benito-s-gamba-hilda-p-gamba-and-gamba-real-estate-holdings-llc-v-the ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Mar 08 2013, 8:32 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
BENITO S. GAMBA, HILDA P. THE ROSS GROUP, INC.:
GAMBA AND GAMBA REAL ESTATE
HOLDINGS, LLC: GERALD M. BISHOP
Gerald M. Bishop & Associates
MICHAEL T. TERWILLIGER Merrillville, Indiana
Valparaiso, Indiana
BRIAN CUSTY
Merrillville, Indiana
ATTORNEY FOR APPELLANT
TICOR TITLE INSURANCE CO.:
JOHN H. HALSTEAD
Querrey & Harrow
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BENITO S. GAMBA, HILDA P. GAMBA and )
GAMBA REAL ESTATE HOLDINGS, LLC )
)
Appellants-Defendants, )
)
vs. ) No. 45A03-1202-PL-92
)
THE ROSS GROUP INC., )
)
Appellee-Plaintiff. )
__________________________________________)
)
TICOR TITLE INSURANCE COMPANY, )
)
Appellant (Third Party Defendant), )
)
vs. )
)
THE ROSS GROUP, INC., )
BENITO GAMBA, HILDA GAMBA and )
GAMBA REAL ESTATE HOLDINGS, LLC., )
)
Appellees-Plaintiffs/Defendants. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Diane Kavadias Schneider, Judge
Cause No. 45D01-0606-PL-53
March 8, 2013
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
VAIDIK, Judge
Following our December 28, 2012, opinion in which we concluded, among other
things, that Benito and Hilda Gamba (“collectively, “Gamba”) are liable for a
construction-cost overage, Gamba now petitions for rehearing. Gamba disagrees with
various portions of our opinion, but we grant rehearing to address only his argument that
we mischaracterized the disbursement agreement in this case. We affirm our original
opinion in all respects.
In our December opinion, we stated the following:
Gamba also argues that the terms of the disbursement agreement required
Ross to give Gamba advance notice of changes, and by failing to do so,
Ross waived its right to assert a claim for the overage. The terms of the
disbursement agreement do require advance, written consent before
proceeding with any changes. However, the disbursement agreement
governs the ability of a signatory contractor to assert a claim for additional
expenses as against the loan proceeds being distributed. As Ross correctly
notes, it was not intended to supplement or amend the construction
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contract, and it makes no reference to contractors or owners, speaking only
of “lenders” and “escrowees.”
Gamba v. Ross Group Inc., No. 45A03-1202-PL-92 (Ind. Ct. App. Dec. 2012) (footnote
and citations omitted).
We misspoke. We should have stated that the recitals portion of the disbursement
agreement speaks in terms of lenders and escrowees. Gamba correctly states that the
operative portion of the disbursement agreement refers to contractor and owner.
However, this does not change our conclusion as to the authority of the disbursement
agreement.
We reasoned that “[T]he disbursement agreement governs the ability of a
signatory contractor to assert a claim for additional expenses as against the loan proceeds
being distributed,” and was not intended to supplement or amend the construction
contract between Gamba and Ross. Slip. op. at 7. Contrasting the two contracts, we
explained that “the construction contract between Gamba and Ross governs the conduct
of owner and contractor during the project. And that contract did not require change
orders or advance, written consent.” Id. We concluded that Gamba could not “rely on
language in the disbursement agreement to impose a duty upon Ross that appears
nowhere in the Gamba-Ross construction contract, and in turn, argue waiver based upon
that duty.” Id.
Even setting aside the disbursement agreement’s use of the terms “contractor” and
“owner” entirely, our conclusion remains the same. Accordingly, we affirm our original
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opinion in all respects.
MATHIAS, J., and BARNES, J., concur.
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