Opinion
No. 1069A171.
Filed December 28, 1971.
1. APPEAL — Standard of Review. — If the Appellate Court is to reverse a negative judgment the evidence must be without conflict and such that it can lead to one conclusion, and the trial court must have reached an opposite conclusion. p. 487.
2. APPEAL — Attorney's Fees. — In order to recover additional attorney's fees upon appeal the party must petition either the Appellate Court or the trial court for such an allowance and show the Appellate Court an authority or standard for guidance. p. 487.
From the Decatur Circuit Court, John W. Goddard, Judge.
Appeal of an action for a breach of contract in which judgment went for the sub-contractor against the contractor.
Affirmed by the Second Division.
Elmon M. Williams, Frank I. Hamilton, Paul V. Wycoff, Williams Van Valer, of Greenwood, for appellants.
John D. Raikos, Don H. Wickens, Raikos, Melangton, Dougherty Christ, of Indianapolis, Wickens Wickens, of Greensburg, for appellees.
Appellant Willsey (Contractor), the general contractor for the construction of an office building and parking lot, sub-contracted the parking lot paving to appellee Hartman (sub-Contractor). When sub-Contractor ended his work contractor refused to pay the contract price, contending that there had been a breach resulting in deterioration in the paving. Sub-Contractor filed a mechanic's lien and then brought foreclosure suit. Contractor pleaded as a set-off the expenditure of money he had made to remedy the defect.
Trial without jury resulted in judgment for sub-Contractor, awarding him the full contract price plus attorneys' fees and denying Contractor any set-off. Contractor's timely motion for new trial was overruled and he appeals.
Contractor-appellant contends the trial court erred in the assessment of the amount of recovery in that it was too large and that the decision is not sustained by sufficient evidence.
Appellant has conceded, however, that his appeal is from a negative judgment — the denial of his set-off. This is tantamount to conceding that his sufficiency of evidence contention is without merit. Nationwide Mutual Insurance Co. v. Day (1967), 140 Ind. App. 564, 224 N.E.2d 520, 10 Ind. Dec. 224.
In attempting to make his point that the evidence was without conflict as to his right to a set-off, he points to what he contends is uncontradicted evidence that sub-Contractor 1. failed to meet specifications. But he ignores evidence that the defect in the pavement resulted from inadequate compaction of the parking lot sub-base by the appellant-contractor. We, therefore, cannot say, as we must if we are to reverse this negative judgment, that "the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion". Pokraka v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N.E.2d 669; Losche Sons v. Williams Associates (1948), 118 Ind. App. 392, 395, 78 N.E.2d 447.
The appellee has made a persuasive plea in his brief for an additional attorney's fee for his attorney's services in this appeal; however, he has petitioned neither this court nor 2. the trial court for such an allowance, nor has he shown us any authority or standard to guide us. On the record as it stands, we cannot grant the additional relief suggested.
Judgment affirmed.
Hoffman, C.J., Sharp and Staton, JJ., concur.
NOTE. — Reported in 276 N.E.2d 577.