Taylor Building Corporation of America v. Brett Milton

• Court: Indiana Court of Appeals
• Decided: November 5, 2025
• Docket: 25A-PL-01290
• Status: Published

Opinion

FILED Nov 05 2025, 8:51 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Taylor Building Corporation of America, Appellant-Defendant

v.

Brett Milton, et al., Appellees-Plaintiffs

November 5, 2025 Court of Appeals Case No. 25A-PL-1290 Appeal from the Carroll Circuit Court The Honorable Shane M. Evans, Judge Trial Court Cause No. 08C01-2501-PL-1

Opinion by Judge DeBoer Judges Bradford and Weissmann concur.

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 1 of 14 DeBoer, Judge.

Case Summary [1] A construction agreement (the Agreement) between Brett and Amanda Milton

(collectively, the Miltons) and Taylor Building Corporation of America (Taylor)

contained a provision requiring the parties to resolve any dispute relating to the

contract or the construction through mediation and, if necessary, arbitration

administered by the American Arbitration Association (the AAA). After the

Miltons sued Taylor for alleged defects with the construction, Taylor filed a

motion to compel mediation and arbitration. The trial court denied that

motion, and Taylor now appeals. We reverse and remand with instructions for

the court to grant the motion.

Facts and Procedural History [2] Under the Agreement, executed by the parties in March 2021, 1 Taylor agreed to

construct a home for the Miltons in Monticello. The Agreement contained the

following mediation and arbitration provisions:

17. (a) Mediation – [] [I]n the event of any dispute between [the parties] as to the quality of construction, quality of materials, any aspect of construction, contract disputes, similar disputes as to the construction, or any provision of this [A]greement, or any other dispute arising between the parties, the parties shall

1 We note that while Amanda Milton did not sign the Agreement, the Miltons alleged in their complaint that the Agreement was between the two of them and Taylor, and Taylor did not dispute that allegation in its responsive pleading or in this appeal.

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 2 of 14 endeavor to settle the dispute in an amicable manner by mediation administered by the [AAA] under its Construction Industry Mediation Rules. . . .

(b) Arbitration – In the event the issues cannot be resolved by mediation, then any claims or disputes arising out of this [] Agreement or the alleged breach thereunder shall be settled by mandatory and binding arbitration in accordance with the Construction Industry Arbitration Rules of the [AAA] unless both parties mutually agree otherwise.

Appellant’s Appendix Vol. 2 at 17 (emphasis in original). The parties later

executed a no-lien contract providing that “no lien shall attach to [the Miltons’

property] as a result of” Taylor’s work and amending the effective date of the

Agreement to be the date of the no-lien contract. Id. at 153. Beside those

changes, the no-lien contract otherwise incorporated “all of the same terms,

conditions, and provisions of the” Agreement. Id.

[3] In August 2023, the Miltons sent a letter to Taylor stating that “[a]s [it] near[ed]

completion of the home[,] [they] would like to notify [it] in writing of some . . .

problems with the house[,]” and they documented a litany of alleged

construction defects. Id. at 120. According to the Miltons, Taylor never

responded to that letter.

[4] The Miltons then hired an attorney, who sent a second letter to Taylor in

September 2023 stating:

It was intended by my client[s] that [the August letter] should have been considered the notice to you of issues to be addressed

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 3 of 14 and . . . giving you an opportunity cure the defects that were outlined in that letter. . . . There has yet to be an appropriate response in accordance with Indiana law. . . .

My client[s] expect[] an appropriate response in order to determine [their] next steps in dealing with a construction project that has already taken over twenty-six [] months and is not yet complete.

Id. at 124. The Miltons contend that in response to this letter, Taylor

“threatened to stop construction[,]” demanded additional payment from them,

and did not “cooperate appropriately” to cure the supposed defects. Id. at 112.

[5] In January 2025, the Miltons filed a complaint 2 alleging that despite their

demands “to cure [] inferior and defective work[,] . . . Taylor ha[d] still not

completed the repairs to the[ir] satisfaction[.]” Id. at 9. The causes of action

asserted in the complaint included breach of contract, negligence, breach of

implied warranty of habitability, nuisance, and fraudulent misrepresentation.

[6] Taylor filed a motion seeking, in part, to “[c]ompel[] [] mediation and/or

arbitration in accordance with the Agreement and applicable AAA Rules[.]”

Id. at 102. In response to that motion, the Miltons argued that, in their view,

mediation would be “futile[,]” “the plain language of the Agreement does not

2 It is not clear from the record before us what happened in the interim between Taylor’s receipt of the demand letters and the filing of the complaint.

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 4 of 14 require arbitration[,]” and, even if it did, Taylor had waived its right to enforce

the arbitration provision. Id. at 111.

[7] On April 28, 2025, the trial court held a hearing on several pending motions,

including the motion to compel mediation and arbitration. Later that same

day, the court issued a one-page order denying all pending motions, including

the motion to compel. Taylor filed a motion asking the court to reconsider its

decision, which was deemed denied pursuant to Indiana Trial Rule 53.4(B)

because the court did not rule on it within five days. Taylor now appeals. 3

Discussion and Decision [8] We review a trial court’s denial of a motion to reconsider its prior ruling for an

abuse of discretion. Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967, 970

(Ind. 2014). “An abuse of discretion occurs when the trial court’s decision is

against the logic and effect of the facts and circumstances before it[,]” or where

the court has misinterpreted the law. Id. (quoting Ind. Univ. Med. Ctr., Riley

Hosp. for Child. v. Logan, 728 N.E.2d 855, 859 (2000)). Whether to compel

arbitration implicates issues of contract interpretation and thus is a question of

3 Indiana Code section 34-57-2-19(a)(1) provides that “[a]n appeal may be taken from[] [] an order denying an application to compel arbitration[.]” See also Ind. Appellate Rule 14(D) (interlocutory appeals other than those set forth in Appellate Rule 14(A)-(C) “may be taken [] as provided by statute”).

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 5 of 14 law that we review de novo. Decker v. Star Fin. Grp., Inc., 204 N.E.3d 918, 921

(Ind. 2023). 4

[9] We begin by recognizing that “Indiana has a strong policy favoring arbitration

agreements.” Id. at 920. This policy is reflected in the Indiana Uniform

Arbitration Act, Indiana Code chapter 34-57-2, which provides that “[a] written

agreement to submit to arbitration is valid, and enforceable, . . . except upon

such grounds as exist at law or in equity for the revocation of any contract.”

Ind. Code § 34-57-2-1(a). Additionally, “[o]n application of a party showing an

agreement [to arbitrate], and the opposing party’s refusal to arbitrate, the court

shall order the parties to proceed with arbitration.” I.C. § 34-57-2-3(a)

(emphasis added); see also Koors v. Steffen, 916 N.E.2d 212, 215 (Ind. Ct. App.

2009) (“Once the court is satisfied that the parties contracted to submit their

disputes to arbitration, it is required by statute to compel arbitration.”), reh’g

denied.

4 The Miltons contend that we should apply the negative judgment standard of review. Appellees’ Brief at 9. Under that standard, the party claiming error on appeal following the entry of a judgment against them on an issue for which they had the burden of proof must show that “the evidence as a whole . . . leads unerringly and unmistakably to a decision opposite that reached by the trial court.” Town of Brownsburg v. Fight Against Brownsburg Annexation, 124 N.E.3d 597, 601 (Ind. 2019) (quoting Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995), reh’g denied, abrogated on other grounds by Woods v. State, 701 N.E.2d 1208 (Ind. 1998), reh’g denied, cert. denied) (internal quotation marks omitted). But we agree with Taylor that the “negative judgment . . . standard[] [is] wholly inapplicable here” because “[n]o evidentiary trial occurred, and [thus] no negative . . . judgment was entered.” Appellant’s Reply Br. at 7-8 (internal quotation marks omitted). In any event, even if we were to apply the negative judgment standard, we would still review questions of law de novo— including whether the parties’ Agreement requires arbitration. See In re Est. of Holt, 870 N.E.2d 511, 514 (Ind. Ct. App. 2007) (under the negative judgment standard, appellate courts “evaluate questions of law de novo”), reh’g denied, trans. denied.

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 6 of 14 [10] To successfully compel arbitration, the moving party must prove two elements.

First, they “must demonstrate the existence of an enforceable agreement to

arbitrate the dispute.” Safety Nat’l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986,

1000 (Ind. Ct. App. 2005), trans. denied. Second, they “must prove that the

disputed matter is the type of claim that the parties agreed to arbitrate.” Id.

Here, there is no dispute that the parties’ Agreement contains an arbitration

provision. Indeed, the Miltons’ complaint alleges that “the Agreement provides

for arbitration, and [they] are amenable to arbitration [of] issues that are subject

to arbitration.” Appellant’s App. Vol. 2 at 9. Thus, we focus our analysis on

whether the Miltons agreed to arbitrate the specific claims asserted in their

complaint.

1. Applicability of the Mediation and Arbitration Provisions [11] Taylor contends that the trial court’s denial of their motion to compel

mediation and arbitration was erroneous in light of “the broad, unambiguous[,]

and mandatory AAA mediation and arbitration provisions in the parties’ []

Agreement.” Appellant’s Brief at 12. We agree.

[12] When interpreting an arbitration provision, we apply general contract

interpretation principles. Decker, 204 N.E.3d at 920. “The goal of contract

interpretation is to ascertain and give effect to the parties’ intent as reasonably

manifested by the language of the agreement.” Id. (quoting Reuille v. E.E.

Brandenberger Constr., Inc., 888 N.E.2d 770, 771 (Ind. 2008)). As with all

contracts, clear and unambiguous language in an arbitration provision “must be

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 7 of 14 given its plain and ordinary meaning.” Id. at 920-21 (quoting Reuille, 888

N.E.2d at 771).

[13] In opposing the motion to compel mediation and arbitration, the Miltons

argued that the arbitration provision had never “even come into play” because

the requirement to arbitrate was “contingent on mediation failing[.]”

Appellant’s App. Vol. 2 at 112. They highlighted that the arbitration provision

provided that the parties were only required to arbitrate “[i]n the event the

issues [could not] be resolved by mediation[.]” Id. at 28. And, according to the

Miltons, the mediation provision itself was “unenforceable” because it merely

provided that the parties should “endeavor” to mediate. Id. at 28, 112. That

interpretation is inconsistent with the plain language of the Agreement.

[14] We note that our Supreme Court has commanded that “in construing

arbitration agreements, ‘every doubt is to be resolved in favor of arbitration, and

the parties are bound to arbitrate all matters, not explicitly excluded, that

reasonably fit within the language used.’” Nat’l Wine & Spirits, Inc. v. Ernst &

Young, LLP, 976 N.E.2d 699, 706 (Ind. 2012) (quoting Mislenkov v. Accurate

Metal Detinning, Inc., 743 N.E.2d 286, 289 (Ind. Ct. App. 2001)), reh’g denied,

cert. denied. Here, the parties’ agreement expressly provided that the parties

“shall endeavor to settle the[ir] dispute in an amicable manner by mediation

administered by the” AAA. Appellant’s App. Vol. 2 at 28 (emphasis added).

The Miltons’ interpretation of the word “endeavor” as making participation in

mediation optional is inconsistent with the Agreement’s language. Instead, the

use of the phrase “endeavor to settle the dispute” is more reasonably

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 8 of 14 understood as a reflection of the parties’ agreement that they could not be

forced to settle their claims. Nonetheless, we construe the phrase “shall

endeavor” to mean what it says; though are not required to settle their claims,

the parties must try to do so by participating in mediation with the AAA.

[15] Nor are we persuaded by the Miltons’ argument that given Taylor’s supposed

unwillingness to participate in informal settlement discussions, “to require

[them] to have complied with [the mediation provision] perfectly would require

them to engage in [an] act of futility.” Id. at 112. We note that even if this case

is unlikely to be settled at mediation, the Agreement is clear that “[i]n the event

the issues cannot be resolved by mediation, then any claims or disputes . . .

shall be settled by mandatory and binding arbitration[.]” Id. at 28 (emphasis in

original). So, even if we take as true that the parties would be unable to

amicably resolve this matter through mediation with the AAA, it does not

follow that they are relieved of their obligation to submit their disputes to

binding arbitration.

[16] The Miltons further contend that Taylor “did not meet its burden of proof to

demonstrate . . . that the disputed matters were the types of claims that the

parties had agreed to mediate or arbitrate.” Appellees’ Br. at 12-13. But the

contractual language at issue is clear that the claims subject to the mediation

and arbitration provisions include “any dispute” that arises between the parties

relating to the Agreement, including but not limited to disputes “as to the

quality of construction, quality of materials, any aspect of construction, contract

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 9 of 14 disputes, similar disputes as to the construction, or any provision of th[e]

[A]greement[.]” Appellant’s App. Vol. 2 at 17.

[17] The Miltons’ complaint asserts claims for breach of contract, negligence, breach

of implied warranty of habitability, nuisance, and fraudulent misrepresentation,

all of which pertain to the Agreement and the alleged defects in the construction

Taylor performed thereunder. These claims clearly fall within the scope of the

“claim[s] the parties agreed to arbitrate.” Safety Nat’l Cas. Co., 829 N.E.2d at

1000. Accordingly, Taylor met its burden of proof to compel mediation and

arbitration, and the trial court erred to the extent it concluded otherwise. 5 See

id. (holding that if “the parties contracted to submit their dispute to arbitration,

the court is required by statute to compel arbitration”).

* * *

[18] Having concluded that the Agreement requires mediation and, if necessary,

arbitration of the Miltons’ claims, we turn next to the Miltons’ argument that

Taylor waived arbitration.

2. Waiver [19] The Miltons argue that even if the arbitration provision would otherwise apply

here, Taylor “waived its right to compel arbitration[.]” Appellees’ Br. at 14.

5 Because the trial court did not include any rationale for its decision in the appealed order, it is not clear to us whether it denied the motion to compel because in its view the Agreement did not require mediation and arbitration, or whether it determined that Taylor had waived enforcement of the arbitration provision.

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 10 of 14 When parties have agreed to submit a dispute to arbitration, “the right to

require such arbitration may nevertheless be waived.” Capitol Constr. Servs., Inc.

v. Farah, LLC, 946 N.E.2d 624, 628 (Ind. Ct. App. 2011). However, “[w]aiver

of a contractual right, including the right to arbitrate, requires a showing of an

intentional relinquishment of a known right.” Welty Bldg. Co., Ltd. v. Indy

Fedreau Co., 985 N.E.2d 792, 798 (Ind. Ct. App. 2013). Moreover, “any doubts

concerning the scope of arbitrable issues should be resolved in favor of

arbitration, whether the problem at hand is the construction of the contract

language itself or an allegation of waiver[.]” Id. at 799 (quoting Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)). We look to a

variety of factors to determine if waiver has occurred, “including the timing of

the arbitration request, if dispositive motions have been filed, and/or if a

litigant is unfairly manipulating the judicial system by attempting to obtain a

second bite at the apple due to an unfavorable ruling in another forum.” Capitol

Constr. Servs., 946 N.E.2d at 628.

[20] Here, the Miltons contend Taylor waived arbitration because by failing to

respond to their letters notifying it of supposed construction defects, Taylor

“made clear that it would not cooperate as required by Indiana law to deal with

the disputes.” Appellees’ Br. at 14. Specifically, the Miltons contend that their

letters constituted a “written notice of claim” pursuant to Indiana Code section

32-27-3-2(a), which provides that “at least sixty [] days before filing a

construction defect action . . ., the claimant must serve written notice of claim

on the construction professional.” If the construction professional “does not

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 11 of 14 respond to the claimant’s notice of claim within [twenty-one days of service],

the claimant may bring an action . . . without further notice.” I.C. § 32-27-3-

3(a).

[21] According to the Miltons, these statutes gave them the right to file the

complaint despite their agreement to arbitrate. But such a reading of the

statutes cannot be squared with Indiana Code section 32-27-3-13, which

provides, in no uncertain terms, that “[n]othing in this chapter shall be

construed to hinder or otherwise affect the . . . contractual relationship between

and among home owners and construction professionals during the process of

construction or remodeling[.]” Thus, we agree with Taylor that the statutory

provisions cited by the Miltons “do[] not provide a plaintiff with any basis for

ignoring or violating a contractual . . . arbitration provision.” Appellant’s

Reply Br. at 12.

[22] Nor do we see any indication that once the Miltons filed suit, Taylor acted

inconsistent with the enforcement of the arbitration provision. The Miltons

filed their complaint on January 9, 2025. According to Taylor, it learned of the

suit on February 25 and two days later filed a motion requesting an

enlargement of time to respond to the complaint. The trial court granted that

request and gave Taylor until March 13 to do so. On March 13, Taylor timely

filed its motion to compel mediation and arbitration in accordance with Indiana

Code section 34-57-2-3(c), which provides that “[i]f an issue referable to

arbitration under the alleged agreement is involved in an action or proceeding

pending in a court having jurisdiction to hear applications [to compel

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 12 of 14 arbitration], the application shall be made in that action or proceeding.” We

see no delay or acquiescence to litigation by Taylor that would support a

finding that it waived arbitration. See Safety Nat’l Cas. Co., 829 N.E.2d at 996-97

(finding waiver when, among other things, the plaintiff “delay[ed] [] seeking . . .

to compel arbitration once litigation was filed and [] acquiesce[d] to its Plaintiff

status[.]”).

Conclusion [23] For these reasons, we conclude that the parties agreed to mediate and arbitrate

the claims filed in this action, Taylor did not waive its right to enforce the

mediation and arbitration provisions, and, consequently, the trial court erred in

denying Taylor’s motion to compel mediation and arbitration. We reverse and

remand with instructions for the court to grant that motion and order the parties

to participate in mediation and, if necessary, binding arbitration administered

by the AAA. 6

[24] Reversed and remanded.

Bradford, J., and Weissmann, J., concur.

6 Taylor also appeals the trial court’s denial of its motion to dismiss the Miltons’ complaint for improper venue as an alternative remedy to compelling mediation and arbitration. Because we find that mediation and arbitration should have been compelled, we do not address the parties’ arguments regarding venue.

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 13 of 14 ATTORNEYS FOR APPELLANT Michael A. Dorelli Grantland M. Clapacs Zechariah L. Banks Dentons Bingham Greenebaum LLP Indianapolis, Indiana

ATTORNEY FOR APPELLEES John A. Kraft Young Lind Endres & Kraft New Albany, Indiana

Court of Appeals of Indiana | Opinion 25A-PL-1290 | November 5, 2025 Page 14 of 14