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.

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE CIRCLE 

R ELECTRIC, INC.:

MICHAEL L. MUENICH

Griffith, Indiana MATTHEW J. HAGENOW

Newby, Lewis, Kaminski & Jones, LLP

LaPorte, Indiana

IN THE

COURT OF APPEALS OF INDIANA

BRANT CONSTRUCTION, LLC; and )

DUNE HARBOR, LLC, )

)

Appellants/Cross-Appellees/Defendants, )

)

vs. ) No. 64A03-1204-CC-159

)

CIRCLE R ELECTRIC, INC.; DeBOER )

EGOLF CORPORATION; AUDITOR, )

PORTER COUNTY, INDIANA; FIRST )

NATIONAL BANK OF ILLINOIS; and )

WACHOVIA FINANCIAL SERVICES, INC., )

)

Appellees/Cross-Appellants/Plaintiffs. )

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable Mary R. Harper, Judge

Cause No. 64D05-0907-CC-7800

May 24, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
2

Appellee/Cross-Appellant/Plaintiff Circle R Electric, Inc. (“Circle R”) contracted 

to do work on land owned by Appellant/Cross-Appellee/Defendant Dune Harbor, LLC

(“Dune Harbor”) on a project for which Appellant/Cross-Appellee/Defendant Brant 

Construction, LLC (“Brant”) served as the general contractor. Circle R contracted with 

both Dune Harbor (“the Dune Harbor Contract”) and Brant (“the Brant Contracts”) and 

performed work pursuant to the contracts. Dune Harbor subsequently experienced 

financing problems and Circle R was not paid. Dune Harbor failed to pay Circle R 

approximately $43,810 for work performed on the Project, and Brant failed to pay Circle 

R approximately $26,350. 

Circle R filed suit against Dune Harbor and Brant, later amending its complaint to 

include DeBoer Egolf Corporation, which had filed mechanic’s liens against Dune 

Harbor’s property. Dune Harbor and Brant moved for summary judgment on the bases 

that (1) Circle R had not sought arbitration as required by the contracts and (2) payment 

to Circle R was not due pursuant to the Brant Contracts because Dune Harbor had never 

paid Brant. The trial court entered summary judgment in favor of Circle R. Dune Harbor 

and Brant now appeal, contending that the trial court erred in not enforcing the arbitration 

clauses and the contingent payment clauses of the Brant Contracts. Concluding that the 

trial court should have enforced the arbitration clauses of the Brant Contracts, we reverse 

the trial court’s entry of summary judgment in favor of Circle R as against Brant. We 

affirm the trial court’s entry of summary judgment in favor of Circle R as against Dune 

Harbor and remand for the calculation of attorneys’ fees. 

FACTS AND PROCEDURAL HISTORY
3

Dune Harbor owned and was developing the Dune Harbor Marina project (“the 

Project”) in 2006 and 2007 before financing was withdrawn. Brant acted as general 

contractor and construction manager for the Project. In February of 2006, Dune Harbor 

entered into contracts with some subcontractors on the Project, including Circle R and 

DeBoer Egolf. Dune Harbor is identified as “Owner” in the Dune Harbor Contract, and 

Brant, although not a party, is identified as Dune Harbor’s “Construction Manager.” The 

Dune Harbor Contract provides, in part, as follows:

6. Contract Sum

Owner shall pay Subcontractor for the performance of the work, subject 

to additions and deductions by change order as hereinafter provided, the 

Contract Sum as specified in Item 1.a.(6) above, upon the terms and 

conditions hereinafter set forth.

7. Progress Payments (Also see Exhibit “A” – Billing Instructions, 

incorporated herein by reference)

Owner agrees to pay Subcontractor, on account of the Contract Sum, 

progress payments for actual work performed to the satisfaction of the 

Construction Manager. Owner may, at his discretion, withhold from 

progress payments due Subcontractor; final payment to be made by 

Owner to Subcontractor upon acceptance by Owner. 

Appellants’ App. p. 34. 

The Dune Harbor Contract also contains the following clauses:

13. Disputes

In case of any dispute between the Subcontractor and Construction 

Manager, Subcontractor agrees to be bound to Construction Manager to 

the same extent that Construction Manager is bound to Owner by the 

terms of the Contract Documents[

1

] and by any and all decisions, 

interpretations, or determinations made thereunder by the persons so 

authorized in the Contract Documents. Subcontractor further agrees to 

be bound to Construction Manager to the same extent the Construction 

 

1

 “The Contract Documents shall consist of this Agreement, the General Contract between 

Construction Manager and Owner (identified in item 1.a. (4) and the general and Special Conditions of 

the General Contract between Owner and Construction Manager (if any).” Appellants’ App. p. 34. 
4

Manager is bound to Owner by the final decision of a court of 

competent jurisdiction, whether or not Subcontractor is a party to such 

proceedings. 

....

14.Arbitration

If at any time any controversy should arise between the Construction 

Manager and Subcontractor with respect to any matter or thing involved 

in the Contract Documents o[r] the performance thereof, which 

controversy is not controlled or determined by paragraph 13 hereof or 

other provisions of the Contract Documents, then the decision of the 

Construction Manager shall be followed by the Subcontractor, and said 

controversy shall be ultimately resolved as follows:

a. The Subcontractor shall conclusively be bound by and abide by the 

Construction Manager’s decision, unless the Subcontractor shall 

commence arbitration proceedings as hereinafter provided within 

ninety (90) days following such decision. 

b. If the Subcontractor decided to appeal from the decision of the 

Construction Manager, then the controversy shall be decided by 

arbitration in accordance with the rules of the American Arbitration 

Association, and the decision of the Arbitrator shall be final and 

binding on both parties. 

Appellants’ App. p. 36. 

Finally, the Dune Harbor Contract contains the following provision regarding 

attorneys’ fees: 

31.Attorneys’ Fees

In the event either party to this Agreement employs attorneys or incurs 

other expenses it may deem necessary to protect or enforce their rights 

under the Contract Documents, then the non-prevailing party in such 

dispute agrees to reimburse such expenses to the prevailing party, 

including, but not limited to, attorney’s [sic] fees incurred by the 

prevailing party. 

Appellants’ App. p. 40. 

Between October 23, 2006, and May 7, 2007, and for certain specific work, Circle 

R entered into the Brant Contracts, contracts to which Dune Harbor was not a party but in 

which it is identified as the “Owner.” The contracts provided in part as follows:
5

6. Contract Sum

Contractor shall pay Subcontractor for the performance of the work, 

subject to additions and deductions by change order as hereinafter 

provided, the Contract Sum as specified in Item 1.a.(6) above, upon the 

terms and conditions hereinafter set forth. 

7. Progress Payments (Also see Exhibit “A” – Billing Instructions, 

incorporated herein by reference)

Contractor agrees to pay Subcontractor, on account of the Contract 

Sum, progress payments for actual work performed to the satisfaction of 

the Contractor. Said progress payments shall be made on the basis of, 

and only to the extent of, payments actually received by Contractor 

from the Owner, less a retainage as per Item 1.a.(7) above, which 

Contractor may, at his discretion, withhold from progress payments due 

Subcontractor; final payment to be made by Contractor to Subcontractor 

upon acceptance of work and payment by Owner. 

Appellants’ App. pp. 48, 61, 74, 88. 

The Brant Contracts also contained the following clause:

13. Disputes

In case of any dispute between the Subcontractor and Contractor, 

Subcontractor agrees to be bound to Contractor to the same extent that 

Contractor is bound to Owner by the terms of the Contract 

Documents[2] and by any and all decisions, interpretations, or 

determinations made thereunder by the persons so authorized in the 

Contract Documents. Subcontractor further agrees to be bound to 

Contractor to the same extent the Contractor is bound to Owner by the 

final decision of a court of competent jurisdiction, whether or not 

Subcontractor is a party to such proceedings. 

....

14.Arbitration

If at any time any controversy should arise between the Contractor and 

Subcontractor with respect to any matter or thing involved in the 

Contract Documents o[r] the performance thereof, which controversy is 

not controlled or determined by paragraph 13 hereof or other provisions 

of the Contract Documents, then the decision of the Contractor shall be 

followed by the Subcontractor, and said controversy shall be ultimately 

resolved as follows:

 

2

 “The Contract Documents shall consist of this Agreement, the General Contract between 

Contractor and Owner (identified in item 1.a. (4) and the general and Special Conditions of the General 

Contract between Owner and Contractor (if any).” Appellants’ App. pp. 48, 61, 74, 88. 
6

a. The Subcontractor shall conclusively be bound by and abide by the 

Contractor’s decision, unless the Subcontractor shall commence 

arbitration proceedings as hereinafter provided within ninety (90) 

days following such decision. 

b. If the Subcontractor decided to appeal from the decision of the 

Contractor, then the controversy shall be decided by arbitration in 

accordance with the rules of the American Arbitration Association, 

and the decision of the Arbitrator shall be final and binding on both 

parties. 

Appellants’ App. pp. 50, 63, 76, 90. 

Finally, the Brant Contracts contained the following clause regarding attorneys’ 

fees:

32.Attorneys’ Fees

In the event “either party” employs attorneys or incurs other expenses it 

may deem necessary to protect or enforce its rights under the Contract 

Documents (or in connection with any work done or agreed to be done 

by Subcontractor on this construction project), therefore “the nonprevailing party in any dispute shall reimburse the prevailing party for 

all attorneys [sic] fees and expenses incurred by the prevailing party.” 

Appellants’ App. pp. 54, 67, 80, 94. 

Circle R performed work and provided materials pursuant to the Dune Harbor 

Contract and Brant Contracts, and, after funding for the Project was withdrawn in 

November of 2007, Dune Harbor ceased payments to Brant and its subcontractors. Brant 

admits that it failed to pay Circle R $26,354.71 for work performed, and Dune Harbor 

admits that it failed to pay Circle R $43,810. On February 13, 2009, Circle R recorded its 

notice of intent to hold a mechanic’s lien in the Porter County Recorder’s Office. On 

August 31, 2009, Brant informed Circle R that it would not be paid because Dune Harbor 

had not paid Brant. 
7

On August 31, 2009, Circle R filed suit against Dune Harbor and Brant, later 

amending the complaint to add DeBoer Egolf, which had filed a mechanic’s lien against 

the Property. On May 6, 2011, Dune Harbor and Brant moved for summary judgment 

against Circle R on the ground that Circle R had not sought arbitration and that payment 

was not due because Dune Harbor had not paid Brant. On December 21, 2011, the trial 

court entered summary judgment in favor of Circle R. The trial court entered judgment 

in favor of Circle R as against Brant in the amount of $43,8103 plus $13,000 in attorneys’

fees and $146 in costs for a total of $56,956. The trial court entered summary judgment 

in favor of Circle R as against Dune Harbor in the amount of $26,354 plus $13,000 in 

attorneys’ fees for a total of $39,354. 

DISCUSSION AND DECISION

I. Whether the Trial Court Erred in Granting 

Summary Judgment in Favor of Circle R

When reviewing the grant or denial of a summary judgment motion, we apply the 

same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 

741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is appropriate only where 

the evidence shows that there is no genuine issue of material fact and the moving party is 

entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and 

reasonable inferences drawn from those facts are construed in favor of the nonmoving 

party. Id. To prevail on a motion for summary judgment, a party must demonstrate that 

 

3

 As Circle R points out, the trial court, in an apparent scrivener’s error, switched the amounts 

owed by Dune Harbor and Brant. Neither Dune Harbor nor Brant disputes this, so we shall proceed as if 

the trial court had entered summary judgment against Brant in the amount of $39,500 and against Dune 

Harbor in the amount of $56,810.
8

the undisputed material facts negate at least one element of the other party’s claim. Id. 

Once the moving party has met this burden with a prima facie showing, the burden shifts 

to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party 

appealing the summary judgment bears the burden of persuading us that the trial court 

erred. Id. 

Appellants’ claims are based on provisions of the Dune Harbor Contract and Brant 

Contracts. “The first rule in the interpretation of contracts is to give meaning and effect 

to the intention of the parties as expressed in the language of the contract.” Stech v. 

Panel Mart, Inc., 434 N.E.2d 97, 100 (Ind. Ct. App. 1982). “In ascertaining the intention 

of the parties, a court must construe the instrument as a whole, giving effect to every 

portion, if possible.” Id. “In interpreting an unambiguous contract, a court gives effect to 

the parties’ intentions as expressed in the four corners of the instrument, and clear, plain, 

and unambiguous terms are conclusive of that intent.” Oxford Fin. Group, Ltd. v. Evans, 

795 N.E.2d 1135, 1142 (citing Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med.

Ctr. of Ft. Wayne, Inc., 683 N.E.2d 243, 247 (Ind. Ct. App. 1997)). “Courts may not 

construe clear and unambiguous provisions, nor may it add provisions not agreed upon by 

the parties.” Id. (Ind. Ct. App. 2003) (citing Hyperbaric Oxygen Therapy Sys., 683 

N.E.2d at 247-48). However, it is well-settled that “[i]f the terms of a written contract are 

ambiguous, it is the responsibility of the trier-of-fact to ascertain the facts necessary to 

construe the contract.” Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d 396, 401 

(Ind. Ct. App. 2007). “A contract is ambiguous only if reasonable persons would differ 
9

as to the meaning of its terms.” Oxford Fin. Group, 795 N.E.2d at 1142 (citing Beam v. 

Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002)). 

A. Arbitration Clauses 

Whether the parties agreed to arbitrate any disputes is a matter of 

contract interpretation, and most importantly, a matter of the parties’ intent. 

AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000) (“As with any 

contract, the touchstone for interpreting an arbitration clause must be the 

intention of the parties.”). “Courts in Indiana have long recognized the 

freedom of parties to enter into contracts and have presumed that contracts 

represent the freely bargained agreement of the parties.” Trimble v. 

Ameritech Publ’g, Inc., 700 N.E.2d 1128, 1129 (Ind.1998); Cont’l 

Basketball Ass’n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind.1996). 

MPACT Const. Grp., LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 906 

(Ind. 2004). “Moreover, ‘[w]hen 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.’” St. John Sanitary 

Dist. v. Town of Schererville, 621 N.E.2d 1160, 1162 (Ind. Ct. App. 1993) (quoting 

Ziegler v. Whale Secs. Co., L.P., 786 F. Supp. 739, 741 (N.D. Ind. 1992)). 

In both the Dune Harbor Contract and Brant Contracts, Circle R agreed to be 

bound and abide by Brant’s decision regarding “any controversy” arising between it and 

Brant “with respect to any matter or thing involved in the Contract Documents o[r] the 

performance thereof” unless commencing arbitration within ninety days of the decision. 

Appellants’ App. pp. 36, 63. Dune Harbor and Brant argue that Circle R’s only recourse 

in the disputes at issue in this case was to submit the matters to arbitration, which it did 

not do. Circle R argues that, for various reasons, it was not required to submit these

matters to arbitration. 
10

1. Dune Harbor Contract

Circle R argues that the arbitration clause in the Dune Harbor Contract does not 

apply in this case because the controversy pursuant to that contract arose between it and 

Dune Harbor, not Brant. We agree. The Dune Harbor Contract obligated Dune Harbor 

to pay Circle R directly for its work on the Project, and it is undisputed that Dune Harbor 

did not. This can only be fairly characterized as a controversy arising between Dune 

Harbor and Circle R, and the arbitration clause in the Dune Harbor Contract applies only 

to controversies arising between Brant and Circle R. The trial court correctly concluded

that the arbitration clause in the Dune Harbor Contract did not bar the entry of summary 

judgment in favor of Circle R. 

2. Brant Contracts

Circle R argues that the arbitration clauses in the Brant Contracts do not apply 

because the clauses apply only to “controvers[ies] not controlled or determined by 

paragraph 13 hereof or other provisions of the Contract Documents.” Appellants’ App. 

pp. 50, 63, 76, 90. Circle R reasons that because payment was addressed under 

provisions of the Contract Documents, payment disputes are not covered by the 

arbitration clause. We cannot accept that interpretation of the language cited above. 

First, while other provisions of the Contract Documents do address payment, they do not 

control or determine controversies regarding payment. Paragraph 13 serves to remove 

some controversies from the scope of the arbitration clause, but Circle R points to no 

similar provision that does the same to payment controversies. 
11

Second, to accept Circle R’s argument on this point would be to render the 

arbitration clause meaningless. Any controversy arising between Brant and Circle R 

regarding the Brant Contracts will necessarily have arisen pursuant to some provision of 

those contracts, so to accept Circle R’s argument on this point would mean that the 

arbitration clause would never apply. “A court should construe the language of a contract 

so as not to render any words, phrases, or terms ineffective or meaningless.” State Farm 

Mut. Auto. Ins. Co. v. D’Angelo, 875 N.E.2d 789, 796 (Ind. Ct. App. 2007), trans. denied. 

“Generally, the courts should presume that all provisions included in a contract are there 

for a purpose[.]” Indpls.-Marion Cnty. Pub. Library v. Shook, LLC, 835 N.E.2d 533, 541 

(Ind. Ct. App. 2005). We conclude that the trial court erred in concluding that the 

arbitration clause did not apply to the controversy between Circle R and Brant. By 

failing to seek arbitration within ninety days of Brant’s decision not to pay, that decision 

became binding on Circle R. We therefore remand with instructions to enter summary 

judgment in favor of Brant with regard to the Brant Contracts.4 

B. Payment Provisions

As we have already concluded that the trial court should have entered summary 

judgment in favor of Brant with regard to its contracts with Circle R, the only contract 

left is the Dune Harbor Contract. Although Brant argues that it was not obligated to pay 

Circle R because it was never paid by Dune Harbor (an argument we need not reach), 

 

4

 Circle R argues that Brant has waived the arbitration argument by failing to file a motion to 

compel arbitration and because they have actively litigated the issue. We disagree. The arbitration 

clauses clearly put the onus on Circle R to commence arbitration, and we will not punish Brant for 

defending itself in litigation initiated, after all, by Circle R. 
12

Dune Harbor does not, and cannot, make the same argument. The plain language of the 

Dune Harbor Contract obligates Dune Harbor to pay Circle R directly, which it did not 

do. In other words, Dune Harbor has effectively conceded that it owes Circle R $43,810 

pursuant to the Dune Harbor Contract. The trial court correctly entered summary 

judgment in favor of Circle R as to Dune Harbor. 

II. Attorneys’ Fees

Both the Dune Harbor Contract and the Brant Contracts provide that the nonprevailing party is required to reimburse expenses incurred to enforce rights by the 

prevailing party. We affirm the trial court’s award of $13,000 in attorneys’ fees to Circle 

R pursuant to the Dune Harbor Contract. We remand, however, for the calculation and 

award of (1) additional attorneys’ fees and expenses incurred by Circle R in this appeal 

related to claims arising under the Dune Harbor Contract and (2) attorneys’ fees and 

expenses incurred by Brant pursuant to Circle R’s claims pursuant to the Brant Contracts. 

CONCLUSION

We affirm the trial court’s entry of summary judgment in favor of Circle R 

pursuant to the Dune Harbor Contract in the amount of $56,810. We reverse the trial 

court’s entry of summary judgment in favor of Circle R pursuant to the Brant Contracts 

and remand with instructions to enter judgment in favor of Brant on those claims. We 

also instruct the trial court to conduct further proceedings in order to calculate and award 

attorneys’ fees and expenses incurred by Circle R and Brant. 

The judgment of the trial court is affirmed in part, reversed in part, and remanded 

with instructions. 
13

RILEY, J., and BROWN, J., concur.