Attorneys for W. Brent Gill Attorneys for Fred Pollert
and Marina Gill and Pollerts' Inc.
David W. Stone IV Keith A. Kinney
Stone Law Office & Legal Research Alan J. Irvin
Anderson, Indiana Hill Fulwider McDowell Funk
Patrick W. Harrison Indianapolis, Indiana
Harrison & Dalmbert
Columbus, Indiana Attorneys for Penn-America Ins. Co.
Attorneys for Onyx Paving Company, Inc. Neal F. Eggeson, Jr.
John A. Stroh Threlkeld Reynolds, LLP
Lisa A. Anderson Indianapolis, Indiana
Sharpnack Bigley, LLP
Onyx Paving Company, Inc. Appellee and Cross-Appellant
Penn-America Insurance Co. Appellee (Defendant and Cross-
Defendant below), and
GAB Robins North America, Inc. Appellee (Defendant below).
Appeal from the Jackson Circuit Court, No. 36C01-9906-CP-74
The Honorable William E. Vance, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 36A01-0203-CV-97
June 30, 2004
We granted transfer in this case to consider the relation-back of a cross-claim
filed timely but where leave of court was not sought and granted until
after the expiration of the statute of limitations.
This litigation arises from the aftermath of a fatal fire that destroyed the Centennial Hotel building in Seymour, Indiana, on December 25, 1998. The building was owned by W. Brent and Marina Gill ("the Gills") and insured through a policy issued by Penn-America Insurance Company ("Penn-America") procured through the Gills' insurance agent, Fred Pollert of Pollerts' Inc. (collectively, "Pollerts"). Immediately after the fire, Onyx Paving Company, Inc. ("Onyx") called Pollerts and expressed interest in providing demolition services for the hotel remnants. Two days later, Pollerts telephoned Onyx and authorized the demolition work to begin. Penn-America's adjuster, GAB Robins North America, Inc. ("GAB"), was not involved in the initial authorization for Onyx to do the demolition work. When Onyx completed the demolition, it prepared its invoice dated January 21, 1999, for $153,800. It read "Bill to: Brent & Marina Gill, F. Pollert/Pollerts' Inc., 404 N. Chestnut, Seymour, IN." This was the address of Pollerts, and Onyx delivered the invoice to Pollerts. Claiming that the Gills' policy provided only limited coverage for "debris removal," Penn-America paid Onyx only $10,000.
Upon failing to receive the balance of the invoice for demolition, Onyx filed a complaint in June of 1999 against Pollert, Pollerts' Inc., Centennial Hotel ("Centennial"), GAB, and Penn-America. In the complaint, Onyx also sought to foreclose on a mechanic's lien for the unpaid balance against the property on which the hotel had been located. The answer filed by Centennial on September 3, 1999, did not assert any cross-claim. Appellants' Appendix at 33-40. On May 9, 2000, however, Centennial filed a cross-claim against Pollerts and Penn-America seeking payment of the hotel demolition costs and asserting other claims. Although the cross-claim was filed with the court and mailed to counsel for Pollerts and Penn-America on May 5, 2000, neither Centennial nor the Gills sought leave of court to file the cross-claim. On June 16, 2000, Onyx filed an amended complaint substituting the Gills for the defendant Centennial. In their answer filed July 25, 2000, the Gills admitted their ownership of Centennial, but their answer did not include any cross-claims. In October of 2000, the trial court heard and granted a summary judgment motion filed by Penn-America and GAB against Onyx. For over eight months after Centennial filed its cross-claim, neither Pollerts nor Penn-America filed an answer or other response to the cross-claim, despite assurances from counsel for Pollerts that one would soon be filed. The Gills did not seek a default judgment on their cross-claim during this delay. But on January 31, 2001, just over two years after Onyx presented its invoice for the completed demolition, Pollerts filed a motion to dismiss the cross-claim asserting that the Gills had not sought and obtained leave to file it. Two days later Centennial and the Gills filed a motion requesting "that their cross-claim of May 9, 2000, be allowed." Appellants' Appendix at 203. The trial court immediately granted the motion and ordered "that the Cross-claim of May 9, 2000, is authorized and permission is given by the Court for that Cross-claim to be filed." Id. at 205. When the Pollerts finally filed their answer to the cross-claim on February 27, 2001, they asserted the statute of limitations among other defenses. On March 12, 2001, Penn-America and GAB (although the Gills' cross-claim did not name GAB as a cross-defendant) jointly responded to the cross-claim with a consolidated motion to dismiss and an answer asserting various defenses including the statute of limitations. See footnote They also filed a motion for summary judgment a sserting the two-year statute of limitations and other claims. The statute of limitations was similarly asserted by the Pollerts' motion for summary judgment filed a few days later.
On July 18, 2001, the trial court addressed the pending motions, expressing great concern regarding the "troubling aspects to this case." Id. at 387.
It is clear from the comments of counsel that the Cross-defendants knew that the Cross-claim was not correctly filed. It is further clear that they took no action in a conscious stratagem to mouse trap the Cross-claimants with the statute of limitations. The Court believes that discussions among the lawyers involved were held concerning the cross-claim and through the Court does not believe that the attorneys for the Cross-claim defendants explicitly, expressly or specifically lied concerning the filing of some responses to the Cross-claim, the Cross-claimants believed or were allowed to believe that the response would be an admit/deny answer.
There is no question that the allegations of the Cross-claim were known to the Cross-claim defendants before the statute of limitations would have expired. There is no question that a response could have been filed before the statute of limitations would have expired. There is now [sic] question that the Cross-claimants could have forced a response
before the statute of limitations would have expired. None of the above occurred.
Id. at 387.
Noting "[a]s much as the Court dislikes the practice of law as sport," id. at 389, the trial court applied Sears, Roebuck & Co. v. Boyd, 562 N.E.2d 458 (Ind. Ct. App. 1990), and concluded as a matter of law that the May 9, 2000, cross-claim filed without permission of the court "was a procedural non-entity," Appellants' Appendix at 387, that the subsequent order could not relate back, and that the cross-claim was barred by the statute of limitations. The trial court granted a motion to substitute parties that had been filed by the Gills, but then granted the summary judgment motions filed by Pollerts and by Penn-America and GAB. Thereafter, on March 18, 2002, following a bench trial, the trial court awarded Onyx a judgment against the Gills for $143,800 and $6,000 in attorney's fees, but found against Onyx on its claim against Pollerts. The Gills appealed, and Onyx cross-appealed. The Court of Appeals affirmed in an unpublished memorandum decision.
In Boyd, our Court of Appeals held that "a cross-claim must be asserted
in an answer," that it "is not a pleading itself," and that a
defendant "can assert a cross-claim against a co-defendant by amending his answer only
if leave of court is granted pursuant to Ind. Trial Rule 15(A)."
562 N.E.2d at 460. Finding that the record did not reflect any
order that allowed Boyd to file the cross-claim, the court held it was
As applied to the present case, Trial Rule 15(A) provides in relevant part
that "a party may amend his pleading only by leave of court or
by written consent of the adverse party; and leave shall be given when
justice so requires." (emphasis added.) At all times relevant to the
present case, Trial Rule 15(C) provided in relevant part:
Whenever the claim or defense asserted in the amended pleading arose out of the co nduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for the commencing the action against him, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
(2) knew or should have known that but for a mistake concerning the identity
of the proper party, the action would have been brought against him.
The facts of the present case are distinguishable from those in Boyd. Although not filed contemporaneously with the cross-claim, Centennial and the Gills did subsequently file a motion requesting "permission to file" their cross-claim and asking that their cross-claim of May 9, 2000 "be allowed." Appellants' Appendix at 203. The trial court granted the motion, ordering that said cross-claim "is authorized and permission is given by the Court for that cross-claim to be filed." Id. at 205. This is unlike Boyd, where the court noted the absence of any order in the record granting leave to file the cross-claim. 562 N.E.2d at 460. We therefore decline to find that the filing of the cross-claim in the present case was a procedural non-entity.
When a claim asserted in the amended pleading arises out of the allegations
of the orig
inal pleading (here, the Gills' answer to the amended complaint), Rule
15(C) states that an amendment "changing the party against whom a claim is
asserted relates back if . . . within the period provided by law
for commencing the action against him, the party to be brought in by
amendment" satisfies two conditions: timely notice of the institution of the action and
actual or constructive knowledge of a mistake in identity.
The Gills' cross-claim,
which was timely served upon the cross-defendants, complies with the first condition, but
not the second, because this is not a case of mistaken identity.
We note, however, that Rule 15(C) applies these two conditions only as to
the party "to be brought in" by amendment. In the present case,
the cross-defendants named in the cross-claim were not new parties but were already
in the case as co-defendants in the complaint brought by Onyx. Because
Pollerts and Penn-America were not "brought in" to the case when the Gills'
answer was amended to include their cross-claim, relation back of the amended pleading
is not limited by the timely notice and mistaken identity conditions of Rule
15(C). We therefore hold that Gills' cross-claim, as an amendment to its
July 25, 2001 original answer to the amended complaint, relates back to said
Because the cross-claim is thus deemed to have been filed within two years
of the accrual of the Gills' alleged causes of action, the grant of
summary judgment upon statute of limitations grounds is reversed.
Penn-America and GAB filed their motion for summary judgment on April 12, 2000,
seeking summary judgment in the only action then pending against themthe complaint by
Onyx. No relief was requested as against Centennial Hotel or the Gills.
At that time, the Gills had not yet been formally substituted for
Centennial Hotel as party defendants.
See footnote One month later, on May 9, 2000,
Centennial filed its cross-claims against Pollerts and Penn-America, a
sserting that "[a]ll of the
activities that Fred Pollert did in this complaint were not only done individually
but as . . . an agent of Penn-America Insurance, Inc." Appellants'
Appendix at 75; see also id. at 79, 80, 82. The cross-claim's
allegations against Penn-America were based exclusively upon its alleged agency relationship with Fred
Pollert. On October 23, 2000, the trial court separately granted summary judgment
in favor of Penn-America and GAB "as to all issues" raised in plaintiff
Onyx's complaint. Id. at 170. Among its conclusions of law, the
trial court stated: "As a matter of law, Fred Pollert individually and d/b/a
Pollerts, Inc. was not a broker, special agent, or general agent for Penn-America
Insurance company and/or GAB Robins North America, Inc." Id. In subsequently
seeking summary judgment against the Gills, and in this appeal, Penn-America asserts that
the October 2000 judgment is also determinative as to the Gills' cross-claim against
Under the doctrine of res judicata, "a judgment rendered on the merits is
an absolute bar to a subsequent action between the same parties or those
in privity with them on the same claim or demand." Sullivan v.
American Cas. Co., 605 N.E.2d 134, 137 (Ind. 1992). Res judicata does
not apply here because the October 2000 judgment is not between the same
parties on the same claim. Id. The Gills are not the
same as, or in privity with, Onyx as to Onyx's claim that Penn-America
was liable for the acts of Pollerts as its agent, which issue was
determined by the October 2000 summary judgment.
We conclude that the issues determined in the trial court's grant of Penn-America's
motion for summary judgment against Onyx are not res judicata as to the
Gills cross-claim against Penn-America. For this reason, and because we have determined
that the cross-claim is deemed to have been filed within two years of
the accrual of the Gills' alleged causes of action, and because it does
not fail for failure of service, we reverse the summary judgment obtained by
Penn-American against the Gills.
Upon review, this Court does not reweigh the evidence but only considers the
evidence in the light most favorable to the judgment of the trial court.
Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). "It is
only when this evidence is without conflict, leading to but one conclusion, and
the trial court reached a contrary conclusion, that we will reverse the decision
as being contrary to law." Lawyers Title Ins. Corp. v. Pokraka, 595
N.E.2d 244, 247 (Ind. 1992).
Initially, the Gills contend that Onyx did not follow the statutory requirements under Indiana Code § 32-28-3-3(a) by failing to provide evidence that Onyx filed a duplicate notice when it filed its Notice of Intention to Hold Mechanics Lien with the County Recorder. See footnote This argument fails because the evidence favorable to the judgment indicates that a duplicate notice was sent. Plaintiffs Exhibit 1 (admitted without objection) co ntains a recorders certificate that states that the recorder "mailed first class a duplicate of this Sworn Statement and Notice of Intention to Hold Mechanics Lien to the property owners named therein." Appellants' Appendix at 21. Because of the evidence that Onyx properly filed its mechanic's lien, we need not consider whether the Gills waived this argument.
Next, the Gills argue that they did not engage Onyx for the demolition
work, but rather that Onyx was hired by Pollerts, and that the Gills
did not provide the active consent needed to subject them to Onyx's mechanics
A contractor may attach a mechanic's lien to real estate in order to
recover his wages and costs. Ind. Code § 32-28-3-1 et seq.
Before this lien may attach, however, "it is necessary that such materials should
be furnished or labor performed by the authority and direction of the owner,
and something more than mere inactive consent on the part of such owner
is necessary in order that such lien may be acquired against him."
Woods v. Deckelbaum, 244 Ind. 260, 264, 191 N.E.2d 101, 102 (1963) (quoting
Courtney v. Luce, 101 Ind. App. 622, 626, 200 N. E. 501, 503
(1936)) (emphasis added). "The consent must be more than inactive or passive
consent, and the lien claimant's burden to prove active consent is especially important
when the improvements are requested by someone other than the landowner." Cho
v. Purdue Research Found., 803 N.E.2d 1161, 1168 (Ind. Ct. App. 2004);
Stern & Son, Inc., v. Gary Joint Venture, 530 N.E.2d 306, 308 (Ind.
Ct. App. 1988). Additionally, a court may consider "how closely the improvements
in question resemble a directly bargained-for benefit." Stern, 530 N.E.2d at 309.
The distinction between active and inactive consent for mechanic's liens has been confronted
in several cases. Sufficient active consent to subject an owner to foreclosure
of a mechanics lien was found in Mann v. Schnarr, 228 Ind. 654,
669-70, 95 N.E.2d 138, 144 (1950) (owner not only knew of the work
being done but also went to the contractor's office several times, received statements
of the labor and materials furnished, objected to the high cost of the
job, and signed several checks in partial payment for the job); Better Homes
Co. v. Hildebrand Hardware Co., 202 Ind. 6, 11, 171 N.E. 321, 322-23
(1930) (owner agreed to advance funds to complete a house under construction, actually
advanced more funds than it had agreed to do, required that the contractor
submit the plans and specifications for review, and made direct payments for the
work and materials directly to the contractors); O'Hara v. Architects Hartung & Assoc.,
163 Ind. App. 661, 663, 326 N.E.2d 283, 285 (1975) (owners not only
requested that the contractor be hired but also issued the initial payment check
without objection to the proposed services and fee schedule). In contrast, conduct
was found to be insufficient active consent to subject landowners to mechanic's liens
in Woods, 244 Ind. at 266, 191 N.E.2d at 103 (owner knew repairs
were being made, visited the premises, discussed paint color with workmen, but did
not supervise the work); Cho, 803 N.E.2d at 1168-69 (owner reviewed plans and
was aware of construction, but did not participate in negotiating construction contract); Stern,
530 N.E.2d at 308-09 (lease called for tenant to make improvements and owner
was aware of the work, but its review of plans and onsite supervision
was perfunctory and owner received no direct benefits); Display Fixtures Co., Etc.
v. R. L. Hatcher, Inc., 438 N.E.2d 26, 31 (Ind. Ct. App. 1982)
(owner saw installation of interior equipment by tenant's contractor and owner's contractor installed
some paneling for tenant, but owner was rarely present during the work and
did not discuss store interior with tenant).
Attempting to bring a degree of clarity to this question, our Court of
Appeals has observed:
The exact nature and content of the owner's active consent in this context will vary from case to case; however, case law makes clear that the focus is not only on the degree of the owner's active participation in the decisions and the actual construction. Instead, the focus is also on how closely the improvements in question resemble a directly bargained-for-benefit.
Stern, 530 N.E.2d at 309, cited with approval in Cho, 803 N.E.2d at
The evidence is without any substantial conflict as to the following facts. The hotel fire began late Christmas Eve, 1998, and ended early on Christmas Day. Fatalities resulted. On Christmas morning Ralph Pardieck, president of Onyx, called his son Greg Pardieck, Onyx vice-president, to inform him of the fire and that "Fred Pollert had the insurance on it [the hotel]." Transcript at 17. Greg then called Fred Pollert at his home, determined that Pollerts "had the insurance on it," and offered to provide Onyx's services to demolish the remnants of the hotel. Transcript at 18. On December 26, after being advised by the Fire Marshall that the remainder of the hotel structure needed to be demolished, Fred Pollert met with the Gills, and the Gills knew and were "comfortable" that Fred Pollert intended to call Onyx to do the demolition. Transcript at 62-63, 111. Fred Pollert testified that he called Onyx and "told them to go ahead and proceed." Transcript at 78. Onyx immediately moved in their equipment and commenced the demolition. Fred Pollert later testified that when he called Onyx about doing the demolition work, he emphasized to both Greg and Ralph Pardieck that "I couldn't guarantee them a dime because to my knowledge as of this point there was no insurance on the building." Transcript at 114. (At that time, it was uncertain whether the Gills had timely paid the insurance premium, but it was soon determined that timely payment was made.) Greg Pardieck testified that Onyx was hired by Pollert and expected to be paid by the insurance company, Penn-America. Transcript at 19, 21, 27, 29, 33, 34-36, 38, 40-41, 43. On December 30, 1998, Onyx wrote to GAB, stating: "Emergency Order to proceed by Mr. Fred Pollert of Pollert's Insurance given to Mr. Ralph Pardieck on Saturday, December 26, 1998 at 12:50 p.m. and Onyx moved equipment on site and commenced work." Plaintiff's Exhibit 2. By December 30, Greg Pardieck was told by both Fred Pollert and the insurance adjuster that the Gills' insurance policy provided demolition coverage only for 25%, or $62,500, of the $250,000 policy. Appellants' Appendix at 496, Transcript at 80-82, 118. Later in January, after an ice storm caused Onyx to pull its workers off the job, Fred Pollert called Greg Pardieck and complained that the demolition had stopped. Expressing concern that bystanders could be injured, which could involve the insurance policy, Pollert directed Onyx to continue without stopping and assured Pardieck that Pollert would be paying for the work, that there was not a problem, and that "things would be taken care of." Transcript at 45-47. The Gills visited the demolition site occasionally during the work. When Onyx completed the demolition, it prepared its invoice and sent it to Pollert's office directed to both the Gills and Pollerts. The Gills did not discuss the demolition with Onyx, did not participate in the work, and did not agree to make any payments to Onyx. As to his alleged assurances to Onyx, Fred Pollert denied making any representations to Onyx that "insurance would pay the entire cost of the demolition work," or that Fred Pollert or Pollerts' Inc. "would personally pay whatever insurance didn't pay." Id. at 116 (emphasis added).
To support its claim that the Gills did more than inactively consent to Oynx's demolition of the hotel, Onyx points to trial evidence that the Gills asked Pollerts to get Onyx to do the work; that the Gills watched the work in progress and did not object; and that Brent Gill knew that Pollert called Onyx to make the arrangements. Brief of Appellee/Cross-Appellant Onyx at 5. The sole evidence cited by Onyx to establish that the Gills asked Pollerts to hire Onyx, however, is the testimony of Fred Pollert. Id. See footnote
Viewing the facts in the light most favorable to the judgment, it is
clear that there is i
nsufficient proof that the Gills did authorize or direct
Oynx's demolition services and that the Gills' conduct represented no more than inactive
consent to the work. The Gills contend that they were under the
impression that the work was covered by their property insurance, they did not
participate in any supervision of the work, they did not make any payments
to Onyx, and the resulting demolition services did not constitute a benefit directly
bargained-for by the Gills. The only evidence to the contrary came from
Fred Pollert's testimony. Thus, Onyx argues that when Pollert requested Onyx to
demolish the hotel, Pollert was acting as the agent of the Gills who
are therefore responsible to pay for Oynx's services. As noted above, however,
the sole evidence of any agency relationship between Pollerts and the Gills cited
by Onyx is the testimony of Fred Pollert.
It has been long been held in Indiana that statements of an agent are not sufficient to establish an agency relationship. Lester v. Hinkle, 193 Ind. 605, 613, 141 N.E. 463, 466 (1923); Blair-Baker Horse Co. v. First Nat'l. Bank of Columbus, Ind., 164 Ind. 77, 83, 72 N.E. 1027, 1029 (1905); Commercial Union Assur. Co. v. State, 113 Ind. 331, 337, 15 N.E. 518, 521 (1888); Johnston Harvester Co. v. Bartley, 81 Ind. 406, 408 (1882); Storm v. Marsischke, 159 Ind. App. 136, 139, 304 N.E.2d 840, 843 (1973); Pan Am. World Airways, Inc. v. Local Readers Service, Inc., 143 Ind. App. 370, 373, 240 N.E.2d 552, 556 (1968); Holland v. Farrier, 75 Ind. App. 368, 373, 130 N.E. 823, 824 (1921); W.T. Rawleigh Medical Co. v. Van Winkle, 67 Ind. App. 24, 30-31, 118 N.E. 834, 836 (1918).
Onyx bases its entire claim of agency on the assertions of Pollert.
However, "[o]nce the state
ments and representations [of the alleged agent] . . .
are removed, there remains nothing which establishes authority to enter into a contract."
Storm, 159 Ind. App. at 140, 304 N.E.2d at 842-43. Thus
there is no evidence to support Onyx's claim that Fred Pollert was acting
as the Gills' agent when he engaged Onyx to demolish the Centennial Hotel
Because the evidence is without conflict and leads inescapably to but one reasonable conclusion that is contrary to the judgment foreclosing the mechanics lien, we must reverse.
Onyx essentially admits the Gills' claim. At the time of the bench
trial of Onyx's claims against Pollerts and the Gills, Onyx's ope
ning statement declared
that there were "two parts to this case . . . a mechanics
lien that we are foreclosing on and . . . [t]he second issue
. . . whether or not Mr. Pollert is responsible for paying the
bill that was done for the demolition of the hotel." Transcript at
3-4. Onyx did not then describe any claim for breach of contract
against the Gills. At the close of evidence, rather than closing arguments,
the trial court requested post-trial briefs.
In its initial post-trial brief Onyx clearly indicated that its claims for breach
of contract and equitable estoppel were directed solely at Pollerts. Other than
its request for for
eclosure of its mechanics lien, Onyx's only claim against the
Gills for monetary damages was based on its alternative claim that Pollert was
acting as an agent of the Gills. Onyx opens the argument section
of its post-trial brief as follows:
Onyx believes that the evidence clearly demonstrates that [Pollerts] are responsible for paying the invoice. Two different legal theories support that conclusion: breach of co ntract and equitable estoppel. If [Pollerts] are not responsible because Pollert was acting as an agent of the Gills, then the Gills would be responsible for payment
and the mechanic's lien should be for eclosed.
Appellee/Cross-Appellant's Supplemental Appendix at 3. The Onyx brief specifically presented argument as to three claims: breach of contract, equitable e stoppel, and mechanic's lien. The first two sought relief only from Pollerts, and the last sought foreclosure of the lien against the Gills. In its concluding paragraph, after seeking monetary judgment against Pollerts, Onyx added: "If the court should find that Pollert was acting as agent for the Gills, then this court should enter judgment against Brent and Marina Gill in the amount of $143,800.00 . . ." Id. at 5. In a subsequent post-trial reply brief, Onyx argued:
Everyone, including Pollert, expected the insurance company to pay the demolition costs. Pollert sent the quote from Onyx and the final bill to the insurance company. . . . When Onyx stopped work temporarily, Pollert called and insisted that Onyx continue working on the project because the building was unsafe and created a liability hazard for which the insurance company would have to pay. At that time, he told Gregg Pardieck that Onyx would be paid, knowing that Gregg was expecting the insurance company to pay him. There was a meeting of the minds that Onyx would demolish the building and that
the insurance company would pay for it.
Appellants' Appendix at 478-79. The Onyx post-trial reply brief also argued the theory of equ itable estoppel, but not as against the Gills. It urged that Onyx had relied on false statements of Fred Pollert and that "Pollert should now be estopped from claiming that he is not responsible for paying Onyx pursuant to the agreement he created with Onyx." Id. at 480. Finally, in its Appellee/Cross-Appellant's brief, Onyx states:
Onyx believed and argued at trial that its contract was with Mr. Pollert and that Mr. Pollert should be responsible for payment based on principles of contract or estoppel. The trial court did not find Mr. Pollert responsible. The only way for the trial court to find that Mr. Pollert was not liable and that the Gills were liable is if Mr. Pollert was ac ting as the agent for the Gills and had authority to contract on their behalf. Because Mr. Pollert was acting as agent for the Gills when he assented to the work, the Gills are responsible for the agreements Mr. Pollert made on their
Brief of Appellee/Cross-Appellant at 5.
The trial court made no findings of fact supporting its judgment for Onyx
against the Gills. At trial and on appeal, Onyx has asserted no
claim for monetary damages against the Gills, except for its mechanic's lien claim
and its theory that Pollerts was an agent of the Gills. Having
supra, that there is insufficient evidence to support Onyx's mechanic's lien claim
and its theory that Fred Pollert was acting as the Gills' agent, we
conclude that the trial court's monetary judgment in favor of Onyx against the
Gills is clearly erroneous, and we reverse.
In Onyx's cross-appeal challenging the judgment denying its claim against Pollerts, Onyx contends
only that Pollerts "is responsible for the demolition costs up to the amount
verage that Mr. Pollert represented." Br. of Appellee/Cross-Appellant Onyx at 6.
Onyx argues that the undisputed evidence establishes that, at one point during
the demolition, Pollert represented that there was $62,500 of insurance coverage for demolition,
and that the trial court "erred in not returning a verdict against Pollerts'
Inc. for at least $62,500.00 plus interest." Id. at 7, Appellants' Appendix
This Court has observed the "well recognized general rule, that where one person
ssumes to act as agent of another, but without authority to do so,
he makes himself personally liable as a principal in the transaction." Terwilliger
v. Murphy, 104 Ind. 32, 34, 3 N.E. 404, 406 (1885). See
Lewis v. Reed, 11 Ind. 239, 242 (1858); Pitman v. Kintner, 5 Blackford
250, 252 (1839). This principle is generally recognized. The Restatement of
Agency Second § 329 states:
A person who purports to make a contract, conveyance or representation on behalf of an other who has full capacity but whom he has no power to bind, thereby becomes subject to liability to the other party thereto upon an implied warranty of authority, unless he has manifested that he does not make such warranty or the other
party knows that the agent is not so authorized.
Another expression of this general rule is expressed as follows:
Where the agent, without authority or in excess of his or her authority, contracts with a third person, who sues upon the implied warranty of authority, recovery is measured by real damages sustained by the breach of warranty. The agent may be held accountable for money paid or work or labor performed under the contract, or for special damages sustained by reason of the wrong in assuming to act without
3 Am.Jur.2d 700-01, Agency §334.
The evidence is undisputed that Fred Pollert, acting on behalf of Pollerts' Inc.,
rporting to be acting on behalf of Penn-America Insurance Company, engaged Onyx to
commence demolition of the fire remnants of the Centennial Hotel. Pollerts thereafter
expressly assured Onyx that the insurance provided coverage of $62,500, and later insisted
that Onyx stay at work to complete the clean-up to minimize risk to
the insurance company. While there is thus clear and undisputed evidence that
Pollerts purported to act as an agent of another, the record is unclear
whether he did so without authority. While the trial court had previously
granted Penn-America and GAB summary judgment against Onyx upon its determination that that
"Fred Pollert individually and d/b/a Pollerts, Inc. was not a broker, special agent,
or general agent for Penn-America Insurance Company and/or GAB Robins North America, Inc.,"
Appellants' Appendix at 170, said summary judgment was not sought or entered
as against Pollerts, which is entitled to present evidence thereon at trial on
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.