ATTORNEYS FOR APPELLANT:
DEAN A. HEINOLD
UAW-GM Legal Services Plan
CARVEY JONES, ) ) Appellant-Plaintiff, ) ) vs. ) No. 27A05-9701-CV-34 ) MYRON V. HARNER D/B/A ) HARNER'S SERVICE CENTER, ) ) Appellee-Defendant. )
of Intent to Hold Mechanic's Lien" along with a letter indicating Harner's intent to sell the
vehicle if the towing and storage charges were not paid within ten days. Jones did not
respond to the notice and instead on December 22, 1994 he filed a complaint against Harner
for replevin and conversion, seeking return of the vehicle along with damages and attorney's
fees. On February 28, 1995, Harner answered the complaint and filed a counterclaim
alleging the existence of a mechanic's lien against the vehicle in the amount of the
accumulated towing and storage charges. Harner alleged that the mechanic's lien defeated
Jones's claims of replevin and conversion and that in addition Harner was entitled to
judgment against Jones in the amount of the towing and storage charges plus reasonable
attorney's fees. After a bench trial the court entered judgment in favor of Harner on Jones's
complaint and also ruled in favor of Harner on the counterclaim. The court determined that
Harner held valid possessory and non-possessory liens against Jones's vehicle and that
Harner was entitled to judgment in the amount of $9,099.00 for the towing and storage
charges plus $2156.00 in attorney's fees. The court sua sponte entered findings of fact and
conclusions of law in support of its judgment. This appeal ensued.See footnote
Where as here the trial court sua sponte enters findings of fact and conclusions of law, we treat the verdict as a general one with the findings controlling only as to those issues they cover. Matter of S.T., 621 N.E.2d 371, 373 (Ind. Ct. App. 1993). A general judgment will be affirmed upon any legal theory consistent with the evidence, and the court of review
neither reweighs the evidence nor judges the credibility of witnesses. Id. A general
judgment will be reversed on appeal only when it is clearly erroneous. Id.
Jones contends the trial court erred in granting judgment for Harner. According to Jones, Harner did not obtain valid possessory or non-possessory liens against Jones's vehicle and rather his retention of the vehicle was unauthorized and subject to claims of replevin and conversion.
Mechanic's liens, although previously recognized at common law, are now creatures of statute. Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 756 n.6 (Ind. Ct. App. 1985), trans. denied. Indiana recognizes two species of mechanic's liens related to motor vehicles. The first is known as a possessory lien. The lien is possessory because it is perfected by the retention of possession of the vehicle by the person who performed the repairs or storage. See Hendrickson & Sons Motor Co. v. Osha, 165 Ind. App. 185, 331 N.E.2d 743, 754 (1975), reh'g denied, (discussing similar provisions of former statute). The lien was long recognized at common law and is now codified at Ind. Code § 9-22-5-15. That statute provides that an individual, firm, limited liability company or corporation that performs labor, furnishes materials or storage or does repair work on a motor vehicle at the request of the person who owns the motor vehicle has a lien on the vehicle to the reasonable value of the charges for the labor, materials, storage or repairs. I.C. § 9-22-5-15.
By contrast the second species of mechanic's lien is known as non-possessory because it dispenses with the common law requirement of possession. Hendrickson, 331 N.E.2d 743, 754. Rather, in order to perfect the lien a person repairing, storing, servicing or furnishing supplies or accessories for motor vehicles must file notice of intention to hold the lien in the
office of the county recorder within sixty days after performance of the work or furnishing
of the storage. Ind. Code § 32-8-31-1 and -3. Upon proper filing the person holds a lien
against the vehicle for the reasonable charges for the repair, storage or service. Id. Like I.C.
§ 9-22-5-15, the non-possessory lien statute requires the owner's consent to the repairs or
storage before a lien may attach. Bowen v. Kokomo Omnibus Co., 87 Ind. App. 245, 161
N.E. 298, 299 (1928). However the non-possessory lien statute also contains an additional
provision allowing for the recovery of attorney's fees by a plaintiff who prevails in an action
brought under the section. I. C. § 32-8-31-6.
The record reveals that although Jones initially did not request nor consent to the towing and storage of his vehicle he became aware that Harner had provided these services shortly after the towing occurred. Jones did not make a demand for the return of his vehicle but instead agreed to the charges and allowed the continued storage. The trial court found that Jones's "waiver, acquiescence and inaction in allowing the continued storage (after his contact with Harner and his promise to pay the storage charges) constitutes his implied consent to the storage." Record at 86. The record supports the trial court's finding. Harner retained possession of the vehicle throughout these proceedings, and thus he is entitled to a lien in the amount of the services rendered pursuant to I.C. § 9-22-5-15. Because the recovery of attorney's fees is allowable only under the non-possessory lien statute, I.C. § 32- 8-31-1, we must also determine whether Harner held a valid lien under that statute.
The requirement in I.C. § 32-8-31-3 of the filing of a notice of intention to hold mechanic's lien and the absence of a requirement that the person remain in possession of the vehicle represent a significant departure from the common law. Hendrickson & Sons Motor
Co. v. Osha, 165 Ind. App. 185, 331 N.E.2d 743, 754 (1975). As such the notice provision
must be strictly construed. Riddle v. Newton Crane Serv., Inc., 661 N.E.2d 6, 8 (Ind. Ct.
App. 1996), trans. denied, (strict construction of real estate mechanic's lien statute requires
that a notice be filed within sixty days of the actual work performed and not any act
incidental thereto); see also Charlie Eidson's Paint & Body Shop, Inc. v. Commercial Credit
Plan, Inc., 146 Ind. App. 209, 253 N.E.2d 717, 719-20 (1969) (notice was timely as to
storage necessitated by repairs but was untimely as to repairs). The notice provision requires
that any person seeking to acquire a lien upon a motor vehicle "shall file in the recorder's
office of the county where the . . . work was performed or the storage . . . furnished within
sixty (60) days after the performance of such work or the furnishing of such storage . . . a
notice in writing of the intention to hold the lien . . ." I.C. § 32-8-31-3. Here it is undisputed
that Harner's notice was never filed with the county recorder and rather was merely sent to
Jones via certified mail. This procedure does not comport with the dictates of the statute.
Thus Harner did not acquire a lien pursuant to I.C. § 32-8-31-1, and he is not entitled to an
award of attorney's fees under that statute. We therefore reverse the trial court's award of
attorney's fees to Harner. The judgment is in all other respects affirmed.
Affirmed in part and reversed in part.
BARTEAU, J., and SULLIVAN, J., concur.
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