Sep 14 2015, 8:36 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jason R. Delk Cynthia A. Marcus
Delk McNally LLP Marcus Law Firm, LLC
Muncie, Indiana Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas A. Ambrose II, September 14, 2015
Appellant, Court of Appeals Case No.
29A02-1407-CC-479
v. Appeal from the Hamilton Superior
Court
The Honorable William J. Hughes,
Dalton Construction, Inc., Judge
Appellee Trial Court Cause No.
29D03-1202-CC-1996
Robb, Judge
Case Summary and Issues
[1] Dalton Construction, Inc., filed a complaint against Thomas A. Ambrose II,
individually and as trustee of the Ambrose Family Trust (collectively,
“Ambrose”), after disputes arose concerning the construction of a pool on
property owned by Ambrose. Ambrose raises several issues on appeal, which
we consolidate and restate as: 1) whether the trial court properly denied him
summary judgment because a genuine issue of material fact existed as to
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whether Dalton Construction breached the contract; and 2) whether the trial
court’s findings and conclusions that Ambrose first breached the contract, the
contract called for a certain shaped pool, and Dalton Construction was entitled
to payment upon Ambrose’s unauthorized occupancy of the pool were clearly
erroneous. Dalton Construction cross-appeals for appellate attorney’s fees.
Concluding that the trial court properly denied summary judgment and that the
trial court’s findings and conclusions are not clearly erroneous, we affirm the
trial court’s judgment in favor of Dalton Construction. Also concluding Dalton
Construction is statutorily entitled to an award of appellate attorney’s fees, we
remand to the trial court for calculation of those fees.
Facts and Procedural History
[2] In the late spring of 2011, Ambrose contracted with Dalton Construction to
build an in-ground swimming pool at the Ambrose home located in Carmel.
Dalton Construction’s president, Kevin Bonnet, had over twenty years of
experience building pools. Bonnet met with Ambrose and Ambrose’s wife,
Denise, on five to ten occasions before the parties signed the pool contract. The
contract provided in relevant part as follows:
Owner and contractor in consideration of the mutual covenants
hereinafter set forth agree as per proposals pool and spa attached as
exhibit “A” and construction contract as follows:
***
SECTION II
Plans
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Contractor shall construct the structure in conformance with the plans,
specifications, and breakdown and binder receipt signed by contractor
and owner, and will do so in a workmanlike manner.
***
SECTION IX
General Provisions
***
There are no understandings or agreements between contractor and
owner other than those set forth in this agreement and in the
documents referred to in Sections Two and Three. No other
statement, representations or promise has been made to induce Either
party to enter into this agreement. This agreement and the documents
referred to in Sections Two and three may not be modified or amended
except by written agreement of the parties.
Plaintiff’s Exhibit 1 [sic throughout]. Attached to the contract was Proposal
Exhibit “A,” which provided that the size of the pool would be an “18’ x 36’
Rectangle Shallow Pool.” Id. Section VII of Proposal Exhibit “A” provided
that the coping1 for the pool would have “2’ Radius Corners.” Id. Prior to the
execution of the contract, Bonnet discussed every item in Proposal Exhibit “A”
“[l]ine by line” with Ambrose. Transcript at 114. Bonnet explained to
Ambrose that the contract called for two-foot radius corners because the
rounded corners placed less stress on the pool liner and, therefore, rendered the
liner more durable.
[3] As part of its application for a permit to build a pool, the City of Carmel
required that a plot plan be submitted showing the distance the proposed pool
1
Coping is a metal band that runs along the rim of a pool to which the liner is attached.
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would be from the owner’s property lines. The plot plan was not required to
indicate the distance of the pool from the owner’s house. Ambrose provided
Bonnet with a survey map of the property, which Bonnet used to prepare the
plot plan for the pool permit. Plaintiff’s Ex. 3A. That plot plan showed the
distances of the proposed pool from Ambrose’s property lines. It also depicted
the pool deck as directly abutting the house deck. Ambrose did not see the plot
plan that was included in the pool permit application before signing the contract
with Dalton Construction.
[4] After the permit application was submitted, the Ambroses and Bonnet met on
several occasions to discuss the location of the pool. Once the Ambroses
decided where they wished the pool to be located, Bonnet demarcated the
boundaries of the pool and the pool deck on the ground using metal stakes,
string, and orange paint. Bonnet preferred to determine the location in this
manner so that his clients could better visualize the pool in real life, as opposed
to seeing a drawing on a site plan. When Bonnet and his crew arrived at the
Ambrose home with their equipment ready to begin excavation, Denise told
Bonnet that she wanted to move the location of the pool. Bonnet and his crew
then restaked the pool in the new location and remarked the pool and pool deck
boundaries with string and paint. Denise told Bonnet that she wanted
Ambrose, who was away at the time, to approve the change, so the crew quit
work for the day. When the crew returned the next morning, Denise informed
Bonnet that Ambrose had approved the pool’s final location. The pool was
constructed in that location. The Ambroses monitored the building of the pool
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almost every day from their deck. Between the beginning of excavation on
August 11, 2011, and the day work ceased on the pool over a month later, the
Ambroses never informed Dalton Construction that the pool was in the wrong
location. On September 15, 2011, the parties executed an addendum to the
contract that provided for additional items of work. Ambrose made all
payments as per the contract’s payment schedule up until work on the pool
ceased.
[5] On September 21, 2011, a sub-contractor began making stress cuts in the freshly
poured concrete pool deck. Denise became irate about the positioning of the
cuts, which she felt were not like a neighbor’s pool deck that she admired.
Denise also stated that the concrete was not the color she had selected. Denise
told the sub-contractor that he could not finish the deck. Bonnet met with
Ambrose in October to attempt to resolve the issues so that the work could be
completed. Ambrose demanded that Dalton Construction demolish the pool
and replace it with a pool with squared corners. Ambrose refused to pay the
balance due on the contract until the pool was replaced. The total amount
owed on the contract was $21,775.00. After thinking about it overnight, Bonnet
declined to replace the pool. Bonnet offered to finish the work according to the
contract, but Ambrose refused that offer. Ambrose would only allow Dalton
Construction onto his property to replace the pool, not to finish the pool.
Ambrose did not state at that time that the pool was not in the location required
by the contract.
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[6] At the time that work on the pool ceased, the concrete deck had not been
sealed, which would have completed the coloring process. The pool cover, an
electric plug, a slide, ladders, and some mini-jets remained to be installed. The
yard was not regraded and reseeded, Dalton Construction had yet to provide
safety and testing equipment, and the final inspection by the City of Carmel had
not been done. Ambrose completed some of the work himself. Photographs
taken of the pool after work ceased showed furniture, a collection of floatation
devices, and a towel rack near the pool, as well as an inflatable raft floating in
the clear, filled pool.
[7] On October 21, 2011, Dalton Construction filed a mechanic’s lien against
Ambrose’s property, and litigation commenced. The trial court denied
Ambrose’s motion for summary judgment. After a two-day bench trial, the trial
court entered judgment in favor of Dalton Construction. The trial court
awarded Dalton Construction $21,775.00 on the contract and $42,525.00 in
costs and attorney’s fees. Ambrose now appeals. Additional facts will be
added as necessary.
Discussion and Decision
I. Denial of Summary Judgment
A. Standard of Review
[8] Our standard of review for a trial court’s denial of a motion for summary
judgment is well-settled. Summary judgment is appropriate only where there is
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no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of
Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable
inferences drawn from those facts are construed in favor of the nonmovant.
Mangold, 756 N.E.2d at 973. “On appeal, the trial court’s order granting or
denying a motion for summary judgment is cloaked with a presumption of
validity.” Van Kirk v. Miller, 869 N.E.2d 534, 540 (Ind. Ct. App. 2007), trans.
denied. The party appealing from the summary judgment order has the burden
of persuading us the decision is erroneous. Id.
B. Existence of a Genuine Issue of Material Fact
[9] Ambrose argues that the “plans, specifications, and breakdown and binder
receipt signed by the contractor and owner” referenced in the contract
unambiguously referred to the plot plan, which showed the pool deck abutting
the home’s deck. Plaintiff’s Ex. 1. Ambrose contends that, because it was
undisputed that the pool was not built in the location indicated in the plot plan,
the trial court erred when it denied his motion for summary judgment. In the
alternative, Ambrose contends that the contract is ambiguous about location
and that the ambiguity must be construed against Dalton Construction as the
drafter of the contract. Dalton Construction counters that the contract was
silent as to the location of the pool and that Denise orally determined the pool’s
location.
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[10] In its materials designated in opposition to summary judgment, Dalton
Construction showed that the location of the pool was determined at the build
site by the Ambroses. The pool site was demarcated with stakes, string, and
paint. On the day that excavation of the pool was to commence, Denise asked
Dalton Construction to change the location of the pool, which was done.
Ambrose denied that Denise directed Dalton Construction to change the
location of the pool. Thus, a genuine issue of material fact existed regarding
where the pool was to be located, precluding summary judgment.
[11] Contrary to Ambrose’s arguments on appeal, there is no need for us to construe
the contract in this case. Whatever the contract provided, or did not provide, as
to location, a genuine issue of material fact existed about whether Denise
changed the final location of the pool. Also unpersuasive is Ambrose’s
argument that the parties could not have orally modified the contract because
the contract provided that it could only be modified by written agreement.
Such contract provisions may themselves be orally modified. See Sees v. Bank
One, Ind., N.A., 839 N.E.2d 154, 161 (Ind. 2005) (noting that, “[e]ven a contract
providing that any modification thereof must be in writing, nevertheless may be
modified orally.”). Because there was a direct conflict of designated evidence
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about whether Denise requested a change of location of the pool, the trial court
did not err when it denied Ambrose’s motion for summary judgment. 2
II. Judgment After Trial
A. Standard of Review
[12] At Ambrose’s request, the trial court entered findings of fact and conclusions
thereon at the conclusion of the bench trial. When the trial court issues findings
of fact and conclusions, we employ a two-tiered standard of review. See Paul v.
Stone Artisans, LTD., 20 N.E.3d 883, 886 (Ind. Ct. App. 2014).
We first determine whether the evidence supports the findings and
then we determine whether the findings support the judgment. We
will not disturb the trial court’s findings or judgment unless they are
clearly erroneous. We will consider only the evidence favorable to the
findings and judgment and all reasonable inferences drawn therefrom.
We will not reweigh the evidence or assess the credibility of the
witnesses. Questions of law will be reviewed under a de novo
standard.
[13] Id. (citations omitted). We may affirm on a legal theory not espoused by the
trial court if we are confident that the affirmance is consistent with the trial
2
Our resolution of this issue obviates the need to address Ambrose’s claim that the trial court erred when it
denied summary judgment on the issue of his damages. In addition, in the summary judgment section of his
Brief, Ambrose mentions a quantum meruit claim raised by Dalton Construction, but he fails to develop any
argument with citations to the record or to legal authority. He has, therefore, waived that issue on appeal.
Ind. Appellate Rule 46(A)(8)(a); Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives
an issue where the party fails to develop a cogent argument or provide adequate citation to authority and
portions of the record.”). We would note that the trial court ultimately found in Ambrose’s favor on that
claim.
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court’s factual findings. See Mitchell v. Mitchell, 695 N.E.2d 920, 923-24 (Ind.
1998).
B. Contract Silent as to Location
[14] The trial court found that “[i]t is abundantly clear that the [c]ontract does not
specify location.” Appendix of Appellant at 18. Ambrose argues that the trial
court’s conclusion that the contract did not specify a location for the pool was
clearly erroneous. He largely reiterates the arguments he offered in support of
his motion for summary judgment, inviting us to interpret the contract to
include the plot plan, which shows the placement of the pool that he desires.
[15] However, as noted above, it is not necessary for us to interpret the contract in
order to review the ultimate issue of whether Dalton Construction breached the
contract. Whatever the parties intended when they entered into the written
contract was modified when, as found by the trial court, Denise requested that
the pool be moved on the day excavation was to begin. Dalton Construction
then built the pool in that location.
[16] On appeal, Ambrose contends that “any alleged oral modification of the ‘plans
and specifications’ (location of the pool) is prohibited by the [c]ontract and,
therefore, irrelevant to the resolution of this case.” Brief of Appellant at 24. As
noted above, this argument flies in the face of legal precedent holding that “no
oral modification” clauses may themselves be orally modified. See Sees, 839
N.E.2d at 161. At trial, Denise and Ambrose denied making the oral request to
move the pool. Therefore, there was a factual determination to be made by the
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trial court on this issue that it resolved in favor of Dalton Construction. We
will not second-guess the trial court by reassessing the credibility of the
witnesses or reweighing the evidence. Paul, 20 N.E.3d at 886. The trial court’s
overriding conclusion that the Ambroses chose the location of the pool is
supported by the record and is, therefore, not clearly erroneous.3
C. Two-Foot Radius Corners
[17] Next, Ambrose argues that the trial court erred when it found that the contract
called for two-foot radius corners, as opposed to the ninety-degree-angle corners
he desired. The interpretation of contract provisions is a question of law.
Niccum v. Niccum, 734 N.E.2d 637, 639 (Ind. Ct. App. 2000). Unless contract
terms are ambiguous, we give them their plain and ordinary meaning. Id.
Controversy between the parties regarding interpretation of contract terms does
not necessarily mean the contract is ambiguous. Id. When provisions of a
contract are clear and unambiguous, they are conclusive and we will not
construe the contract or look at extrinsic evidence; rather, we will merely apply
the contractual provisions. Id. The paramount goal in interpreting a contract is
to ascertain and effectuate the intent of the parties. Bernel v. Bernel, 930 N.E.2d
673, 682 (Ind. Ct. App. 2010), trans. denied.
3
In a related argument, Ambrose contends that the trial court’s conclusion that he was the first to breach the
contract is clearly erroneous, as Dalton Construction committed the first breach by constructing the pool in
the wrong location. Because we affirm the trial court’s findings and conclusion that the Ambroses selected
the location of the pool, we need not address this argument.
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[18] The contract and its attached Proposal Exhibit “A” provided for an “18’ x 36’
Rectangle Shallow Pool” with “2’ Radius Corners.” Plaintiff’s Ex. 1. We agree
with the trial court that these contract provisions are unambiguous as to the
shape of the pool: It was to be a rectangle with two-foot radius corners.
Ambrose’s argument on appeal asks us to construe these unambiguous terms
and to consider evidence that is extrinsic to the contract. Finding no ambiguity,
we decline to do so. See Niccum, 734 N.E.2d at 639.
D. Conditions Precedent to Recovery
[19] The trial court found that “[b]y taking possession of the pool Ambrose
acknowledged the pool was complete and released the contractor from further
obligation [sic] at [sic] that point the sums under the contract became due in
full.” App. of Appellant at 26. Ambrose claims the trial court incorrectly
interpreted the contract and that its findings are clearly erroneous. However, an
examination of the contract and the facts adduced at trial shows that Ambrose’s
claim is without merit.
[20] The contract provided in relevant part:
Section VII
Possession
Owner shall not have possession of the structure until such time as all
payments or other obligations required them as set forth in this
agreement have been fully paid or performed by them and until the
certificate of occupancy has been issued. If owner takes possession of
structure before the above obligations are met, without the written
consent of contractor, the owner shall consider it as acceptance of the
structure, as complete and satisfactory releasing [Dalton Construction] of
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any & all further responsibilities including but not limited to
unfinished work, warranties, pool obligations and legal proceedings.
Plaintiff’s Ex. 1 [sic throughout] (emphasis added). The contract’s payment
schedule provided that 10% of the contract amount would be due “when deck is
complete” and that an additional 10% would be due “when pool is complete.”4 Id.
(emphasis added).
[21] Thus, according to the unambiguous terms of the contract, unauthorized
possession of the structure by Ambrose constituted his acknowledgement that
the structure was complete, triggering his obligation to pay according to the
payment schedule. Despite these unambiguous contract provisions, Ambrose
argues that the contract merely relieved Dalton Construction of its obligation to
complete unfinished work upon his unauthorized possession, not that such
possession triggered his obligation to pay sums due on the contract. However,
it is a principle of contract interpretation that “specific words and phrases
cannot be read exclusive of other contractual provisions; rather, the parties’
intentions must be determined by reading the contract in its entirety and
attempting to construe contractual provisions so as to harmonize the
agreement.” Johnson v. Dawson, 856 N.E.2d 769, 773 (Ind. Ct. App. 2006). The
trial court’s interpretation of the contract harmonized the payment schedule
with Section VII of the contract.
4
Ambrose makes no separate argument pertaining to monies owed by him pursuant to the September 15
addendum to the contract.
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[22] Furthermore, the evidence at trial was that, after Dalton Construction had been
excluded from the property, Ambrose maintained the pool water so that it was
clear. The yard around the pool had been re-landscaped. The pool cover was
installed and was being used. Furniture, a towel rack, and pool toys were
placed around the deck. A photo submitted into evidence depicted an inflatable
raft floating in the open pool. This evidence supports the trial court’s finding
that Ambrose took possession of the pool. Given the trial court’s interpretation
of the contract and the evidence of Ambrose’s unauthorized possession of the
pool, we cannot say that the trial court’s findings and conclusions on this issue
are clearly erroneous.
III. Appellate Attorney’s Fees
[23] Dalton Construction cross-appeals for appellate attorney’s fees. The
mechanic’s lien statute provides that a lienholder who prevails is entitled to
recover “reasonable attorney’s fees.” Ind. Code § 32-28-3-14(a). The statute
also encompasses attorney’s fees associated with appellate proceedings. See
Templeton v. Sam Klain & Son, Inc., 425 N.E.2d 89, 94-95 (Ind. 1981).
Lienholder Dalton Construction has prevailed in this appeal. We remand this
matter to the trial court for the determination and award of reasonable appellate
attorney’s fees.
Conclusion
[24] The trial court’s denial of summary judgment to Ambrose was proper given that
a genuine issue of material fact existed regarding the placement of the pool.
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The evidence at trial supported the trial court’s findings and conclusions in
favor of Dalton Construction and the judgment is therefore affirmed. As
Dalton Construction is statutorily entitled to appellate attorney’s fees, we
remand this matter to the trial court for proceedings consistent with this
opinion.
[25] Affirmed and remanded.
May, J., and Mathias, J., concur.
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Thomas A. Ambrose II v. Dalton Construction, Inc.
Combined Opinion