Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 1 of 11

ATTORNEYS FOR APPELLANT

Arend J. Abel

Jeffrey A. Hammond

Cohen and Malad, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Janet A. McSharar

Jennifer L. Strange

Drewry Simmons Vornehm, LLP

Carmel, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Carole Storch, as Personal 

Representative for the Estate of 

Charles Sindledecker,

Appellant-Plaintiff,

v.

Provision Living, LLC; PVL 

Tenant Holdings, LLC, d/b/a 

Greentree at Fort Harrison,

Appellees-Defendants

December 23, 2015

Court of Appeals Case No.

49A02-1505-CT-352

Appeal from the Marion Superior 

Court

The Honorable Heather Welch, 

Special Judge

Trial Court Cause No.

49D01-1201-CT-2695

Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 2 of 11

[1] 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

[2] 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. at 56. 

[3] While residing at Greentree, Sindledecker enjoyed spending time sitting in a 

chair by the fireplace in the common room. He 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 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 3 of 11

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. 

[4] 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. 

[5] 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. 

[6] 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 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 4 of 11

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 Sindledecker’s estate for $1,000,020 in damages. 

[7] 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

[8] 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. 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 5 of 11

[9] When interpreting a contract, our goal is to give effect to the intent of the 

parties at the time they entered into the agreement. Tender Loving Care Mgmt., 

Inc. v. Sherls, 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. 

[10] 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. 23. 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). 

[11] Such an interpretation is plainly incorrect given the clear meaning of the 

language used. Had Greentree intended this provision to apply only to claims 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 6 of 11

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 

of 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. The above-referenced principles of contract interpretation compel 

us to avoid such outcomes and, therefore, we must conclude that the plain 

language of the provision contemplates more than actions for breach of the 

agreement. 

[12] We now must determine whether the present dispute, while a tort claim, 

nevertheless falls into the category of any claim that arises out of or relates to 

the agreement. Guidance on this issue from courts of this State is currently 

limited to decisions interpreting agreements to arbitrate. Similar language is 

frequently used in such agreements and we have shown no hesitation in holding 

that it encompasses tort claims. 

[13] For instance, in Precision Homes of Indiana, Inc. v. Pickford, a couple entered into a 

contract with a general contractor for the construction of a home. 844 N.E.2d 

126, 128 (Ind. Ct. App. 2006), trans. denied. The couple then had a contentious 

meeting with the president of the contracting company, after which they filed 

claims for assault, battery, and false imprisonment. Id. at 130. This Court held 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 7 of 11

that these claims fell within the scope of the contract’s arbitration clause, which 

called for arbitration of any claims “arising from or related to the Property.” Id.

at 133. 

[14] Nearly identical language was at issue in National Wine & Spirits, Inc. v. Ernst & 

Young, LLP, where the companies entered into an auditing agreement and 

agreed to arbitrate “any claim or controversy arising out of or relating to” the 

agreement. 976 N.E.2d 699, 702 (Ind. 2012). In that case, the companies had 

previously arbitrated a claim pursuant to the agreement in which Ernst & 

Young had emerged victorious. Id. at 703. National Wine & Spirits then sued 

Ernst & Young in tort for fraud and deception, alleging that it had presented 

altered documents to the arbitration panel in the first suit. Id. Our Supreme 

Court noted the “all-encompassing” nature of the language used by the parties 

and concluded that it “would defy logic to say that this issue falls outside the 

scope of the broad arbitration clause, as the documents certainly arise out of or 

relate to the audit services that E & Y provided for NWS.” Id. at 706; see also 

ISP.com LLC v. Theising, 805 N.E.2d 767 (Ind. 2004) (claim of fraudulent 

transfer “relate[d] to” asset purchase agreement for purposes of arbitration 

clause). 

[15] Predictably, Greentree attempts to distinguish these cases on the ground that, 

unlike the present case, they deal with the enforcement of arbitration clauses. 

Greentree simply points to this fact and provides no further explanation, 

apparently in the belief that this distinction alone should compel us to reach the 

opposite conclusion here. See Appellee’s Br. p. 6-7. However, contrary to 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 8 of 11

Greentree’s assumption, we see no reason to read identical language two 

different ways depending on whether it appears in an arbitration provision or 

any other. It is true that “any doubts about the scope of [an] arbitration 

agreement must be resolved in favor of arbitration.” Precision Homes, 844 

N.E.2d at 133. However, for this presumption to apply, doubts must exist in 

the first place. Simply because we have not recognized a similar presumption 

in the attorney fee context does not mean that we would refuse to enforce 

attorney fee provisions in cases where the plain language clearly calls for 

enforcement. 

[16] Greentree next argues that enforcement of the attorney fee provision is not 

called for in this case because the subject matter of Sindledecker’s negligence 

suit simply does not arise out of or relate to the residence agreement. Once 

again, Greentree does little to develop this assertion into an argument, stating 

only that Sindledecker’s “negligence claim did not involve wrongful eviction, 

fraud, misrepresentation, or some other tort directly related to the Resident 

Agreement.” Appellee’s Br. p. 8-9. We gather from this statement that 

Greentree believes that the above-listed claims would relate to or arise out of the 

agreement in a way that Sindledecker’s negligence claim would not. We are, 

however, left to ourselves to ponder why this would be. 

[17] We find no basis for such a distinction in the plain meaning of the word 

“relate.” According to a modern dictionary, two things “relate” if they simply 

“have relationship or connection.” Merriam-Webster Online Dictionary, 

http://www.merrianwebster.com/dictionary/relate (last visited November 30, 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 9 of 11

2015). This definition is clearly very broad, but parties have the right to 

contract in broad terms if they wish. Looking to other states for guidance, we 

note that appellate courts in Colorado have had occasion to define “relate”—in 

the attorney fees context nonetheless—and they have chosen to do so in a similarly 

broad fashion, holding that such language “encompass[es] all issues 

surrounding the underlying subject matter.” In re Estate of Gattis, 318 P.3d 549, 

558 (Colo. App. 2013). 

[18] Greentree reminds us that we are not bound by the decisions of these courts, 

but fails to give us a reason to disagree. In fact, we believe that this definition 

makes perfect sense. Courts of this state have already noted the breadth of such 

language, referring to it as “all-encompassing.” National Wine & Spirits, 976 

N.E.2d at 706. We have little doubt that the parties here intended such 

language to be quite broad and that they, along with the general public, would 

understand that anything “related to” an agreement would encompass all issues 

surrounding the underlying subject matter of that agreement. 

[19] Turning to the facts of this case, there can be no doubt that the underlying

subject matter of Sindledecker’s residence agreement was, indeed, his residence 

at Greentree. And there can also be no doubt that the events that led to his 

negligence claim occurred because he resided there, which would not have been 

the case absent the residence agreement. Thus, reading the contractual 

language in light of its plain, simple, and intentionally broad meaning, it is 

hardly difficult to conclude that Sindledecker’s negligence claim involves the 

same underlying subject matter as, and therefore relates to, his residence 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 10 of 11

agreement. Consequently, we find that the parties must have intended the 

disputed attorney fees provision to apply to such a claim.

[20] We must clarify one final point regarding the trial court’s concern that the 

residence agreement was never presented to the jury. While it is true that the 

jury would have been required to decide if a breach of the agreement had 

occurred, as we have already made clear, the provision at issue was intended to

apply to more than claims for breach of the agreement. Here, the fact that the 

jury did not have the residence agreement before it was irrelevant, as neither 

party disputed that the residence agreement was entered into mutually, and a 

breach of the agreement was not at issue. The only remaining dispute was as to 

the meaning of the agreement’s terms. Resolution of this dispute fell to the 

court, as matters of contract interpretation are questions of law. 

[21] Furthermore, in petitioning the trial court for attorney fees after the jury had 

reached its decision in this case, Storch was following standard procedure. R.L. 

Turner Corp., 963 N.E.2d at 459-60. Our Supreme Court has noted that a 

petition for attorney fees presents an issue separate from the merits of a case 

because the inquiry cannot commence until a party has prevailed. Id. at 459 

(citing White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 451-52 (1982)). 

Accordingly, a request for attorney fees “almost by definition is not ripe for 

consideration until after the main event reaches an end,” and “[e]ntertaining 

such petitions post-judgment is virtually the norm.” Id. at 460. “[I]n some 

sense,” a request for attorney fees is an equitable petition. Id. 
Court of Appeals of Indiana | Opinion 49A02-1505-CT-352 | December 23, 2015 Page 11 of 11

[22] As to the amount of fees, this Court has recognized that there are instances 

where a jury may decide whether an amount of fees is reasonable, such as 

where the parties have stipulated to that effect or the contract calls for it. 

Cavallo v. Allied Physicians of Michiana, LLC, No. 71A05-1406-PL-285 at *9 (Ind. 

Ct. App. August 20, 2015). However, absent such agreements, parties do not 

have the right to have a jury determine a reasonable amount of fees. Id. As no 

such agreement exists in this case, we do not believe that any triable issue 

remains. See E. Trading Co. v. Refco, Inc., 229 F.3d 617, 626-27 (7th Cir. 2000). 

[23] In any event, Greentree has never argued that the jury should determine a 

reasonable award of fees and has always assumed that such a determination 

would be left to the trial court. See Appellant’s App. p. 90-91. We have 

observed that “the trial judge is considered to be an expert on the question and 

may judicially know what constitutes a reasonable attorney’s fee.” Longest ex 

rel. Longest v. Sledge, 992 N.E.2d 221, 231 (Ind. Ct. App. 2013). We do not 

doubt that the trial court is capable of considering evidence on this issue and 

deciding what is reasonable in this case. 

[24] The judgment of the trial court is reversed and remanded so that the trial court 

may calculate reasonable attorney fees and award those fees to Sindledecker’s 

estate, as called for in the parties’ residence agreement. 

Bradford, J., and Pyle, J., concur.