 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any                Mar 08 2013, 8:32 am
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS                        ATTORNEY FOR APPELLEE
BENITO S. GAMBA, HILDA P.                       THE ROSS GROUP, INC.:
GAMBA AND GAMBA REAL ESTATE
HOLDINGS, LLC:                                  GERALD M. BISHOP
                                                Gerald M. Bishop & Associates
MICHAEL T. TERWILLIGER                          Merrillville, Indiana
Valparaiso, Indiana

BRIAN CUSTY
Merrillville, Indiana

ATTORNEY FOR APPELLANT
TICOR TITLE INSURANCE CO.:

JOHN H. HALSTEAD
Querrey & Harrow
Merrillville, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BENITO S. GAMBA, HILDA P. GAMBA and       )
GAMBA REAL ESTATE HOLDINGS, LLC           )
                                          )
      Appellants-Defendants,              )
                                          )
             vs.                          )          No. 45A03-1202-PL-92
                                          )
THE ROSS GROUP INC.,                      )
                                          )
      Appellee-Plaintiff.                 )
__________________________________________)
                                          )
TICOR TITLE INSURANCE COMPANY,            )
                                          )
      Appellant (Third Party Defendant),  )
                                                   )
              vs.                                  )
                                                   )
THE ROSS GROUP, INC.,                              )
BENITO GAMBA, HILDA GAMBA and                      )
GAMBA REAL ESTATE HOLDINGS, LLC.,                  )
                                                   )
       Appellees-Plaintiffs/Defendants.            )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Diane Kavadias Schneider, Judge
                              Cause No. 45D01-0606-PL-53


                                          March 8, 2013

     MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION


VAIDIK, Judge

       Following our December 28, 2012, opinion in which we concluded, among other

things, that Benito and Hilda Gamba (“collectively, “Gamba”) are liable for a

construction-cost overage, Gamba now petitions for rehearing. Gamba disagrees with

various portions of our opinion, but we grant rehearing to address only his argument that

we mischaracterized the disbursement agreement in this case. We affirm our original

opinion in all respects.

       In our December opinion, we stated the following:

       Gamba also argues that the terms of the disbursement agreement required
       Ross to give Gamba advance notice of changes, and by failing to do so,
       Ross waived its right to assert a claim for the overage. The terms of the
       disbursement agreement do require advance, written consent before
       proceeding with any changes. However, the disbursement agreement
       governs the ability of a signatory contractor to assert a claim for additional
       expenses as against the loan proceeds being distributed. As Ross correctly
       notes, it was not intended to supplement or amend the construction

                                               2
       contract, and it makes no reference to contractors or owners, speaking only
       of “lenders” and “escrowees.”

Gamba v. Ross Group Inc., No. 45A03-1202-PL-92 (Ind. Ct. App. Dec. 2012) (footnote

and citations omitted).

       We misspoke. We should have stated that the recitals portion of the disbursement

agreement speaks in terms of lenders and escrowees. Gamba correctly states that the

operative portion of the disbursement agreement refers to contractor and owner.

However, this does not change our conclusion as to the authority of the disbursement

agreement.

       We reasoned that “[T]he disbursement agreement governs the ability of a

signatory contractor to assert a claim for additional expenses as against the loan proceeds

being distributed,” and was not intended to supplement or amend the construction

contract between Gamba and Ross. Slip. op. at 7. Contrasting the two contracts, we

explained that “the construction contract between Gamba and Ross governs the conduct

of owner and contractor during the project. And that contract did not require change

orders or advance, written consent.” Id. We concluded that Gamba could not “rely on

language in the disbursement agreement to impose a duty upon Ross that appears

nowhere in the Gamba-Ross construction contract, and in turn, argue waiver based upon

that duty.” Id.

       Even setting aside the disbursement agreement’s use of the terms “contractor” and

“owner” entirely, our conclusion remains the same. Accordingly, we affirm our original




                                            3
opinion in all respects.

MATHIAS, J., and BARNES, J., concur.




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