                                                                   FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                                Mar 14 2012, 9:19 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law                               CLERK
                                                                      of the supreme court,
                                                                      court of appeals and

of the case.                                                                 tax court




ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEE:

MICHAEL L. MUENICH                                T. EDWARD PAGE
Highland, Indiana                                 Thiros and Stracci, P.C.
                                                  Merrillville, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


TIMOTHY COLBY & HOLLY COLBY,                      )
                                                  )
        Appellants-Defendants,                    )
                                                  )
               vs.                                )      No. 45A03-1110-PL-472
                                                  )
T.H. CONSTRUCTION, INC.,                          )
                                                  )
        Appellee-Defendant.                       )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Jeffery J. Dywan, Judge
                               Cause No. 45D11-0905-PL-60


                                        March 14, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

      Timothy Colby and Holly Colby appeal various orders and the entry of judgment

against them on their complaint for breach of contract and deception filed against T.H.

Construction, Inc. (“T.H.”). We affirm.

                                          Issues

      The Colbys raise six issues, which we consolidate and restate as:

             I.     whether the trial court properly permitted T.H. to
                    withdraw admissions;

             II.    whether the trial court properly denied their motion for
                    partial summary judgment; and

             III.   whether the trial court‟s findings support its
                    conclusions that the Colbys were not entitled to
                    recover on their breach of contract claim.

                                           Facts

      Terry Hovanec is the sole proprietor of T.H. In 2007, Hovanec met with the

Colbys regarding the construction of a new dental office in Highland. In April 2007, the

Colbys entered into an agreement with T.H. to develop the plan, design, and

specifications for the dental office building. In September 2007, the Colbys entered into

a detailed construction contract, which T.H. had drafted, that called for the project to be

completed for $683,916. The contract listed the price of forty-one project details and

“specs,” including $20,000 for contingencies. App. p. 80. It also provided:

                                          Payment

                    Payment will consist of draws during the project
             construction period. The size of the project and total dollar
             amount will dictate if draws will be every 30 (thirty) days

                                             2
              apart or consist of a defined amount of draws over the period
              of construction. A sworn statement document will be used to
              detail payment schedule. Original amount of contract, items
              to be paid, items previously paid, and balance to complete
              will be clearly itemized. Each progress payment will have a
              partial waiver of lien for the requested amount. On
              completion all final waivers will be submitted. No occupancy
              will be allowed until final payment is satisfied to T.H.
              Construction Inc. . . .

                                           Liens

                      T.H. Construction Inc. reserves all lien rights for its
              and all third party affiliation. In the event of non-payment
              T.H. Construction Inc. reserves the right to charge a fair
              market interest rate for carrying charges. . . . This notice is
              informing the parties accepting this contract that T.H. Const.
              Inc. is reserving the lien rights of any and all suppliers and
              sub-contractors supplied or hired by T.H. Construction Inc.
              for (60) sixty days from last executed work and or delivery,
              through completion of said project. Signature of acceptance
              makes this document a fully binding contract, resulting in
              owners responsibility of all collection and attorney fees if
              should [sic] they occur.

Id. at 86 (capitalization modified). The contract further provided:

                                        Allowance

                      When a line item has a allowance heading, a dollar
              amount has been set as a general area the customer has
              specified for budget. A allowance allows the customer the
              ability to shop at suppliers of their choice. This also requires
              the customer to have all of these items selected and ordered in
              a timely manor [sic] to avoid any delays. A cost overrun of a
              allowance amount will be the customers obligation to pay the
              extra charge. Any amounts under a listed cost will be a credit
              to the customer.

                                         *****

                                      Change Orders


                                             3
                     Any change orders during construction will be in
              writeing [sic] and signed by both customer and T.H.
              Construction Inc. before execution. The order will be a
              description of work with a itemized list of materials and
              labor. All change orders will be satisfied in a thirty day
              period, from time of completion of such order.

Id. at 88 (capitalization modified).

        Throughout construction various changes were discussed and agreed on by the

parties, including a $24,757 addition to the parking lot, which the Colbys requested and

which required the Colbys to increase the construction loan in that amount.

Notwithstanding the various changes, written change orders were not executed pursuant

to the terms of the contract.

        In August 2008, after a seventh draw was made on the construction loan but

before the final payment was made and the loan was closed, T.H. permitted the Colbys to

occupy the building. Within a week of occupancy, Timothy contacted Hovanec with

concerns about low water pressure. Hovanec and the Colbys disagreed as to the cause of

the problem and the resolution. Eventually, Hovanec agreed to replace the water main at

no charge. Timothy declined Hovanec‟s offer and, instead, had someone else replace the

main.

        On October 24, 2008, Hovanec filed mechanic‟s liens for the amounts still owed

by the Colbys. Hovanec then provided the Colbys‟ lender with a final sworn construction

statement and detailed change orders describing the changes made during construction.

When the lender presented these documents to the Colbys, they informed their bank that

they needed to discuss the matter further. In December 2008, the Colbys expressed an


                                           4
intention not to pay Hovanec, and the bank suggested placing the money in escrow with

the title company so that the subcontractors could get paid. In January 2009, the bank

informed the Colbys by letter that financing had already been extended once to give them

an opportunity to resolve their differences with T.H. and that the bank was growing

impatient. On March 20, 2009, the Colbys closed on the loan, all liens were released,

T.H. and the subcontractors were paid in full, and no money was escrowed.

       On May 28, 2009, the Colbys filed a complaint against T.H. alleging breach of

contract and deception. The Colbys claimed that T.H. charged more than the stated

contract price, failed to deliver goods and services specified under the contract, and

forced them to pay the overages as a condition of releasing improper liens. The Colbys

claimed damages of at least $60,000 for the breach of contract and requested treble

damages and attorney fees based on their deception claim.

       Before T.H. answered, an issue arose regarding arbitration. In a September 2,

2009 order, the trial court denied a request to compel mediation or arbitration and granted

T.H. twenty-one days to file an answer. That same day, the Colbys sent T.H. a request

for admissions. The deadline to answer the request for admissions was October 5, 2009.

       On October 23, 2009, T.H.‟s counsel discovered that the request for admissions

and the September 2, 2009 order had been inadvertently placed in T.H.‟s file without

calendaring. T.H.‟s counsel met with Hovanec the following day, a Saturday, drafted an

answer to the complaint and answers to the request for admissions, and sent the

documents by fax and mail to the Colbys‟ attorney. T.H. filed the answer with the trial

court on October 26, 2009. On October 28, 2009, T.H. filed a verified motion to

                                            5
withdraw and amend admissions explaining these circumstances along with T.H.‟s

answers to the request for admissions. On November 4, 2009, the Colbys filed a response

in opposition to T.H.‟s motion to withdraw and amend admissions, and T.H. replied.

      On March 10, 2010, while the issue of the admissions was still pending, the

Colbys filed a motion for partial summary judgment arguing that they were entitled to

summary judgment on their breach of contract claim because there were no written

change orders and because of the low water pressure. On March 30, 2010, following a

hearing, the trial court granted T.H.‟s motion to withdraw admissions. On April 30,

2010, T.H. filed a response to the Colbys‟ motion for partial summary judgment. On

May 18, 2010, the Colbys filed a reply and a motion to strike allegedly improper

summary judgment designations. On June 1, 2010, the trial court held a hearing on the

Colbys‟ motion for partial summary judgment. On July 29, 2010, the trial court issued an

order setting out the undisputed facts, concluding that the Colbys were entitled to $7,200

in damages for the water pressure issue and denying the Colbys‟ motion for partial

summary judgment regarding the change orders because there were factual disputes

regarding whether the Colbys verbally authorized the changes to the work and the

amount, if any, due pursuant to the change orders.

      On August 30, 2010, T.H. filed a motion to reconsider the ruling on the water

pressure issue. On October 19, 2010, the trial court granted the motion to reconsider and

concluded there were questions of fact regarding the water pressure issue. On September

19, 2011, after a multi-day bench trial, the trial court issued extensive findings and

conclusions in a forty-page order. The trial court concluded that T.H. did not breach the

                                            6
contract or commit deception and that “with the exception of the $883.36 credit owed by

T.H. to the Colbys for funds left over from design and development, the court finds

against the plaintiffs and for the defendant.” Id. at 563. The Colbys now appeal.1

                                                   Analysis

                                               I. Admissions

          The Colbys contend that the trial court improperly permitted T.H. to withdraw and

amend its admissions. Pursuant to Indiana Trial Rule 36(A), a party may serve upon any

other party a written request for the admission of the truth of any matters within the scope

of Indiana Trial Rule 26(B), which governs the scope of discovery. “The matter is

admitted unless, within a period designated in the request . . . the party to whom the

request is directed serves upon the party requesting the admission a written answer or

objection addressed to the matter, signed by the party or by his attorney.” Ind. Trial Rule

36(A).

          Indiana Trial Rule 36(B) provides:

                  Any matter admitted under this rule is conclusively
                  established unless the court on motion permits withdrawal or
                  amendment of the admission. Subject to the provisions of
                  Rule 16 governing amendment of a pre-trial order, the court
                  may permit withdrawal or amendment when the presentation
                  of the merits of the action will be subserved thereby and the
                  party who obtained the admission fails to satisfy the court that
                  withdrawal or amendment will prejudice him in maintaining
                  his action or defense on the merits. Any admission made by a
                  party under this rule is for the purpose of the pending action
                  only and is not an admission by him for any other purpose nor
                  may it be used against him in any other proceeding.


1
    The Colbys did not provide transcripts of any of the hearings or the trial as part of the record on appeal.
                                                        7
Thus, “matters admitted are deemed „conclusively established‟ unless the trial court

permits withdrawal or amendment of the admission.” General Motors Corp., Chevrolet

Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 888-89 (Ind. 1991).

         Our supreme court has observed that the rule authorizing withdrawal or

amendment is intended to avoid the binding effect of inadvertent admissions and that an

admission should ordinarily be binding unless the admission is no longer true because of

changed circumstances or a party has made an improvident admission through an honest

error.    Id. at 889.   Further, the court recognized that, unless the party securing an

admission can depend on its binding effect, he or she cannot safely avoid the expense of

preparing to prove the matter admitted and the purpose of the rule is defeated. Id.

         In determining whether a trial court may grant a party‟s request to withdraw an

admission, our supreme court explained:

               Thus the rule itself limits the discretion of a trial court in
               ruling on a motion to withdraw admissions under T.R. 36(B).
               The court cannot grant such motion unless it determines both
               (1) that withdrawal or amendment will subserve the
               presentation of the merits and (2) that prejudice in
               maintaining the action or defense will not result to the party
               obtaining the admission. Even if both of these conditions are
               satisfied, the rule does not compel the trial court to grant
               withdrawal or amendment. Rather, the rule states that the
               court “may” then grant such request.

Id.

         We have stated that the party seeking withdrawal has the burden of demonstrating

that the presentation on the merits will be subserved by the withdrawal and the party who

has obtained the admissions has the burden of demonstrating prejudice if the trial court


                                             8
permits the withdrawal. Corby v. Swank, 670 N.E.2d 1322, 1326 (Ind. Ct. App. 1996).

In this context, prejudice does not mean the loss of the benefit of the admission; rather, it

means that the party has suffered a detriment in the preparation of the case. Id.

       In their opening brief, the Colbys assert that T.H. failed to meet its burden of

showing that the withdrawal of the admissions would subserve the presentation on the

merits because the motion failed to identify the admitted matters or explain how it

planned to contest those issues. In response, T.H. argues that the Colbys‟ failure to

provide us with a transcript of the hearing on this issue results in waiver of the issue. In

their reply brief, the Colbys frame the issue as whether “[t]he trial court failed to

acknowledge or apply applicable standards to set aside admission and thus committed

error of law.” Appellants‟ Reply Br. p. 5.

       To the extent the Colbys‟ argument that T.H. did not demonstrate that the

presentation on the merits will be subserved by the withdrawal is not waived, in its reply

in support of its motion to withdraw and amend admissions, T.H. set forth seven specific

allegations that were at issue in the case. T.H. also asserted that, if it was not permitted to

withdraw its admissions, “this case would not be decided on its merits and justice would

not be done.”     App. p. 187.     Based on the record before us, the Colbys have not

established that T.H. failed to meet its burden.

       Regarding the Colbys‟ assertion that the trial court failed to acknowledge the

applicable standards, they cite to no authority requiring a trial court to acknowledge the

applicable standard or to issue findings when granting a motion to withdraw admissions.

Accordingly, this allegation of error is waived. See Ind. Appellate Rule 46(A)(8).

                                              9
       As for the Colbys‟ claim that the trial court applied an incorrect standard when it

granted T.H.‟s motion to withdraw admissions, “We presume that the trial court applied

the law correctly and the burden is on the appellant to show reversible error.” Babinchak

v. Town of Chesterton, 598 N.E.2d 1099, 1102 (Ind. Ct. App. 1992). T.H.‟s motion to

withdraw admissions, the Colbys‟ response, and T.H.‟s reply all contained a discussion of

Indiana Trial Rule 36 and the applicable legal standard for withdrawing admissions. The

issue was extensively briefed by the parties and an order was issued after a hearing was

conducted. Without more, the Colbys have not established that the trial court committed

an error of law when it granted T.H.‟s motion to withdraw admissions.

                                 II. Summary Judgment

                                   A. Motion to Strike

       On May 18, 2010, the Colbys filed a motion to strike portions of the evidence

designated by T.H. in its response to the Colbys‟ motion for partial summary judgment.

The Colbys claimed that portions of the designated affidavits contained inadmissible

hearsay or were not property verified or authenticated. They also claimed that T.H.‟s

designation of evidence did not specifically identify the relevant portions of the

documents upon which it relied. It does not appear that the trial court issued a written

order expressly addressing this issue.

       On appeal, the Colbys argue that the trial court erred in refusing to strike T.H.‟s

designated evidence. T.H. asserts that the Colbys‟ failure to include a transcript of the

summary judgment hearing “makes it difficult if not impossible for the appellate court to

decide without guessing exactly what took place at that hearing” and that by failing to

                                           10
provide us with a transcript, “the Colbys invite the appellate court to rule on the

objections raised in their motion to strike without regard to any evidentiary rulings the

trial court may have made at the hearing.” Appellee‟s Br. p. 16. T.H. contends that the

Colbys‟ failure to provide us with a transcript of the hearing waives any specification of

error that depends on a review of the trial court‟s rulings at that hearing.

       “It is a cardinal rule of appellate review that the appellant bears the burden of

showing reversible error by the record, as all presumptions are in favor of the trial court‟s

judgment.” Marion-Adams School Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App.

2006). “The party claiming the error has the burden to establish a complete and accurate

record.” Smith v. Convenience Store Distributing Co., 583 N.E.2d 735, 739 (Ind. 1992).

Without a transcript of the hearing, we are unable to review what, if any, arguments and

rulings were made on this issue. Thus, based on the limited record before us, the Colbys

have not met their burden of showing reversible error on this issue.

                                 B. Motion to Reconsider

       On August 30, 2010, T.H. asked the trial court to reconsider the summary

judgment order on the water pressure issue. That portion of the summary judgment order

provided:

                     Shortly after occupying the building, the Colbys
              informed T.H. Construction, Inc. of insufficient water
              pressure. The insufficient pressure resulted because T.H.
              Construction, Inc. caused the building‟s one-inch water line
              to be connected to the old ¾-inch water tap, though the
              contract called for a one-inch water meter. This is not
              standard practice or workmanlike performance in the
              plumbing industry and was the cause of the insufficient water
              pressure in the building.

                                              11
                       T.H. Construction, Inc. did not remedy this problem
                when requested. The Colbys hired an independent contract
                who replaced the old ¾-inch pipe at an additional cost of
                $7,200.00 to the Colbys. The Colbys are entitled to recover
                this amount from T.H. Construction.

App. p. 515. On October 29, 2010, the trial court granted T.H.‟s motion to reconsider

based on its review of the motion to reconsider as well as the original summary judgment

pleadings. The trial court‟s order granting the motion to reconsider provided in part:

                       The Court finds that there are issues of fact as to
                whether the problems with the building‟s water supply were
                the result of the manner in which T.H. Construction, Inc.
                connected the building‟s water supply to the city water main.
                Further, there is a question of fact as to whether T.H.
                Construction was given a reasonable opportunity to correct
                the problem. Finally, there is an issue of fact as to whether
                the Plaintiffs, in taking corrective action, varied from the
                original contract specifications and therefore whether the
                charges they claim are reasonable.

Id. at 522.

        The Colbys argue that pursuant to Indiana Trial Rule 53.4, which provides that a

repetitive motion or motion to reconsider shall be deemed denied if it is not ruled on

within five days, the motion to reconsider was deemed denied on September 4, 2010.

The Colbys contend that, by granting T.H.‟s motion to reconsider after it had been

deemed denied, they had no opportunity to respond to the trial court‟s “inappropriate

consideration of untimely and unsworn summary judgment designations in the Motion to

Reconsider.”2 Appellants‟ Br. p. 26.


2
   In their reply brief, the Colbys concede that the trial court retained the power to modify any of its
rulings sua sponte. See Appellants‟ Reply Br. p. 7. Relying on Lake County Local Rule 4(A), which
                                                  12
        In making this argument, the Colbys suggest that T.H. submitted additional

designated evidence in its motion to reconsider. We disagree with this characterization.

T.H.‟s motion to reconsider contained arguments based on the evidence originally

designated by the parties. T.H. did not designate any additional evidence in support of its

motion to reconsider. As such, we cannot say that the trial court improperly considered

untimely designated evidence when it granted T.H.‟s motion to reconsider.3

                                C. Denial of Summary Judgment

        “[S]ummary judgment is appropriate only where the evidence shows there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of

law.” Sheehan Const. Co. v. Continental Cas. Co., 938 N.E.2d 685, 688 (Ind. 2010)

(citing Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts

are construed in favor of the non-moving party, and review of a summary judgment

motion is limited to those materials designated to the trial court. Id. “Only after the

moving party satisfies its burden to show the absence of any genuine issue of material

fact and entitlement to judgment as a matter of law does the burden shift to the non-

moving party to demonstrate the existence of a genuine determinative factual issue.”

Ashby v. Bar Plan Mut. Ins. Co., 949 N.E.2d 307, 310 (Ind. 2011).



addresses the time for responding and replying to various motions, the Colbys also argue that they were
denied the opportunity to respond “because they were on notice by operation of Trial Rule 53.4 that the
Motion to Reconsider had already been denied.” Appellants‟ Reply Br. p. 8. This argument is waived
because it was not timely raised. See Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977
(Ind. 2005) (“The law is well settled that grounds for error may only be framed in an appellant‟s initial
brief and if addressed for the first time in the reply brief, they are waived.”).
3
  We consider the Colbys‟ challenge to the merits of trial court‟s ruling on the motion to reconsider as
part of our analysis of the propriety of the denial of summary judgment.
                                                   13
                                      1. Modification

       In its summary judgment order, the trial court concluded that summary judgment

was not appropriate because it was a question of fact as to whether the parties modified

the contract verbally or by their conduct. Indeed, “[p]arties to a contract may mutually

modify their contractual undertakings, and it is not always necessary to prove a written or

oral modification of a contract because modification of a contract can be implied from the

conduct of the parties.” City of Indianapolis v. Twin Lakes Enterprises, Inc., 568 N.E.2d

1073, 1084 (Ind. Ct. App. 1991), trans. denied. “Even a contract providing that any

modification thereof must be in writing may nevertheless be modified orally.” Id. The

modification of a contract, because it is also a contract, requires all of the elements of a

contract. Id.

       In their motion for summary judgment, the Colbys claimed that T.H. was not

entitled to payments for the unsigned change orders. It was undisputed that the parties

did not execute written change orders prior to the completion of the work, and the Colbys

claimed that they did not assent to the modification of the contract to allow change orders

to be approved orally. In support of this assertion, they relied on their affidavits in which

they stated, “Contractor never mentioned modifying the Contract to allow change orders

to be approved orally and we never discussed any such modification with him. We did

not agree to change the Contract to allow change orders to be approved orally.” App. pp.

239, 242.

       In response, T.H. asserted and the designated evidence showed that changes were

discussed between the parties before, during, and after they were made and that the

                                             14
changes were agreed to orally. T.H. also pointed out that the Colbys had to modify their

loan to finance a $24,757 change to the parking lot and that the Colbys approved payment

for the changes after reviewing sworn construction statements as each draw was made

and at closing.

       We agree with the trial court that the designated evidence showed a genuine issue

of material fact regarding whether the parties impliedly modified the contract.

Accordingly, the trial court properly denied the Colbys‟ motion for partial summary

judgment.

                                      2. Water Pressure

       Although the trial court initially granted summary judgment in favor of the Colbys

on this issue, the trial court later granted T.H.‟s motion to reconsider and concluded there

was an issue of fact regarding whether the problems were the result of the manner in

which T.H. connected the building‟s water supply to the city water main, whether T.H.

was given an opportunity to correct the problem, and whether the charges claimed by the

Colbys were reasonable. The Colbys argue the trial court improperly concluded that

there were questions of fact for trial on this issue.

       In support of their motion for summary judgment, the Colbys relied on the

affidavit of James Zack, a licensed plumber, who stated that the contractor who had

performed the plumbing work did not replace the old water tap, that the newly installed

one-inch water line connected to an existing ¾-inch tap, and that this was not standard

practice or workmanlike performance in the plumbing industry and was the cause of the

water pressure problem. Zack explained that to correct the problem, he installed a 1½-

                                              15
inch tap and a 1½-inch line from the tap to the building that connected to the one-inch

line in the building.

       The Colbys claim that Zack‟s affidavit was “[t]he only summary judgment proof

on this issue . . . .” Appellants‟ Br. p. 27. Referring to the contract and Hovanec‟s

affidavit, however, T.H. established genuine issues of material fact for trial.         T.H.

asserted that there were questions of fact as to whether the contract covered the tap,

whether the tap had anything to do with the water pressure issue, and whether the

replacement of the tap made a significant change to the water pressure issue. Based on

our review of the contract and affidavit, we believe there were genuine issues of material

fact regarding whether T.H. breached the contract by connecting the one-inch line to the

¾-inch tap. Thus, regardless of whether the Colbys were required to give T.H. an

opportunity to cure the problem or whether the corrective action was reasonable, because

there were genuine issues of material fact on the issue of breach, the trial court properly

denied the Colbys‟ request for summary judgment.

                             III. Findings and Conclusions

       Finally, the Colbys argue that the findings of fact issued by the trial court after

trial do not support its conclusions. A trial court‟s “findings or judgment are not to be set

aside unless clearly erroneous, and due regard is to be given to the trial court‟s ability to

assess the credibility of witnesses.” Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206,

1210 (Ind. 2000) (citing Ind. Trial Rule 52(A)). We first consider whether the evidence

supports the factual findings, and then we consider whether the findings support the

judgment. Id. Although we defer substantially to findings of fact, we do not defer to

                                             16
conclusions of law. Id. “A judgment is clearly erroneous if it relies on an incorrect legal

standard.” Id.

       The Colbys did not include a transcript of the trial as part of the record on appeal

and do not dispute any of the trial court‟s 106 findings of fact. Therefore, our review is

limited to whether the trial court‟s findings support its conclusions.

                                         A. Change Orders

       The Colbys argue, “There was no finding that could reasonably lead to the

conclusion that the Colbys assented to allow Contractor to charge for extras without

signed change orders.” Appellants‟ Br. p. 31. According to the Colbys, although “they

may have agreed to construction changes, they did not agree to dispense with the

requirement of written change orders for changes that would increase the contract price.”

Id. at 30. They assert that they believed at all times the change orders provision remained

a part of the contract, protecting them from extra charges. Although the Colbys do not

cite any specific findings that support their argument, they refer to their “four-month

protest against closing” and claim that “[t]hey eventually closed due to pressure from

their lender . . . .” Id. at 31.

       Simply put, the Colbys have not shown that the trial court‟s findings do not

support its conclusions.           The trial court‟s findings referenced detailed discussions

between Hovanec and either Timothy or Holly or both regarding various changes to the

project. The trial court also found in part:

                53.    Well before this stage of the process, Terry Hovanec
                and the Colbys had developed a good working relationship on
                the construction process. Timothy Colby would come by

                                                 17
from time to time and Holly Colby was regularly at the
construction site. Holly Colby was much more involved in
the construction process than Timothy Colby and was usually
the one who met with Chicago Title Company to authorize
the construction draws. . . .

                          *****

60.    The numerous changes listed above show the
involvement of the Colbys in the details of the construction
while it was in progress. Each of these changes were
approved by one or both of the Colbys at different stages of
the construction project after discussions with Terry Hovanec.
These discussions included the costs of the additions, the
savings from deletions, and whether the changes kept the
project overall within the contract amount of $683,816 [sic].
Neither Terry Hovanec nor the Colbys demanded that any of
the changes listed above were to be in writing before they
were made by T.H. Construction or its subcontractors during
construction. Terry Hovanec believed that his working
relationship with the Colbys was such that he did not feel he
needed the protection of signed written change orders. Holly
Colby did not think written change orders were necessary
unless the cost of the construction project went over the
contract amount of $683,916.

                          *****

74.    The Colbys approached Terry Hovanec with a request
that additional parking be added across the south side of the
building across the area onto which the rental units would
have extended. Douglas Homeier of SH Engineers and
Surveyors engineered a plan that would add ten additional
parking places on the south side of the building and, as
required by John Phipps, would enlarge the detention pond at
the far south end of the lot to account for the added
impervious parking area. These plans were completed on
June 5, 2008, and a copy of the plans was provided to the
Colbys. These plans were admitted at trial as Defendant‟s
Exhibit 12.

75.    After the engineering was completed, Terry Hovanec
obtained quotes for the added parking area and enlarged

                             18
detention pond. The total cost of additional parking came to
$24,757. Because the added cost of the parking lot would
increase the cost of the construction beyond $683,916, the
Colbys would be required to increase their construction loan
with Centier Bank. Terry Hovanec prepared a detailed
change order in writing that was submitted to Centier Bank at
Jack Esala‟s request. This change order was admitted into
evidence at trial as Plaintiff‟s Exhibit 43.

76.    The Colbys sought and obtained a modification of
their construction loan that reflected the increase of the cost
of the construction by $24,757 from $683,916 to $708,673.

                           *****

95.    The Colbys made no complaints about Terry Hovanec
to Jack Esala, their loan officer, or to Mary Zarnecki, a close
personal friend of Holly Colby who recommended Terry
Hovanec to the Colbys, until after the water pressure became
an issue.

96.    Sometime after November 3, 2008, Jack Esala
provided the Colbys with copies of the October 20, 2008,
sworn construction statement and the “change orders”
provided by Terry Hovanec. At this meeting, the Colbys
indicated that they needed to discuss the matter further.

97.    By the end of December, 2008, the Colbys had still not
moved forward to close on the construction loan or to resolve
any issues with T.H. Construction. As shown in Plaintiff‟s
Exhibit 57, the Colbys had expressed an intention on not
paying Terry Hovanec but the bank was suggesting a way that
the subcontractors could get paid. This would involve
placing monies in escrow with the title company.

98.    By January 16, 2009, Jack Esala sent a letter to the
Colbys on behalf of Centier Bank indicating that the
financing had already been extended once to give the Colbys
an opportunity to resolve their differences with T.H.
Construction, but the bank was growing impatient. This letter
was introduced at trial as Plaintiff‟s Exhibit 58. The letter
suggested to the Colbys again that escrowing the funds at
closing would permit closing to move forward.

                              19
             99.    Not until March 2009, was a final closing arranged by
             the Colbys.

                                           *****

             102. At the closing on March 20, 2009, Star Lugar of
             Chicago Title went over the March 18, 2009, sworn
             construction statement line by line with the Colbys. In
             response to the observation that the total cost of the project
             had gone up from its original number, the only response came
             from Holly Colby who said that changes were made. The
             Colbys signed all closing documents, all liens were released,
             and T.H. Construction and all the subcontractors were paid in
             full. No monies were escrowed.


App. pp. 540-59.

      The trial court concluded in part:

             107. The contract called for changes in construction to be put
             into writing and signed by all parties. This was not done for
             any of the changes with the exception of the additional
             parking added in the summer of 2008. Modification of a
             written contract can be implied from the actual conduct of the
             parties. Even a contract providing that any modification must
             be in writing may be modified orally. City of Indianapolis v.
             Twin lakes Enter, Inc., 568 N.E.2d 1073 (Ind. Ct. App. 1991),
             trans. denied. By their conduct, the parties clearly had an
             understanding that written change orders were not required
             for agreed upon changes to be made. Only the bank required
             a detailed change order for the additional parking, and even
             then it was not signed by all the parties until the seventh draw
             on August 15, 2008. Therefore T.H. Construction may justly
             claim payments for additions to the contract that were agreed
             upon by the Colbys, even if an agreement for the changes was
             not put in writing by the parties as required by the contract.

             108. All of the changes set forth in the findings of facts
             above were discussed with, and agreed upon, by one or both
             of the Colbys before they were implemented with the
             exception of the increased size of the slab footing and the

                                            20
additional steel posts required for the vinyl fence. Even then,
Timothy Colby approved the change in the footings after the
fact and the additional steel posts were required by the town.

109. Prior to any payments being made to T.H.
Construction or its subcontractors, the sworn construction
statements provided to the Colbys from October 20, 2007,
through August 11, 2008, showed the differences in any line
items and were consistent with the changes and the time line
established by the testimony and evidence at trial. Some of
the items, such as landscaping, flooring and cabinetry were
items over which Holly Colby particularly exercised primary
if not sole control. Before any payments were made to T.H.
Construction or its subcontractors based on these sworn
statements, one or both of the Colbys were required to sign
their approval for disbursements. The failure of the Colbys to
raise a complaint prior to payment constituted a waiver.

110. The contract price established at the time the contract
was signed was $683,916. This price did not increase until
the Colbys requested additional parking at a cost of $24,757.
This increase was at the request of the Colbys and was the
result of their free and voluntary act. This took the total cost
of construction up to $708,919 with the full knowledge and
consent of the Colbys. It was not the result of deception by
T.H. Construction.

111. T.H. Construction did not breach the contract by failing
to deliver goods and services specified under the contract.
All goods and services promised under the contract were
delivered except those omitted or substituted by the
agreement of the Colbys.

                           *****

113. T.H. Construction did not breach the contract with the
Colbys and the Colbys have not been damaged in the amount
of $60,000 as claimed. The Colbys received the full benefit
of their bargain and received all of the goods and service for
which they paid. The Colbys would be unjustly enriched if,
after not relying on the signed written change order language
of the contract which construction was pending, they now


                              21
                 claimed reimbursement for things they agreed to omit or add
                 to the construction.

Id. at 559-61.

        Based on the limited record before us, it is not entirely clear which charges, other

than the parking lot, raised the cost beyond the fixed contract price.4 Regardless, the

Colbys have not shown that the the trial court‟s findings do not support the conclusion

that the Colbys, based on their conduct during construction, modified the change orders

provision of the contract. This claim is unavailing.5

                                         B. Water Pressure

        The Colbys also argue that the trial court‟s findings “compel the conclusion that

Contractor breached its contract to design and build the building with proper

specifications for adequate water supply and to follow those specifications.” 6 Appellants‟

Br. p. 33. In support of this argument, the Colbys claim that the one-inch water line




4
   In their brief in support of partial summary judgment, the Colbys requested damages for the change
orders totaling $72,507. See App. p. 268. On appeal, the Colbys assert that they should have been
awarded $31,899.00 in damages for improper overcharges. See Appellants‟ Reply Br. p. 11. In support
of this calculation, the Colbys direct us to an exhibit attached to an affidavit designated by T.H. in its
response to the Colbys‟ motion for partial summary judgment. Even if we were to consider this summary
judgment evidence to determine whether the evidence admitted at trial supports the Colbys‟ most-recent
calculation of charges, that document shows a final loan amount of $715,815. The contract price of
$683,916 taken with $24,757 for the increased cost of the parking lot equals $708,673, leaving only
$7,142 in additional charges.
5
    The Colbys make arguments regarding unjust enrichment, waiver, quasi-contract, and unjust
enrichment throughout their brief. However, because the trial court‟s decisions were based on the
modification of the contract, we need not address these issues.
6
   To the extent the Colbys argue breach of warranty, this issue is waived for failure to support the
argument with cogent argument. See Ind. Appellate R. 46(8)(a) (requiring arguments to be supported by
cogent reasoning and citations to authorities, statutes, and the Appendix or parts of the record on appeal
relied on).
                                                   22
could have been a problem if the ¾-inch tap was restricted by corrosion and that T.H.

offered to install a new tap at a cost of $7,200.

       Based on the trial court‟s findings, however, it is clear that T.H. offered to install

the tap to satisfy the Colbys, not as a concession that the design or construction was so

deficient as to amount to a breach of the contract. The trial court‟s findings on this issue

provide:

              83.    Within one week after occupying the building,
              Timothy Colby called Terry Hovanec with a concern about
              the water pressure to the building‟s exterior hose bibs. The
              specific issue was that two hoses to water the grass could not
              run well at the same time. In response Terry Hovanec went to
              the site with a pressure gauge to check the water pressure.
              The reading was 32 to 35 pounds.

              84.    Because Terry Hovanec considered this water pressure
              to be low, he called the plumber who worked on the
              construction project, Tom Fistrovich at Rhodes Plumbing.
              Tom Fistrovich suggested that a booster pump be installed in
              the building to increase the pressure. Terry Hovanec then met
              personally with Timothy Colby and offered to install the
              pump at no cost. Timothy Colby declined this offer and
              indicated that he did not want a booster pump. At this
              meeting, Timothy Colby indicated to Terry Hovanec that he
              had talked to an unidentified town employee who purportedly
              told Timothy Colby that the building‟s new one-inch water
              line from the town water system must have been installed
              with a kink in it.

              85.    After the meeting with Timothy Colby ended, Terry
              Hovanec went to the office of Tim Gembala, supervisor of the
              water and sewer department at the Town of Highland
              Department of Public Works. . . . The question was asked as
              to whether the building‟s one-inch water line connection to
              the existing ¾” tap at the town‟s water system could
              contribute to lower water pressure. Tim Gembala indicated
              that such a connection should only be a problem if the tap
              was restricted by corrosion. . . .

                                              23
              86.     After the meeting with Tim Gembala, Terry Hovanec
              again met personally with Timothy Colby to explain what he
              had learned about the town‟s water pressure. . . . When the
              subject of the ¾” water tap was discussed, Timothy Colby
              asked why a new water tap had not been installed. Terry
              Hovanec told Timothy Colby that it was not necessary to
              install a new water tap at added costs because the existing tap
              should have been more than sufficient for the building.

                                          *****

              88.    In an effort to satisfy the client, Terry Hovanec
              suggested the possibility of splitting the cost for a new one-
              inch water tap to be installed. Timothy Colby verbally agreed
              with this proposal while they were together. The next
              morning, however, Terry Hovanec received a telephone call
              from Timothy Colby during which Timothy Colby indicated
              to Terry Hovanec that he did not believe that he should have
              to pay for a new water tap to be installed. Terry Hovanec
              responded by offering to install a new [] 1” water tap at no
              cost to the Colbys if Timothy Colby believed that would
              solve the problem.

App. pp. 552-54.

       Based on these findings, we are not convinced that the trial court was compelled to

conclude that T.H. breached the contract when it connected the one-inch water line to the

¾-inch tap. Without more, the Colbys have not established that the trial court‟s findings

do not support its conclusions on this issue.

                                        Conclusion

       The Colbys have not established that the trial court improperly granted T.H.‟s

motion to withdraw and amend admissions. The Colbys have not shown that the trial

court improperly refused to strike portions of T.H.‟s designated evidence or improperly

granted T.H.‟s motion to reconsider. The Colbys have not established that the trial

                                                24
court‟s denial of summary judgment was improper. Finally, the Colbys have not shown

that the trial court‟s findings do not support its conclusions. We affirm.

       Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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