ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEES:
JAMES E. AYERS MARK R. GALLIHER
Wernle, Ristine & Ayers Hopper, Galliher & Tucker, P.C.
Crawfordsville, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
TOWN & COUNTRY HOMECENTER OF )
CRAWFORDSVILLE, INDIANA, INC., )
vs. ) No. 54A01-9903-CV-89
RONALD W. WOODS, )
NATIONAL CITY BANK OF INDIANA, )
APPEAL FROM THE MONTGOMERY CIRCUIT COURT
The Honorable Thomas Milligan, Judge
Cause No. 54C01-9401-CP-7
April 4, 2000
OPINION FOR PUBLICATION
Appellant-plaintiff Town & Country Homecenter of Crawfordsville, Indiana, Inc. (T&C) appeals the
trial courts judgment in favor of appellee-defendant, National City Bank (NCB). Specifically,
T&C argues that, as vendor of materials to builder Woods, it was a
third-party beneficiary of the agreement between mortgagee NCB and mortgagor Lynn Fellows, who
purchased a house built by Woods. Furthermore, T&C argues that NCBs action
in disbursing funds to Woods when T&C was still owed $32,866.12 constituted constructive
fraud. Finally, T&C maintains that NCB committed the criminal offense of deception
when it required that Woods sign an affidavit stating that there were no
unpaid claims for materials furnished.
The facts most favorable to the judgment reveal that in June 1992, Lynn
Fellows contracted with Ronald Woods to build a house. Fellows paid Woods
$10,000 as down payment and applied for a mortgage with NCB to cover
the remaining balance, which was due at closing. Woods purchased materials for
the house from T&C. On September 23, 1992, Fellows received a letter
from T&C entitled a routine letter (the pre-lien notice) which stated that T&C
could perfect a lien against his property if payment was not received for
the materials. Record at 60-61, 92-93. Fellows brought the letter to
the attention of Tom Gineris, the NCB representative handling his mortgage. Gineris
responded that there was no problem, that similar situations arose all the time
and that the letter would be addressed at closing. R. at 155.
The closing on Fellows house occurred on October 13, 1992. Prior to
the closing, T&C did not communicate with anyone at NCB regarding the bill
owed by Woods. At the closing, Gineris questioned Woods about liens against
the property. Woods acknowledged the existence of a mortgage held on the
property by Tri-County Bank & Trust. Woods also confirmed that he had
not completed payment to T&C but stated that he would pay T&C from
the check he received at the closing. Gineris required that Woods sign
a vendors affidavit which stated that there were no liens on the property
and that there were no unpaid claims for labor done upon or materials
furnished for the real estate in respect of which liens have been or
may be filed. R. at 141-42. NCB then issued one check
in the amount of $40,321.90 to Tri-County for Woods construction loan and a
second check to Woods in the amount of $59,229.17. Before doing so,
Gineris asked Fellows if he was comfortable with disbursing the funds to Woods,
based on Woods statement that he would pay T&C from the proceeds.
R. at 123. Fellows said, That would be fine. R. at
On January 11, 1993, T & C filed a mechanics lien against Fellows
residence with the Montgomery County Recorder, asserting it was owed $32,866.12.
On January 7, 1994, T&C filed a complaint seeking to foreclose the lien,
naming Woods, Fellows, NCB and the Montgomery County Treasurer as defendants. However,
Fellows and the Montgomery County Treasurer were dismissed from the action
mechanics lien was ultimately released because the notice to Fellows did not comply
with statutory limits.
Evidence was submitted by stipulation and deposition testimony presented by T&C and NCB.
The trial court then made its decision without hearing or jury, as
agreed by the parties. It entered its order and judgment in favor
of NCB and against T&C on December 17, 1998. T&C filed a
motion to correct errors, which the trial court denied. T&C now appeals.
DISCUSSION AND DECISION
I. Standard of Review
By agreement of the parties in this case, the trial court weighed evidence
from exhibits and deposition transcripts and arrived at findings of fact and conclusions
Our standard of review for the trial courts findings of
fact requires that we not reweigh the evidence, but rather affirm the trial
courts decision unless the trial courts findings are clearly erroneous. Indiana Farmers
Mut. Ins. Co. v. Ellison, 679 N.E.2d 1378, 1380-81 (Ind. Ct. App. 1997),
trans. denied. The trial courts findings of fact may be found clearly
erroneous only if the record lacks any evidence or reasonable inferences from the
evidence to support such findings. Id.
The trial court also decided questions of law: whether an agreement existed and
whether T&C was a third-party beneficiary to such an agreement. We review
the trial courts conclusions of law
de novo. Brown v. State, 677
N.E. 517, 518 (Ind. 1997).
II. Third-Party Beneficiary Status
T&C first claims that it is the third-party beneficiary of the agreement between
mortgagee NCB and mortgagor Fellows which permitted Fellows to take out a mortgage
for his home. Specifically, T&C argues that NCB had a fiduciary duty
to Fellows and T&C to exercise reasonable care that T&C be paid and
that it breached that duty in disbursing funds to Woods knowing that T&C
had not been paid.
We note that, in order to prevail upon a claim that one is
a third-party beneficiary to a contract, a plaintiff must prove:
(1) A clear intent by the actual parties to the contract to benefit
the third party;
(2) A duty imposed on one of the contracting parties in favor of
the third party; and
(3) Performance of the contract terms is necessary to render the third party
a direct benefit intended by the parties to the contract.
Prairie Heights Educ. v. Bd. of Sch. Trustees of Prairie Heights Community Sch.,
585 N.E.2d 289, 294 (Ind. Ct. App. 1992).
In this case, NCBs representative Gineris stated to Fellows that T&Cs pre-lien notice
would be address[ed] at the closing. R. at 155. We do
not see in this statement a promise that T&C would be paid.
Rather, at most, any promise amounted to a commitment to protect Fellows interest
by addressing the notice at the closing, where it was indeed addressed.
R. at 123-24, 146. After Woods informed Gineris that he would pay
T&C with the check he was to receive from NCB, Gineris required Woods
to sign a vendors affidavit which stated that there were no unpaid claims
for . . . materials furnished for the Real Estate in respect of
which lien have been or may be filed. R. at 141-42.
Fellows stated that NCBs payment to Woods, based on Woods statement that he
would pay T&C, was fine. R. at 123. Thus, we do
not see on NCBs part a commitment to ensure payment to T&C.
Furthermore, even if a contract were established by Gineris remark that the pre-lien
notice would be addressed, the evidence presented does not demonstrate that NCB and
Fellows had a clear intent to benefit T&C, as required under Indiana law.
See Prairie Heights, 585 N.E.2d at 294.
T&C also contends that it was the intended beneficiary of the agreement between
Gineris and Fellows. Specifically, it asserts that it is a creditor beneficiary
under the Restatement of Contracts and therefore is entitled to bring suit based
on the agreement of Gineris and Fellows. Appellants brief at 19-20.
Section 302 of the Restatement (Second) of Contracts (1981) provides that:
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise
is an intended beneficiary if recognition of a right to performance in the
beneficiary is appropriate to effectuate the intention of the parties and either:
the performance of the promise will satisfy an obligation of the promisee to
pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the
benefit of the promised performance.
III. Case Law
Restatement (Second) of Contracts, § 302 (1981). Furthermore, the Comments to §
302 define a creditor beneficiary as [t]he type of beneficiary covered by (1)(a),
that is the beneficiary of a promise to pay the promisees debt.
In this case, T&C is not a creditor beneficiary because such a beneficiary
is one who is a creditor of the promisee. Here, the promisee was
Fellows, and T&C was not his creditor. Thus, the analysis which T&C
asks us to perform does not apply.
We note that T&C did not avail itself in a timely fashion of
its remedy: a mechanics lien on Fellows property. T&C finally filed its
lien more than sixty days after the materials had been supplied and thus
exceeded the statutory filing limit then in effect.
See footnote T&C then realized
its next possible remedy, a judgment against Woods for the money it was
owed. We cannot say that its failure to act in a timely
manner on its own behalf creates a duty in other parties to have
done more. We note further that the trial court correctly found that
NCB had a duty as mortgagee to protect the interests of Fellows, the
mortgagor, for three reasons: because of the express agreement that the pre-lien letter
from T&C would be addressed at closing, because custom and practice so dictated,
and because of the special relationship created by NCBs control of payment and
its disbursement to a third party. However, Fellows was not harmed by
NCBs breach of its duty to protect Fellows against a valid claim by
T&C further argues that NCB is liable to T&C under the decision in
Prudential Ins. Co. v. Executive Estates, Inc., 174 Ind. App. 674, 369 N.E.2d
1117 (1977). In that case, our supreme court held that a mortgage
lender which controlled the disbursement of mortgage loan proceeds at closing had a
duty to disburse loan proceeds so as to protect the interest of the
mortgagor by securing releases from those having claims against the mortgagor under specific
circumstances. Id. at 694, 369 N.E.2d at 1129. In this case, however,
Executive Estates is inapplicable because it solely concerns the liability that a mortgage
lender has to its borrower, not to third parties. See id.
Simply put, we cannot find that a mortgage lender has a duty to
oversee the repayment of all contractors and suppliers. Indeed, our supreme court
held in Executive Estates that, generally, a lender has no obligation to protect
even the interests of its borrower unless bound to do so by an
agreement. Id. at 684, 369 N.E.2d at 1123. As the trial
court noted, T&C provided no case law to support the conclusion that a
mortgagees duty to protect the interests of the mortgagor can extend to a
materialman as a third-party beneficiary or by any other means. Supp. R.
at 10. The trial court did not err when it found that
NCB had no duty to T&C.
IV. Constructive Fraud
T&C next makes an equitable claim for constructive fraud. Specifically, it argues
that a bank has a duty of good faith and fair dealing, which
NCB breached when it allowed Woods to sign an affidavit saying debts had
been paid when they had not.
The elements of constructive fraud are:
(1) a duty existing by virtue of the relationship between the parties;
(2) a violation of that duty by the making of deceptive material misrepresentations
of past or existing facts or remaining silent when the duty to speak
(3) reliance thereon by the complaining party;
(4) injury to the complaining party as a proximate result of that reliance;
(5) the gaining of an advantage by the party to be charged at
the expense of the complaining party.
Wells v. Stone City Bank, 691 N.E.2d 1246, 1250-51 (Ind. Ct. App. 1998),
In this case, the evidence did not establish the elements of constructive fraud.
First, T&C submitted no proof of a relationship between T&C and NCB.
Because we have already found that T&C was not a third-party beneficiary,
that status will not help to establish the required relationship here. Furthermore,
there was no evidence that T&C was injured by reliance upon any misrepresentations
made by NCB. Finally, NCB gained no advantage at T&Cs expense.
Thus, we find that the elements of constructive fraud are not met and
that the trial court correctly concluded so.
T&C next argues that NCB committed Deception,
a Class A misdemeanor.
Specifically, T&C contends that Woods knowingly made a false statement with intent to
obtain property and that Gineris misapplied the funds paid by NCB by paying
out money and accepting the false affidavit by Woods. T&C maintains that
NCB was therefore complicit in Woods act of deception.
I.C. § 35-43-5-3(a) provides that:
A person who:
(2) knowingly or intentionally makes a false or misleading written statement with intent
to obtain property . . . [or]
(3) misapplies entrusted property, . . or property of a credit institution
in a manner that the person knows involves substantial risk of loss or
detriment to either the owner of the property or to a person for
whose benefit the property was entrusted . . .
commits deception, a Class A misdemeanor.
In this instance, however, there is no evidence that NCB misapplied entrusted property.
The disbursed funds were originally its own, rather than entrusted to them,
and these funds were disbursed to Woods and Fellows with Fellows permission.
R. at 123. Furthermore, there was no evidence that NCB had any
warning from T&C or any other source that there was any danger of
Woods failing to pay T&C for materials. R. at 152-54.
Thus, we cannot agree that NCB knowingly placed Fellows and T&C at substantial
risk of loss in disbursing the funds as it did. Appellants brief
at 29. Rather, we agree with the trial court finding that NCBs
payment of funds to Woods did not constitute criminal deception.
Finally, T&C argues that it should receive compensatory damages plus interest for the
amount owed by Woods and treble statutory damages as well as expenses and
costs and fees because its loss was due to criminal deception. I.C.
§ 34-24-3-1. Alternatively, it argues that common law punitive damages may be assessed.
Because we do not find that criminal deception was committed, or that T&C
could prevail upon any other issue it presented, we conclude, as did the
trial court, that T & C is not entitled to damages.
In conclusion, we find that, while NCB had a duty to protect Fellows,
it had no duty to protect T&C, inasmuch as T&C was not a
third-party beneficiary to its agreement with Fellows. Furthermore, we find that the
elements of constructive fraud and of criminal deception are not met. As
a result, the trial court properly entered judgment against T&C.
SULLIVAN, J., concurs with opinion.
STATON, Sr.J., dissents with opinion.
OF APPEALS OF INDIANA
TOWN & COUNTRY HOMECENTER OF )
CRAWFORDSVILLE, INDIANA, INC., )
vs. ) No. 54A01-9903-CV-89
RONALD W. WOODS, )
NATIONAL CITY BANK OF INDIANA, )
SULLIVAN, Judge, concurring
I concur because under the law, as it presently exists in both statutory
and common law form, there is no cognizable basis for recovery by T&C
against NCB. Yet it seems incongruous that under the facts of this
case NCB should not be responsible for its conduct which led to clearly
foreseeable harm to a known and totally innocent party, T&C.
The majority notes, and I would strongly emphasize, that NCB had a duty
as mortgagee to protect the interests of Fellows, the mortgagor, and further, that
NCB breached that duty. However, as the majority further observes, the breach
of duty caused no harm to Fellows because T&C, by not timely filing,
had lost its right to a mechanic's
lien and because T&C dismissed its complaint against Fellows based upon personal liability
for unjust enrichment.
T&C did not premise its suit against NCB upon
any theory other than foreclosure of a mechanic's lien which was not timely
Nevertheless, I find the conduct of NCB reprehensible and indefensible. When advised of
T&C's letter to Fellows concerning T&C's unpaid claims, NCB advised that the matter
would be "address[ed] at closing". Record at 155. At closing, with
knowledge that Woods had not yet paid T&C, NCB, based solely upon Woods'
promise to pay T&C, not only encouraged or induced Woods to execute the
false affidavit representing that there were no claims outstanding for which liens could
but also went ahead and disbursed all of the remaining funds
Such conduct represents a total disregard for the interests of persons known to
have an interest in the proceeds of the real estate closing and in
addition flies in the face of well established custom and practice within the
lending industry. This custom and practice would have dictated issuance of a
check made payable both to Woods and to T&C, or retainage or escrow
of the amount necessary to satisfy the claim, or obtaining a release from
T&C prior to disbursement of the funds. NCB did none of these
things. Rather, by disbursement of the funds to Woods, it placed the
thief in the position to abscond and renege upon his promise to pay
T&C from those funds. In our law, we have a well
established equitable principle that where a detriment or harm must be sustained by
one of two innocent parties, the party placing the thief or other culpable
wrongdoer in the position to cause the harm, should suffer the burden of
rectifying the wrong.
In re Marriage of Glendenning (1997) Ind.App., 684 N.E.2d 1175,
trans. denied; Brownsburg Lumber Co. v. Mann (1989) Ind.App., 537 N.E.2d 1386.
There is even stronger reason to place that burden upon a negligent
or culpable party, such as NCB, as opposed to making a totally innocent
party, T&C, suffer the loss.
Perhaps relief from situations such as here presented may be found within our
concept of tort liability. As earlier noted, NCB knew that T&C had
a valid claim against Woods and that the claim had not been paid.
Under the circumstances existent at the time of the closing, it could
be said that NCB owed a duty of reasonable care with regard to
disbursement of funds in light of that known claim. NCB's breach of
its duty to Fellows may be said to give rise to tort liability
for the negligent disbursement of funds with regard to persons who would be
foreseeably injured by such negligence.
Be that as it may, it would seem appropriate to revisit the issue,
whether in tort or contract to avert the inequities apparent in the present
state of the law. In an analogous case, McAdams v. Dorothy Edwards
Realtors, Inc. (1992) Ind., 604 N.E.2d 607, our Supreme Court held that a
real estate agent, responsible for disbursing trust account funds following a real estate
closing, was not liable to the purchaser for negligent disbursement resulting in failure
to extinguish a lien because the real estate broker was the agent of
the seller and therefore owed no duty to the purchaser.
In a scholarly analysis of the case, however, a commentator observed that the
real estate agent was doing much more than acting as the seller's agent
in that he was "the moving force in the real estate closing".
Walter Krieger, 1993 Developments in Indiana Property Law, 27 Ind. L. Rev. 1285
at 1302-03 (1994). Such is the case here and as noted it
may no longer be prudent for one of the parties to the transaction
to allow an agent of the other party to preside over a closing
and disburse the proceeds.
The court in McAdams planted the seeds for reviewing and revising the law
as to the matter of liability in real estate closing situations. The
court stated in the final paragraph of its decision:
"There is no question but that the [purchasers] were wronged. The real
wrong was perpetrated by the [sellers], however, not by their agents . .
. . [Purchasers] trusted [sellers] to keep their end of the bargain, but
they signed a contract which left them exposed if the [sellers] absconded.
If [the real estate agent handling the closing] had advised [purchasers] during the
closing to step back and consult with counsel before signing such a contract,
the resulting harm might have been avoided. . . . .[H]owever, the law
does not hold him financially accountable for failing to do so."
supra, 604 N.E.2d at 612.
Thus, while I concur in the decision to affirm the judgment of the
trial court, I do so in the hope that our Supreme Court will
reopen the matter and resolve it in a manner not unfair to any
party to such financial and fiduciary transactions.
COURT OF APPEALS OF INDIANA
TOWN & COUNTRY HOMECENTER OF )
CRAWFORDSVILLE, INDIANA, INC., )
vs. ) No. 54A01-9903-CV-89
RONALD W. WOODS, NATIONAL BANK )
OF INDIANA, )
STATON, Sr. Judge
I dissent. A duty was created at the mortgage closing when
National City Bank obtained knowledge of the money owed Town and Country for
building materials. Where the relationship of the parties creates a justifiable reliance
upon one of them and the circumstances are completely controlled by the party
relied upon, a duty to use reasonablecare exists.
National City Bank as the
mortgagee was experienced in making mortgage loans. Its closing agent, Tom
Generis, had been advised by Fellows, the
mortgagor, of his concerns that Town and Country had supplied building materials for
his home and that the builder of his home had not paid for
the building materials. Generis advised Fellows that the matter would be taken care
of at the closing. Woods, the builder, was present at the mortgage
closing and admitted to Generis that he had not paid for the building
materials. Woods promised to pay Town and Country later after he received
his check at the closing. Instead of following the general practice and
cutting a separate check payable to Town and Country, Generis permitted Woods
to sign a closing affidavit stating that there were no unpaid claims for
materials on Fellows home. Later, the mortgage was signed and the previously
prepared checks by National City Bank were disbursed. Woods took his check
but never paid Town & Country for the building materials as he had
promised at the closing.
It has been said that courts will find a duty where . .
. reasonable persons would recognize it and agree that it exists.
Construction Co v. Foster. 519 N.E.2d 1224, 1227 (quoting Prosser & Keaton on
Torts § 53, at 359 (5th ed. 1984)). Recognizing the difficult
task it can be to apply such a nebulous legal principle, our supreme
court has provided a framework for determining the existence of duty. A
court should balance three factors in determining whether to impose a duty in
a negligence action: (1) the relationship between the parties, (2) the reasonable foreseeability
of the harm, and (3) public policy concerns. Webb v. Jarvis, 575
N.E.2d 992, 995 (Ind. 1991), reh. denied; Indiana Bell Telephone Co. v. Maynard,
705 N.E.2d 513, 514 (Ind. Ct. App. 1999), trans. denied.
A relationship that gives rise to a duty does not necessarily have to
emanate from a contract. In determining whether a legal duty arises, consideration
must be given to the nature of the relationship between people and whether
the party being charged with negligence had knowledge of the situation or circumstances
surrounding that relationship.
T.S.B. v. Clinard, 533 N.E.2d 1253, 1256 (Ind. Ct. App.
In the case at hand, National City Bank knew that Woods owed money
to Town and Country for building materials used on Fellows home. It
had this knowledge during the closing when it permitted Woods to falsify an
affidavit stating that he did not owe money to building suppliers and then
delivered a check to Woods, the builder. This closing procedure was a
departure from the custom and practice of other mortgagees in the area. This
departure from the custom and practice placed Town & Country and National
City Bank at risk. National City Bank created a relationship with Town
& Country by its conduct.
The harm to Town & Country was foreseeable as well. An analysis
of the foreseeability component of duty involves two considerations: whether the injured person
was a foreseeable victim and whether the type of harm actually inflicted was
reasonably foreseeable. Indiana Bell, 705 N.E.2d at 514 .
National Citys agent, Generis, was well aware that Town & Country
had not been paid when he handed the builder his check at the
closing of the mortgage loan; therefore, the victim was foreseeable. Although
Generis did not know the builder would renege on his promise to pay
the amount that he owed to Town & Country, the possibility was most
certainly created by his conduct. Therefore, I conclude that the type of
harm was also reasonably foreseeable. That harm being that Town & Country would
never receive the approximately $30,000.00 due it.
Finally, public policy concerns weigh in favor of concluding that National City Bank
owed Town & Country a duty of care. As noted by Judge
Sullivan in his concurrence, National City Banks conduct represents a total
disregard for the interests of persons known to have an interest in the
proceeds of the real estate closing and in addition flies in the face
of well established custom and practice in the lending industry. Concurring opinion
at 14. National City Bank was in the best position to protect
both Fellows and Town & Country, but it failed to protect either.
I conclude that National City Bank owed Town & Country a duty.
Because the trial court concluded that no such duty existed, it did not
decide whether this duty had been breached or whether any breach proximately caused
the damages suffered by Town & Country. Accordingly, I would reverse
and remand for a new trial as to those issues.
We note that on November 14, 1994, the trial court entered
a default judgment in favor of T&C against Woods for the sum of
We wish to note that the trial court made extensive, clear
and helpful findings of fact and conclusions of law.
Ind. Code § 32-8-3-3 (1992).
Ind. Code § 35-43-5-3.
Personal liability on the part of an owner exists separate and
apart from any mechanic's lien liability pursuant to I.C. 32-8-3-9.
& Sons v. Edward C. Levy Co. (1997) Ind. App., 685 N.E.2d
183, trans. denied. However, this liability may be limited to the extent
of funds remaining on hand or under the control of the landowner/purchaser.
McCorry v. G. Cowser Constr., Inc. (1994) Ind.App., 636 N.E.2d 1273, adopted on
transfer, 644 N.E.2d 550. In the case before us, until conclusion of the
closing and disbursement of the funds to Woods, moneys remained on hand for
satisfaction of T&C's claim. When Woods absconded with those funds without paying
T&C, it could be argued that funds no longer remained under the control
of Fellows and NCB and that therefore, Fellows and NCB would not have
to pay T&C. However, language from McCorry suggests otherwise. In that
case, money was still due the contractor under the terms of the original
contract when the contractor breached the contract by failing to complete the project.
The owner claimed that because of the breach, the unpaid amount was
no longer "due." However, apropos of the case before us the McCorry
"If a contractor's breach meant that no amount remained 'due' for purposes of
the personal responsibility statute, the 'consequences of the contactor's absconding or going broke
or otherwise defaulting' [citation omitted] would be that no subcontractor could ever recover
under that section." 636 N.E.2d at 1279.
However, because, as noted, T&C dismissed its personal liability claim against Fellows, we
need not resolve this issue.
In its brief, T&C argues that it was a third party beneficiary
of an agreement between Fellows and NCB that the matter of T&C's claim
as per its informational letter to Fellows would be addressed at closing.
A reasonable inference from such "agreement" would be that no adverse effect would
be visited upon Fellows by reason of T&C's claim. The fact that
the matter was not resolved at the closing does not give rise to
third party beneficiary liability on the part of the bank because Fellows did
not sustain any adverse effect as evidenced by T&C's dismissal of its complaint
against Fellows. T&C does not argue that it was a third party
beneficiary of a separate contract between Woods as promissor and NCB and Fellows
as promissees to pay T&C from the funds disbursed to him at closing.
If such were the case, T&C might fall within the definition of
a third party beneficiary as contemplated by
Prairie Heights Educ. v. Board of
Sch.Trustees (1992) Ind.App., 585 N.E.2d 289, or a creditor beneficiary as contemplated
by Section 302(1)(b) of the Restatement (Second) of Contracts (1981). Be that as
it may, the issue is not before us.
As of the date of closing, T&C still had time within the
sixty-day window of opportunity to file a lien.
Town and Country did not request that its amended complaint or its
trial brief be included in the record. Thus, the record does not
reveal the precise arguments that Town and Country made before the trial court.
However, the findings of the trial court indicate that Town and Country
argued the negligence of National City Bank. In the interest of justice,
I choose to address this issue.