from the Marion Superior Court The Honorable Timothy W.
Oakes, Judge, Trial Court Cause No. 49D02-1609-PL-33823
Attorney for Appellant Clinton E. Blanck, Blanck &
Rubenstein, P.C., Indianapolis, Indiana
Attorney for Appellee Scott D. Pankow Indianapolis, Indiana
A House Mechanics, Inc. (AHM), appeals the trial court's
order granting summary judgment in favor of Michael Massey on
AHM's complaint. AHM argues that there are genuine issues
of material fact related to its claims for breach of contract
and foreclosure on a mechanic's lien rendering summary
judgment improper. Finding no error, we affirm.
Massey owns a residence and other structures on Sloan Avenue
in Indianapolis. On June 6, 2016, Massey and AHM entered into
a contract, pursuant to which AHM would remove and replace
the roofs on all of Massey's buildings and install new
siding and gutters on some. On June 15, 2016, Massey made a
down payment of $12, 000 and AHM began work. The contract
required that AHM would "comply with all applicable
building codes." Appellant's App. Vol. II p. 23.
Massey began to notice multiple problems with the work being
performed by AHM. He met repeatedly with Richard Hathaway,
AHM's president, to express concerns and point out things
that needed to be repaired.
On June 18, 2016, Massey confronted Hathaway with more
issues, explaining that simply covering up the problem areas
with shingles would not solve the underlying defects and
noting that the defects could not be repaired once covered
with shingles. Hathaway denied that there were any problems
and refused to make repairs. Massey asked to see
Hathaway's insurance policy and bond information;
Hathaway refused, said he was done working on that job, and
stated he intended to take the building materials and leave.
Massey responded that Hathaway could not take the materials
because Massey had already made a $12, 000 down payment.
Hathaway then threatened to harm Massey physically and take
his family's home. Massey told Hathaway to leave;
Hathaway called the police.
Officers arrived and threatened to arrest Hathaway unless he
calmed down. Massey and the officers tried to convince
Hathaway to make the needed repairs, finish the job, and move
on, but Hathaway refused. The officers told Hathaway to
leave. On his way out, Hathaway told Massey to call the City
Inspector, commenting that "'when it passes the
inspection, I will take your house.'" Id.
On June 23, 2016, the City of Indianapolis Department of Code
Enforcement issued a Notice of Violation listing multiple
violations related to the construction work on Massey's
property. The next day, the same department issued an Order
to Stop Work, demanding that all work on that site stop
because AHM had failed to notify the Bureau of Construction
Services before starting construction and had failed to post
a contractor form at the work site.
On June 24, 2016, Massey, via counsel, demanded that AHM
return the $12, 000 down payment. On June 27, 2016, AHM
responded by sending Massey an invoice for $6, 197.94, which
AHM claimed was the remaining amount owed by Massey after
applying the down payment. On June 29, 2016, AHM recorded a
mechanic's lien on Massey's property.
On August 13, 2016, AHM filed a complaint against Massey,
seeking damages for breach of contract and/or to foreclose on
the mechanic's lien. On November 4, 2016, Massey filed an
answer denying that he had breached the contract and denying
that the work done by AHM had added any value to Massey's
property. He also filed a counterclaim, alleging that AHM had
slandered his title, abused the legal process by filing and
seeking to foreclose on a mechanic's lien, violated the
Indiana Home Improvement Contracts Act (HICA), and breached
statutory home improvement warranties.
On September 7, 2018, Massey moved for summary judgment,
alleging that (1) there was no genuine issue of material fact
that AHM had committed the first material breach of the
parties' contract, meaning that AHM is not entitled to
enforce the contract against Massey; and (2) AHM had failed
to prove that its work added any value to Massey's
property as required under the mechanic's lien statute.
The trial court granted summary judgment in Massey's
favor on October 29, 2018. In pertinent part, it found and
held as follows:
4. Massey paid [AHM] a $12, 000.00 down payment on June 15,
2016. [AHM], after taking the above-referenced down payment,
walked off the job on June 18, 2016 when confronted about the
defective quality of the work to that date.
5. [AHM] refused to correct the defective work and called the
police. The police arrived and attempted to convince both
parties to agree to allow [AHM] to complete the job and make
needed repairs. Massey agreed to allow the repair attempt but
[AHM] refused to do any further work, refused to return any
portion of the down payment, and refused to leave any of the
materials for the job with Massey, taking them with him when
he walked off the job.
6. The home improvement repair job promised by [AHM] was
inspected by the City of Indianapolis Code Enforcement on
June 24, 2016 and a Notice of Violation and Order to Stop
Work . . . were issued and posted on Massey's property
detailing the many code violations found in [AHM's] work
by the city inspector.
9. [AHM] recorded the mechanic's lien notice . . . on or
about June 29, 2016 despite the fact that none of the
materials or services provided by [AHM] added any value to
Massey's property and in fact damaged or reduced the
value of Massey's property.
10. [AHM] breached its contract to provide home improvement
repairs by, among other things, failing, as specifically
promised in [its] contract, to comply with applicable
building and housing code requirements as evidenced by the
Notice of Violation and Order to Stop Work . . . .
11. Prior to walking off the job, [AHM] threatened to record
a mechanic's lien and bring this legal claim in an
attempt to coerce Massey to pay additional amounts to which
[AHM] had no legitimate legal claim.
13. The Court finds that [AHM's] labor and/or materials
added no value or improvement to Massey's property and in
fact damaged or reduced the value of Massey's property,
that the mechanic's lien filed by [AHM] is invalid and
should be vacated and released of record.
2. In order to pursue a claim for breach of contract or right
to payment for construction services, [AHM] cannot have first
breached the contract itself.
3. [AHM] has failed in this regard as a matter of law as the
Notice of Violation and Order to Stop Work . . . detailing
the many code violations found in [AHM's] work by the
city inspector establish that [AHM] failed to comply with
the specific promise in its contract ...