                                                                            Jun 26 2015, 7:53 am




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Carl A. Greci                                               Patrick A. Mysliwy
D. Lucetta Pope                                             Maish & Mysliwy, Attorneys at Law
Ryan G. Milligan                                            Hammond, Indiana
Faegre Baker Daniels LLP
South Bend, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Wells Fargo Bank, N.A.,                                    June 26, 2015

Appellant,                                                 Court of Appeals Case No.
                                                           45A03-1410-PL-381
        v.                                                 Appeal from the Lake Superior
                                                           Court.
                                                           The Honorable John R. Pera, Judge.
Rieth-Riley Construction Co.,                              Cause No. 45D10-1302-PL-7
Inc.; Woodmar Hammond, LLC;                                Consolidated with
The Bon-Ton Department Stores,                             45D04-1302-PL-27
Inc.; Build Tech, Inc.; Ziese &
Sons Excavating, Inc.; Advanced
Awning & Sign, Inc.; A-Z
Construction Layout, LLC;
Coex, Inc.; Terrance K. Holt;
City of Hammond
Redevelopment Commission,
Appellees




Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015                  Page 1 of 18
      Baker, Judge.

[1]   This case requires us to determine the remedy available to a mechanic’s

      lienholder when the property on which the lien is held is subject to a mortgage

      foreclosure action. Wells Fargo Bank, N.A. (Wells Fargo), sought to foreclose

      a mortgage lien that it holds over certain real property. Rieth-Riley

      Construction Company, Inc. (Rieth-Riley), holds a mechanic’s lien over the

      same property. The trial court entered judgment in favor of Wells Fargo,

      ordering its mortgage lien foreclosed and the property sold. The trial court

      further held that Wells Fargo could use its judgment to bid for the property at

      sheriff’s sale, but only after depositing a certain amount of its bid in cash. This

      would ensure that there was cash to distribute if the trial court later found that

      Rieth-Riley was entitled to some recovery by virtue of its mechanic’s lien.

      Finding that the trial court erred on this point, we reverse.


                                                      Facts
[2]   Woodmar Hammond LLC (Woodmar) is the fee simple titleholder of Lot 1 of

      the Woodmar Shopping Center in Hammond. In August 2007, Wells Fargo

      loaned Woodmar $6,200,000 to refinance its purchase of Lot 1. Woodmar

      executed and delivered to Wells Fargo a promissory note with a maturity date

      of April 30, 2011, promising to repay the principal plus interest. To secure the

      debt, Woodmar also executed and delivered to Wells Fargo a first mortgage

      lien on all of its rights to Lot 1. Wells Fargo recorded this mortgage in the




      Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015    Page 2 of 18
      Office of the Lake County Recorder in January 2008. On April 30, 2011,

      Woodmar defaulted by failing to pay the principal balance on the matured loan.


[3]   In November 2011, Woodmar hired Rieth-Riley to provide paving services for

      parking lot improvements on Lot 1. In November and December 2011, Rieth-

      Riley performed the work as agreed but never received payment from

      Woodmar. In February 2012, Rieth-Riley executed and recorded a mechanic’s

      lien against Lot 1 for the principal amount of $251,800 plus interest and

      attorney fees. On February 4, 2013, still having not received payment, Rieth-

      Riley filed a complaint in the trial court claiming breach of contract against

      Woodmar and seeking to foreclose its mechanic’s lien against Lot 1. Rieth-

      Riley named Wells Fargo as a defendant due to its interest in Lot 1, but claimed

      that its mechanic’s lien had priority over Wells Fargo’s mortgage lien.


[4]   Wells Fargo filed a cross-claim, counterclaims, and a third-party complaint on

      April 17, 2013. Wells Fargo asserted that its mortgage lien had priority over

      Rieth-Riley’s mechanic’s lien, as well as any other lien,1 because of its earlier

      recording date. On June 21, 2013, Wells Fargo moved for summary judgment,

      asking the trial court to enter judgment against Woodmar for $5,229,052 plus

      interest and attorney fees and order foreclosure of its mortgage lien. Rieth-

      Riley filed a cross-motion for summary judgment asking the trial court to enter




      1
        A-Z Construction Layout, LLC, Coex, Inc., and Ziese and Sons Excavating, Inc., also filed cross-motions
      for summary judgment seeking foreclosure of mechanic’s liens on the property. These motions were denied
      as the trial court found that there was dispute over whether the improvements made by these companies were
      made to Lot 1 or to Lot 3 of the Woodmar Shopping Center. Appellant’s App. p. 50.

      Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015                       Page 3 of 18
      judgment against Woodmar for $345,299.60 plus interest and attorney fees and

      order foreclosure of its mechanic’s lien, which it again argued had priority.


[5]   On May 8, 2014, the trial court granted Wells Fargo’s motion for summary

      judgment and denied Rieth-Riley’s cross-motion for summary judgment. As to

      the priority of the liens, the trial court found:

              Here, the law provides that Rieth-Riley . . . shall have priority as to the
              actual improvements that [it has] made to Lot 1. Further, under Ind.
              Code § 32-28-3-2, this Court notes that the Mechanic’s Lien holders
              could have sold and removed their improvements. However, that is
              not to say that the mechanic’s liens have priority over Wells Fargo’s
              mortgage lien. Rather, the law on this point is clear. Rieth-Riley . . .
              shall be entitled to commence foreclosure proceedings and recover the
              value of [its lien] and the attorney fees provided for in our mechanic’s
              lien statute only after the Wells Fargo mortgage is satisfied.
              Furthermore, Rieth-Riley . . . [is] entitled to priority as to any proceeds
              from the sale of the improvements that [it] made. It follows that, upon
              making a showing of having a valid mechanic’s lien for improvements
              made to Lot 1, any recovery from the Wells Fargo foreclosure
              proceedings shall be reduced by the proceeds from the sale of the
              improvements and set aside for the mechanics liens holders. Such
              matter shall be resolved by further order of this Court.

      Appellant’s App. p. 52-53 (citations omitted). The trial court then ordered Lot

      1 sold to satisfy Wells Fargo’s judgment. It noted that:

              The proceeds of the sale of the Property shall be applied in the
              following order: (i) first, to the payment of costs of the Sheriff’s Sale;
              (ii) second, to the payment of all real estate taxes then owing to the
              Treasurer of Lake County, Indiana, for the Property, (iii) third, all
              remaining proceeds shall be deposited with the Lake County Superior
              Court and (iv) all deposited proceeds will then be distributed to Wells
              Fargo and the junior lienholders in a manner that will be determined
              by a further order of this Court.


      Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015              Page 4 of 18
      Id. at 54. Finally, the trial court noted that “Wells Fargo is hereby empowered

      to bid for the Property with the Judgment amount to be credited with the

      amount bid by Wells Fargo.” Id.


[6]   On June 6, 2014, Rieth-Riley filed a motion to clarify and/or correct error. In

      its motion, Rieth-Riley argued that by allowing Wells Fargo to “credit bid” for

      Lot 1 at the sheriff’s sale, the trial court’s order would deprive Rieth-Riley of

      any recovery because there would likely be no cash in the pot to distribute

      following the sale. Wells Fargo filed a motion in opposition.


[7]   On October 3, 2014, the trial court amended its previous order and granted

      summary judgment in favor of Rieth-Riley on its breach of contract claim

      against Woodmar, awarding it $337,370 plus interest. The trial court

      reaffirmed that Wells Fargo’s mortgage lien was “superior to all interests

      asserted against such property by any other party excepting only: . . . the

      interests of Rieth-Riley as a mechanic lien holder in the improvements that it

      may subsequently be determined by this Court in these proceedings to have

      constructed on Woodmar Center Lot 1.” Id. at 83. The trial court then ordered

      Wells Fargo to deposit with the trial court the first $337,000 of any bid it may

      make to purchase Lot 1 in cash. This would assure Rieth-Riley a recovery were

      the trial court to later determine that it is entitled to proceeds from the sale

      relating to any improvements it made on the property. The trial court

      determined that there was no just reason for delay and directed the entry of a




      Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015     Page 5 of 18
      final judgment on this claim pursuant to Indiana Trial Rule 54(B). 2 Wells

      Fargo now appeals.


                                      Discussion and Decision
[8]   When reviewing a trial court’s decision on a motion for summary judgment

      “we face the same issues that were before the trial court and follow the same

      process.” Pedraza v. City of East Chicago, 746 N.E.2d 94, 99 (Ind. Ct. App. 2001).

      The trial court’s order is cloaked with the presumption of validity and it is the

      appellant’s burden to persuade us that its decision was erroneous. Id. Here,

      there is no dispute as to any material fact; rather, the trial court’s interpretation

      of a statute is at issue. We review matters of statutory interpretation de novo

      because they present pure questions of law. Alexander v. PSB Lending Corp., 800

      N.E.2d 984, 989 (Ind. Ct. App. 2003).


                                    I. The Trial Court’s Order
[9]   Rieth-Riley first argues that the trial court’s order “makes no specific division or

      allocation of anticipated sale proceeds, except for payment of sales expenses

      and outstanding property taxes.” Appellee’s Br. p. 10. Simply put, as the trial

      court has only ordered Wells Fargo to deposit cash, and has yet to allocate any




      2
        Wells Fargo does not believe that the trial court’s order is a final appealable order “because it reserves for
      further determination the dollar value of Rieth-Riley’s priority to foreclosure proceeds.” Appellant’s Br. p. 4.
      n. 3. Accordingly, Wells Fargo filed a motion with this Court to accept jurisdiction of interlocutory appeal.
      This Court denied the motion, concluding that “the order appears to be otherwise appealable as a matter of
      right under Appellate Rule 14(A)(1) and (4).” Nov. 24, 2014 Order under Cause No. 45A03-1410-PL-379.

      Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015                             Page 6 of 18
       of that cash to Rieth-Riley, Rieth-Riley believes that Wells Fargo has nothing to

       appeal at this point.


[10]   We disagree. We have long held that an “execution creditor,” as Wells Fargo

       will be known in this case, may use its judgment against the mortgagor as a

       credit toward the purchase price of the mortgagor’s property at sheriff’s sale.

       We have observed that:

               It is the payment of the purchase money which completes the sale.
               Where the execution creditor purchases, it is held that his receipt is
               sufficient without the actual payment of the purchase price by him to
               the sheriff, for the reason that to require him to pay over the money to
               the sheriff, immediately thereafter receiving it back from the sheriff,
               would be an idle form.

       Fuller v. Exch. Bank, 38 Ind. App. 570, 78 N.E. 206, 206-07 (1906).


[11]   By ordering Wells Fargo to deposit a certain amount of its bid in cash, the trial

       court ordered Wells Fargo to do something other than that which it was

       otherwise entitled to do—bid with its judgment alone. Simply put, the trial

       court’s disposition of this matter affects Wells Fargo’s rights. As the trial court

       directed entry of final judgment on this matter pursuant to Trial Rule 54(B),

       Wells Fargo is entitled to appeal this judgment and we are obliged to determine

       whether the trial court erred.


                 II. Priority of Mortgage and Mechanic’s Liens
[12]   Indiana Code section 32-21-4-1(b) governs the priority of encumbrances on

       land. It provides that “[a] conveyance, mortgage, memorandum of lease, or


       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015        Page 7 of 18
       lease takes priority according to the time of its filing.” I.C. § 32-21-4-1(b).

       Wells Fargo recorded its mortgage in January 2008.


[13]   Rieth-Riley recorded its mechanic’s lien in February 2012. However, Indiana

       Code section 32-28-3-5 provides that, in the case of mechanic’s liens, “[t]he

       recorded lien relates back to the date the mechanic or other person began to

       perform the labor or furnish the materials or machinery.” Rieth-Riley began

       paving the parking lot in November 2011. This was still almost four years after

       Wells Fargo recorded its mortgage.


[14]   Indiana Courts have long held that “a mortgage lien was superior to a

       mechanic’s lien if the mortgage was recorded before the mechanic’s work was

       begun or materials furnished.” Provident Bank v. Tri-County Southside Asphalt,

       Inc., 804 N.E.2d 161, 163 (Ind. Ct. App. 2004), clarified on reh’g, 806 N.E.2d 802

       (Ind. Ct. App. 2004) (citing Zehner v. Johnson, 22 Ind. App. 452, 53 N.E. 1080,

       1082 (1899)). Thus, by virtue of its earlier recording date, Wells Fargo’s

       mortgage has priority over Rieth-Riley’s mechanic’s lien.


                                  III. Mechanic’s Lien Statute
[15]   Rieth-Riley recorded its mechanic’s lien pursuant to Indiana Code section

       32-28-3-1, which allows “[a] contractor, a subcontractor, a mechanic . . . or any

       other person performing labor or furnishing materials or machinery” for “the

       construction, alteration, repair, or removal” of various structures to obtain a

       lien on that structure and the land on which it sits “to the extent of the value of

       any labor done or the material furnished, or both[.]”

       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015     Page 8 of 18
[16]   The statute further provides:

               (a)      The entire land upon which the building, erection, or other
                        improvement is situated, including the part of the land not
                        occupied by the building, erection, or improvement, is subject
                        to the lien to the extent of the right, title, and interest of the
                        owner for whose immediate use or benefit the labor was done
                        or material furnished.

               (b)      If:
                        (1)      the owner has only a leasehold interest; or
                        (2)      the land is encumbered by mortgage;
               the lien, so far as concerns the buildings erected by the lienholder, is
               not impaired by the forfeiture of the lease for rent or foreclosure of
               mortgage. The buildings may be sold to satisfy the lien and may be
               removed not later than ninety (90) days after the sale by the purchaser.

       I.C. § 32-28-3-2.


[17]   In Provident Bank v. Tri-County Southside Asphalt, Inc., we held that this statute

       “protects the mechanic lien holder inasmuch as it protects his priority as to the

       improvement for which he provided the labor and materials.” 804 N.E.2d at

       164. “The statute contemplates that the holder of a mechanic lien may sell the

       improvements to satisfy the lien and remove them within ninety days of the sale

       date.” Id. This Court has noted that the “the statute, as written and as applied

       by this court, seems to favor the mechanic's lienholder with regard to new

       improvements even if the mortgage is recorded before the mechanic’s lien is

       recorded and before the mechanic’s lienholder begins its work or furnishes any

       materials.” Harold McComb & Son, Inc. v. JPMorgan Chase Bank, NA, 892 N.E.2d

       1255, 1259 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015               Page 9 of 18
[18]   In Provident Bank, Tri-County had paved a driveway on property over which

       Provident held a prior-recorded mortgage. Provident Bank, 804 N.E.2d at 162.

       Tri-County recorded a mechanic’s lien and filed a complaint to foreclose the

       lien after the owner of the property failed to pay. Id. This Court held that “Tri-

       County has priority as to the improvements: the driveway. Thus, under

       Indiana Code section 32-28-3-2(b), Tri-County could have sold and removed

       the driveway.” Id. at 164. Thus, while the mechanic’s lien statute gave Tri-

       County priority as to its improvement, it also limited Tri-County’s ability to

       assert this priority, allowing Tri-County to remove the improvement if it so

       chose.


[19]   In so holding, we acknowledged the practical difficulty of removing a driveway,

       but noted that this result effected the purpose behind both the mechanic’s lien

       and lien priority statutes. Id. at 165 (discussing I.C. § 32-28-3-2(b); I.C. § 32-21-

       4-1(b)). We also observed that public policy “places the risk of loss on he who

       is best able to avoid that loss” and that a mechanic performing work on

       property encumbered by a mortgage “may easily determine whether the

       property upon which he will work is encumbered” before deciding whether to

       perform the work. Id. at 165-66.


[20]   Judge Sharpnack dissented in Provident Bank, arguing that the impracticality of

       removing the driveway effectively forced the mechanic’s lienholder to “forfeit

       its priority as to the improvement created by its efforts.” Id. at 170 (Sharpnack,

       J., dissenting). Judge Sharpnack thought the better course of action would have



       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015    Page 10 of 18
       been to give Tri-County priority as to the proceeds from the sale of the property

       up to the amount of its mechanic’s lien. Id.


[21]   Thus, applying the Provident Bank majority’s analysis to the facts of the case,

       Rieth-Riley could assert its priority by removing and selling the parking lot. It

       could then satisfy the remainder of its judgment from the proceeds that

       remained from the sale of Lot 1 after Wells Fargo’s judgment is satisfied. Here,

       however, the trial court appears to have adopted the dissent’s position. In

       ordering Wells Fargo to put the first $337,000 of its bid down in cash, the trial

       court anticipates that there will be some form of pro-rata apportionment of the

       proceeds from the sale of Lot 1.


[22]   However reasonable the trial court’s decision may seem, it does not find

       support in the text of our mechanic’s lien statute. Unlike similar statutes in

       other states, Indiana Code section 32-28-3-2(b) does not contemplate pro-rata

       apportionment of proceeds from a sheriff’s sale should a mechanic seek to

       foreclose its lien against property encumbered by a prior-recorded mortgage.3

       Rather, the statute provides that the mechanic’s lienholder may remove and sell

       the improvements to satisfy the lien. I.C. § 32-28-3-2(b). Despite the practical

       difficulties inherent in taking this course of action, we have previously held that




       3
         For instance, Illinois’s mechanic’s lien statute does provide for such apportionment. See 770 ILCS 60/16
       (providing that “upon any questions arising between incumbrancers and lien creditors, all previous
       incumbrances shall be preferred only to the extent of the value of the land at the time of making of the
       contract for improvements, . . . and the court shall ascertain by jury or otherwise, as the case may require, what
       proportion of the proceeds of any sale shall be paid to the several parties in interest.”) (emphasis added).

       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015                               Page 11 of 18
       this is the remedy that our mechanic’s lien statute provides in such situations.

       Provident Bank, 804 N.E.2d at 164-65.


[23]   Thus, Rieth-Riley has priority as to any improvements it made to Lot 1 and it

       may assert this priority to the extent that it is able to remove and sell these

       improvements. I.C. § 32-28-3-2(b). Rieth-Riley is not, however, entitled to a

       pro-rata share of the proceeds from the sale of Lot 1. As Wells Fargo’s

       mortgage lien has priority, Rieth-Riley can share in proceeds from the sale only

       after Wells Fargo’s judgment has been satisfied. As noted by the trial court,

       these proceeds are to be reduced by the amount, if any, that Rieth-Riley

       recovers from the sale of the parking lot.


                              IV. Removal of the “Buildings”
[24]   We anticipate that it will be difficult for Rieth-Riley to remove and sell the

       parking lot. However, in its brief, Rieth-Riley points out that removal and sale

       is possible, noting that “[t]he asphalt of the parking lot could be sold and

       physically reclaimed from Woodmar Lot 1.” Appellee’s Br. p. 10 n. 2. Wells

       Fargo, however, asks us to hold that Rieth-Riley may not remove the parking

       lot.


[25]   Wells Fargo points to the plain language of the statute, which provides that in

       situations such as this, “the lien, so far as concerns the buildings erected by the

       lienholder, is not impaired by the forfeiture of the lease for rent or foreclosure of

       mortgage” and that “[t]he buildings may be sold to satisfy the lien.” I.C. 32-28-3-

       2(b) (emphases added). Wells Fargo argues that Rieth-Riley’s parking lot is not

       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015    Page 12 of 18
       a “building” and maintains that any removal of the parking lot is not

       authorized by statute.


[26]   We are mindful that “when a court is called upon to construe words in a single

       section of a statute, it must construe them with due regard for all other sections

       of the act and with regard for the legislative intent to carry out the spirit and

       purpose of the act.” Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 730 (Ind. Ct.

       App. 2014), trans. denied. “A legislative purpose, shown by the context of a

       statute, should not be defeated by mere blind adherence to definitions of words

       found in dictionaries, however reputable.” Chicago & E.I.R. Co. v. Pub. Serv.

       Comm’n of Ind., 185 Ind. 678, 114 N.E. 414, 415 (1916).


[27]   We first note that not much can be gleaned as to the meaning of “building”

       from its use in the statute itself. The statute does not define the word, nor is it

       used throughout the statute in a manner that clearly distinguishes it from other

       words. For instance, the statute provides that a mechanic may have a lien

       “upon the house, mill, manufactory, or other building, reservoir, system of

       waterworks, or other structure.” I.C. § 32-28-3-1(b)(1) (emphases added). Thus,

       the language used here seems to distinguish “building” and “structure.”

       However, the next subdivision provides that a mechanic may have a lien on the

       parcel of land “on which the structure or improvement stands.” I.C. § 32-28-3-

       1(b)(2). This is the first mention of the word “improvement,” and there is no

       mention of the land on which a “building” stands.




       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015    Page 13 of 18
[28]   However, it is clear from the next section of the statute that the phrase

       “structure or improvement” must include “buildings” as well. I.C. § 32-28-3-

       2(a). This section also introduces a new phrase, providing that a mechanic may

       have a lien on the entirety of an owner’s interest in the land upon which a

       “building, erection, or other improvement” stands. Id. The statute has

       substituted the word “erection” for “structure” but there is no indication as to

       whether a difference in meaning is intended.


[29]   Finally, we arrive at the subsection of interest to Wells Fargo, which drops all

       terms except for “building,” and provides that “the lien, so far as concerns the

       buildings erected by the lienholder, is not impaired by . . . foreclosure of

       mortgage. The buildings may be sold to satisfy the lien . . . .” I.C. § 32-28-3-2(b)

       (emphases added). However, we cannot honestly say whether this subsection

       truly means to exclude “structures,” “erections,” and/or “improvements.” Up

       to this point the statute has treated these words almost interchangeably, and we

       cannot attribute an unambiguous meaning to any one of them based on its use

       in the statute itself.


[30]   We next look to dictionaries to ascertain the plain and ordinary meaning of

       “building.” Wells Fargo prefers the following definition—“[a] structure with

       walls and a roof, esp. a permanent structure.” Black’s Law Dictionary (10th ed.

       2014). However, this modern definition of “building,” from the most recent

       edition of Black’s Law Dictionary, sheds little light on what is meant by the




       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015     Page 14 of 18
       term in context of a statute whose text has gone largely unchanged since 1883.4

       We note that this very same dictionary defined “building” quite differently

       around the time of the statute’s passage, defining it as “[a] structure or edifice

       erected by the hand of man, composed of natural materials, as stone or wood,

       and intended for use or conveniences.” Black’s Law Dictionary 157 (1st ed.

       1891). Another dictionary from around that time, referring to “building” in its

       legal sense, noted that “a pole fixed in the earth is not a building, but a fence or

       wall is.” Century Dictionary and Cyclopedia 712 (1913). These definitions make

       no mention of a structure composed of walls and a roof.


[31]   In light of the ambiguity of its language, and the fact that it was written well

       over a century ago, it appears that our mechanic’s lien statute is not an

       appropriate candidate for a technical parsing of words. However, the statute

       must be read in light of legislative purpose, and this we do know. We have long

       observed that the mechanic’s lien statute is meant to “intervene in favor of the

       mechanic or laborer, and secure to him a return for what he has done in

       enhancement of the value of the land, and still not injure prior lienholders.”

       Ward v. Yarnelle, 173 Ind. 535, 91 N.E. 7, 14 (1910).


[32]   With this in mind, we do not believe that the legislature intended us to engage

       in debate about whether the work of a mechanic constitutes a “building,” rather



       4
         Ind. Laws 1883, ch. CXV, § 2 at 140, as amended, Ind. Laws 1889, ch. CXXIII § 2 at 257 (“. . . the lien, so
       far as concerns the buildings erected by said lien-holder, is not impaired by forfeiture of the lease for rent or
       foreclosure of the mortgage; but the same shall be sold to satisfy the lien and be removed within 90 days after
       the sale by the purchaser.”) See Mechanics Liens in Indiana—The Extent of the Property and Property Interests
       Subject to the Lien, 36 IND. L.J. 526, 526-29 (1961), for a general discussion of the history of the statute.

       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015                            Page 15 of 18
       than a “structure,” “erection,” or “improvement.”5 Furthermore, we have

       previously held that the statute allowed for the removal of an asphalt

       driveway—a structure (or building) nearly identical to the parking lot at issue

       here. Provident Bank, 804 N.E.2d at 166. In Provident Bank, it was the fact that

       the driveway could be removed that led us to hold that the mechanic’s lien

       statute allowed for its removal. Id. at 165.


[33]   Our Supreme Court has placed a similar focus on removability in determining

       whether creditor mechanics should be allowed to remove their improvements

       from property subject to a mortgage foreclosure. Ward, 91 N.E. at 14. In Ward,

       a mortgage was foreclosed on a theater and several mechanics who had made

       improvements to the theater, some without filing liens, wished to remove their

       improvements. Speaking of the mechanics who installed the theater’s elevator

       and scenery, the Court noted if “any of them can be removed without injury to

       the building their removal should be permitted.” Id. at 16.


[34]   The Court explained what it meant by “injury to the building”:

                If they [the improvements] can be removed without injury to the
                building—that is, have not become such a part of it as that their
                removal would injure the building—they [the mechanics] should have
                the right of removal if they so elect; but if the property has so far
                become a part of the building, as that its removal would injure the



       5
        Wells Fargo posits that the legislature may have intended a distinction because “buildings” “tend to be
       more saleable” in that they are more easily removable than some of the other things enumerated in the
       mechanics lien statute, such as sidewalks, wells, and ditches. Appellant’s App. p. 21. While Wells Fargo
       may be correct that there exist some things covered by the mechanic’s lien statute that are simply too difficult
       or impossible to remove, we do not see how a “building”—which Wells Fargo conceives of as a structure
       with walls and a roof—would be any less difficult to remove than the parking lot at issue here.

       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015                           Page 16 of 18
               building, and not simply stop the operation as a theater, then having
               voluntarily consented to, or put themselves in this position, they
               cannot be heard to claim the removal of their property . . . .

       Id. at 14. We note that the mechanics discussed in the passage did not hold

       mechanic’s liens. Id. We feel compelled to extend at least the same protection

       to those who have sought the extra security of a mechanic’s lien.


[35]   However one chooses to classify a parking lot, there can be little doubt that a

       parking lot may enhance the value of the land upon which it sits. The parking

       lot’s removal, while difficult, is not impossible, and in this case Rieth-Riley

       believes that it can be done. Therefore, to the extent that removal of the

       parking lot is practical—meaning that its removal will not substantially impair

       the value of the land beyond that which it would have been had the parking lot

       never been paved—we believe it falls within the category of things that Indiana

       Code section 32-28-3-2 allows to be removed to satisfy a mechanic’s lien.


[36]   In sum, Wells Fargo is entitled to use the full amount of its judgment as a credit

       towards any bid for the purchase of Lot 1, and the judgment of the trial court

       requiring Wells Fargo to deposit a certain amount of that bid in cash is

       reversed. The cause is remanded for further proceedings consistent with this

       opinion. On remand, the trial court is to determine whether removal of the

       parking lot is practical and, if so, allow Rieth-Riley to exercise that option in

       accordance with Indiana Code section 32-28-3-2. Otherwise, Rieth-Riley’s

       mechanic’s lien is junior to Wells Fargo’s mortgage lien and Rieth-Riley is




       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015         Page 17 of 18
       entitled to proceeds from the sale of Lot 1 only after Wells Fargo’s mortgage

       has been satisfied.


[37]   The judgment of the trial court is reversed and remanded with instructions.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1410-PL-381 | June 26, 2015   Page 18 of 18
