                                                                                            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.




      Court of Appeals of Indiana | Opinion 29A02-1407-CC-479 | September 14, 2015   Page 7 of 15
[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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