Opinion
23A-CT-1461
05-23-2024
Andrew Hector and Theresa Colston, Appellants-Plaintiffs v. Archie Nevins, Constance Nevins, Our Home Church & Ministries, LLC, and eXp Realty, LLC, Appellees-Defendants
ATTORNEY FOR APPELLANT John E. Kolas Kolas Law Firm, LLC Indianapolis, Indiana ATTORNEY FOR APPELLEES ARCHI NEVINS, CONSTANCE NEVINS, AND OUR HOME CHURCH & MINISTRIES, LLC Jared M. Schneider Bloomington, Indiana ATTORNEYS FOR EXP REALTY, LLC Katherine M. Haire Reminger Co., L.P.A. Indianapolis, Indiana Lyndsay I. Ignasiak Reminger Co., L.P.A. Merrillville, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Kurt M. Eisgruber, Judge Trial Court Cause No. 49D06-2107-CT-22436
ATTORNEY FOR APPELLANT John E. Kolas Kolas Law Firm, LLC Indianapolis, Indiana
ATTORNEY FOR APPELLEES ARCHI NEVINS, CONSTANCE NEVINS, AND OUR HOME CHURCH & MINISTRIES, LLC Jared M. Schneider Bloomington, Indiana
ATTORNEYS FOR EXP REALTY, LLC Katherine M. Haire Reminger Co., L.P.A. Indianapolis, Indiana Lyndsay I. Ignasiak Reminger Co., L.P.A. Merrillville, Indiana
Chief Judge Altice and Judge Kenworthy concur.
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] Sixteen months after purchasing a home that was built in 1969 and substantially remodeled in 2015, Andrew Hector and Theresa Colston (Buyers), discovered issues with the siding that Sellers had installed during the remodeling project. Not only was the siding a different brand than Buyers thought, but interior trim had been used on the exterior of the home and the flashing between the siding and the home wrap had been improperly installed. This allowed water to infiltrate the home's exterior walls and ultimately caused the siding to fail.
We use the term "Sellers" broadly to refer to all defendants/appellees. Their actual roles were as follows: Constance Nevins and Our Home Church and Ministries, LLC (Our Home), were the owners who sold the home to Buyers; Constance and her husband, Archie Nevins, were the sole members of Our Home at the time of the sale; Archie was also the licensed real estate broker who listed the home for sale; and eXp Realty, LLC, was the company for which Archie worked as an independent contractor. Though the home was not titled in Archie's name, Buyers seemingly sought to pierce Our Home's corporate veil and hold Archie personally liable as though he had a direct ownership interest in the home. We use the term "Seller-Husband" herein to refer to Archie individually. eXp Realty, which had no ownership interest in the home, jointly moved for summary judgment with the other defendants. Thus, we include the company as a "Seller" for ease of reference.
[¶2] Faced with an estimated $25,000 in repairs, Buyers sued Sellers claiming:
• Fraudulent misrepresentation because Seller-Husband misrepresented to Buyers the brand of siding installed on the home;
• Breach of contract because the home was so extensively remodeled in 2015 that Buyers believed they were getting a new home with no defects;
• Breach of implied warranty of habitability because the home's extensive remodeling made it a "new" home, thereby triggering new home warranties; and
• Breach of fiduciary duty because Seller-Husband, a licensed real estate broker, represented both Buyers and Sellers in the home's sale.
The trial court entered summary judgment in favor of Sellers. We affirm.
Facts
[¶3] Sellers purchased the home in 2001 and used it as a rental property until 2015, when they decided to make it their residence. Before moving in, Sellers added a second story and an attached garage, among other improvements. Seller-Husband obtained the necessary permits for the project, including a "Structural Permit" that identified the project as an "Addition &Remodel." App. Vol. II, p. 95. Seller-Husband also hired a contractor to install new exterior siding.
All citations to the Appendix in this opinion refer to Appellants' Appendix.
[¶4] Sellers lived in the remodeled home for 2% years, but in 2018, they decided to move for personal reasons. As a licensed real estate broker, Seller-Husband listed the home for sale. The listing stated, among other things, that the home was built in 1969, was "redone just two years ago," and had "concrete siding." Id. at 108. The listing did not specify the brand of the siding installed on the home.
[¶5] A few days after listing the home, Seller-Husband hosted an open house that Buyers attended. Seller-Husband allegedly described the home as having undergone a "from the studs" renovation. App. Vol. III, p. 7. He also boasted that the home's exterior was composed of high quality Hardie siding. App. Vol. III, p. 7. Upon learning that Buyers did not have a realtor, Seller-Husband offered to represent both sides of the transaction as a limited agent. Buyers agreed in writing via a limited agency agreement. They then entered into a purchase agreement with Sellers.
Hardie siding is a brand of concrete fiber siding manufactured by the James Hardie company. See generally, James Hardie, https://www.jameshardie.com/ (last visited May 13, 2024).
[¶6] Before closing on the home, Buyers had the home inspected. The inspector did not report any major concerns, and he specifically found the exterior siding, trim, flashing, caulking, and windows to be in "satisfactory" condition. App. Vol. II, pp. 123-25. This designation indicated that each component was "functionally consistent with its original purpose but may have signs of normal wear and tear and deterioration." Id. at 115. The inspection report also noted that the home's siding was made of "Fiberboard" and "Metal/Vinyl," not "Fiber-cement." Id. at 123.
[¶7] Buyers closed on the home in January 2019. Sixteen months later, they noticed that some of the home's interior trim was "bubbling." App. Vol. III, p. 12.
When Buyers removed the trim, they found a "substantial water leak." Id. A construction company hired to investigate the leak traced it to issues with the home's siding. In an email, a company representative explained:
The existing siding is having issues for a few different reasons. The trim that was used appears to be interior trim or MDF trim
and that is not meant for exterior use. The Z-Flashing was used in place of the proper Horizontal EZ Trim. On top of that the z-flashing was not installed behind the house wrap and that allowed water to not shed properly or allow the siding to breath (sic) as needed. That also caused the panels to absorb water from the back side and become dimensionally unstable, causing cracks and swelling. The windows were not flashed properly. They did not have window flashing tape and also the z-flashing on top of the windows were (sic) not caulked with water dams. After looking at the project you are going to have failures on the rest of the siding and that is why we need to do full replacement vs a repair. A repair would only fix the resulting damage from the improper installation and would fail with in (sic) 2-4 years. All of the siding needs to be removed and replaced with the complete EZ Trim System and installed to the manufacture[r]s specifications....Id. at 46-47. A few months later, the company estimated the cost to replace the home's siding at just over $25,000.
[¶8] Buyers notified Sellers of the alleged defective siding, and when Sellers disclaimed responsibility, Buyers sued. Sellers moved for summary judgment on all counts, and the trial court granted their motion. The court also granted Sellers leave to petition for attorney fees pursuant to the purchase agreement.
Discussion and Decision
[¶9] Buyers appeal the trial court's entry of summary judgment in Sellers' favor as well as the court's order granting Sellers leave to petition for attorney's fees.
"We review a summary judgment ruling de novo, applying the same standard as the trial court." Arnette v. Estate of Beavins, 184 N.E.3d 679, 687 (Ind.Ct.App. 2022). Summary judgment is appropriate only if "the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). In conducting our review, "[w]e construe all factual inferences in the nonmoving party's favor, and all doubts as to the existence of a material issue against the moving party." Fox v. Barker, 170 N.E.3d 662, 665-66 (Ind.Ct.App. 2021).
I. Fraudulent Misrepresentation
[¶10] To prove fraudulent misrepresentation, a plaintiff must show: "(i) material misrepresentation of past or existing facts by the party to be charged (ii) which was false (iii) which was made with knowledge or reckless ignorance of the falseness (iv) was relied upon by the complaining party and (v) proximately caused the complaining party injury." Johnson v. Wysocki, 990 N.E.2d 456, 46061 (Ind. 2013) (quoting Reed v. Reid, 980 N.E.2d 277, 292 (Ind. 2012)). But first, Indiana Trial Rule 9(B) requires that the "circumstances constituting fraud . . . be specifically averred" in the plaintiff's complaint. See State ex rel. Harmeyer v. Kroger Co., 114 N.E.3d 488, 492 (Ind.Ct.App. 2018) (recognizing Trial Rule 9(B) as providing an "exception" to the mere notice pleading requirements of Indiana Trial Rule 8(A)).
[¶11] In granting the motion for summary judgment on Buyers' fraudulent misrepresentation claim, the trial court concluded that the complaint specifically alleged only one material misrepresentation of past or existing fact-Seller-Husband's statement that the home had Hardie brand siding.
A. The Brand of Siding
[¶12] Buyers contend the designated evidence established a genuine issue of material fact as to whether Seller-Husband knew of or was recklessly ignorant to the alleged falseness of his statement that the home had Hardie brand siding. But Buyers do not challenge the trial court's conclusion that the alleged lack of Hardie brand siding did not proximately cause the Buyers' injury. Thus, they have failed to meet their burden of showing summary judgment was inappropriate on their fraudulent misrepresentation claim. See Munster Steel Co. v. CPV Partners, LLC, 186 N.E.3d 143, 148 (Ind.Ct.App. 2022) ("The party appealing the grant or denial of summary judgment has the burden of persuading this court on appeal that the trial court's ruling was improper.").
Buyers also waived any appellate argument that Seller-Husband's statement that the home had Hardie brand siding proximately caused them injury because they failed to raise the issue in the trial court. See Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind.Ct.App. 2004) ("Issues not raised before the trial court on summary judgment cannot be argued for the first time on appeal and are waived.").
B. Complaint Specificity
[¶13] Buyers also argue that they sufficiently alleged material misrepresentations of fact about the condition of the home other than Seller-Husband's statement that it had Hardie brand siding. We disagree.
[¶14] The purposes of Trial Rule 9(B)'s specificity requirement include "providing adequate notice to the alleged perpetrator and preventing potentially damaging accusations without some concrete description of what is being alleged." Cont'l Basketball Ass'n, Inc. v. Ellenstein Enters., Inc., 669 N.E.2d 134, 138 (Ind. 1996). To serve these purposes, the plaintiff must allege with particularity what the representations were, who made them, and when or where they were made. McKinney v. State, 693 N.E.2d 65, 73 (Ind. 1998); see also Dutton v. Int'l Harvester Co., 504 N.E.2d 313, 318 (Ind.Ct.App. 1987) ("The circumstances constituting fraud include the time, the place, the substance of the false representations, the facts misrepresented, and the identification of what was procured by fraud.").
[¶15] Buyers contend the following paragraphs of their complaint contain the requisite specifics of their general allegation that Sellers made other material misrepresentations about the condition of the home.
11. The sellers provided a Seller's Residential Real Estate Disclosure, a copy of which is attached hereto as Exhibit "E[,]" in connection with this transaction.
12. That Seller's Disclosure Form revealed no defects and each representation that was made by any of the owners was consistent with representation of a house free of defects known to them at the time of the execution of the Disclosure [F]orm. Such representations were not true and the actual truth was or should have been known to the sellers.
***
28. [Sellers] made representations of material fact as to the condition of the real estate, that were not true, were relied upon by [Buyers] and have caused damage and financial loss.
Specifically, [Seller-Husband] . . . represented both verbally and in writing that defects in construction did not exist, when he knew otherwise, having been directly involved in the construction of the subject dwelling.
29. [Seller-Husband] personally and on behalf of the sellers, also represented that the work he did was in the character of new construction when he knew that some materials were salvaged and he made no such disclosure.App. Vol. II, pp. 23-28.
[¶16] These paragraphs do not satisfy the specificity requirements of Trial Rule 9(B). In the Sellers' Disclosure Form attached to Buyers' complaint, Sellers made nearly 100 representations of fact about the home's condition, including more than 50 representations that various systems and components of the home were "Not Defective." Id. at 182-83. Paragraph 12 of the complaint does not specify which of these representations allegedly was false. Similarly, paragraph 28 does not specify the defect that Seller-Husband allegedly misrepresented or when and where he made the alleged misrepresentation. And paragraph 29 does not specify the materials Seller-Husband allegedly misrepresented as not being salvaged.
[¶17] Because Buyers' complaint only alleged with sufficient specificity Seller-Husband's statement that the home had Hardie brand siding, the complaint's other alleged material misrepresentations of fact did not preclude the entry of summary judgment in Sellers' favor. Stated differently, any genuine issues of fact as to the alleged misrepresentations other than the brand of siding were not material to Buyers' fraudulent misrepresentation claim. See State ex rel. Harmeyer v. Kroger Co., 114 N.E.3d 488, 493 (Ind.Ct.App. 2018) ("Failure to comply with Rule 9(B)'s specificity requirements constitutes a failure to state a claim upon which relief may be granted; thus, any pleading that fails to satisfy the [Rule 9(B)] requirements fails to raise an issue of material fact.").
[¶18] We affirm the entry of summary judgment in favor of Sellers on the fraudulent misrepresentation claim.
II. Breach of Contract
[¶19] "To prevail on a claim for breach of contract, the plaintiff must prove the existence of a contract, the defendant's breach of that contract, and damages resulting from the breach." Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). The complaint alleged a breach of the purchase agreement because Sellers conveyed "a damaged and deficient dwelling." App. Vol. II, p. 25. In moving for summary judgment on this claim, Sellers argued that nothing in the purchase agreement required the home to be free of damage or deficiencies.
[¶20] On appeal, Buyers argue that Sellers agreed to sell an "essentially new house." Appellants' Br. p. 29. In support of this argument, Buyers point to the "Further Conditions" section of the purchase agreement, which provides: "Two walls will be built and finished for two bedrooms and one closet will be changed from one side wall to the opposite side with all walls being finished"; "Walls to be insulated for sound reduction." App. Vol. II, p. 37. Buyers also highlight a provision that states: "Buyer accepts Property provided . . . Buyer receives a copy of the final inspection/occupancy permit that followed the remodel." Id. at 40.
[¶21] Buyers do not contend that these contractual provisions were ambiguous or that their plain language required the home to be new or otherwise free of damage or deficiencies. Instead, Buyers assert that "[the purchase agreement] was written after [Seller-Husband] had shown [them the Home]" while "tout[ing] the siding specifically" and "selling the notion more generally that it was a new house." Appellants' Br. p. 29. Buyers then claim the cited contractual provisions are "consistent with new construction" and "evidence . . . that a new house was the product to be conveyed." Id. These claims are without merit.
[¶22] "The ultimate goal of any contract interpretation is to determine the intent of the parties at the time that they made the agreement." Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012). We do so by "analyzing the contractual language within the four corners of the document." Whiskey Barrel Platers Co. v. Am. GardenWorks, Inc., 966 N.E.2d 711, 719 (Ind.Ct.App. 2012). "If the language of a contract is unambiguous, the court may not look to extrinsic evidence to expand, vary, or explain the instrument." Id. And "where a contract contains an integration clause which indicates the contract is a complete, final, and accurate expression of all the parties' agreements, evidence of a prior or contemporaneous statement or negotiation cannot operate either to add to or contradict the terms of the agreement." Id.
[¶23] Here, the purchase agreement contained an integration clause that provided: "This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties' respecting the transaction and cannot be changed except by their written consent." App. Vol. II, p. 37. Accordingly, the representations Seller-Husband allegedly made while showing the home do not create a genuine issue of material fact as to whether Sellers agreed to sell Buyers a new house.
[¶24] We affirm the entry of summary judgment on the breach of contract claim.
III. Breach of Implied Warranty
[¶25] "Embedded in the sale of every newly built home is the implied warranty of habitability: a promise that the dwelling is 'free from defects which substantially impair [its] use and enjoyment.'" Residences at Ivy Quad Unit Owners Ass'n, Inc. v. Ivy Quad Dev., LLC, 179 N.E.3d 977, 982 (Ind. 2022) (quoting Choung v. Iemma, 708 N.E.2d 7, 12 (Ind.Ct.App. 1999)). Liability for an alleged breach of this warranty "may be imposed only on 'builder-vendors'-persons or entities involved in 'building and selling homes for profit.'" Id. (quoting Callander v. Sheridan, 546 N.E.2d 850, 852 (Ind.Ct.App. 1989)).
[¶26] In granting Sellers' motion for summary judgment on the Buyers' breach of implied warranty of habitability claim, the trial court concluded that the home was not a "new" home to which the warranty applied. App. Vol. II, p. 20. On appeal, Buyers contend images depicting the home before, during, and after its remodeling establish a genuine issue of fact as to whether the home should be classified as new construction. Those images are:
(Image Omitted)
[¶27] From these images, Buyers seem to suggest that the home was not remodeled in 2015 but demolished and completely rebuilt. See Appellants. Br. p. 11 ("The designated evidence reveals that a simple ranch that had been built in 1969 . . . was in effect razed and replaced with an executive home."); id. at 15 ("The subject house is a large two-story luxury home, constructed on and around the footprint of a simple ranch style home built in 1969."). Buyers assert that the "during" image "depicts building supplies that had been delivered to the lot," and that "there appears to be no house at all where the lumber is stacked." Id. at 17. This, however, is not a reasonable characterization of the image, which depicts a rectangular structure where the home was built in 1969 and where it remained in 2015.
[¶28] The rest of the designated evidence also does not support the Buyers' position that the home was new construction. The "Structural Permit" for the remodeling project is one for an "Addition &Remodel," and it describes the project to include a second story addition to an "existing" one-story residence. App. Vol. II, p. 95 (all caps omitted). The property listing for the sale states that the home was "built" in 1969 and "redone" in 2015. Id. at 108. Buyers' own inspection report identifies the home's "approximate age" as "49 years" while also indicating that the home was "Remodeled in [the] past 3 years." Id. at 115. The lender's appraisal obtained by Buyers states that the home had been "totally remodeled from the studs up." App. Vol. III, p. 42. And as noted above, the purchase agreement required Buyers to receive "a copy of the final inspection/occupancy permit that followed the remodel." App. Vol. II, p. 40 (emphasis added).
Buyers do not argue that the implied warranty of habitability applies to a remodeled or otherwise modified home, and we found no Indiana case law applying the warranty under such circumstances.
[¶29] We affirm the entry of summary judgment on the breach of implied warranty of habitability claim.
IV. Breach of Fiduciary Duty
[¶30] "A claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary relationship; (2) a breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary." West v. J. Greg Allen Builder, Inc., 92 N.E.3d 634, 643 (Ind.Ct.App. 2017) (internal quotation omitted). Buyers allege that Sellers breached fiduciary duties under the Indiana Real Estate Broker Licensing Act, Ind. Code § 25-34.1-10 et seq., when Seller-Husband "purported to act as a limited agent . . . despite the fact that his wife and a company in which he had a direct and controlling interest were the owners of the [home]." App. Vol. II, p. 22.
[¶31] The Act provides, in pertinent part:
A [licensed real estate broker] may act as a limited agent only with the written consent of all parties to a real estate transaction. The written consent is presumed to have been given and all parties are considered informed for any party who signs a writing or writings at the time of entering into an agency relationship with the licensee that contains the following:
***
(3) A statement that a limited agent shall not disclose the following without the informed consent, in writing, of the parties to the real estate transaction:
(A) Any material or confidential information, except adverse material facts or risks actually known by the licensee concerning the physical condition of the property and facts required by statute, rule, or regulation to be disclosed and that could not be discovered by a reasonable and timely inspection of the property by the parties.
***Ind. Code § 25-34.1-10-12(a).
[¶32] In moving for summary judgment on Buyers' breach of fiduciary duty claim, Sellers designated the limited agency agreement by which Buyers provided their written consent to Seller-Husband serving as their limited agent. This agreement contained the exact statement required by Indiana Code § 25-34.1-10-12(a)(3). Sellers also designated an owner/agent disclosure form that Buyers signed pre-closing, acknowledging that they had been "fully informed" of Seller-Husband's ownership interest in the home. App. Vol. II, p. 110. Additionally, Sellers designated Seller-Husband's affidavit statement that he told Buyers at the open house that he and his wife lived in the home and that it was their "primary residence." Id. at 91. Based on this evidence, Sellers claimed there was no breach of any alleged fiduciary duty and, thus, no harm to Buyers.
[¶33] Buyers countered that they were not presented with, and did not sign, the owner/agent disclosure form until two months after signing the limited agency agreement and purchase agreement. Accordingly, Buyers claimed Seller-Husband failed to timely disclose the adverse material fact of his ownership interest in the home, as purportedly required by Indiana Code § 25-34.1-10-12(a).
We note that only Buyer Theresa Colston signed the owner/agent disclosure form after signing the limited agency agreement and purchase agreement. Buyer Andrew Hector signed the disclosure form one day before signing the agreements.
[¶34] Buyers also argued that Seller-Husband failed to disclose "that he was soliciting untrained and unskilled workers on Facebook," as evidenced by a September 2015 Facebook post in which Seller-Husband stated, in pertinent part:
Tomorrow is Amish style work day at our new home .... If you want to come help, would appreciate it and love to have you. We are going from 8 to 5. Feel free to come to all or part of it. If you
can't, please pray for us for safety n (sic) getting a lot accomplished....App. Vol. III, pp. 39, 78. Additionally, Buyers claimed Seller-Husband failed to disclose "that he was scrounging up old windows and appliances." Id. at 78. In support of this claim, Buyers designated evidence that they "found multiple windows with stickers that would confirm they were from 2003" and that "all appliances, aside from the refrigerator, quickly failed, being up to 20 years old." Id. at 10.
[¶35] In granting summary judgment on Buyers' breach of fiduciary duty claim, the trial court seemingly assumed that Sellers owed Buyers the alleged duties. The court then concluded that the designated evidence negated both the breach and harm elements of the claim. Buyers, however, do not argue in their Appellants' Brief that there were genuine issues of material fact as to whether Sellers' alleged breaches caused Buyers any harm. Buyers simply repackage their trial court arguments, which identified the fiduciary duties Sellers allegedly breached.
[¶36] Though Buyers address the harm issue in their Reply Brief on appeal, it is well-settled that a party may not raise an argument for the first time on reply. Ind. Appellate Rule 46(C) ("No new issues shall be raised in the reply brief."); 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."). Buyers have therefore waived their claim.
[¶37] We affirm the entry of summary judgment on the breach of fiduciary duty claim.
V. Attorney's Fees
[¶38] "Indiana adheres to the American rule that in general, a party must pay his own attorneys' fees absent an agreement between the parties, a statute, or other rule to the contrary." R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind. 2012). Here, the purchase agreement provided: "Any party to this Agreement who is the prevailing party in any legal or equitable proceeding against any other party brought under or with relation to the Agreement or transaction shall be additionally entitled to recover court costs and reasonable attorney's fees from the non-prevailing party." App. Vol. III, p. 23. Pursuant to this provision, the trial court granted Sellers leave to petition for attorney's fees in this action.
This portion of the trial court's order was expressly directed at Sellers Constance Nevins and Our Home, neither of which petitioned for attorney's fees prior to Buyers filing their notice of appeal.
[¶39] On appeal, Buyers argue that Sellers waived any claim for attorney's fees by failing to raise it as an affirmative defense or compulsory counterclaim at the pleading stage of the case. This Court has consistently rejected such an argument, and we do so again here. See, e.g., Boyer Const. Grp. Corp. v. Walker Const. Co., 44 N.E.3d 119, 125 (Ind.Ct.App. 2015) (holding defendant was not required to raise claim for contractual attorney fees prior to final judgment); Kintzele v. Przybylinski, 670 N.E.2d 101, 103 (Ind.Ct.App. 1996) (holding defendant was not required to raise claim for statutory attorney fees when responding to plaintiff's complaint). We also observe that Buyers erroneously rely on case law analyzing contractual claims for indemnification, not attorney's fees. See Land Innovators Co., L.P. v. Bogan, 15 N.E.3d 23, 36 (Ind.Ct.App. 2014) (observing that attorney's fees provisions and indemnity clauses are "dissimilar").
[¶40] We affirm the trial court's order granting Sellers leave to petition for attorney's fees.
Conclusion
[¶41] For the reasons set forth above, we affirm the trial court's entry of summary judgment and affirm the trial court's order granting leave to petition for attorney's fees.
Altice, C.J., and Kenworthy, J., concur.