                                                                    Dec 23 2015, 10:11 am




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Arend J. Abel                                             Janet A. McSharar
Jeffrey A. Hammond                                        Jennifer L. Strange
Cohen and Malad, LLP                                      Drewry Simmons Vornehm, LLP
Indianapolis, Indiana                                     Carmel, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Carole Storch, as Personal                                December 23, 2015
Representative for the Estate of                          Court of Appeals Case No.
Charles Sindledecker,                                     49A02-1505-CT-352
Appellant-Plaintiff,                                      Appeal from the Marion Superior
                                                          Court
        v.                                                The Honorable Heather Welch,
                                                          Special Judge
Provision Living, LLC; PVL                                Trial Court Cause No.
Tenant Holdings, LLC, d/b/a                               49D01-1201-CT-2695
Greentree at Fort Harrison,
Appellees-Defendants




Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015                 Page 1 of 11
[1]   Carol Storch appeals the judgment of the trial court holding that her father’s

      estate is not entitled to an award of attorney fees pursuant to a residence

      agreement entered into between her father and his assisted living facility.

      Finding that the plain language of the residence agreement compels an award of

      attorney fees in this case, we reverse.


                                                      Facts
[2]   The defendants operate an assisted living facility in Indianapolis by the name of

      Greentree at Fort Harrison (Greentree). In 2006, Charles Sindledecker, who

      was suffering from Alzheimer’s disease and was no longer able to care for

      himself, entered into a residence agreement with Greentree. The agreement

      contained a clause regarding attorney fees:


              In the event of any controversy, claim, or dispute between the
              parties hereto, arising out of or relating to this Agreement or the
              breach thereof, the prevailing party shall be entitled to recover
              from the other party reasonable expenses, costs, and attorney’s
              fees.


      Appellant’s App. p. 58. The contract also made clear that Sindledecker would

      have to maintain his own health care plan and that Greentree was not

      responsible for providing medical services. Id. at 56.


[3]   While residing at Greentree, Sindledecker enjoyed spending time sitting in a

      chair by the fireplace in the common room. He sat in this chair for long periods

      of time nearly every day. As his dementia worsened, he became angry when he

      found other residents sitting in the chair. Greentree responded by removing the

      Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 2 of 11
      chair from the common room altogether. Sindledecker, however, enjoyed

      being by the fireplace regardless, and began standing, or sitting on his walker,

      near where the chair used to be. Realizing the danger this posed, Greentree

      staff would often move Sindledecker farther away from the fireplace.


[4]   On December 10, 2010, Greentree staff found Sindledecker unresponsive on the

      floor by the fireplace and called 911. As they waited for the ambulance to

      arrive, the staff took Sindledecker back to his room and began changing his

      clothes. When the ambulance arrived, the staff informed the paramedics that

      Sindledecker had been found unresponsive “at a recreational activity.”

      Appellant’s App. p. 141. The paramedics took Sindledecker to the hospital,

      checked his vital signs, and discharged him.


[5]   Sindledecker’s right arm had been badly burned as a result of this incident and

      his condition worsened over the next two days. Greentree staff again called

      911, and this time informed the paramedics that Sindledecker had fallen near a

      fireplace and suffered burns. Sindledecker was taken back to the hospital,

      where he remained for ten days while the burns were treated. He eventually

      required a skin graft and his wounds did not heal until April 2011.

      Sindledecker never regained the mobility he had before the fireplace incident—

      he remained unable to walk and required a feeding tube and catheter. He died

      on August 10, 2012.


[6]   Sindledecker’s daughter, Carole Storch, had filed a complaint against Greentree

      on her father’s behalf on January 23, 2012. The complaint included claims of


      Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 3 of 11
      breach of contract and negligence regarding the fireplace incident. On January

      2, 2015, less than two weeks before trial was scheduled to begin, Storch

      voluntarily dismissed the breach of contract claim. The negligence claim was

      tried to a jury, which found that Greentree was primarily at fault and therefore

      liable to Sindledecker’s estate for $1,000,020 in damages.


[7]   Following the verdict, Storch petitioned the trial court for attorney fees as

      provided by Sindledecker’s residence agreement. Greentree argued that,

      because Storch had dismissed the breach of contract claim, the residence

      agreement was not at issue and, therefore, attorney fees could not be awarded

      pursuant to the agreement. The trial court agreed, and denied Storch’s petition.

      Storch then filed a motion to correct error, which the trial court denied on April

      15, 2015. Storch now appeals.


                                    Discussion and Decision
[8]   Indiana adheres to the “American Rule” that parties must pay their own

      attorney fees absent an agreement between the parties, a statute, or another rule

      to the contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458

      (Ind. 2012). The trial court’s decision that Storch was not entitled to attorney

      fees in this case was based on its interpretation of terms of the residence

      agreement entered into by Sindledecker and Greentree. Construction of the

      terms of a written contract is a pure question of law for the court. Peoples Bank

      & Trust Co. v. Price, 714 N.E.2d 712, 716 (Ind. Ct. App. 1999). Accordingly, we

      review such decisions de novo. Id.


      Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 4 of 11
[9]    When interpreting a contract, our goal is to give effect to the intent of the

       parties at the time they entered into the agreement. Tender Loving Care Mgmt.,

       Inc. v. Sherls, 14 N.E.3d 67, 72 (Ind. Ct. App. 2014). We begin by examining

       the plain language of the contract, “reading it in context and, whenever

       possible, construing it so as to render each word, phrase, and term meaningful,

       unambiguous, and harmonious with the whole.” Id.


[10]   Here, the trial court held that Storch could not recover under the terms of the

       residence agreement because she did not bring a breach of contract claim. It

       reasoned:


               [T]he Plaintiff and Defendants elected not to submit the breach
               of contract matter to the jury to determine if the Defendants did
               or did not breach the contract between Plaintiff and Defendants.
               The jury was only required to determine if the Defendants
               committed negligence in this case. Thus, the Plaintiff is not the
               prevailing party regarding “any controversy, claim or dispute
               between the parties hereto, arising out of or relating to this
               Agreement or the breach thereof” and the Plaintiff is not entitled
               to attorney’s fees under this agreement.


       Appellant’s Br. p. 23. According to this interpretation, the phrase—“any

       controversy, claim, or dispute between the parties hereto, arising out of or relating

       to this Agreement or the breach thereof”—can refer only to claims of breach of the

       contract, and not to claims premised on a tort theory of liability. Appellant’s

       App. p. 58 (emphases added).


[11]   Such an interpretation is plainly incorrect given the clear meaning of the

       language used. Had Greentree intended this provision to apply only to claims
       Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 5 of 11
       of breach of the agreement itself, it could simply have written a provision

       awarding attorney fees to the prevailing party “in any action brought to enforce

       this agreement.” Such language is commonly found in attorney fee provisions.

       See Kuntz v. EVI, LLC, 999 N.E.2d 425, 433 (Ind. Ct. App. 2013). Yet the

       provision at issue here clearly goes further, covering not only actions for breach

       of the agreement, but also “any” other dispute “arising out of or relating to” the

       agreement “or the breach thereof.” Appellant’s App. p. 58. Were we to adopt

       the trial court’s interpretation, these latter terms would be rendered

       meaningless. The above-referenced principles of contract interpretation compel

       us to avoid such outcomes and, therefore, we must conclude that the plain

       language of the provision contemplates more than actions for breach of the

       agreement.


[12]   We now must determine whether the present dispute, while a tort claim,

       nevertheless falls into the category of any claim that arises out of or relates to

       the agreement. Guidance on this issue from courts of this State is currently

       limited to decisions interpreting agreements to arbitrate. Similar language is

       frequently used in such agreements and we have shown no hesitation in holding

       that it encompasses tort claims.


[13]   For instance, in Precision Homes of Indiana, Inc. v. Pickford, a couple entered into a

       contract with a general contractor for the construction of a home. 844 N.E.2d

       126, 128 (Ind. Ct. App. 2006), trans. denied. The couple then had a contentious

       meeting with the president of the contracting company, after which they filed

       claims for assault, battery, and false imprisonment. Id. at 130. This Court held

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 6 of 11
       that these claims fell within the scope of the contract’s arbitration clause, which

       called for arbitration of any claims “arising from or related to the Property.” Id.

       at 133.


[14]   Nearly identical language was at issue in National Wine & Spirits, Inc. v. Ernst &

       Young, LLP, where the companies entered into an auditing agreement and

       agreed to arbitrate “any claim or controversy arising out of or relating to” the

       agreement. 976 N.E.2d 699, 702 (Ind. 2012). In that case, the companies had

       previously arbitrated a claim pursuant to the agreement in which Ernst &

       Young had emerged victorious. Id. at 703. National Wine & Spirits then sued

       Ernst & Young in tort for fraud and deception, alleging that it had presented

       altered documents to the arbitration panel in the first suit. Id. Our Supreme

       Court noted the “all-encompassing” nature of the language used by the parties

       and concluded that it “would defy logic to say that this issue falls outside the

       scope of the broad arbitration clause, as the documents certainly arise out of or

       relate to the audit services that E & Y provided for NWS.” Id. at 706; see also

       ISP.com LLC v. Theising, 805 N.E.2d 767 (Ind. 2004) (claim of fraudulent

       transfer “relate[d] to” asset purchase agreement for purposes of arbitration

       clause).


[15]   Predictably, Greentree attempts to distinguish these cases on the ground that,

       unlike the present case, they deal with the enforcement of arbitration clauses.

       Greentree simply points to this fact and provides no further explanation,

       apparently in the belief that this distinction alone should compel us to reach the

       opposite conclusion here. See Appellee’s Br. p. 6-7. However, contrary to

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 7 of 11
       Greentree’s assumption, we see no reason to read identical language two

       different ways depending on whether it appears in an arbitration provision or

       any other. It is true that “any doubts about the scope of [an] arbitration

       agreement must be resolved in favor of arbitration.” Precision Homes, 844

       N.E.2d at 133. However, for this presumption to apply, doubts must exist in

       the first place. Simply because we have not recognized a similar presumption

       in the attorney fee context does not mean that we would refuse to enforce

       attorney fee provisions in cases where the plain language clearly calls for

       enforcement.


[16]   Greentree next argues that enforcement of the attorney fee provision is not

       called for in this case because the subject matter of Sindledecker’s negligence

       suit simply does not arise out of or relate to the residence agreement. Once

       again, Greentree does little to develop this assertion into an argument, stating

       only that Sindledecker’s “negligence claim did not involve wrongful eviction,

       fraud, misrepresentation, or some other tort directly related to the Resident

       Agreement.” Appellee’s Br. p. 8-9. We gather from this statement that

       Greentree believes that the above-listed claims would relate to or arise out of the

       agreement in a way that Sindledecker’s negligence claim would not. We are,

       however, left to ourselves to ponder why this would be.


[17]   We find no basis for such a distinction in the plain meaning of the word

       “relate.” According to a modern dictionary, two things “relate” if they simply

       “have relationship or connection.” Merriam-Webster Online Dictionary,

       http://www.merrianwebster.com/dictionary/relate (last visited November 30,

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 8 of 11
       2015). This definition is clearly very broad, but parties have the right to

       contract in broad terms if they wish. Looking to other states for guidance, we

       note that appellate courts in Colorado have had occasion to define “relate”—in

       the attorney fees context nonetheless—and they have chosen to do so in a similarly

       broad fashion, holding that such language “encompass[es] all issues

       surrounding the underlying subject matter.” In re Estate of Gattis, 318 P.3d 549,

       558 (Colo. App. 2013).


[18]   Greentree reminds us that we are not bound by the decisions of these courts,

       but fails to give us a reason to disagree. In fact, we believe that this definition

       makes perfect sense. Courts of this state have already noted the breadth of such

       language, referring to it as “all-encompassing.” National Wine & Spirits, 976

       N.E.2d at 706. We have little doubt that the parties here intended such

       language to be quite broad and that they, along with the general public, would

       understand that anything “related to” an agreement would encompass all issues

       surrounding the underlying subject matter of that agreement.


[19]   Turning to the facts of this case, there can be no doubt that the underlying

       subject matter of Sindledecker’s residence agreement was, indeed, his residence

       at Greentree. And there can also be no doubt that the events that led to his

       negligence claim occurred because he resided there, which would not have been

       the case absent the residence agreement. Thus, reading the contractual

       language in light of its plain, simple, and intentionally broad meaning, it is

       hardly difficult to conclude that Sindledecker’s negligence claim involves the

       same underlying subject matter as, and therefore relates to, his residence

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 9 of 11
       agreement. Consequently, we find that the parties must have intended the

       disputed attorney fees provision to apply to such a claim.


[20]   We must clarify one final point regarding the trial court’s concern that the

       residence agreement was never presented to the jury. While it is true that the

       jury would have been required to decide if a breach of the agreement had

       occurred, as we have already made clear, the provision at issue was intended to

       apply to more than claims for breach of the agreement. Here, the fact that the

       jury did not have the residence agreement before it was irrelevant, as neither

       party disputed that the residence agreement was entered into mutually, and a

       breach of the agreement was not at issue. The only remaining dispute was as to

       the meaning of the agreement’s terms. Resolution of this dispute fell to the

       court, as matters of contract interpretation are questions of law.


[21]   Furthermore, in petitioning the trial court for attorney fees after the jury had

       reached its decision in this case, Storch was following standard procedure. R.L.

       Turner Corp., 963 N.E.2d at 459-60. Our Supreme Court has noted that a

       petition for attorney fees presents an issue separate from the merits of a case

       because the inquiry cannot commence until a party has prevailed. Id. at 459

       (citing White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 451-52 (1982)).

       Accordingly, a request for attorney fees “almost by definition is not ripe for

       consideration until after the main event reaches an end,” and “[e]ntertaining

       such petitions post-judgment is virtually the norm.” Id. at 460. “[I]n some

       sense,” a request for attorney fees is an equitable petition. Id.



       Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 10 of 11
[22]   As to the amount of fees, this Court has recognized that there are instances

       where a jury may decide whether an amount of fees is reasonable, such as

       where the parties have stipulated to that effect or the contract calls for it.

       Cavallo v. Allied Physicians of Michiana, LLC, No. 71A05-1406-PL-285 at *9 (Ind.

       Ct. App. August 20, 2015). However, absent such agreements, parties do not

       have the right to have a jury determine a reasonable amount of fees. Id. As no

       such agreement exists in this case, we do not believe that any triable issue

       remains. See E. Trading Co. v. Refco, Inc., 229 F.3d 617, 626-27 (7th Cir. 2000).


[23]   In any event, Greentree has never argued that the jury should determine a

       reasonable award of fees and has always assumed that such a determination

       would be left to the trial court. See Appellant’s App. p. 90-91. We have

       observed that “the trial judge is considered to be an expert on the question and

       may judicially know what constitutes a reasonable attorney’s fee.” Longest ex

       rel. Longest v. Sledge, 992 N.E.2d 221, 231 (Ind. Ct. App. 2013). We do not

       doubt that the trial court is capable of considering evidence on this issue and

       deciding what is reasonable in this case.


[24]   The judgment of the trial court is reversed and remanded so that the trial court

       may calculate reasonable attorney fees and award those fees to Sindledecker’s

       estate, as called for in the parties’ residence agreement.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015   Page 11 of 11
