Dlz Indiana, LLC v. Greene County

• Decision Date: 12 March 2009
• Docket Number: No. 60A04-0808-CV-479.,60A04-0808-CV-479.
• Citation: 902 N.E.2d 323
• Parties: DLZ INDIANA, LLC, Appellant-Defendant, v. GREENE COUNTY, Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

902 N.E.2d 323

DLZ INDIANA, LLC, Appellant-Defendant, v. GREENE COUNTY, Indiana, Appellee-Plaintiff.

No. 60A04-0808-CV-479.

Court of Appeals of Indiana.

March 12, 2009.

Diane W. French, Barry L. Lubow, Columbus, OH, Attorneys for Appellant.

Michael F. Drewry, Sean T. Devenney, Daniel M. Drewry, Drewry Simmons Vornehm, LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In this appeal, we are asked once again to consider what constitutes a joint venture. DLZ Indiana, LLC, ("DLZ") appeals from partial summary judgment in favor of Greene County, Indiana ("the County") on the County's second-amended complaint alleging breach of contract. DLZ presents a single issue for our review, namely, whether the trial court erred when it concluded that DLZ was engaged in a joint venture with United Consulting Engineers, Inc. ("United") to provide architectural services for the County ("the Project").¹ We hold that United and DLZ did not exercise joint or mutual control over the Project or share profits and, thus, were not doing business as a joint venture as a matter of law.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On June 25, 2001, the County entered into an Agreement for Design Services ("the Agreement") with United and DLZ to design the expansion and renovation of the Greene County Courthouse in Bloomfield. The first paragraph of the Agreement states:

THIS AGREEMENT, made as of the 25th day of June, 2001, and amended this 21st day of August, 2001, by and between UNITED CONSULTING ENGINEERS & ARCHITECTS (hereinafter referred to individually as "United") and DLZ OF INDIANA, LLC (hereinafter referred to individually as "DLZ"), jointly and in collaboration (hereinafter collectively referred to as "the Firm"), and [the County] (hereinafter called "Owner").

Appellant's App. at 127. And Section 1 states in relevant part:

General Description of Project: Scope of The Firm's Services. Owner desires to employ the Firm to perform all professional architectural services described in the Agreement for the design and construction of Owner's project to renovate and remodel the Greene County Courthouse, Bloomfield, Indiana....

Id. In addition, Section 23 provides:

Division of Services/Liability. United and DLZ have entered into certain agreements under which DLZ will provide certain design and engineering services. In addition, in executing this Agreement, United and DLZ understand and agree that United will act as the principal and have full responsibility and liability for all services to be provided under the terms of this Agreement. In addition, DLZ will have responsibility and be liable to the Owner, as a third party beneficiary, for the services it provides. Further DLZ agrees that it will assign John S. Staley as the design architect for the Project.

Id. at 135 (emphasis added).

On June 26, 2001, DLZ and United entered into a Subcontract (AIA Standard Form of Agreement Between Architect and Consultant), which identifies United as "the Architect" and DLZ as "the Consultant" on the Project. Id. at 398. Article 2.3 of the Subcontract provides that DLZ is an independent contractor, and Article 3.1.7 states that DLZ "shall not be responsible for the acts or omissions of [United.]" Id. at 400. In addition, Article 4.5.4 provides in relevant part that DLZ "shall be responsible for [its] negligent acts or omissions, but shall not have control over or charge of and shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the Work." Id. at 402. And, significantly, Article 13.1 provides that United will compensate DLZ for its work on the Project based upon DLZ's invoices "per hourly rates established in Schedule II, Section C[.]" Id. at 411. DLZ's fees were "not to exceed" $527,763. Id. at 411-12. DLZ received payments for its work directly from United.

After the Project began, but before work was completed, the County filed a complaint against DLZ and United alleging breach of contract, breach of warranty, and negligence. In its second amended complaint, the County alleged that DLZ and United are jointly liable "as a Joint Venture." Id. at 293. After summary judgment motions and cross-summary judgment motions were filed on various issues, the trial court concluded in relevant part:

1. In regard to the issue of whether a joint venture relationship existed between DLZ Indiana, LLC. and United Consulting Engineers, Inc., the Court finds that there exists no genuine issue of material fact in regard to this issue.

2. Under Indiana law a joint venture is an association of two or more parties formed to carry out a single enterprise for profit through the combination of their property and services. Boyer v. First National Bank of Kokomo, 476 N.E.2d 895 (Ind.Ct.App.1985).

3. The Agreement for Design Services which was negotiated and executed by the parties to this cause provided in its opening paragraph that:

"This Agreement, made as of the 25th day of June, 2001, and amended this 21st day of August, 2001, by and between [United] and [DLZ], jointly and in collaboration (hereinafter collectively referred to as "the Firm") and [the County]"...

4. Throughout the Agreement, United and DLZ are treated as one entity vis-á-vis the plaintiff, and are collectively referred to as the "Firm." This specification of the two defendants as a single entity by means of a joint venture continues throughout the Agreement in regard to such areas as their equal responsibility for the quality of the work, the fact that they were hired as a single entity with combined expertise or special abilities to perform the work for the plaintiff; the responsibility of the "Firm" to indemnify the plaintiff for any ... damages ... resulting from performance of the Services; and in regard to the manner of payment, which was made directly to "the Firm" rather than to the separate defendants.

5. The Court further finds that Section 23 of the Agreement defines the allocation of risk between United and DLZ and does not negate the fact that these parties were jointly and severally liable under the Agreement to the plaintiff under their joint venture.

6. Lastly the evidence shows that at least one of the parties, namely United, considered this arrangement as a joint venture as evidenced by two letters from United's President to United's insurers placing them on notice of plaintiff's claims and referring to the project as one "joint ventured" with DLZ.

7. For all of these reasons, the Court finds that there exists no genuine issue of material fact that a joint venture relationship exists between DLZ and United. The Court further finds that there is no just reason for delay and that final judgment should be entered on this issue in favor of the [County].

Id. at 32.² Thus, the trial court granted the County's motion for partial summary judgment, and denied DLZ's motion for partial summary judgment on the joint venture issue. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

When reviewing summary judgment, this court views the same matters and issues that were before the trial court and follows the same process. Estate of Taylor ex rel. Taylor v. Muncie Med. Investors, L.P., 727 N.E.2d 466, 469 (Ind.Ct. App.2000), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the non-moving party. Jesse v. Am. Cmty. Mut. Ins. Co., 725 N.E.2d 420, 423 (Ind.Ct.App. 2000), trans. denied. Summary judgment is appropriate when the designated evidence demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). Interpretation of the language in a contract is a question of law especially suited for summary judgment proceedings. Simon Property Group, L.P. v. Michigan Sporting Goods Distribs., Inc., 837 N.E.2d 1058, 1070 (Ind.Ct.App.2005), trans. denied. We review questions of law de novo, and therefore we give no deference to the trial court's interpretation. Id.

Here, DLZ contends that the trial court erred when it concluded that there was a joint venture based upon the Agreement. When Indiana courts are called upon to interpret a contract, we apply the four-corners rule, which requires that as to any matter expressly covered in the written contract, the provisions therein, if unambiguous, determine the terms of the contract. Hilbert v. Conseco Servs., LLC, 836 N.E.2d 1001, 1008 (Ind.Ct.App.2005), trans. denied, cert. denied, 549 U.S. 884, 127 S.Ct. 237, 166 L.Ed.2d 147 (2006). Words used in a contract are to be given their usual and common meaning unless, from the contract and the subject matter thereof, it is clear that some other meaning was intended. Id.

We interpret a written contract by reading the contract as a whole, and we attempt to construe the language so as to not render any words, phrases, or terms ineffective or meaningless. Id. Thus, we must accept an interpretation of the contract which harmonizes its provisions. Id. If the language of the contract is unambiguous and the intent of the parties is discernible from the written contract, the court must give effect to the terms of the contract. Id. And, in reading the terms of a contract together, we keep in mind that the more specific terms control over any inconsistent general statements. See City of Hammond v. Plys, 893 N.E.2d 1, 4 (Ind.Ct.App.2008). Finally, whether a joint venture exists is generally a question of fact. See Byrd v. E.B.B. Farms, 796 N.E.2d 747, 754 (Ind.Ct.App.2003), trans. denied. However, where that question can be resolved by looking only to undisputed facts or an unambiguous contract, the existence of a joint venture is a question of law appropriate for summary judgment. See Simon Property Group, 837 N.E.2d at 1070; Byrd, 796 N.E.2d at 754. Cross-motions...