Storch v. Provision Living, LLC

47 N.E.3d 1270, 2015 Ind. App. LEXIS 769, 2015 WL 9392674
CourtIndiana Court of Appeals
DecidedDecember 23, 2015
DocketNo. 49A02-1505-CT-352
StatusPublished
Cited by8 cases

This text of 47 N.E.3d 1270 (Storch v. Provision Living, LLC) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Storch v. Provision Living, LLC, 47 N.E.3d 1270, 2015 Ind. App. LEXIS 769, 2015 WL 9392674 (Ind. Ct. App. 2015).

Opinion

BAKER, Judge.

Carol Storch appeals the judgment of the trial court holding that her father’s estate is not entitled to an award of attorney fees pursuant to a residence agreement entered into between her father and his assisted living facility. Finding that the plain language of the residence agreement compels an award of attorney fees in this case, we reverse.

' Facts

The defendants operate an assisted living facility in Indianapolis by the name of Greentree at Fort Harrison (Greentree). In 2006, Charles Sindledecker, who was suffering from Alzheimer’s disease and was no longer able to care for himself, entered into a residence agreement with Greentree. The agreement contained a clause regarding attorney fees:

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

Appellant’s App. p. 58. The contract also made clear that Sindledecker would have to maintain his own health care plan and that Greentree was not responsible for providing medical services. Id. at56.

While residing at Greentree, Sind-ledecker enjoyed spending time sitting in a chair by the fireplace in the' common room. [1272]*1272He sat in this chair for long periods of time nearly every day. As his dementia worsened, he became angry when he found other residents sitting in the chair. Greentree responded by removing the chair from the common room altogether. Sindledecker, however, enjoyed being by the fireplace regardless, and began standing, or sitting on his walker, near where the chair used to be. Realizing the danger this posed, Greentree staff would often move Sindledecker farther away from the fireplace.

On December 10, 2010, Greentree staff found Sindledecker unresponsive on the floor by the fireplace and called 911. As they waited for the ambulance to arrive, the staff took Sindledecker back to his room and began changing his clothes. When the ambulance arrived, the staff informed the paramedics that Sindledecker had been found unresponsive “at a recreational activity.” Appellant’s App. p. 141. The paramedics took Sindledecker to the hospital, checked his vital signs, and discharged him.

Sindledecker’s right arm had been badly burned as a result of this incident and his condition worsened over the next two days. Greentree staff again called 911, and this time informed the paramedics that Sindledecker had fallen near a fireplace and suffered burns. Sindledecker was taken back to the hospital, where he remained for ten days while the burns were treated. He eventually required a skin graft and his wounds did not heal until April 2011. Sindledecker never regained the mobility he had before the fireplace incident—he remained unable to walk and required a feeding tube and catheter. He died on August 10,2012.

Sindledecker’s daughter, Carole Storch, had filed a complaint against Greentree on her father’s behalf on January 23, 2012. The complaint included claims of breach of contract and negligence regarding the fireplace incident. On January 2, 2015, less than two weeks before trial was scheduled to begin, Storch voluntarily dismissed the breach of contract claim. The negligence claim was tried to a jury, which found that Greentree was primarily at fault and therefore liable to Sind-ledecker’s estate for $1,000,020 in damages.

Following the verdict, Storch petitioned the trial court for attorney fees as provided by Sindledecker’s residence agreement. Greentree argued that, because Storch had dismissed the breach of contract claim, the residence agreement was not at issue and, therefore, attorney fees could not be awarded pursuant to the agreement. The trial court agreed, and denied Storch’s petition. Storch then filed a motion to correct error, which the trial court denied on April 15, 2015. Storch now appeals.

Discussion and Decision

Indiana adheres to the “American Rule” that parties must pay their own attorney fees absent an agreement between the parties, a statute, or another rule to the contrary. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind.2012). The trial court’s decision that Storch was not entitled to attorney fees in this case was based on its interpretation of terms of the residence agreement entered into by Sindledecker and Greentree. Construction of the terms of a written contract is a pure question of law for the court. Peoples Bank & Trust Co. v. Price, 714 N.E.2d 712, 716 (Ind.Ct.App.1999). Accordingly, we review such decisions de novo. Id.

When interpreting a contract, our goal is to give effect to the intent [1273]*1273of the parties at the time they entered into the agreement. Tender Loving Care Mgmt, Inc. v. Sheris, 14 N.E.3d 67, 72 (Ind.Ct.App.2014). We begin by examining the plain language of the contract, “reading it in context and, whenever possible, construing it so as to render each word, phrase, and term meaningful, unambiguous, and harmonious with the whole.” Id.

Here, the trial court held that Storch could not recover under the terms of the residence agreement because she did not bring a breach of contract claim. It reasoned:

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

Appellant’s Br. p. 28. According to this interpretation, the phrase—“any controversy, claim, or dispute between the parties hereto, arising out of or relating to this Agreement or the breach thereof— can refer only to claims of breach of the contract, and not to claims premised on a tort theory of liability. Appellant’s App. p. 58 (emphases added).'

Such an interpretation is plainly incorrect given the clear meaning of the language used. Had Greentree intended this provision to apply only to claims of breach of the agreement itself, it could simply have written a provision awarding attorney fees to the prevailing party “in any action brought to enforce this agreement.” Such language is commonly found in attorney fee provisions. See Kuntz v. EVI, LLC, 999 N.E.2d 425, 433 (Ind.Ct.App.2013). Yet the provision at issue here clearly goes further, covering not only actions for breach óf the agreement, but also “any” other dispute “arising out of or relating to” the agreement “or the breach thereof.” Appellant’s App. p. 58. Were we to adopt the trial court’s interpretation, these latter terms would be rendered meaningless.

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Bluebook (online)
47 N.E.3d 1270, 2015 Ind. App. LEXIS 769, 2015 WL 9392674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/storch-v-provision-living-llc-indctapp-2015.