      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                              Jul 10 2019, 8:48 am

      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
      the defense of res judicata, collateral                                   Court of Appeals
                                                                                  and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEES
      Vincent M. Campiti                                        Frank J. Agostino
      South Bend, Indiana                                       South Bend, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bradley S. Foster,                                        July 10, 2019
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-PL-2390
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      Just A Garden Center LLC                                  The Honorable David C.
      d/b/a Not Just A Garden Center                            Chapleau, Judge
      and Brett Parks,                                          Trial Court Cause No.
      Appellees-Defendants                                      71D06-1610-PL-342




      Altice, Judge.


                                                Case Summary


[1]   Bradley S. Foster appeals the trial court’s award of $22,000 in attorney’s fees to

      Just a Garden Center, LLC d/b/a Not Just a Garden Center and Brett Parks


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019                  Page 1 of 9
      (collectively, the Garden Center) pursuant to Ind. Code § 32-28-3-14, the

      mechanic’s lien statute. Foster argues that the trial court’s award of attorney’s

      fees is contrary to law as most of the Garden Center’s attorney’s fees were

      incurred in pursuing and defending in personam claims, not foreclosure of its

      mechanic’s lien.


[2]   We affirm and remand with instructions.


                                        Facts & Procedural History


[3]   Parks is the sole owner of Just a Garden Center, LLC d/b/a Not Just a Garden

      Center, which he operates as a retail garden center and as a contractor

      providing design and installation services for landscaping and hardscape

      projects. In June 2016, Foster contacted the Garden Center about an extensive

      landscaping and hardscape project at his home. On June 10, 2016, Foster met

      with the Garden Center and explained that he wanted to make his property less

      maintenance intensive. Foster desired to remove existing vegetation, concrete

      patios, and hardscapes and replace it all with brick pavers for the patio and pool

      areas, new hardscapes, brick stairs, and two fire pits. At that time, Foster was

      unsure about what he wanted to do with a pond that was also on his property.

      At some point Foster and the Garden Center also discussed construction of an

      outdoor kitchen that would include an opening for a grill and a pizza oven.

      Foster claims he advised the Garden Center that he wanted the project

      completed by August 6, which was his daughter’s birthday. The Garden Center

      denies that the parties agreed to a specific deadline.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019   Page 2 of 9
[4]   Ultimately, Foster and the Garden Center agreed that the Garden Center would

      perform labor and provide materials on a time and materials basis and that they

      would initially forgo the design process so work on the project could begin

      immediately. The Garden Center proceeded to remove the existing landscaping

      and hardscapes (including trees, shrubs, concrete steps, concrete patios, and

      free-standing brick walls). Eventually, the Garden Center provided a design to

      Foster. The Garden Center then started the installation of the paver patios and

      construction of the outdoor kitchen. Foster made lump-sum payments as

      requested by the Garden Center. 1 The Garden Center did not, however,

      complete the project by August 6. In September, Foster confronted the Garden

      Center about the delay in completion of the project. Foster also voiced

      concerns that certain aspects were not completed according to plan and that the

      completed work was shoddy. The parties exchanged counter proposals for

      completion of the project but failed to come to an agreement. On September

      27, 2016, Foster informed the Garden Center that it was no longer welcome on

      his property.


[5]   On October 4, 2016, the Garden Center filed a Statement and Notice of

      Intention to Hold Mechanic’s Lien, asserting that Foster still owed $72,841.31

      for work it had performed and supplies it had furnished as part of the

      landscaping project at Foster’s home. On October 12, 2016, Foster filed a

      complaint against the Garden Center for breach of contract, conversion, slander



      1
          Throughout the course of the project, Foster paid the Garden Center $70,000.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019      Page 3 of 9
      of title, fraud, defamation, and treble damages. The Garden Center filed its

      answer to the complaint as well as a counterclaim for breach of contract, unjust

      enrichment, and enforcement of its mechanic’s lien.


[6]   A three-day jury trial commenced on May 9, 2018. Prior to jury selection, the

      parties agreed that the mechanic’s lien and the matter of treble damages would

      not be presented to the jury as they were equitable matters for the court to

      decide. The remaining claims were then tried to the jury. At the conclusion of

      Foster’s case-in-chief, the trial court granted the Garden Center’s motion for a

      directed verdict as to Foster’s claims for slander of title, fraud, defamation, and

      treble damages. At the conclusion of all of the evidence, the jury returned a

      verdict finding in favor of Foster on his breach of contract and conversion

      claims and awarded him $27,000 and $1000 in damages, respectively. The jury

      also found in favor of the Garden Center on its breach of contract claim and

      found its damages to be $40,000. After offsetting the damage awards, the trial

      court entered judgment in favor of the Garden Center for $12,000. The court

      stated that “the issues of foreclosure of mechanic’s lien and other issues are to

      be set for further hearing.” Transcript Vol. 3 at 164.


[7]   On May 18, 2018, the Garden Center filed a motion for attorney’s fees pursuant

      to the mechanic’s lien statute. Before the court could hold a hearing on that

      motion, the Garden Center filed a motion to correct error challenging the jury’s

      verdict in favor of Foster on his breach of contract claim.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019   Page 4 of 9
[8]    At a July 24, 2018 hearing, the court heard argument on the Garden Center’s

       motion to correct error, which it denied. The court also considered the Garden

       Center’s request for attorney’s fees. Counsel for the Garden Center submitted

       an itemized list of legal services rendered, which included time spent on

       discovery, trial preparation, and attendance at the jury trial. Counsel testified

       that he had been a practicing attorney in the area for twenty-three years, that he

       had expended 126.75 hours on the case, and that based on his experience, he

       charged a fair hourly rate of $250, for a total amount of attorney’s fees of

       $31,687.50. The Garden Center requested that because it was successful on five

       of seven claims, that it be awarded five-sevenths of this amount, or

       approximately $22,000.


[9]    Foster objected to the Garden Center’s request for attorney’s fees pursuant to

       the mechanic’s lien statute, arguing that the majority of the attorney’s fees

       identified were not incurred in pursuing foreclosure of the mechanic’s lien, but

       rather separate, independent claims. Over Foster’s objection, the trial court

       awarded the Garden Center $22,000 in attorney’s fees. Foster filed a motion to

       correct error concerning the award of attorney’s fees, which the court

       summarily denied. Foster now appeals. Additional facts will be provided as

       needed.


                                            Discussion & Decision


[10]   Before we address Foster’s challenge to the trial court’s award of attorney’s fees,

       we note that there is nothing in the record indicating that the trial court entered


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019   Page 5 of 9
       judgment on the Garden Center’s claim to foreclose on its mechanic’s lien,

       which is the basis upon which the Garden Center is entitled to attorney’s fees.

       Because the lien at issue exists to secure payment of the debt that the jury

       determined Foster owed the Garden Center, the trial court was required to

       order that the lien be foreclosed in the judgment amount to comply with the

       statute. See Clark v. Hunter, 861 N.E.2d 1202 (Ind. Ct. App. 2007) (remanding

       to trial court with instructions to foreclose on mechanic’s lien where trial court

       entered judgment only on plaintiff’s claim for breach of contract). We must

       therefore remand to the trial court with instructions that the court enter a

       judgment foreclosing the Garden Center’s mechanic’s lien.


[11]   This brings us to Foster’s challenge to the amount of attorney’s fees that can

       properly be awarded to the Garden Center. “[I]n an action to enforce a

       [mechanic’s] lien . . . , a plaintiff or lienholder who recovers a judgment in any

       sum is entitled to recover reasonable attorney’s fees. The court shall enter the

       attorney’s fees as a part of the judgment.” I.C. § 32-28-3-14(a). We have

       explained that


               [t]he award of attorney’s fees in an action to foreclose on a
               mechanic’s lien is not an attempt to compensate the attorney for
               all the legal services performed in connection with the lien;
               rather, the amount of the award is intended to reflect the amount
               the lienholder reasonably had to expend to foreclose on the lien.
               Such awards should be made with caution so that excessive
               awards of attorney’s fees do not discourage property owners from
               challenging defective workmanship on the part of lien holders.
               The amount awarded as attorney’s fees therefore should be
               reasonable in relation to the amount of the judgment secured.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019   Page 6 of 9
       Ponziano Const. Servs. Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 877 (Ind. Ct.

       App. 2012) (internal citation omitted).


[12]   Foster argues that the Garden Center’s attorney’s fees, at most, “can only

       reasonably include attorney services for preparing of the lien and filing it.”

       Appellant’s Brief at 13. In this vein, he notes that he elected to file an action for

       breach of contract and other claims in an in personam proceeding and that those

       claims are “fundamentally different” from enforcement of a mechanic’s lien,

       which is an in rem action. Id. at 10. Foster therefore maintains that the Garden

       Center was not entitled to attorney’s fees incurred in defending and/or pursing

       the in personam claims that were tried to the jury because such were independent

       causes of action that were completely separate and distinct from the mechanic’s

       lien foreclosure.


[13]   Foster’s argument puts form over substance. In Clark, supra, an electrical

       contractor filed a notice of intent to hold a mechanic’s lien against the

       landowner’s property. The contractor then filed suit for breach of contract and

       to foreclose on its lien. The landowner filed an answer and a counterclaim

       alleging breach of contract. Following a bench trial, the trial court entered

       judgment in favor of the contractor on its breach of contract claim and denied

       the landowner’s counterclaim. The court made no findings and did not enter a

       judgment on the contractor’s claim to foreclose on its lien.


[14]   On appeal, the contractor argued that the trial court, having found that it was

       entitled to recover, was obligated to foreclose on the mechanic’s lien so the


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019   Page 7 of 9
       contractor could collect what was owed. The landowner responded that

       because the contractor recovered on its legal (in personam) claim for breach of

       contract, the trial court need not have reached the equitable remedy afforded by

       the mechanic’s lien. In rejecting the landowner’s attempt to distinguish

       between legal and equitable principles behind the contractor’s complaint, the

       court stated:


               Indiana mechanic’s liens are purely statutory creations and in
               derogation of the common law. The legislature has determined
               that, when labor or materials are provided to improve real estate,
               money damages, the remedy at law, are inadequate. Further, as
               we have stated, “[t]he necessary allegations to support an action
               to foreclose a mechanic’s lien [include the requirement that] the
               complaint must show that [the] plaintiff had a contract to furnish
               the labor or materials with the owner of real estate, and that the
               work and materials were furnished under the contract.” Prewitt v.
               Londeree, 141 Ind. App. 291, 216 N.E.2d 724, 733 (1966). Of
               course, if the contract were paid in full, there would be no need
               to foreclose on the lien. Thus, to deny foreclosure on the theory
               that damages were awarded would eviscerate the mechanic’s lien
               statute.


       Clark, 861 N.E.2d at 1209 (some citations omitted).


[15]   Here, we similarly reject Foster’s attempt to distinguish between the legal and

       equitable principles underlying the claims presented in the parties’ pleadings so

       as to preclude recovery of attorney’s fees. The usual case is that the lienholder

       files suit and the action proceeds in equity. Here, however, Foster beat the

       Garden Center to the courthouse, leaving the Garden Center to file a

       counterclaim to foreclose on its mechanic’s lien. The parties agreed to have

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019   Page 8 of 9
       their dispute tried by a jury but reserved the issue of foreclosure of the

       mechanic’s lien for the trial court, as it is a matter of equity. With respect to an

       award of attorney’s fees pursuant to the mechanic’s lien statutory scheme, we

       find it of no consequence that Foster initiated the underlying in personam action

       or that a jury resolved the dispute. To hold otherwise would countenance a

       race to the courthouse.


[16]   Foster does not challenge the trial court’s entry of a directed verdict on his

       claim for slander of title and does not otherwise argue that the Garden Center’s

       mechanic’s lien is invalid. As noted above, when a lienholder recovers a

       judgment “in any sum,” the lienholder “is entitled to recover reasonable

       attorney’s fees” incurred to foreclose on the lien. I.C. § 32-28-3-14(a). Here, in

       light of the fact that the underlying claims were determined after a three-day

       jury trial, we conclude that $22,000 is a reasonable amount of attorney’s fees

       attributable to enforcement of the Garden Center’s mechanic’s lien. Thus,

       upon remand, the trial court is instructed to enter a judgment foreclosing on the

       mechanic’s lien in the amount of $12,000 and to include in such judgment

       $22,000 in attorney’s fees. See I.C. § 32-28-3-14(a) (“The court shall enter the

       attorney’s fees as a part of the judgment.”).


[17]   Judgment affirmed and remanded with instructions.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2390 | July 10, 2019   Page 9 of 9
