Luse Thermal Technologies LLC v. Graycor Industrial Constructors Inc.

• Court: Indiana Court of Appeals
• Decided: October 16, 2023
• Docket: 23A-PL-00633
• Status: Published

Opinion

FILED Oct 16 2023, 8:45 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES Kevin E Steele Gregory S. Gistenson Burke Costanza & Carberry, LLP Eric D. Hewlett Valparaiso, Indiana Barnes & Thornburg, LLP Chicago, Illinois Ryan A. Hiss Marissa Downs Michael V. Knight Laurie & Brennan, LLP Barnes & Thornburg, LLP Chicago, Illinois South Bend, Indiana Larry G. Evans Andrew T. Shupp Hoeppner Wagner & Evans, LLP Valparaiso, Indiana Tina M. Bird Thompson Coburn, LLP Chicago, Illinois

IN THE COURT OF APPEALS OF INDIANA

Luse Thermal Technologies, October 16, 2023 LLC, Court of Appeals Case No. Appellant-Plaintiff, 23A-PL-633 Appeal from the Lake Superior v. Court The Honorable John M. Sedia, Graycor Industrial Constructors, Judge Inc. and BP Products North Trial Court Cause No. America, Inc., 45D01-2012-PL-849 Appellees-Defendants.

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 1 of 43 Opinion by Judge Riley. Judges Crone and Mathias concur.

Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Plaintiff, Luse Thermal Technologies, Inc. (Luse), appeals the trial

court’s grant of partial summary judgment in favor of Appellee-Defendant,

Graycor Industrial Constructors, Inc. (Graycor), on Luse’s request for damages

and unjust enrichment claim, and the trial court’s grant of summary judgment

in favor of Appellee-Defendant, BP Products North America, Inc. (BP), on

Luse’s claims based on the Personal Liability Notice Statute and unjust

enrichment. In addition, Luse appeals the trial court’s grant of BP’s motion to

strike certain evidentiary materials. Lastly, Luse appeals the trial court’s denial

of its motion for partial summary judgment with respect to Graycor’s

counterclaim relating to the recovery of certain contractual costs.

[2] We affirm.

ISSUES [3] Luse presents this court with several issues on appeal, which we consolidate

and restate as the following seven issues:

(1) Whether the trial court abused its discretion by striking several of Luse’s

designated evidentiary materials;

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 2 of 43 (2) Whether the trial court erred in concluding, as a matter of law, that

Luse’s damages constituted damages for delay, as defined under Article

8.8. of the subcontract between Luse and Graycor, and are not

recoverable under the provisions of the subcontract;

(3) Whether the trial court erred in concluding, as a matter of law, that Luse

cannot assert a claim against Graycor based on unjust enrichment;

(4) Whether the trial court erred in concluding, as a matter of law, that Luse

failed to comply with the Personal Liability Notice (PLN) Statute,

Indiana Code section 32-28-3-9(b);

(5) Whether the trial court erred in concluding, as a matter of law, that

Luse’s claim based on unjust enrichment against BP was precluded;

(6) Whether the trial court erred by denying Luse’s motion for partial

summary judgment on Graycor’s claim for reimbursement of additional

costs because a genuine issue of material fact was created with respect to

Graycor’s contractual entitlement to these costs; and

(7) Whether Graycor is entitled to an award of appellate attorney fees.

FACTS AND PROCEDURAL HISTORY [4] This dispute centers around the construction of a Naptha Hydrotreater system

(NHT) at BP’s plant in Whiting, Indiana (Project). The NHT is a processing

unit that removes sulfur from gasoline to reduce environmental impact. The

construction project spanned several years, involved multiple subcontractors,

and cost BP $385 million to complete. On November 16, 2017, BP issued a

Request for Proposal (RFP), seeking a general contractor to guide the Project.

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 3 of 43 On May 17, 2018, BP entered into a Master Services Agreement with Graycor

for the construction of the NHT. That same day, Graycor entered into a

subcontract with Luse for the insulation and lagging work of the Project

(Subcontract).

[5] The Subcontract specified that Luse would be paid $6,497,987 for its work on

the Project and detailed in Article 8.8 that:

8.8 Delay Claims. The Subcontractor understands and agrees that the potential for its Work being delayed by the conduct of others is inherent in any construction project, including the Project. Accordingly, and other than to the extent the Contractor receives compensation from the Owner or any other entity responsible for such delay, the Contractor shall not be liable to the Subcontractor for any damages whatsoever that may be suffered by the Subcontractor, or for which the Subcontractor may become liable, on account of any acts or omissions on the part of (a) the Contractor or those for whom it is responsible, (b) the Owner, (c) the Design Professional, or (d) any other entity that may arise from or are in any way related to the Project or the Work. The Subcontractor further agrees: (i) any such delay, other than to the extent compensation is otherwise provided in this Subcontract, shall be fully compensated for by an extension of the time to complete performance of the Work and (ii) it shall make no claim due to delay in the performance of Work against those who might have a claim against the Contractor for such damages.

(Appellant’s App. Vol. III, pp. 28-29). The Subcontract was not accompanied

by a project schedule but, in line with what had been discussed during a prior

meeting, Luse’s work would commence on May 21, 2018, and reach substantial

completion by August 22, 2019. The insulation scope of the Project was

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 4 of 43 divided into two different phases. First, Luse would mobilize immediately to

insulate several large pieces of equipment which were to be delivered by barge

to a staging area at the BP facility. Luse would then return in the spring of 2019

for a second phase, which entailed the insulation of the pipe portion of the

Project. Insulation of the pipe portion would be one of the last activities to be

completed on the NHT Project because Luse could not insulate the pipe until

the other crafts had completed their part of the work.

[6] The Project experienced a number of delays which resulted in project deadlines

being moved back. On February 6, 2019, Graycor and BP entered into what

would be the first of three settlement agreements to resolve open change orders

and claims that Graycor had submitted to BP. This First Settlement Agreement

settled “all delay controversies that have arisen between May 1, 2018, and

October 31, 2018” for a settlement payment of $2.7 million to be paid to

Graycor by BP. (Appellant’s App. Vol. VIII, p. 50). By May 2019, Luse

became concerned with the small sections of pipe which had been released for

insulation activities and Luse’s resulting inability to progress its work toward its

contractual completion deadline. As of August 22, 2019—Luse’s anticipated

completion date—Graycor had only released a small fraction of the entire pipe

portion of the Project for Luse to insulate.

[7] By the fall of 2019, the NHT Project was significantly behind schedule.

Graycor and BP reached an amicable resolution with respect to the slow

progress of the work, culminating, on November 6, 2019, in the second

settlement agreement (Second Settlement Agreement). The Second Settlement

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 5 of 43 Agreement increased Graycor’s baseline contract price to $147 million, which

represented an increase of approximately $27 million, and further contained an

explicit commitment from Graycor that liquidated damages could be assessed

against it at the rate of $250,000 per week up to a cap of $1 million in the event

that Graycor would not finalize the work by the new deadline of January 31,

2020.

[8] In a meeting on December 12, 2019, Graycor requested Luse to increase

manpower in order to adhere to the new completion date of January 31, 2020,

and asked Luse to provide a cost proposal for the increased costs to complete

the work under the changed circumstances. As directed by Graycor, Luse

submitted a revised proposal with a cost increase of $1,136,211, excluding

overtime costs, and a new schedule specifying pipe releases in order for Luse to

timely complete the insulation. During the following weeks, Luse responded to

Graycor’s requests for further substantiation of its costs and issued several

revised versions of its cost proposal. Graycor never agreed to any of Luse’s cost

proposals which Luse submitted for accelerating its work to meet Graycor’s

directives. On February 17, 2020, representatives from Luse and Graycor met

again to discuss the costs Luse had incurred and would continue to incur until

the completion of its work pursuant to Graycor’s compressed schedule. Luse’s

February 17, 2020 claim asserted the actual hours lost as a result of Graycor’s

insistence to work at an accelerated pace and demonstrated $1,625,557 in

additional out-of-pocket costs Luse had paid its union workers as a result of

schedule changes. The original work plan had envisioned Luse completing the

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 6 of 43 pipe portion of the Project across a four-month period in the spring and summer

of 2019. Graycor’s directive in December 2019 for the pipe insulation to be

finished by the end of January 2020 meant that Luse had to complete the

majority of its work in less than two months during winter conditions on Lake

Michigan’s shoreline. Eventually, the NHT became operational in late July

[9] In May 2020, BP and Graycor commenced negotiations to close-out the NHT

Project. In order to protect itself from subcontractor liens and PLN claims, BP

inquired with Luse as to the amount it was owed by Graycor. On June 1, 2020,

Luse’s general manager, Gordon Vierck (Vierck), emailed the requested

information to John Phillips (Phillips), BP’s project manager. In his email

Vierck identified different categories of amounts due to Luse from Graycor on

the Project, which collectively totaled $3,710,651.76. The following day—June

2, 2020—BP and Graycor entered into the third settlement agreement (Third

Settlement Agreement), pursuant to which BP agreed to pay Graycor a further

$2 million for additional construction costs. The Third Settlement Agreement

reaffirmed Graycor’s lien-related covenants and required Graycor to secure a

$25 million bond that would be triggered if Graycor failed to bond over any lien

filed against BP’s property.

[10] On November 4, 2020, Luse recorded a mechanic’s lien against the property on

which BP’s plant is situated in the amount of $3,667,275.56. In its “Notice of

Intention to Hold Mechanic’s Lien and to Impose Personal Liability” Luse

stated its intent that

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 7 of 43 in accordance with Indiana Code § 32-28-3-9 [] [Luse] intends to hold you personally liable for the payment of this claim to the extent of any monies which may now be due or which may hereafter become due from you to or for Graycor, either directly or indirectly or through other contractors or parties.

(Appellant’s App. Vol. VI, p. 15).

[11] On December 10, 2020, Luse filed its Complaint against Graycor and BP,

seeking to foreclose its lien and recover the amount still owed for services

rendered at the BP plant. Luse’s Complaint asserted claims for breach of

contract and unjust enrichment against Graycor and claims for PLN liability

and unjust enrichment against BP. On February 4, 2021, Graycor filed its

responsive pleading which included a counterclaim based on breach of contract

against Luse and which asserted a claim for $1,681,829 in direct expenses it had

incurred as a result of delay and perceived faulty work caused by Luse. On

March 8, 2021, BP filed its answer to the Complaint.

[12] On October 21, 2022, the trial court established a revised briefing schedule for

motions for summary judgment as well as the responses and replies relative

thereto. On October 28, 2022, Luse, BP, and Graycor each filed their motions

for summary judgment together with designations of evidentiary materials.

Graycor’s motion sought partial summary judgment on the breach of contract

and unjust enrichment claims in Luse’s Complaint; BP sought summary

judgment on the PLN liability and unjust enrichment claim; and Luse sought

partial summary judgment on Graycor’s counterclaim. On December 9, 2022,

Luse and Graycor filed responses to the motions for summary judgment,

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 8 of 43 together with supplemental designations of evidence. On January 20, 2023, all

three parties filed replies in support of their motions for summary judgment.

Both BP and Luse filed supplemental designations with their reply briefs. BP

additionally filed a motion to strike portions of the affidavit and legal argument

Luse had designated with its response to BP’s motion for summary judgment.

On January 26, 2023, Graycor moved to strike—in which BP joined five days

later—the supplemental designation of evidence that Luse had concurrently

filed with its reply brief. On February 6 and 10 respectively, Luse filed briefs in

opposition to BP’s and Graycor’s motions to strike.

[13] On February 23, 2023, the trial court conducted a hearing on all three motions

for summary judgment and the two motions to strike. On February 27, 2023,

the trial court issued its judgment, granting summary judgment to BP after

granting BP’s motion to strike Luse’s affidavit evidence, granting Graycor’s

motion for partial summary judgment, denying, in part, Luse’s motion for

partial summary judgment on Graycor’s counterclaim, and granting BP’s and

Graycor’s motion to strike Luse’s supplemental designation of evidence.

[14] Luse now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Standard of Review

[15] Luse challenges the trial court’s grant of summary judgment to BP and

Graycor. “The purpose of summary judgment is to terminate litigation about

which there can be no factual dispute and which can be determined as a matter Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 9 of 43 of law.” Lamb v. Mid Ind. Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App. 2014).

“The party moving for summary judgment has the burden of making a prima

facie showing that there is no genuine issue of material fact and that it is entitled

to judgment as a matter of law.” Mint Mgmt., LLC v. City of Richmond, 69

N.E.3d 561, 564 (Ind. Ct. App. 2017); Ind. Trial Rule 56(C). Summary

judgment is a “high bar” for the moving party to clear in Indiana. Hughley v.

State, 15 N.E.3d 1000, 1004 (Ind. 2014). If “the moving party satisfies this

burden through evidence designated to the trial court, the non-moving party

may not rest on its pleadings, but must designate specific facts demonstrating

the existence of a genuine issue for trial.” Biedron v. Anonymous Physician 1, 106

N.E.3d 1079, 1089 (Ind. Ct. App. 2018) (quoting Broadbent v. Fifth Third Bank,

59 N.E.3d 305, 311 (Ind. Ct. App. 2016), trans. denied), trans. denied. “A fact is

material if its resolution would affect the outcome of the case, and an issue is

genuine if a trier of fact is required to resolve the parties’ differing accounts of

the truth, or if the undisputed material facts support conflicting reasonable

inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (citation and

quotation marks omitted).

[16] We review a court’s ruling on a summary judgment motion de novo, applying

the same standard as the trial court. Hughley, 15 N.E.3d at 1003. “In

conducting our review, we consider only those matters that were designated to

the trial court during the summary judgment stage.” Lowrey v. SCI Funeral

Servs., Inc., 163 N.E.3d 857, 860 (Ind. Ct. App. 2021), trans. denied. “In

determining whether issues of material fact exist, we neither reweigh evidence

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 10 of 43 nor judge witness credibility [but] accept as true those facts established by the

designated evidence favoring the non-moving party.” Id. (citations omitted).

“Any doubts as to any facts or inferences to be drawn from those facts must be

resolved in favor of the nonmoving party.” Denson v. Est. of Dillard, 116 N.E.3d

535, 539 (Ind. Ct. App. 2018). However, “[m]ere speculation is insufficient to

create a genuine issue of material fact to defeat summary judgment.” Biedron,

106 N.E.3d at 1089. In the summary judgment context, we are not bound by

the trial court’s findings of fact and conclusions thereon, but they aid our review

by providing the reasons for the trial court’s decision. Howard Cnty. Sheriff's

Dep’t & Howard Cnty. 911 Commc’ns v. Duke, 172 N.E.3d 1265, 1270 (Ind. Ct.

App. 2021), trans. denied. The party that lost in the trial court bears the burden

of persuading us that the trial court erred. Biedron, 106 N.E.3d at 1089.

II. Motion to Strike

[17] Because a summary judgment rests upon the specific facts included in the

designated evidence, we must, as an initial matter, determine whether the trial

court abused its discretion by striking certain designated materials submitted by

Luse. “A trial court has broad discretion in granting or denying a motion to

strike.” Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, Inc., 973 N.E.2d 1179,

1182 (Ind. Ct. App. 2012), trans. denied. An abuse of discretion occurs when the

trial court’s decision is clearly against the logic and effect of the facts and

circumstances before it. Webb v. City of Carmel, 101 N.E.3d 850, 857 (Ind. Ct.

App. 2018). This discretion extends to rulings on motions to strike where a

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 11 of 43 party argues that a filing fails to comply with the summary judgment rules.

Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005).

[18] The trial court’s grant of the motion to strike Luse’s designated evidence rested

upon two allegations. First, Graycor, joined by BP, sought to strike Luse’s

supplemental designation filed with its reply brief because Luse filed its

designation without seeking prior leave from the trial court. Secondly, BP

sought to strike certain allegations included in an affidavit submitted by Luse.

Luse now appeals both claims. We will analyze each contention in turn.

A. Supplemental Designation

[19] On October 21, 2022, the trial court notified the parties of its revised briefing

schedule for any dispositive motions, in which it ordered the parties to submit

motions on or before October 28, 2022, responses thereto on or before

December 9, 2022; and replies on or before January 20, 2023. In accordance

with this briefing schedule, all three parties filed their motions for summary

judgment and designated evidence on October 28, 2022. Luse and Graycor

filed a response, together with designated evidence by December 9, 2022, and

thereafter, all three parties filed a reply by January 20, 2023, with BP and Luse

filing supplemental evidentiary designations with their reply motion. After

moved by BP and Graycor, the trial court struck Luse’s supplemental

designation, containing an additional eighteen exhibits as well as a new

affidavit which Luse had filed with its reply motion, because “[w]ithout a

[m]otion by Luse with notice and an opportunity to respond afforded to

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 12 of 43 Graycor, the [c]ourt is not disposed to consider the supplemental designation.”

(Appellant’s App. Vol. II, p. 26). Although Luse had timely filed its reply, Luse

contends that the trial court abused its discretion by striking the supplemental

evidence Luse designated with its reply brief on the ground that Luse had failed

to seek prior leave of the court for its filing of supplemental evidentiary

materials.

[20] In Spudich v. Northern Indiana Public Service Co., 745 N.E.2d 281 (Ind. Ct. App.

2001), trans. denied, we addressed a similar issue. There, NIPSCO filed a

motion for summary judgment, Spudich filed a response, and NIPSCO then

filed a reply brief with the trial court’s permission. Id. at 285. Spudich filed a

motion to strike the reply, which the trial court denied. Id. On appeal, Spudich

argued that Trial Rule 56 did not “specifically provide for the filing of reply

briefs on summary judgment[.]” Id. at 286. We noted that Trial Rule 56

“neither expressly permits nor precludes such a reply brief.” Id. at 287. The

Rule does, however, “provide for affidavits submitted in support or in

opposition to summary judgment to be supplemented or opposed by

depositions, answers to interrogatories, and further affidavits.” Id. Thus, we

found that the submission of additional evidence after the initial filings is

contemplated by the Rule. We noted that the “practice of filing a reply brief on

summary judgment was not unique” and we held that NIPSCO was allowed to

include additional designations of evidence with the reply brief and arguments

not made in its original motion. Id. at 288-89.

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 13 of 43 [21] Relying on Spudich, we reached the same result in Auto-Owners Ins. Co. v. Benko,

964 N.E.2d 886, 889-90 (Ind. Ct. App. 2012), trans. denied. There, the insured

filed a motion for summary judgment, the insurer filed a response, and the

insured then supplemented her designation of evidence without obtaining

permission from the trial court. Id. The insured filed a motion to strike the

supplemental designation, which the trial court denied. Id. On appeal, we

held, “[i]n the absence of any language in Trial Rule 56 explicitly prohibiting

reply briefs and such designations and in light of these facts and circumstances,

we cannot say the trial court erred in denying [the insured’s] motion to strike.”

Id. at 890.

[22] And again, similarly, in Jacks by Jacks v. Tipton School Corporation, 94 N.E.3d

712, 715 (Ind. Ct. App. 2018), the School filed a motion for summary judgment

and designation of evidence to which the Jacks Family responded. The School

then filed a reply brief and supplemental designation of evidence. Id. The Jacks

Family moved to strike the School’s reply and supplemental evidence because

the School had not pursued the trial court’s permission prior to filing the reply

and supplemental evidence. Id. The trial court denied the motion. Id. “Based

on the language of Trial Rule 56, Spudich, and Benko,” the appellate court found

no error by the trial court in allowing the School’s reply and supplemental

designation. Id. at 716. We concluded that “Trial Rule 56 does not prohibit

reply briefs and specifically allows the designated evidence to be

supplemented.” See also Reed v. City of Evansville, 956 N.E.2d 684, 690 (Ind. Ct.

App. 2011) (trial court may permit affidavits accompanying motion for

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 14 of 43 summary judgment to be supplemented by additional affidavits accompanying

the movant’s reply).

[23] Accordingly, based on the interpretation of Trial Rule 56 and the relevant

jurisprudence, Luse was allowed to timely file its reply brief and supplemental

evidence without being required to seek prior leave from the trial court.

However, Trial Rule 56(E) clearly invokes the trial court’s discretion in

admitting the supplemental evidence after the documents have been filed as the

Rule expressly notes that “[t]he court may permit affidavits to be supplemented

or opposed by depositions, answers to interrogatories, or further affidavits.”

During the hearing on the parties’ motions, the trial court, after receiving

arguments on the motion to strike, expressed concern that Luse filed new

designated evidence barely one month prior to the hearing which left the trial

court with two options: either admit Luse’s supplemental designations and

continue the hearing to allow Graycor to supplement its evidence, or deny

Luse’s additional evidence. Accordingly, in light of these concerns, we cannot

say that the trial court’s denial of Luse’s supplemental evidence was against

“the logic and effect of the facts and circumstances before the court.” Webb,

101 N.E.3d at 857.

B. Statements made in Affidavit

[24] When BP filed its reply in further support of its summary judgment motion, it

concurrently filed a motion seeking to strike certain statements made by Steve

Luse, the president of Luse during the time Luse performed work on the NHT

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 15 of 43 Project, in his affidavit. Specifically, BP sought to strike the following

averments based on relevancy concerns:

During [the May 26, 2020] call, Mr. Phillips informed me that BP was having some problems with Graycor on the Project and expressed some concerns about outstanding payments that Graycor needed to make to a few of its subcontractors, including Luse. Mr. Phillips stated he wanted to get his arms around this payment issue.

Mr. Phillips expressed that he knew Graycor owed money to Luse, and he wanted to understand what Luse was due and owed from Graycor for services performed on the Project.

I took some comfort in this discussion as it demonstrated that Mr. Phillips and BP wanted to make sure Luse got paid for the services it provided on the Project and was taking steps to make sure we did get paid.

As of June 1, 2020, Luse intended to seek its outstanding payment from Graycor, and if Graycor continued to refuse to pay, directly from BP. The conversation with John Phillips of BP led me to believe that it was possible that Luse may be paid directly by BP or at least make sure Luse got paid what we were owed and promised from Graycor.

Mr. Phillips’ conversation with me on May 26, 2020, was not typical in the construction industry. It is rare that an owner of a construction project directly reaches out to Luse to determine what Luse is due and owed from the general contractor on a given project. I can’t recall that ever occurring before in my career. It was clear to me that BP wanted to obtain this payment information direct from Luse in order for BP to use that information for some specific purpose. Mr. Phillips only

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 16 of 43 revealed that he wanted this information to understand what Luse was owed because of the difficulties BP was experiencing with Graycor.

(Appellant’s App. Vol. IX, pp. 244-46). On February 27, 2023, the trial court

granted BP’s motion on the ground that the court “agree[d] with BP that the

materials sought to be stricken are not relevant to the Personal Liability Notice

issues raised in BP’s [m]otion for [s]ummary [j]udgment.” (Appellant’s App.

Vol. II, p. 26).

[25] On appeal, Luse contends that the trial court abused its discretion in striking the

statements because “[t]he aforementioned statements were grounded in Mr.

Luse’s personal observations from a conversation in which he was one of two

participants.” (Appellant’s Br. p. 71). However, Luse’s contention and

supporting argument ignore the fact that the trial court struck the disputed

averments based on relevancy considerations.

[26] Even if we evaluate the averments about Mr. Luse’s understanding of BP’s

actions with respect to BP’s PLN liability based on relevancy grounds, the

affidavit must be stricken and the trial court’s decision must be affirmed as the

statute requires that all elements of a PLN claim must be asserted in writing.

See Ind. Code § 32-28-3-9(b) (“[I]n order to acquire rights under this section, a

[subcontractor] (a) must give to the property owner, [] written notice

particularly setting forth the amount of the person’s claim and services rendered

for which [] (2) the person holds the property owner responsible.”)

Accordingly, Steve Luse’s affirmations as to what he perceived BP’s possible

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 17 of 43 intent to be when BP inquired into Graycor’s perceived indebtedness to Luse is

immaterial as to the question of whether Luse informed BP in writing that it

intended to hold BP personally liable.

[27] As Luse fails to argue—let alone formulate a persuasive argument—that the

averments made it more or less probable that all the elements of a PLN claim

were present, we refuse to disturb the trial court’s decision.

Graycor’s Motion for Partial Summary Judgment

III. Damages for Delay

[28] A large portion of Luse’s Complaint is devoted to its claim for damages. In its

Complaint, Luse alleges: “Graycor materially and substantially changed Luse’s

scope of work under the Subcontract by rescheduling the work from the more

productive summer and fall months to the challenging, less productive, and

more costly winter months. This schedule change was unilaterally imposed by

Graycor upon Luse and significantly increased the cost to perform the scope of

work under the Subcontract.” (Appellant’s App. Vol. II, pp. 30-31). Luse

continues to allege: “Graycor materially and substantially changed Luse’s

scope of work by unilaterally modifying when areas of the Project would be

released to Luse to commence its services. This schedule and sequence

alteration was unilaterally imposed by Graycor upon Luse and caused Luse to

proceed with its work and labor allocation in a substantially different and much

more costly manner than agreed under the terms and conditions of the

Subcontract.” (Appellant’s App. Vol. II, p. 31). Luse breaks down its claim for

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 18 of 43 damages into five categories: (A) alleged contract balance; (B) alleged balance

for commissioning work; (C) unpaid overtime; (D) unpaid out of scope services

and (E) “additional costs incurred as a result of changed conditions, schedule

overrun, delays in work releases, and other impacts described in the

Complaint.” (Appellant’s App. Vol. IV, pp. 185-87). Although Luse’s Claim

Support Summary states that the damages it claims in section (E) are “TBD,”

designated evidence reflects that Luse valued this category at $1,625,557 on

February 17, 2020. (Appellant’s App. Vol. II, p. 31). When the values claimed

in Luse’s Claim Summary (A) through (D) are subtracted from the number

claimed in Luse’s Complaint and Mechanic’s Lien Claim, the amount equates

to $1,650,332.44. As such, over $1.6 million of Luse’s claim is comprised of a

claim for ‘changed conditions, schedule overrun, delays in work releases, and

other impacts described in the Complaint’ and as defined in the Subcontract.

Graycor, in its motion for partial summary judgment—which was granted by

the trial court—contended that Luse was precluded from recovering these

Section (E) damages under Article 8 of the Subcontract.

[29] Construction of written contracts is generally a question of law for which

summary judgment is particularly appropriate. Forty-One Assoc. v. Bluefield

Associates L.P., 809 N.E.2d 422, 427 (Ind. Ct. App. 2004). When the terms of a

contract are clear and unambiguous, those terms are conclusive, and the court

will not construe the contract or look at extrinsic evidence, but rather will

simply apply the contract provisions. Forty-One Associates, 809 N.E.2d at 427;

Stout v. Kokomo Manor Apartments, 677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997);

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 19 of 43 Stelko Elec., Inc. v. Taylor Cmty. Sch. Bldg. Corp., 826 N.E.2d 152, 155-156 (Ind.

Ct. App 2005). “When a court finds a contract to be clear in its terms and the

intentions of the parties apparent, the court will require the parties to perform

consistently with the bargain they made.” AM Gen. LLC v. Armour, 46 N.E.3d

436, 442 (Ind. 2015).

[30] The Subcontract at the center of this dispute and which forms the basis of

Luse’s claim contained the following pertinent provisions:

8.1 Claim Conditions. The Subcontractor shall notify the Contractor in writing of every event, occurrence, condition, direction, instruction or decision that the Subcontractor has reason to believe gives rise or may give rise to the right under this Subcontract to either additional compensation for or an extension of time within which to do the Work (the “Claim Condition”).

8.2 Notification. The Subcontractor’s notice to the Contractor must be delivered to the Contractor within forty-eight (48) hours of the time that the Subcontractor either knew or should have known of the Claim Condition upon which the Subcontractor’s request is or will be based. The notice shall include the Subcontractor’s good faith assessment of the Claim Condition on the Work and the Subcontractor’s best estimate, based upon the information available, as to the nature of the Claim Condition.

8.3 Records and Certification. With respect to each Claim Condition, the Subcontractor shall keep daily a separate record identifying the labor hours worked, machinery and equipment hours utilized, and the material expended or incorporated into the Work because of the Claim Condition. These records will be delivered to the Contractor on a daily basis. By delivering the Subcontractor’s records to the Contractor, the Subcontractor Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 20 of 43 certifies to the Contractor that the records are true and correct and are not submitted for any false, fraudulent, or other improper purpose.

****

8.7 Failure to Comply. The Subcontractor understands and agrees that its failure to comply with these requirements for presentation of a Claim Condition shall constitute a waiver, on all grounds, of any claim for compensation or an extension of time arising out of or related to it.

8.8 Delay Claims. The Subcontractor understands and agrees that the potential for its Work being delayed by the conduct of others is inherent in any construction project, including the Project. Accordingly, and other than to the extent the Contractor receives compensation from the Owner or any other entity responsible for such delay, the Contractor shall not be liable to the Subcontractor for any damages whatsoever that may be suffered by the Subcontractor, or for which the Subcontractor may become liable, on account of any acts or omissions on the part of (a) the Contractor or those for whom it is responsible, (b) the Owner, (c) the Design Professional, or (d) any other entity that may arise from or are in any way related to the Project or the Work. The Subcontractor further agrees: (i) any such delay, other than to the extent compensation is otherwise provided in this Subcontract, shall be fully compensated for by an extension of the time to complete performance of the Work and (ii) it shall make no claim due to delay in the performance of Work against those who might have a claim against the Contractor for such damages.

(Appellant’s App. Vol. III, pp. 28-29).

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 21 of 43 [31] Although the contracted completion date of the Project was August 31, 2019,

the designated evidence reflects that Graycor “moved the completion date

back” due to Graycor encountering “a variety of issues with pipe deliveries and

installation, plant constraints delaying heavy haul, delayed concrete placement

causing delayed steel erection, and added fireproofing scope.” (Appellant’s

App. Vol. VI, pp. 167, 171). Luse subsequently became concerned with “the

slow releases of pipe” and, by August 22, 2019, only a small portion of Luse’s

work was ready. (Appellant’s App. VII, p. 151). Accordingly, Luse’s claim is

based upon delays in the Project—either delays in the completion of work by

other contractors which was necessary for Luse to perform its work, or delays in

the release of the pipe to Luse so it could begin its contracted work.

[32] Luse now attempts to avoid the application of Article 8.8 of the Subcontract by

characterizing its delay claim as an acceleration of its own work schedule based

on Graycor’s instruction to “increase manpower” or ‘accelerate’ its schedule in

a meeting in December 2019. (Appellant’s App. Vol. VII, p. 3). Luse

maintains that during this meeting Graycor directed Luse to increase

manpower to complete its work by the end of January 2020, thereby

compressing the schedule and accelerating the pace at which Graycor was

requesting Luse to complete its work. In other words, Luse advocates that

because other aspects of the project had encountered delays, Luse was required

to complete its work faster in order to comply with the new deadline. As such,

Luse argues that “[t]he impacts that Luse has claimed on this Project are not

damages for ‘delay’ at all but rather damages which were incurred due to a

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 22 of 43 Graycor-directed change to Luse’s work and the adverse impacts incurred due

first to Graycor’s ‘disruption’ and then to Graycor’s ‘acceleration.’”

(Appellant’s Br. p. 33). Because Graycor moved Luse’s portion of the Project

work to the winter months, Luse maintains that the additional costs which it

now claims derived from “productivity impacts resulting from a variety of

causes but predominantly winter weather, absenteeism, low morale, and worker

fatigue stemming from being directed to work at a break-neck pace from

December 2019 until the finish.” (See Appellant’s App. Vol. IX, pp. 64-84).

[33] Both parties refer to Stelko Elec. Inc. v. Taylor Cmty. Sch. Bldg. Corp., 826 N.E.2d

152 (Ind. Ct. App. 2005) in support of their respective arguments. In that case,

Stelko attempted to avoid the no damages for delay provision contained in its

contract by making a similar claim as Luse, i.e., that the claim was for the

acceleration of the work schedule. Id. at 157-58. However, we find Stelko to be

inapplicable to the case at hand because the Stelko court did not resolve the

distinction between contractual delay versus acceleration as it concluded that

“Stelko [] provided no evidence that it was obligated to complete the contract

four months early.” Id. at 159.

[34] While we can support a distinction between delay and acceleration under

certain circumstances, it would seem that in many cases, if not in most cases,

the alleged ‘acceleration’ is in fact the result of ‘delay,’ or, to put it differently,

because of delay caused by or attributable to the owner or a contractor, a

contractor or subcontractor is of necessity forced to compress or speed up the

work necessary to be completed before the contract completion date. Here, the

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 23 of 43 time compression that caused the acceleration of Luse’s work was itself caused

by delay in the work of predecessor trades. Because the early stages of the

Project were not completed as expeditiously as planned by other contractors,

Luse’s work could not commence until later than expected. Thus, Luse was

delayed and thereby forced to accelerate the pace at which it performed its work

in order to meet the Project’s deadline. Because Luse’s ‘acceleration’ costs were

the result of delay, and delay damages are not recoverable under the

unambiguous terms of Article 8.8 of the Subcontract, Luse’s claim must fail.

Pursuant to the provision, the only recovery Luse is entitled to in case of delay

is an extension of time; however, no party designated evidence that Luse

requested Graycor for a time extension at any point during the course of the

Project. 1

[35] Invoking the exception language in Article 8.8 that delay damages may be

compensable “to the extent the Contractor receives compensation from the

Owner or any other entity responsible for such delay,” Luse now—

1 Moreover, the designated evidence also establishes that Luse failed to comply with the Subcontract’s notice provisions. Article 8.2 requires Luse to provide notice to Graycor within forty-eight hours of the time that Luse either knew or should have known of a Claim Condition. A Claim Condition is defined in Article 8.1 as including an event that gives rise or may give rise to the right under the Subcontract to either additional compensation or an extension of time within which to do the Work. Luse concedes that the February 17, 2020 notice is the first notification of Luse to Graycor that it was claiming $1,625,557 in delay damages going back to the inception of the Project. A notice of claim in February 2020 for damages dating back to September 2019 violates Luse’s contractual obligation to provide notice within forty-eight hours of the event occurring. Even if the February 17, 2020 notice that was eventually submitted to Graycor was timely, it fails to comply with the provisions of Article 8.3 requiring the notice to be accompanied by the labor hours worked, machinery and equipment hours utilized, and the material expended or incorporated into the work because of the Claim Condition.

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 24 of 43 alternatively—contends that the Second Settlement Agreement indicates that

Graycor received a settlement payment for increased costs on the Project as a

result of delay, disruption, and labor productivity impacts. (Appellant’s App.

Vol. III, p. 29). Specifically, Luse points to the Second Settlement Agreement,

in which Graycor, in exchange for the settlement amount, agreed to waive and

release “any and all future claims or potential claims for additional payment

and/or extension of the schedule based on delay, disruption, interference,

acceleration, cardinal change, extra work or increased cost based on or arising

out of anything that occurred (or failed to occur) before the Effective Date.” 2

(Appellant’s App. Vol. VIII, p. 54). However, a plain reading of the Second

Settlement Agreement fails to establish that BP agreed to reimburse Graycor for

delay damages as the Second Settlement Agreement clearly is written in the

disjunctive “and/or.” Designated evidence by way of representative testimony

of BP and Graycor established that Graycor never received compensation from

BP for incurred damages due to delays. Specifically, when questioned about

payment for delays relative to the Second Settlement Agreement, BP’s

corporate representative testified, “we were not paying for any--for the

contractor’s inefficiencies. That was their problem. They dealt with it. We

weren’t paying for inefficiencies, so it was zero.” (Appellant’s App. Vol. IV, p.

212).

2 Similar language was included with respect to subcontractor claims.

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 25 of 43 [36] Turning to Article 5 of the Subcontract, Luse also maintains that, disregarding

the specific character of the damages sought, the contractual language

embedded in Article 5 “reserves the right to the contractor to make changes to

the work” and, in turn, entitles a subcontractor to seek an adjustment in the

contract price when the contractor changes the scope of the work or the

conditions under which the work is to be performed. (Appellant’s App. Vol.

III, p. 25). Subsection 5.3 details that “[a]fter the Contractor and the

Subcontractor have agreed to any adjustment to the Subcontract Price and the

Subcontract Time, the Contractor will prepare a written Change Order to this

Subcontract for signature.” (Appellant’s App. Vol. III, p. 26). Luse relies on

designated evidence to show that, on December 12, 2019, after Graycor had

entered into the Second Settlement Agreement and had committed to a new

completion date of January 31, 2020, Graycor directed Luse to increase its

manpower and work overtime to complete its work within the agreed upon

Project completion date. Luse characterizes this as a ‘change’ to Luse’s work

because it forced Luse to adopt a more strenuous work schedule and to employ

more labor than what was originally contemplated. Luse argues that because

Graycor recognized this cost impact, Graycor requested that Luse supply a cost

proposal for performing its work on an accelerated basis. Luse provided the

cost proposal to Graycor on December 16, 2019.

[37] Regardless as to whether Graycor’s request amounts to a change, as

contemplated within Article 5, Subsection 5.1 clearly provides that “[t]he

Subcontractor will not proceed with furnishing or providing any Changes

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 26 of 43 without receiving, in advance, the Contractor’s written authorization to

perform the Changes.” (Appellant’s App. Vol. III, p. 25). Luse conceded that

no such signed change order has been designated before this court.

[38] Mindful of the clear and unambiguous terms of Article 8.8 of the Subcontract

which prohibits damages for delay, Luse’s claim against Graycor, in the

absence of any designated evidence indicating that BP reimbursed Graycor for

delay damages, fails. See First Fed. Sav. Bank of Ind. v. Key Mkts., Inc., 559

N.E.2d 600, 604 (Ind.1990) (“When a court finds a contract to be clear in its

terms and the intention of the parties apparent, the court will require the parties

to perform consistently with the bargain they made.”). As no designated

evidence reflects a genuine issue of material fact, we affirm the trial court’s

summary judgment in favor of Graycor.

IV. Unjust Enrichment with respect to Graycor

[39] As an alternative argument to its breach of contract claim, Luse asserted an

unjust enrichment claim against Graycor. Although the trial court in its

findings and conclusions thereon did not explore Luse’s unjust enrichment

claim, the court’s summary judgment in favor of Graycor implicitly denied

Luse’s claim based on the doctrine of unjust enrichment.

[40] A claim for unjust enrichment is a legal fiction courts conceived to permit

recovery where the circumstances are such that “under the law of natural and

immutable justice there should be a recovery[.]” Zoeller v. E. Chicago Second

Century, Inc., 904 N.E.2d 213, 220 (Ind. 2009). Courts thereby impose

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 27 of 43 obligations “without regard to the assent of the parties bound, to permit a

contractual remedy where no contract exists in fact but where justice

nevertheless warrants a recovery under the circumstances as though there had

been a promise.” City of Indianapolis v. Twin Lakes Enters., Inc., 568 N.E.2d

1073, 1078 (Ind. Ct. App. 1991), trans. denied. “To prevail on a claim of unjust

enrichment, a claimant must establish that a measurable benefit has been

conferred on the defendant under such circumstances that the defendant’s

retention of the benefit without payment would be unjust.” Second Century, 904

N.E.2d at 220. Essentially, unjust enrichment is the remedy for breach of a

constructive contract, implied in law. See id.; Twin Lakes Enters., 568 N.E.2d at

1078.

[41] However, “[w]hen the rights of parties are controlled by an express contract,

recovery cannot be based on a theory implied in law.” Keystone Carbon Co. v.

Black, 599 N.E.2d 213, 216 (Ind. Ct. App. 1992), trans. denied. Indeed, “[a]s a

general rule, there can be no constructive contract where there is an express

contract between the parties in reference to the same subject matter.” Twin

Lakes Enters., 568 N.E.2d at 1079; accord Keystone Carbon, 599 N.E.2d at 216.

On the contrary, the existence of an express contract will not prevent a party

from presenting to a jury a breach of contract theory and a quantum meruit

theory if “the express contract arguably cover[s] a different subject matter than

that upon which [the plaintiff] sought a remedy in quasi-contract.” Id.

[42] Claiming that its breach of contract claim and unjust enrichment theory are not

mutually exclusive, Luse contends that performance on the Subcontract was

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 28 of 43 made impossible “due to the fact that the pipe that Luse was to insulate was not

made available by Graycor before that date[,] [] and Luse was ultimately

requested to perform its work under completely different conditions than

originally planned.” (Appellant’s Br. p. 58). Luse’s contention is almost

identical to the one raised to support its breach of contract claim. As we

determined that these circumstances were covered by Article 8.8 of the

Subcontract, the existence of the express contract covering the subject matter

complained of precludes Luse’s unjust enrichment claim. See id.

[43] Luse now attempts to avoid the application of the express contract to bar the

unjust enrichment doctrine by claiming that the Subcontract had been

abandoned by Graycor’s failure to update Luse’s contract price and completion

date in any change order or contractual amendment. In support of its argument

that an abandonment of the Subcontract by Graycor occurred, which spurred

the application of the unjust enrichment doctrine to take effect, Luse relies on

Rudd v. Anderson, 285 N.E.2d 836, 840 (Ind. Ct. App. 1972), which stands for

the proposition that “where there have been so many substantial changes to the

[] contract that it can no longer be used to determine the value of the work

done, then reasonable value may be used.” However, here, there were no

substantial changes to the work. Luse was always contractually obligated to

perform the insulation and lagging work of the project within a contractual

timeframe. Due to delays on the part of Graycor and other crafts, the timeline

for Luse’s work was pushed back, but the scope of the work remained the same.

Referencing its original proposal to Graycor, Luse is now contending that the

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 29 of 43 Subcontract was abandoned because its work was to be performed under the

completely different conditions of winter months at Lake Michigan instead of

the contractually envisioned summer months. This argument has no merit

given the fact that Article 1.2 of the Subcontract, which specifies the documents

constituting the basis of the agreement, does not include Luse’s proposal. The

Article further details that “[a]ny terms and conditions proposed by the

Subcontractor that are different from or in addition to the Subcontract

Documents are not accepted by the Contractor and are not part of this

Subcontract.” (Appellant’s App. Vol. III, p. 21). As it is uncontroverted that

the pipe release schedule which placed Luse’s performance of the work in the

summer months and which was included in Luse’s proposal, was never

incorporated into the Subcontract, Graycor never contractually agreed to Luse’s

schedule and therefore, Luse’s claim that the Subcontract was abandoned when

the pipeline was not released in accordance with Luse’s schedule cannot stand.

BP’s Motion for Summary Judgment

V. Personal Liability Notice

[44] In its Complaint, Luse brought a claim against BP under the PLN statute set

forth in Indiana Code section 32-28-3-9, which provides a remedy for a

subcontractor who delivers goods and services on a construction project to

establish liability on the part of the owner of the project for the amounts unpaid

by the general contractor. After BP sought summary judgment on this claim,

the trial court granted the motion, concluding that the designated evidence

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 30 of 43 established, as a matter of law, that Luse had failed to comply with the

requirements of the PLN statute. Appealing the trial court’s summary

judgment, Luse contends that its email of June 1, 2020 to BP complied with the

provisions of the PLN statute.

[45] In order to acquire rights under the PLN statute, a subcontractor

must give to the property owner, or if the property owner is absent, to the property owner’s agent, written notice particularly setting forth the amount of the person’s claim and services rendered for which:

(1) the person’s employer or lessee is indebted to the person; and

(2) the person holds the property owner responsible.

I.C. § 32-28-3-9. This personal liability provision is designed to protect a

subcontractor “from the consequences of the [general] contractor’s absconding

or going broke or otherwise defaulting” by providing to the subcontractor a

means of shifting from himself to the owner the burden of the general

contractor’s financial difficulties. McCorry v. G. Cowser Constr., Inc., 636 N.E.2d

1273, 1278 (Ind. Ct. App. 1994), adopted on transfer 644 N.E.2d 550 (Ind. 1994).

Thus, the purpose of Indiana Code section 32-8-3-9 is to “prevent the inequity

of an owner enjoying the fruits of a subcontractor’s labor and materials without

paying for them.” Id. at 1279.

[46] The designated evidence relative to Luse’s PLN claim establishes that, in May

2020, in an effort to close-out the project, Phillips, BP’s project manager,

reached out to Luse to determine the outstanding amount owed to Luse by

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 31 of 43 Graycor. In response to BP’s request, on June 1, 2020, Vierck emailed Phillips

Luse’s unpaid contract balance in the amount of $3,710,651. Besides the

amounts due, the email stated, in its totality, “[Phillips], [p]er your request,

please see attached for all info regarding current contract status with Graycor

for our performance on the NHT project. Please let me know if you have any

questions.” (Appellant’s App. Vol. X, p. 27). Luse now contends that this

email is sufficient to trigger the requirements of the PLN statute. We are not

persuaded.

[47] In SLR Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193 (Ind. Ct. App. 2001), this

court concluded that a subcontractor’s letter to the homeowner was insufficient

to invoke the provisions of the PLN statute. We found that the letter, on its

face, gave the homeowner notice that the subcontractor had recently furnished

labor and materials on the homeowner’s project; however, by failing to make

any reference to the PLN statute, the letter failed to notify the homeowner that

the subcontractor intended to hold them personally liable for compensation

under Indiana Code section 32-8-3-9, and that the subcontractor expected to be

paid directly by homeowner for its plumbing services. Id. at 199. We explicitly

referenced the trial court’s observation that “[t]he only allusion to personal

liability appears in the second paragraph of the letter in which [subcontractor]

states it is due $12,760.30, that [general contractor] has not paid it and this

amount[.] Nowhere in this letter does [subcontractor] tell [homeowners] that

they are being held personally responsible to pay [subcontractor] for the

plumbing work. . . . In addition this letter could also be interpreted as a means

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 32 of 43 to encourage [homeowners] to contact [general contractor] for the purpose of

encouraging [general contractor] to pay [subcontractor].” Id.

[48] Accordingly, the PLN statute requires fair warning, in the manner described by

the legislature, to a project owner that a subcontractor intends to impose

personal liability. See id. at 198 (“[T]o invoke the protection of Indiana Code

section 32-8-3-9, [s]ubcontractor bears the burden of proving that its letter

sufficiently complied with the notification requirements of the statute.”). Here,

Luse’s June 1, 2020 email constituted insufficient notice to BP of Luse’s intent

to hold BP personally liable for Graycor’s debt. Nowhere in the email does

Luse request BP to pay Graycor’s debt; rather, the email is merely an

informative reminder to BP of the amounts owed to Luse by Graycor. In his

designated deposition, Vierck admitted that he did not ask “BP to provide

payment,” but that sending the email “was to get BP to get Graycor to pay

Luse.” (Appellant’s App. Vol. V, pp. 50, 56). Vierck confirmed that the email

was not “intend[ed] to convey that [Luse] w[as] invoking the code.”

(Appellant’s App. Vol. V, p. 84). Where, as here, the designated evidence

uncontrovertibly affirmed that there was no attempt to communicate an intent

to impose personal liability, we can conclude that the June 1, 2020 email

contains even less than the claimed PLN notice in SLR Plumbing, which we

found to be insufficient under the statute.

[49] Luse’s main contention on appeal is that compliance with the dictates of SLR

Plumbing is too strict and that we instead should adhere to the substantial

compliance test, as found in Von Tobel Corp. v. Chi-Tec Const. & Remodeling, 994

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 33 of 43 N.E.2d 1215 (Ind. Ct. App. 2013), and find that the June 1, 2020 email

substantially complied with the requirements of the PLN statute to place BP on

notice that it was being held personally liable for Graycor’s debt to Luse.

Although we rejected a strict compliance with the statutory requirements in

favor of a substantial compliance test in Von Tobel, we also observe that Von

Tobel interpreted the mechanic’s lien statute and not the PLN statute. Id. at

1219. As explained by our supreme court,

The Mechanics’ Lien Statute provides a procedure for persons who perform labor or furnish materials or machinery for construction projects to establish and enforce a lien on the structure on which they have worked or for which they have furnished materials or machinery and on the interest of the owner of the land on which the structure stands or with which it is connected to the extent of the value of the work performed and material furnished.

Mercantile Nat’l Bank of Ind. v. First Builders of Ind., Inc., 774 N.E.2d 490 (Ind.

2002). Whereas the PLN Statute

provides a procedure for subcontractors, workers employed by others, and persons who lease materials or machinery for construction projects to establish liability on the part of the owner of the project for the amount owed to such subcontractors, workers, and persons by their respective contractors, employers, and lessees.

Id. A subcontractor’s rights under the PLN Statute are viewed as an additional

or alternative remedy to the subcontractor’s rights under the mechanic’s lien

statute and to any other remedies the subcontractor may have against its

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 34 of 43 contractor. Id. at 488; see also Lee & Mayfield, Inc. v. Lykowski House Moving

Eng’rs, Inc., 489 N.E.2d 603 (Ind. Ct. App. 1986), trans. denied. “In Indiana the

mechanic’s lien statutes are in derogation of the common law and the

provisions of such statutes which relate to the creation, existence or class of

individuals entitled to such a lien are to be strictly construed. On the other

hand, once the lien has attached, provisions relating to the enforcement should be

liberally construed to effect the remedial purposes of the statute.” Edwards v.

Bethlehem Steel Corp., 517 N.E.2d 430, 432 (Ind. Ct. App. 1988) (emphasis

added).

[50] Because the PLN statute is a “purely statutory creation[] and [is] in derogation

of common law, the[] provisions must be strictly construed.” Mid America

Homes, Inc., v. Horn, 396 N.E.2d 879, 881 (Ind. 1979). This is because courts

will assume that “the legislature does not intend by a statute to make any

change in the common law beyond what it declares either in express terms or

by unmistakable implication.” L.N.K. ex. Rel. Kavanaugh v. St. Mary’s Medical

Center, 785 N.E.2d 303, 307 (Ind. Ct. App. 2003). As the PLN statute imposes

in essence a garnishment before either party can look to the courts for certainty

regarding their respective obligations, continuing to resort to a bright-line test

that enables all parties to ascertain whether the claimed PLN will be given effect

is preferred over a regime where an owner must give its best guess as to any

substantial compliance with the statute in order for an amount to withhold at

peril to the progress of the project and the owner’s legal exposure to its general

contractor.

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 35 of 43 [51] Even if we were to construe the PLN statute as requested by Luse and were to

employ a substantial compliance interpretation—which we are not—Luse

would still not prevail. The undisputed evidence before the court reveals that

Luse made no attempt, substantial or otherwise, to convey its intention in the

June 1, 2020 email to hold BP personally liable for Graycor’s financial

obligations to Luse. Rather, the email reads as a follow-up to BP’s inquiry,

without any other intent than being of an informative nature. Accordingly, we

affirm the trial court’s grant of summary judgment in favor of BP on Luse’s

contention pursuant to the PLN statute.

VI. Unjust Enrichment with respect to BP

[52] As with its claims against Graycor, Luse also sought recovery of payment from

BP for services rendered to improve BP’s property under the theory of unjust

enrichment. The trial court granted BP’s motion for summary judgment on this

claim, concluding, as a matter of law, that “[t]he existence of an express

contract between Luse and Graycor preclude[d] a claim for unjust enrichment.”

(Appellant’s App. Vol. II, p. 23).

[53] In the typical owner-general contractor-subcontractor relationship, “the parties

have voluntarily allocated the risks by contract, and the failure of the general

contractor to perform does not generally give rise to an action for unjust

enrichment against the owner.” Indianapolis Raceway Park, Inc. v. Curtiss, 386

N.E.2d 724, 726 (Ind. Ct. App. 1979); see also Encore Hotels of Columbus, LLC v.

Preferred Fire Prot., 765 N.E.2d 658, 661 (Ind. Ct. App. 2002). However,

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 36 of 43 Indiana courts have used the following four criteria to determine whether an

owner has been unjustly enriched under those circumstances: 1) whether the

owner impliedly requested the subcontractor to do the work; 2) whether the

owner reasonably expected to pay the subcontractor, or the subcontractor

reasonably expected to be paid by the owner; 3) whether there was an actual

wrong perpetrated by the owner; and 4) whether the owner’s conduct was so

active and instrumental that the owner “stepped into the shoes” of the

contractor. Stafford v. Barnard Lumber Co., Inc., 531 N.E.2d 202, 204 (Ind. 1988);

Indianapolis Raceway Park, Inc., 386 N.E.2d at 727.

[54] In light of the factual posture of this case, there are no genuine issues of

material fact regarding at least two of the criteria necessary to assert a claim for

unjust enrichment. First, BP never expressly or impliedly promised to pay Luse

for work performed, and Luse never reasonably expected to be paid by BP.

Second, BP did not perpetrate an actual wrong on Luse. Instead, BP paid the

balance in full to Graycor and had no reason to believe that Graycor would fail

to pay Luse. Both BP and Graycor designated unequivocal evidence that BP

paid in full and BP provided the trial court with a detailed accounting of every

penny paid to Graycor under the main contract between BP and Graycor.

[55] While Luse repeatedly in its appellate brief represents that there is a dispute

between BP and Graycor as to whether Graycor was fully paid, Luse’s

contention is in essence an argument related to the manner in which Graycor

decided to allocate BP’s payments among the subcontractors and itself—a

matter which is squarely addressed by the terms of the Subcontract and which

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 37 of 43 thus precludes any claim of unjust enrichment by BP. 3 Accordingly, the trial

court did not err when it refused to apply the doctrine of unjust enrichment and

properly granted summary judgment to BP.

Luse’s Motion for Partial Summary Judgment

VII. Reimbursement for Additional Costs

[56] On February 4, 2021, Graycor filed a response pleading which included a

counterclaim against Luse in the amount of $2,681,829. This counterclaim

encompassed the amounts for (1) various staffing, scaffolding, and support costs

Gaycor incurred on the Project beyond March 1, 2020, and (2) $1million in

liquidated damages which Graycor claimed were owed because Luse had

offered to complete its work by January 31, 2020, and timely completion would

have avoided the liquidated damages which BP levied against Graycor. Luse

moved for summary judgment on Graycor’s counterclaim, arguing that the

liquidated damages were not recoverable because Luse had not agreed to pay

liquidated damages and that Graycor failed to present any evidence that Luse

had a contractual duty to complete the work by January 31, 2020 or March 1,

2020. The trial court granted summary judgment to Luse with respect to the

3 Without any references to designated evidence, Luse argues that “[r]egardless of reasoning or cause, there is a factual dispute between Graycor and BP of what BP paid to Graycor for Luse’s services that will need to be determined by a trier of fact.” (Appellant’s Br. p. 67). Luse claims that “[w]hile the three settlement agreements between Graycor and BP collectively resulted in an additional $29 million being paid to Graycor for work performed on the Project, none of the settlement agreements identify which costs were paid as part of those settlement agreements.” (Appellant’s Br. p. 67, n.20).

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 38 of 43 liquidated damages, finding that no evidence had been designated to show that

Luse had agreed to liquidated damages 4 but denied summary judgment with

respect to the additional costs claimed by Graycor because there was enough

evidence “however thin” to raise a factual question. (Appellant’s App. Vol. II,

p. 26).

[57] Pointing to Article 4.12 of the Subcontract, Graycor contended that Luse

should be required to reimburse Graycor for the salaries Graycor continued to

pay to its Project personnel as well as the amounts paid for scaffolding,

transportation, and other support craft costs from March 1, 2020 to “the end of

the [P]roject” as a result of Luse’s alleged delays in performance because Luse

breached its “original promise to complete in a three-month time frame.”

(Appellant’s App. Vol. IX, p. 110). Article 4.12 of the Subcontract requires

Luse to compensate Graycor for costs, expenses, and damages if the progress of

the work was delayed by Luse, and provides specifically that:

Should the progress of the Work or the Project be delayed by any fault of the Subcontractor, or by those for whose conduct the Subcontractor is responsible, so as to cause any additional cost, expense, damage or liability to the Contractor or the Owner or for which the Contractor or the Owner may or shall become liable, the Subcontractor agrees to reimburse, upon demand, the Contractor and the Owner for all such costs, expenses, damages and liability, including without limitation, legal fees and expenses, incurred by them, to the extent caused or contributed to by

4 The parties do not appeal the trial court’s summary judgment in favor of Luse with respect to Graycor’s liquidated damages claim.

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 39 of 43 the Subcontractor’s fault or the fault of those for whose conduct the Subcontractor is responsible.

(Appellant’s App. Vol. III, p. 25) (emphasis added). In other words, in order

for Graycor to receive reimbursement for these costs, the evidence must

establish (1) a delay, (2) caused by Luse’s fault, and (3) costs were incurred as a

result of Luse’s fault.

[58] Although Luse’s own claim document indicates that the anticipated pipe

insulation schedule was seventeen weeks and would be scheduled to be

complete by September 1, 2019, there is no designated evidence that the

schedule was pushed back to August 2020 by a delay specifically caused by

Luse’s fault. Similarly, although Graycor contends, without any reference to

designated evidence, that there is “ample evidence that the reason Graycor

staff, support crafts, equipment rental, and scaffolding were still on the [P]roject

site from March 2020 until Luse’s complete date in August was a result of Luse

still not being finished with its work,” Grayor is silent as to whether the

extended August completion date was due to Luse’s fault or was a result of the

several delays which had been incurred since the inception of the Project.

(Appellee Graycor’s Br. p. 37). Likewise, Graycor’s contention that

“electricians could not perform work and scaffolding remained on site as a

result of Luse’s extended presence at the work site,” merely indicated a revised

completion date without establishing whether this is the result of Luse’s fault.

(Appellee Graycor’s Br. p. 38). While it is uncontroverted that the Project

incurred delays, it is unclear whether the delay which made Graycor incur

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 40 of 43 additional charges on the Project was the result of a fault by Luse or was merely

the extension of delays incurred since the inception of the Project. Therefore,

as we agree with the trial court that there remain genuine issues of material fact,

we deny Luse’s motion for partial summary judgment on Graycor’s

counterclaim and remand for further proceedings. 5

Appellate Attorney Fees

[59] Pointing to its favorable ruling on summary judgment, Graycor requests this

court to remand to the trial court for an award of reasonable appellate attorney

fees, as provided for in the Subcontract. Article 10.2 provides, in pertinent part,

that “[i]n the event of any litigation or arbitration permitted under this

Subcontract, the court or arbitrator shall award to the prevailing party its

attorney’s fees and costs in presenting or defending the Controversy.” Graycor

contends that because it “obtained a judgment in its favor on the merits of

Luse’s claim, it is the prevailing party on that claim and is entitled to its

attorneys’ fees and costs.” (Appellee Graycor’s Br. p. 34).

[60] We have previously held that when a contract provision provides that attorney

fees are recoverable, appellate attorney fees may also be awarded. Humphries v.

5 In its appellate brief, Luse also contends that in case we affirm the trial court’s finding of partial summary judgment on Luse’s motion, we should reverse the trial court’s ruling as to the scaffolding costs which “the designated evidence proved were never actually incurred by Graycor.” (Appellant’s Br. pp. 75-76). We refrain from addressing this contention as Luse’s entire argument is based on designated evidence which was stricken and is therefore not properly before this court. AKJ Indus. V. Mercantile Nat’l Bank, 779 N.E.2d 543, 545 (Ind. Ct. App. 2002) (“We will not consider evidence that has previously been stricken by the trial court to reverse that trial court’s ruling on a motion for summary judgment.”).

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 41 of 43 Ables, 789 N.E.2d 1025, 1036 (Ind. Ct. App. 2003). In this case, the

Subcontract awards reasonable attorney fees to the ‘prevailing party.’ In Reuille

v. E.E. Brandenberger Constr. Inc., 888 N.E.2d 770, 771 (Ind. 2008) (quoting

Black’s Law Dictionary 1188 (6th ed. 1990)), our Indiana Supreme Court

explained that the “prevailing party” is “‘[t]he party to a suit who successfully

prosecutes the action or successfully defends against it, prevailing on the main

issue, even though not necessarily to the extent of his original contention. The

one in whose favor the decision or verdict is rendered and judgment entered.’”

Our supreme court also observed that “[a] request for attorney fees almost by

definition is not ripe for consideration until after the main event reaches an end.

Entertaining such petitions post-judgment is virtually the norm.” R.L. Turner

Corp. v. Town of Brownsburg, 963 N.E.2d 453, 460 (Ind. 2012).

[61] Although several claims between Graycor and Luse were resolved by way of

summary judgment, there are still several claims outstanding in this Cause.

Because this litigation has not yet been finalized, it is premature to determine

the ‘prevailing party’ in this suit. As this issue is not yet ripe for our review, we

decline to address Graycor’s request for an award of appellate attorney fees.

CONCLUSION [62] Based on the foregoing, we hold that the trial court did not abuse its discretion

in granting BP’s and Graycor’s motions to strike. We also affirm the trial

court’s partial summary judgment in favor of Graycor and the summary

judgment in favor of BP. We affirm the trial court’s denial of Luse’s motion for

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 42 of 43 partial summary judgment, as genuine issues of material fact remain. Finally,

we find Graycor’s request for appellate attorney fees not ripe for our review.

[63] Affirmed.

Crone, J. and Mathias, J. concur

Court of Appeals of Indiana | Opinion 23A-PL-633 | October 16, 2023 Page 43 of 43