Boyer Const. Group Corp. v. Walker Const. Co., Inc. (IN)

Summary: Attorney’s fees provisions within in contracts will be interpreted based on its plain language, barring any result that would be in conflict with public policy.

Boyer Const. Group Corp.  v. Walker Const. Co., Inc., 44 N.E.3d 119 (Ind. App. 2015).

Facts: In September of 2010, Muller Realty, LLC (“Muller”) contracted with Boyer Construction Group Corporation (“Boyer”) to design and build a car dealership. Boyer subcontracted all concrete work of the prospective building to Walker Construction Company, Inc. (“Walker”). On August 1, 2011, both Walker and Boyer executed two subcontracting agreements.  The contracts laid out the concrete services Walker would provide in exchange for close to $200,000. The agreements also provided a provision that in the event of any litigation between the two parties, the prevailing party would be award attorney’s fees from the other party.

Over the course of a year, Walker performed multiple concrete projects for Boyer that equated to $30,204.40. In June of 2012, Boyer requested additional work from Walker to make several repairs to damaged concrete on the property. Walker invoiced the work to Boyer. Boyer’s outstanding balance to Walker was $31,884.40.

On December 14, 2012, Walker filed a mechanic’s lien on the project site, and on March 1, 2013, Walker filed a complaint to foreclose their mechanic’s lien against Muller and Boyer. Walker sought judgment to the total of $31,884,40, reasonable attorney’s fees, interest, and lien costs. Boyer counterclaimed, alleging substandard workmanship on behalf of Walker and asked for damages.

After a lengthy bench trial, the trial court ruled in favor of Walker, but only awarded 2.1% of the amount sought by Walker. Boyer petitioned for attorney’s fees, and Walker did as well. The trial court believed that Boyer had waived its claim for attorney’s fees by failing to raise the issue in its answer, contentions in the pre-trial order, or by any evidence at trial. The trial court awarded Walker $837.08 in attorneys’ fees in regards to Boyer’s breach of contract but denied any fees associated with post-judgment work. Both parties appealed.

 Holding: Affirmed in part, reversed in part, and remanded. Boyer contended that the trial court erroneously ruled that they waived its claim for attorney’s fees, as its failure to raise the issue prior to the trial court’s judgment was of no significance. In essence, their failure to raise the issue before judgment did not matter, because its right to the attorney’s fees had not developed. The court determined that the trial court did err, because their right to attorney’s fees was contingent on the creation of the order. Citing to Evergreen Shipping Agency Corp. v. Djuric Trucking Inc., the court found that the trial court could not waive their right as it had not ripened yet.

Boyer next contended that the trial court erred by denying its petition for attorney’s fees. The court concluded that the trial court had properly denied their motion based on the attorney’s fees provision of the subcontracting agreement. In the agreement, the prevailing party could be awarded attorney’s fees from the other side. Boyer did not prevail in its counter claim and in fact had lost to Walker. The trial court, therefore, ruled properly on the matter.

The next issue raised on appeal dealt with the judgments for money order in favor of Walker. Walker received $1,680 in damages for Boyer’s breach along with $837.08 in attorney’s fees. Because the trial court did not specifically order joint and several liability, it appeared that the trial court entered judgment on the same $1,680 in damages and the same $837.08 in attorney's fees against both Muller and Boyer, individually. Boyer alleged that the trial court intended to make the judgment joint and several, and because Muller paid its judgment in full, Boyer believed that its liability was satisfied as well. Joint and several liability is defined as “[l]iability that may be apportioned either among two or more parties or to only one or a few select members of the group, at the adversary's discretion. Thus, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity from nonpaying parties.” The court determined that the trial court did not intend to hold both Boyer and Walker liable in the matters. The court, however, remanded this issue so that the trial court could resolve this discrepancy.

On cross-appeal, Walker contended that trial court erred in not awarding attorney’s fees against Boyer for post-judgment work, totaling $20,400.28. Boyer argued that the trial court was correct, because Walker did not substantially win its claim. The court determined that the subcontracting agreement provision stated nothing about post-judgment work or factored in the way in which the prevailing party won. As a result, the court remanded the issue to have the trial court determine whether the fees were reasonable.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Tue, 11/15/2016 - 3:53pm