Court of Appeals of Indiana | Memorandum Decision 06A04-1604-PL-941 | March 17, 2017 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

George W. Hopper

Michael W. McBride

Cohen & Malad, LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Paul D. Vink

Bose McKinney & Evans LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Sanders Development Group, 

Inc.,

Appellant-Plaintiff,

v.

Willow Properties, LLC,

Appellee-Defendant

March 17, 2017

Court of Appeals Case No.

06A04-1604-PL-941

Appeal from the Boone Circuit 

Court

The Honorable J. Jeffrey Edens, 

Judge

Trial Court Cause No.

06C01-1503-PL-184

Mathias, Judge.

[1] Sanders Development Group, Inc. (“Sanders Development”) appeals the Boone

Circuit Court’s entry of summary judgment in favor of Willow Properties, LLC

(“Willow Properties”). Sanders Development appeals and raises the following 
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dispositive issue: whether genuine issues of material fact concerning the parties’

intent in entering into the contract precludes the entry of summary judgment in 

favor of Willow Properties.

[2] We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] Sanders Development is a property development company owned by Mark 

Sanders. The company has developed approximately thirty residential 

subdivisions since its formation in 1976. Sanders Development typically 

performs the work necessary to convert vacant real estate into developed lots 

ready for sale for home construction.

[4] In 2001, Mark Sanders, his now ex-wife Linda Sanders, Jeffrey Belskus, and 

Debrorah Belskus formed Willow Properties, a member-managed limited 

liability company. The company’s goal was to develop 168 acres of 

undeveloped real estate located in Zionsville, Indiana, into a subdivision later 

named Willow Ridge. 

[5] Willow Properties and Sanders Development later entered into a contract that 

states in its entirety:

The undersigned, being the Shareholder(s) and Director(s) of 

Willow Properties, LLC, agree to pay Sanders Development 

Group, Inc., a 7% management fee of the sales price on each 

Willow Properties lot sale, to be paid at the time of closing. This 

agreement is effective January 1, 2002.
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Appellant’s App. p. 149. The agreement was signed by all four members of 

Willow Properties. 

[6] Thereafter, Sanders Development developed the real estate and received a 7% 

management fee of the sales price of each lot sold. In January 2009, five unsold 

lots remained. 

[7] In early 2009, Mark Sanders and Linda Sanders dissolved their marriage. As a 

result of the dissolution proceedings, Mark transferred his interest in Willow 

Properties to Linda. Mark transferred all records in his possession relating to 

Willow Properties to the remaining three members.

[8] On August 31, 2010, Lot 52 was sold. Sanders Development did not receive its 

7% management fee at closing. On June 7, 2011, Jeffrey Belskus met with Mark 

Sanders and informed him that Willow Properties was terminating the contract 

between the company and Sanders Development. On that date, four unsold lots 

remained in the subdivision. Between July 14, 2011, and April 10, 2015, the 

remaining four lots were sold, but Sanders Development was not paid its 7% 

management fee at the closings. The total sales price of the last five lots was 

$1,571,000.

[9] On March 13, 2015, Sanders Development filed a complaint in Boone Circuit 

Court against Willow Properties alleging breach of contract and unjust 

enrichment. Sanders Development claimed that it was owed the 7% 

management fee for the sale of the last five lots in the Willow Ridge 

subdivision. 
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[10] Willow Properties filed a motion for summary judgment on October 30, 2015. 

Sanders Development subsequently filed a response and cross-motion for 

summary judgment. On January 26, 2016, the trial court issued an order 

granting Willow Properties motion for summary judgment with respect to the 

four lots that sold after Willow Properties terminated the contract. However, 

the trial court ordered Willow Properties to pay the 7% management fee to 

Sanders Development for the lot that sold on August 31, 2010. Thereafter, 

Sanders Development filed a motion to correct error, which the trial court 

denied. Sanders Development now appeals. 

Standard of Review

[11] When reviewing a grant of summary judgment, we must draw all reasonable 

inferences in favor of the non-moving party and affirm only “‘if the designated 

evidentiary matter shows that there is no genuine issue as to any material fact 

and that the moving party is entitled to judgment as a matter of law.’” Siner v. 

Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016) (quoting Ind. Trial 

Rule 56(C)). Careful scrutiny must be given to a grant of summary judgment to 

ensure that the losing party was not improperly denied its day in court. Id. 

“Indiana’s distinctive summary judgment standard imposes a heavy factual 

burden on the movant to demonstrate the absence of any genuine issue of 

material fact on at least one element of the claim.” Id. Our standard of review is 

not altered by cross-motions for summary judgment. Huntington v. Riggs, 862 

N.E.2d 1263, 1266 (Ind. Ct. App. 2007), trans. denied.
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[12] Cases involving contract interpretation generally are particularly appropriate for 

summary judgment. Rusnak v. Brent Wagner Architects, 55 N.E.3d 834, 840 (Ind. 

Ct. App. 2016), trans. denied. “When the terms of a contract are ambiguous or 

uncertain, however, and its interpretation requires extrinsic evidence, its 

construction is left to the factfinder.” Id. “When summary judgment is granted 

based on the construction of a written contract, the trial court has either 

determined as a matter of law that the contract is not ambiguous or uncertain, 

or that any contract ambiguity can be resolved without the aid of a factual 

determination.” Id. at 840-41.

The Parties’ Intent

[13] “The goal of contract interpretation is to determine the intent of the parties 

when they made the agreement.” Tender Loving Care Mgmt., Inc. v. Sherls, 14 

N.E.3d 67, 72 (Ind. Ct. App. 2014). This court must examine the plain 

language of the contract, read it in context and, whenever possible, construe it 

so as to render every word, phrase, and term meaningful, unambiguous, and 

harmonious with the whole. Id. Construction of the terms of a written contract 

generally is a pure question of law. Id. If, however, a contract is ambiguous, the 

parties may introduce extrinsic evidence of its meaning, and the interpretation 

becomes a question of fact. Broadbent v. Fifth Third Bank, 59 N.E.3d 305, 311 

(Ind. Ct. App. 2016), trans. denied. “A word or phrase is ambiguous if 

reasonable people could differ as to its meaning.” Id. A term is not ambiguous 

solely because the parties disagree about its meaning. Id.
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[14] If contract language is unambiguous, this court may not look to extrinsic 

evidence to expand, vary, or explain the instrument but must determine the 

parties' intent from the four corners of the instrument. Tender Loving Care Mgmt., 

14 N.E.3d at 72. If the language is ambiguous, the contract terms must be 

construed to determine and give effect to the intent of the parties when they 

entered into the contract. Id. “Courts may properly consider all relevant 

evidence to resolve an ambiguity.” Id. “‘Extrinsic evidence is evidence relating 

to a contract but not appearing on the face of the contract because it comes 

from other sources, such as statements between the parties or the circumstances 

surrounding the agreement.’” Id. (quoting CWE Concrete Const., Inc. v. First Nat’l 

Bank, 814 N.E.2d 720, 724 (Ind. Ct. App. 2004), trans. denied). An ambiguous 

contract should be construed against the party who furnished and drafted the 

agreement. Id.

[15] Willow Properties and Sanders Development reduced the following agreement 

to writing:

The undersigned, being the Shareholder(s) and Director(s) of 

Willow Properties, LLC, agree to pay Sanders Development 

Group, Inc., a 7% management fee of the sales price on each 

Willow Properties lot sale, to be paid at the time of closing. This

agreement is effective January 1, 2002.

Appellant’s App. p. 149. Willow Properties argues that the term “management” 

is unambiguous and under the plain terms of the contract, Sanders 

Development agreed to manage the subdivision. Sanders Development argues
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that the term “management” is ambiguous, and therefore, the parties’ intent 

must be established by extrinsic evidence.

[16] “Management” is defined as “the act or art of managing: the conducting or 

supervising of something (as a business).”1 The Oxford English Dictionary 

defines management as: “organization, supervision, or direction; the 

application of skill or care in the manipulation, use, treatment, or control (of a 

thing or person), or in the conduct of something.”2

[17] The plain meaning of the term “management” is generally easily understood. 

However, the term, when considered within the four corners of the contract at 

issue, is ambiguous.

[18] First, the plain language of the contract does not establish that Willow 

Properties hired Sanders Development to manage the subdivision. The contract 

language simply provides that Willow Properties agrees to pay Sanders 

Development a 7% management fee of the sales price of each lot that sells and 

the fee will be paid at closing. From this language, we can infer that Sanders 

Development is required to manage something to receive the fee that Willow 

Properties agreed to pay.

 

1 Merriam-Webster Online, www.merriam-webster.com/dictionary/managment (last visited Feb. 28, 2017).

2 Oxford English Dictionary Online, www.oed.com/view/Entry/113218?redircted/From=management#eid 

(last visited Feb. 28, 2017).
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[19] However, it is not clear what Sanders Development was tasked with managing 

under the contract. Was the company managing a subdivision? Was the 

company simply managing lots within a subdivision? Was the company 

managing Willow Properties’ real estate that was not yet developed into lots? 

Also, what duties did Willow Properties intend for Sanders Development to 

perform in exchange for payment of the management fee? The answer to this 

last question depends at least in part on whether the lots pre-existed the contract 

or were to be developed after the contract was executed.

[20] From extrinsic evidence, we know that Willow Properties owned real estate 

that had not yet been developed into lots. We also know that Sanders 

Development was hired to develop the property into lots that could be sold as 

home sites. 

[21] However, the parties disagree on the precise nature of Sanders Development’s 

duties. Sanders Development claims it was hired only to prepare the real estate 

for development, but Willow Properties argues that Sanders Development was 

hired to manage the lots until all lots were sold. In support of these arguments, 

the parties rely primarily on deposition testimony and affidavits, and therefore, 

the credibility of the witnesses is crucial to resolving the fact questions posed in 

this case.

[22] For these reasons, we conclude that the term “management” is ambiguous and 

the duties that Sanders Development was required to perform in exchange for 

its fee of 7% of the sales price of each lot is a fact question that must be resolved 
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by the fact-finder. Ultimately, it is within the fact-finder’s purview to determine

whether Sanders Development completed its management of Willow 

Properties’ lots and whether Willow Properties breached the contract by 

refusing to pay the 7% management fee for each lot sold.

[23] We reverse the entry of summary judgment in Willow Properties’ favor and 

remand for proceedings consistent with this opinion.

Baker, J., and Pyle, J., concur.