteria and Service Merchandise store that were on the property and for constructing a new Dick's store. The lease was for an initial term of twenty years, with options to extend it for a total of fifty years. In order to secure the consent of Simon's mortgage lender for the lease, Simon agreed to complete construction of the new building if Dick's did not do so. The lease required Simon to pay Dick's for part of the costs associated with demolishing the MCL Cafeteria and constructing a courtyard. Otherwise, Dick's bore the cost of the construction. Simon reviewed and approved the plans for the Dick's store prior to entering into the lease but indicated on the plans, "Landlord's review of contract documents is for design intent and criteria compliance only." App. p. 176. The building was to be surrendered to Simon when the lease ended. 2

Dick's retained S.C. Nestel, Inc. ("Nestel"), as general contractor for the construction project. Nestel, in turn, subcontracted window and glass work to

McAndrews. McAndrews' representative interacted with representatives from Nestel and Dick's during construction of the store. There is no evidence that representatives from Simon ever interacted with any representative of McAndrews during the construction. The new Dick's store was completed without Simon's intervention. However, Nestel refused to pay McAndrews for its work on the store. Nestel, in fact, filed a complaint for damages against McAndrews. McAndrews, in turn, filed a counterclaim against Nestel and against Simon, alleging that there was a valid mechanic's lien on the property and that it should be foreclosed. Simon moved for partial summary judgment, alleging that there was no valid mechanic's lien on its fee interest in the property. On August 15, 2005, the trial court entered partial summary judgment in favor of Simon, concluding that there was no valid mechanic's lien as to Simon, and directed the entry of final judgment in favor of Simon. On October 12, 2005, the trial court denied

McAndrews' motion to correct error. McAndrews now appeals. Analysis Summary judgment is appropriate only if the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Beta Steel v. Rust, 830 N.E.2d 62, 67 (Ind. Ct. App. 2005). We must construe all facts and reasonable inferences drawn from those facts in favor of the nonmoving party. Beta Steel, 830 N.E.2d at 67. "The review of a summary judgment motion is limited to those materials designated to the trial court and we must carefully 3

review decisions on summary judgment motions to ensure that parties are not improperly denied their day in court." Id. "A contractor may attach a mechanic's lien to real estate in order to recover his wages and costs." Gill v. Pollert, 810 N.E.2d 1050, 1058 (citing Ind. Code

Download R.T.B.H., Inc., d/b/a McAndrews Windows & Glass Co. v. Simon Property Group.

Indiana Law