Edgerock Development, LLC v. C.H. Garmong & Son Inc

IN THE

Indiana Supreme Court

Supreme Court Case No. 24S-PL-184

EdgeRock Development, LLC, ZPS Westfield, LLC,

FILED

and First Bank Richmond, Jun 03 2025, 2:16 pm

Appellants/Defendants,

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

–v–

C.H. Garmong & Son, Inc., Signworks, Inc.,

and Fox Contractors Corp.,

Appellees/Plaintiffs.

Argued: September 5, 2024 | Decided: June 3, 2025

Appeal from the Hamilton Superior Court 5

No. 29D05-1912-PL-11500

The Honorable David K. Najjar, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 22A-PL-1968

Opinion by Justice Molter

Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.

Molter, Justice.

EdgeRock Development, LLC transformed five undeveloped lots into

the Trails of Westfield—a planned unit development in Westfield,

Indiana, comprising retail and residential projects. It still owns two of the

lots; it sold two lots to ZPS Westfield, LLC; and it sold one lot to a

nonparty. EdgeRock contracted with C.H. Garmong & Son, Inc. and Fox

Contractors Corp. to develop all five lots.

When EdgeRock first fell behind in its payments to Garmong, Garmong

recorded construction liens that EdgeRock satisfied by obtaining a loan

from First Bank Richmond, which the bank secured with a mortgage on

EdgeRock’s lots. Then, when EdgeRock fell behind again, Garmong and

Fox each recorded construction liens on all five lots in the development.

And the liens were redundant: Each lien stated a cumulative debt

covering the contractor’s work on all five lots, not just a debt for the work

benefiting the owner of the lot to which the lien attached. That meant the

contractors were using multiple properties with different owners to secure

the same debt.

Recording the liens didn’t prompt payment that time. So the

contractors sued EdgeRock for money damages on breach of contract

claims and sued the other property owners, including ZPS, to foreclose

the construction liens that secured the outstanding debts. Following a

bench trial, the trial court awarded the contractors most of the relief they

sought. But the Court of Appeals concluded the construction liens were

overstated because they were not limited to the debts for the

improvements directly benefiting the properties to which the liens

attached. And it reversed the portion of the judgment foreclosing the

construction liens.

We granted transfer to answer questions of first impression related to:

(1) the validity and scope of the contractors’ construction liens, and (2) the

priority between the construction liens and First Bank’s mortgage lien on

EdgeRock’s property. In short, we conclude that a construction lien

secures only the debt for improvements directly benefiting the property to

which the lien attaches. So the contractors can foreclose the liens on each

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 2 of 41

property to recover only those amounts, not amounts for work to improve

a different owner’s property.

We also conclude that First Bank’s mortgage lien is senior to the

construction liens for the amount the bank loaned to satisfy Garmong’s

prior construction lien. But the mortgage lien is junior for the remaining

amounts, including the amount the bank loaned EdgeRock to pay off a

prior mortgage held by the project’s investors.

Facts and Procedural History

I. Trails of Westfield Development

EdgeRock undertook to commercially develop seventeen acres of

property on the southeast corner of State Road 32 and Oak Ridge Road in

Westfield, Indiana. The property began as one parcel, and then EdgeRock

subdivided it into five lots, which the parties refer to as Lots 1 through 5.

The project was to build a mixed use, planned unit development known

as the Trails of Westfield, with Lot 4 zoned for multi-family apartments

and the rest zoned for retail businesses. This is how the property appeared

before it was developed:

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At that point, the land had no water or sanitary service, it had homes

on it that had to be demolished, and there was limited road access and

quality. The Anna Kendall Drain and stream ran through where 175th

Street was going to be built, and all five lots were in floodplains or

floodways. Thus, significant infrastructure and earthmoving work,

including moving the Anna Kendall Drain and stream, was required

before the property could be put to commercial use.

EdgeRock treated construction on all lots as one project with a single,

overarching infrastructure plan executed through a web of contracts.

EdgeRock-Garmong Contract (All Lots). EdgeRock hired C.H.

Garmong & Son, Inc. to construct common infrastructure (including

grading, sewer, and water) on all the lots and to construct buildings on

Lots 1 and 2. Fox Contractors Corp. was Garmong’s infrastructure

subcontractor for the EdgeRock-Garmong contract, enlisted to perform

earthwork and infrastructure installation. That entailed work on all five

lots, including utility work, earthwork on Lot 3 to raise its elevation, and

building a retention pond on Lot 5 to collect runoff from the area.

ZPS-EdgeRock Contract (Lots 1 and 2). ZPS Westfield, LLC bought

undeveloped Lots 1 and 2 from EdgeRock, and the parties entered a

development agreement requiring EdgeRock to construct retail buildings

and common infrastructure on those lots (which EdgeRock fulfilled

through a portion of its EdgeRock-Garmong contract). ZPS’s contract with

EdgeRock required work only on Lots 1 and 2, and ZPS agreed to pay

EdgeRock a total of $1,720,000, which ZPS did. After EdgeRock developed

Lot 1, ZPS leased it to Starbucks, and after EdgeRock developed Lot 2,

ZPS leased one portion to a Penn Station sandwich shop and another

portion to Forum Credit Union.

EdgeRock-Dahm Contract (Lot 3). EdgeRock sold Lot 3 to a nonparty,

Dahm No. 49, LLC, which Dahm developed into a Crew Carwash.

Lots 4 and 5. EdgeRock still owns Lots 4 and 5, which it intended to

develop into apartments and mixed-use retail shops, although it has not

yet done so.

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EdgeRock-Fox Contract. EdgeRock also had a separate, direct contract

with Fox to move the Anna Kendall Drain, to construct 175th Street

between Lots 1–3 and Lots 4–5, and to install related infrastructure. Fox’s

work on the 175th Street Project stretched from the southern portion of

Lot 2 east, benefiting all lots adjoining 175th Street. The 175th Street

Project was to be funded by Road Impact Fee Credits (“RIF Funds”)

issued by the City of Westfield.

This is what the area looked like after development through these

contracts:

II. First Bank Richmond Loan

As the project was progressing, EdgeRock stopped paying Garmong’s

invoices, leading Garmong to record a construction lien for $2,140,722.51.

At that point, Oak Ridge Investments, LLC owned Lots 4 and 5, and

EdgeRock was one of the company’s members, with Birch Dalton serving

as both companies’ manager. Oak Ridge’s investors held promissory notes

for the lots’ purchase price, which the investors secured through a

mortgage on the property.

EdgeRock satisfied Garmong’s lien by borrowing $4.9 million from

First Bank Richmond and using some of those funds to pay all of

Garmong’s overdue invoices. But EdgeRock used most of the loan

proceeds for its own general use or to pay the project’s investors, and it

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did not put any of the rest of the loan into the project. It used

$2,028,443.62—most of the remaining loan proceeds—to pay Oak Ridge

investors for satisfaction of their mortgage on Lots 4 and 5, with First Bank

then recording its own mortgage on those lots to secure its loan (along

with other security, including a security interest in the RIF Funds).

III. Garmong’s and Fox’s Subsequent Construction

Liens

After EdgeRock satisfied Garmong’s first lien, more payment disputes

arose between EdgeRock, Garmong, and Fox related to work under the

EdgeRock-Garmong Contract, leading Garmong to record two liens—one

on EdgeRock’s lots, the other on ZPS’s lots—both for the same amount

($1,009,055.62) covering the same work. Fox recorded three liens related to

its subcontract work for Garmong—one each on lots owned by EdgeRock,

Dahm, and ZPS—all for the same amount ($500,053.42) for the same work.

Later, Garmong issued a partial payment to Fox, and Garmong and Fox

stipulated that this $500,053.42 debt was reduced to $202,623.56.

Fox also recorded three construction liens (one each on properties

owned by EdgeRock, Dahm, and ZPS), all in the same amount

($1,213,228.23) for the same work on the 175th Street Project under the

EdgeRock-Fox contract. Fox later released its liens on Dahm’s property,

leaving the liens on EdgeRock’s and ZPS’s property remaining.

IV. Litigation

Garmong, and then Fox in quick succession, sued for damages and to

foreclose the liens. First, Garmong filed a Complaint for Foreclosure of

Mechanic’s Liens, Breach of Contract, Unjust Enrichment and Damages

against EdgeRock, ZPS, First Bank, Fox, and Signworks (another

subcontractor). Then EdgeRock, Fox, and ZPS counterclaimed. Fox also

filed cross-claims against EdgeRock and ZPS, as well as a third-party

complaint against Dahm. Fox’s claims against EdgeRock, ZPS, and Dahm

sought money damages under several theories and to foreclose its

construction liens (although it later dismissed its claims against Dahm).

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EdgeRock, ZPS, Garmong, and Fox all filed summary judgment

motions, which the trial court ruled on mid-trial. Also during the trial, the

City of Westfield interpleaded its RIF Funds totaling $938,322.40, in which

multiple parties claim an interest. Following an eight-day bench trial

(spread over several months), the court issued its Findings of Fact,

Conclusions of Law, and Judgment, which it later partially modified in an

order on motions to correct errors. Relevant to this appeal, the court’s

rulings were that Garmong prevailed on its breach of contract claim

against EdgeRock for $943,042.64 (plus interest and costs); Garmong could

foreclose its construction liens against EdgeRock’s lots for the same

amount (plus attorney fees); Garmong could foreclose its construction

liens against ZPS’s lots for the same amount (plus interest and costs); Fox

prevailed on its cross-claim for breach of contract against EdgeRock in the

amount of $1,301,531.37 (plus costs); Fox could foreclose its construction

liens on EdgeRock’s lots for $202,623.56 under the Garmong subcontract

and $1,166,728.23 under the EdgeRock-Fox contract (plus costs and

attorney fees); Fox could foreclose its construction liens on ZPS’s lots for

the same amounts (plus costs); the construction liens were senior to First

Bank’s mortgage lien except for the loan funds used to satisfy Garmong’s

previous lien; and EdgeRock was entitled to the RIF Funds.

EdgeRock, ZPS, and First Bank appealed, and Fox cross-appealed.1 The

Court of Appeals affirmed in part, reversed in part, and remanded with

instructions. The court held that by asserting duplicate liens on properties

with different owners and without segregating the debts by the

improvements attributable to each owner’s lots, Garmong and Fox

overstated their liens, rendering them invalid. EdgeRock Dev., LLC v. C.H.

Garmong & Son, Inc., 227 N.E.3d 907 (Ind. Ct. App. 2024). And because

those construction liens were invalid, there was no longer a priority

dispute with the bank’s mortgage lien. Id. at 931. The Court of Appeals

also held that the trial court erred by awarding the RIF Funds to

EdgeRock, instructing the trial court on remand to instead hold those

1 On appeal, Signworks and ZPS settled their claims with each other.

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funds pending parallel litigation in the Hamilton County Commercial

Court, which will determine which party is entitled to the funds. Id. at 936.

The court noted that its holdings regarding the lien foreclosures and RIF

Funds do not disturb the trial court’s monetary, in personam judgments

against EdgeRock on Garmong’s and Fox’s breach-of-contract claims. Id.

at 938–39.

Garmong and Fox then sought transfer, which we granted, 235 N.E.3d

135 (Ind. 2024), thus vacating the opinion of the Court of Appeals, Ind.

Appellate Rule 58(A).2

Standard of Review

The parties appeal the trial court’s summary judgment rulings, its final

judgment with findings of fact and conclusions of law, and its rulings on

motions to correct error. We review the trial court’s summary judgment

rulings de novo. Gierek v. Anonymous 1, 250 N.E.3d 378, 384 (Ind. 2025).

We apply a two-tiered standard of review to the findings of fact and

conclusions of law—“first determining whether the evidence supports the

findings and, if so, whether the findings support the judgment.” Town of

Linden v. Birge, 204 N.E.3d 229, 233 (Ind. 2023). We apply a clearly

erroneous standard to the trial court’s findings of fact and a de novo

standard to the trial court’s conclusions of law. Id. at 234. And we review

rulings on motions to correct errors for an abuse of discretion. Expert Pool

Builders, LLC v. Vangundy, 224 N.E.3d 309, 312 (Ind. 2024).

2 The Indiana Bankers Association filed an amicus brief in support of First Bank. Indiana

Constructors, Inc., the Indiana Builders Association, and Associated General Contractors of

Indiana, Inc. filed an amicus brief in support of Garmong and Fox. The number of briefs in

this case is extraordinary; the associated record is voluminous; and we granted the parties’

joint motion for an extended oral argument due to the number and complexity of the issues

on appeal. We commend all parties and amici for ensuring the quality of their arguments and

submissions matched the quantity.

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Discussion and Decision

When a contractor supplies labor or materials to improve real property,

Indiana provides a statutory remedy to secure the resulting debt—a lien

on the improved property, which when enforced may compel the

property’s sale to pay the debt. Ind. Code § 32-28-3-1 et seq.; Mann v.

Schnarr, 95 N.E.2d 138, 141 (Ind. 1950). These liens—commonly referred to

as “mechanic’s liens” or “construction liens”—augment rather than

replace claims like breach of contract, unjust enrichment, quantum meruit,

and account stated. They are “simply a method of collecting a debt or a

means of receiving payment,” and they are “not the claim upon which the

lien is founded.” 53 Am. Jur. 2d Mechanics’ Liens § 1 (2025).

While these liens were unknown at common law and in equity, they

trace their lineage at least as far back as France’s Napoleonic Code. Moore-

Mansfield Constr. Co. v. Indianapolis, New Castle & Toledo Ry. Co., 101 N.E.

296, 301 (Ind. 1913). They were first introduced in the United States as a

tool for developing the new capital city of Washington, D.C., and Indiana

enacted its first mechanic’s lien statute in 1834. Id.; see generally Note,

Mechanics Liens in Indiana—The Extent of the Property and Property Interests

Subject to the Lien, 36 Ind. L. J. 526, 529 (1961). “The historical origin and

purpose of mechanic’s lien statutes was to make a property owner an

involuntary guarantor of payments for the reasonable value of

improvements made to real estate by the physical labor or materials

furnished by laborers or materialmen.” Premier Invs. v. Suites of Am., Inc.,

644 N.E.2d 124, 130 (Ind. 1994). This prevents “the inequity of a property

owner enjoying the benefits of the labor and materials furnished by others

without recompense.” Id.

Garmong and Fox contend they are entitled to foreclose their

construction liens on EdgeRock’s and ZPS’s properties because they

improved those properties through work and materials for which they

have not been paid. EdgeRock and ZPS both acknowledge the contractors

had statutory lien rights for unpaid work, but they argue the liens are

invalid here because, they contend, the liens were grossly overstated and

untimely. If, on the other hand, the contractors can foreclose their liens,

then First Bank argues any property sale proceeds must first go to repay

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its $4.9 million loan because, either as a matter of statutory lien priority or

equitable subrogation, the bank’s mortgage lien is senior to the

contractors’ construction liens.

In Section I below, we analyze the scope and validity of Garmong’s and

Fox’s construction liens, concluding that the liens are valid for

improvements directly benefiting the properties to which they attach, but

not for improvements directly benefiting another owner’s property. Then,

in Section II, we analyze the lien priority between the construction liens

and the mortgage lien, concluding that the mortgage lien is senior as

security for the loan funds that went to satisfying Garmong’s previous

lien, but junior to the construction liens for the remaining funds.

I. Scope and Validity of the Construction Liens

The trial court foreclosed Garmong’s and Fox’s construction liens

against ZPS’s and EdgeRock’s lots. On appeal, EdgeRock and ZPS pursue

a three-prong challenge to those liens. First, EdgeRock and ZPS argue the

liens are invalid because the statute did not permit Garmong and Fox to

secure their debts in duplicate (sometimes triplicate) by filing redundant

liens against multiple properties with different owners, all covering the

same labor and materials. Second, EdgeRock and ZPS argue the liens are

invalid because they were recorded too late. And third, they assert various

challenges to the underlying debts that the liens secure.

While we agree with EdgeRock and ZPS that each lien can secure no

more than the debt for the improvements to the property attached to the

lien, we otherwise affirm the trial court’s judgment as to the validity of the

liens and the debts they secure.

A. Lien Duplication

Garmong and Fox contend they could assert duplicate liens on

properties with different owners because all their work was connected by

contracts through a single overarching development plan. That is,

Garmong contends it was proper to assert a lien against EdgeRock’s Lots 4

and 5 for the unpaid balance of $943,042.64, and then to assert another lien

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for the same amount covering the same work against ZPS’s Lots 1 and 2.

Fox takes the same position: It was proper for Fox to assert a lien against

EdgeRock’s Lots 4 and 5 for the unpaid balance of $1,303,531.37, and then

to assert another lien for the same amount covering the same work against

ZPS’s Lots 1 and 2. Garmong and Fox’s position is based on the view that

“when there are multiple lots with multiple owners, the structure of the

contract is key and lien rights follow the contract even without common

ownership.” C.H. Garmong & Son, Inc.’s and Fox Contractors Corp.’s

Joint Pet. to Trans. at 15.

EdgeRock and ZPS disagree. They contend that when contractors work

on properties with different owners, the contractors must allocate the

debts between properties, or at least between property owners, even when

all the work stems from a single contract. Here, that would mean

Garmong’s and Fox’s liens against EdgeRock’s property could cover only

improvements to that property, and their liens against ZPS’s property

could cover only improvements to that property.

Four reasons lead us to agree with EdgeRock and ZPS that duplicate

liens are improper, which we discuss next. After that, we explain, as

Garmong and Fox argue, the remedy for the lien overstatement is to

reduce the liens, not, as EdgeRock and ZPS argue, to invalidate them in

their entirety.

1. Statutory Language

The first reason we agree with EdgeRock and ZPS is that the statutory

language ties liens to property ownership, with no mention of contracts.

The statute says the lien attaches to (1) the structure or improvement itself

(for example, a building), and (2) “the interest of the owner of the lot or

parcel of land” on which the structure or improvement stands or to which

the structure or improvement is connected. I.C. § 32-28-3-1(b) (emphasis

added). “The entire land upon which the building, erection, or other

improvement is situated, including the part of the land not occupied by

the building, erection, or improvement, is subject to a lien to the extent of

the right, title, and interest of the owner for whose immediate use or

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benefit the labor was done or material furnished.” I.C. § 32-28-3-2(a)

(emphasis added).

Despite these references to property ownership, Garmong and Fox

argue the statute links their lien rights to the contract compelling their

labor and materials, not to the ownership interest in the improved

property. For support, they point to other statutory language saying that

liens cover improvements “connected” to property. I.C. § 32-28-3-

1(b)(2)(B). To say that something is “connected” to property generally

means that it is “joined or linked together” with the property. Connected,

Merriam-Webster, https://www.merriam-webster.com/dictionary/

connected [https://perma.cc/JER5-B4R9] (last visited June 3, 2025). And

Garmong and Fox view a contract to improve multiple lots as joining or

linking each improvement to all the lots subject to the contract.

But this argument fails because the statutory context makes clear that is

not what the legislature meant by “connected,” and the legislature was

instead referring to a physical connection. See Hyland v. Rochelle, 100 N.E.

842, 849 (Ind. 1913) (explaining that the meaning of statutory terms “is to

be collected from the context” (quotations omitted)). The statutory term

“connected” is part of the provision establishing the scope of a lien:

A person described in subsection (a) may have a lien separately

or jointly:

(1) upon the house, mill, manufactory, or other building,

bridge, reservoir, system of waterworks, or other structure,

sidewalk, walk, stile, well, drain, drainage ditch, sewer,

cistern, or earth:

(A) that the person erected, altered, repaired, moved, or

removed; or

(B) for which the person furnished materials or

machinery of any description; and

(2) on the interest of the owner of the lot or parcel of land:

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(A) on which the structure or improvement stands; or

(B) with which the structure or improvement is

connected;

to the extent of the value of any labor done or the material

furnished, or both, including any use of the leased equipment

and tools.

I.C. § 32-28-3-1(b) (emphasis added).

Subparts (2)(A) and (2)(B) above use different prepositional phrases so

that together they authorize liens for all categories of structures and

improvements listed in Subpart (1). Subpart (2)(A) authorizes a lien for the

property “on which the structure or improvement stands.” I.C. § 32-28-3-

1(b)(2)(A). Those structures and improvements “on” the property would

include a “house, mill, manufactory, or other building” listed in

Subpart (1). Those same examples are also listed earlier in the statute

when establishing which vendors and which work qualify for a lien.

I.C. § 32-28-3-1(a)(1)(A) (allowing a lien for the “erection, alteration,

repair, or removal of . . . a house, mill, manufactory, or other building”).

But some structures or improvements do not necessarily stand “on” the

property, or at least not “on” the portion of property subject to the lien. So

Subpart (2)(B) authorizes a lien for property “with which the structure or

improvement is connected,” I.C. § 32-28-3-1(b)(2)(B), even if the structure

or improvement is not “on” the property, I.C. § 32-28-3-1(b)(2)(A). Again,

Subpart (1) gives examples of improvements that are physically connected

to a property: a “bridge, reservoir, system of waterworks, or other

structure, sidewalk, walk, stile, well, drain, drainage ditch, sewer, [or a]

cistern.” I.C. § 32-28-3-1(b)(1). And again, that list mirrors the examples

earlier in the statute establishing which vendors and which work qualify

for a lien. I.C. § 32-28-3-1(a) (allowing a lien for the “erection, alteration,

repair, or removal of . . . a bridge, reservoir, system of waterworks, or

other structure,” as well as “the construction, alteration, repair, or removal

of a walk or sidewalk located on the land or bordering the land, a stile, a

well, a drain, a drainage ditch, a sewer, or a cistern”). All these examples

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either tie portions of the land together or link the property with other

property.

From the statutory context, then, we can see the term “connected”

denotes a physical connection, linking portions of the property together or

linking the property to other property. Nothing in the statute suggests the

term means something else, like a connection to the property through a

contract, as Garmong and Fox propose.

2. Case Law

The case law confirms our interpretation, rejecting Garmong and Fox’s

view that a lien’s scope depends on whether all the work stems from a

single contract. See Shilling v. Templeton, 66 Ind. 585, 587 (1879) (“It is the

law and not the contract that gives the mechanic his lien.”). For example,

in Saint Joseph’s College v. Morrison, Inc., the Court of Appeals described as

“an erroneous conclusion of law” the view that “a valid mechanic’s lien

cannot embrace work done under two separate contracts.” 302 N.E.2d 865,

871 (Ind. Ct. App. 1973). The court explained that what has generally

mattered throughout the cases is not the number of contracts but whether

all the work subject to the lien (a) occurred “on one plot of real estate” and

(b) was “pursuant to a common plan of improvement” for that property.

Id. at 872; see also id. at 873 (recognizing that prior case law held that a joint

lien was proper for material furnished under “two distinct contracts”

because “all of the items were furnished for the same improvement upon

one piece of property”). The fact that work was performed pursuant to a

single contract may be evidence that the work was pursuant to a common

plan of improvement, but that does not mean all the work improved the

same plot of land, so the contract does not by itself determine whether a

joint lien is proper.

Garmong and Fox read the case law differently. The first category of

cases they rely on allows “joinder of claims in cases where such joinder

will not prejudice the rights of the property owner.” Id. at 874. For

example, in Premier Steel Co. v. McElwaine-Richards Co., we affirmed the

foreclosure of McElwaine-Richards’s lien for the steam, gas, and water

pipes it supplied to Premier Steel Company for extensive renovations

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throughout a steel plant even though the supplier didn’t separate the

orders by the “particular mill or building” that used the pipes. 43 N.E. 876,

877 (Ind. 1896). Our decision was based on the rule that:

Where labor is performed or materials furnished under one

contract upon several buildings, all situate upon one lot of land

belonging to the contracting owner, the lien attaches to all the

land for the whole value of the labor performed, and it is

immaterial whether the contract specifies one sum for all work

or separate amounts for each building.

Id. at 877–78 (emphasis added) (quoting Jones, Liens, § 1313).

As later case law explained, the key takeaway from Premier Steel Co. is

that where all the work was done on a single piece of property, there is

“no valid public purpose in promoting multiple notices and foreclosures

in situations where a single lien would suffice.” Saint Joseph’s Coll., 302

N.E.2d at 874. Instead, the cases recognize “a policy of avoiding needless

multiplicity of proceedings.” Id. But as the bolded language above reflects,

it was critical to our holding in Premier Steel Co. that the multiple buildings

subject to a single lien all had the same owner. If the buildings had

different owners, then it would “prejudice the rights of the property

owner” to include in the lien the value of improvements to another

owner’s property. Id.

Another case in this category that Garmong and Fox cite is West v.

Dreher, 126 N.E. 688 (Ind. App. 1920). Dreher owned two adjoining lots,

and he built a house on each. The plaintiffs supplied labor and materials

for both houses and then recorded a single lien against both houses for the

unpaid balance. The Appellate Court (now the Court of Appeals) held:

“Where a contractor, under a single contract, has furnished materials and

performed labor in the construction of two separate dwelling houses, one

house on each of two contiguous lots, the labor and materials having gone

indiscriminately into the construction of both houses,” the contractor is

“entitled, by a single notice, to a lien on both houses and lots.” Id. at 689.

The court reasoned that “the two houses, within the mechanics’ lien law of

this state, are one piece of work” and therefore subject to a single lien. Id.

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Again, and critically, both neighboring lots had the same owner, so

there was no need to require separate liens. The relevance of the contract

was just to establish that the property owner approved the improvements

and that they were all part of a common plan. Nothing in the case

suggests the court would have permitted a joint lien on both houses if

they had different owners.

The second category of cases on which Garmong and Fox rely

recognizes that property may be subject to a lien even when the

improvements are offsite. In Wells v. Christian, 76 N.E. 518 (Ind. 1906), a

boiler operator hired a contractor to install steam-distribution pipes under

a neighboring street, and the contractor sued to foreclose a lien on the

operator’s property for the unpaid balance. We held the lien could be

foreclosed, explaining that “[t]he mains and pipes laid down in the streets

and elsewhere to distribute the steam among those who are to enjoy the

beneficial use of it are clearly a part of the apparatus necessary to

accomplish the objects for which such heat plant was erected.” Id. at 519.

In other words, the steam pipes connected to the property “constitute a

part of the machinery by means of which the business of supplying heat to

others must be carried on.” Id. Because the work was “directly and

necessarily connected with the erection of the appellee’s heating system,

. . . it was an immaterial matter whether such work was performed upon

the particular premises to which the labor lien primarily attached.” Id.

Again, we affirmed the foreclosure because the lien covered the value

of improvements benefiting the property subject to the lien; we did not

approve a lien covering the value of improvements to someone else’s

property who did not consent to the debt. Wells also illustrates the

physical connection the statute requires. The steam pipes physically

linked customers to the heating plant. So in the statutory parlance, while

the pipes weren’t “on” the property with the heating plant, they were

“connected” to that property. I.C. § 32-28-3-1(b)(2)(A) & (B).

As Garmong and Fox acknowledge, “[n]o Indiana case has addressed

these facts where work was performed under one contract on multiple lots

with different owners” and a contractor asserted duplicate liens for all the

work against each improved property. C.H. Garmong & Son, Inc.’s and

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 16 of 41

Fox Contractors Corp.’s Joint Pet. to Trans. at 2. The cases to date suggest

a joint lien cannot cover property with different owners. And allowing a

joint lien to cover improvements to separate properties with separate

owners where one owner did not consent to the work benefiting another’s

property would conflict with a fundamental requirement of construction

liens, which leads to the next reason we agree with EdgeRock and ZPS’s

interpretation of the lien statute.

3. Consent

One lien requirement is that the property owner must have consented

to the improvements to their property. Gill v. Pollert, 810 N.E.2d 1050, 1058

(Ind. 2004); see generally 19 Ind. Law Encyc. Mechanics’ Liens § 18 (2025)

(“The creation of a mechanic’s lien requires the authorization or consent of

the property owner to the improvement in question.”). This is consistent

with the lien’s theoretical underpinning as a tool to prevent unjust

enrichment, a claim which also includes consent as an element. See Kohl’s

Indiana, L.P. v. Owens, 979 N.E.2d 159, 167–68 (Ind. Ct. App. 2012)

(“Indiana courts articulate three elements for this claim: (1) a benefit

conferred upon another at the express or implied consent of such other

party; (2) allowing the other party to retain the benefit without restitution

would be unjust; and (3) the plaintiff expected payment.”); Lee & Mayfield,

Inc. v. Lykowski House Moving Eng’rs, Inc., 489 N.E.2d 603, 608 (Ind. Ct.

App. 1986) (“The statutory lien is equitable in nature and based upon the

theory of unjust enrichment.”).

For a lien, the “consent must be more than inactive or passive consent,

and the lien claimant’s burden to prove active consent is especially

important when the improvements are requested by someone other than

the landowner.” Gill, 810 N.E.2d at 1059 (quotations omitted). We’ve

acknowledged that “[t]he exact nature and content of the owner’s active

consent in this context will vary from case to case.” Id. (quotations

omitted). But “case law makes clear that the focus is not only on the

degree of the owner’s active participation in the decisions and the actual

construction.” Id. (quotations omitted). The focus is “also on how closely

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 17 of 41

the improvements in question resemble a directly bargained-for-benefit.”

Id. (quotations omitted).

Allowing duplicate liens that cover work directly benefiting other

owners’ properties would undermine this requirement. For example, a

homeowner might expressly or impliedly consent to work connecting

their lot to a development through a sidewalk, road, sewer, or other

utilities. And as a result, they may be required to shoulder through a lien

their portion of the cost of those improvements directly benefiting their

property. But it would be quite a stretch to suggest that single homeowner

consented to, and effectively bargained for, the development of the rest of

the broader network of sidewalks, roads, sewers, and utilities that connect

everyone else in the neighborhood along with their lot. See generally 53

Am. Jur. 2d Mechanics’ Liens § 46 (2025) (“As a general rule, a mechanic’s

lien attaches only to the estate or interest of the person who, directly or

through an agent, creates the lien by contracting for the labor or materials,

and accordingly only such party’s interest can be subjected to a sale to

satisfy the lien.”).

So each property owner must pay their own way, but that means

paying only for the improvements they effectively consented to and

bargained for, which takes us to our final point.

4. Guarantor

Garmong and Fox’s statutory interpretation would convert property

owners to guarantors of other property owners’ debts. But that isn’t the

function of a construction lien under Indiana law.

To be sure, a lien makes “a property owner an involuntary guarantor of

payments for the reasonable value of improvements made to real estate by

the physical labor or materials furnished by laborers or materialmen.”

Premier Invs. v. Suites of Am., Inc., 644 N.E.2d 124, 130 (Ind. 1994). But that

is for improvements to the property owner’s own property, not someone

else’s property. Again, the scope of the lien is limited to “the right, title,

and interest of the owner for whose immediate use or benefit the labor

was done or material furnished.” I.C. § 32-28-3-2(a).

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“A lien cannot exist without the existence of a debt which, under the

statute, it secures.” Mann v. Schnarr, 95 N.E.2d 138, 141 (Ind. 1950).

Garmong and Fox already obtained a money judgment against EdgeRock

for the money it owed them under the parties’ contract and failed to pay.

And ZPS already paid EdgeRock for the property improvements it

consented to. But ZPS never agreed to guarantee EdgeRock’s debts. So just

as ZPS isn’t a guarantor of EdgeRock’s money judgment, ZPS also isn’t a

guarantor of EdgeRock’s debts for improvements to EdgeRock’s property

through a lien on ZPS’s property. See McGrew v. McCarty, 78 Ind. 496, 498

(1881) (“[O]ne can no more be made to discharge the debt of another

building than one individual debtor can be made to pay a separate claim

owing by somebody else to the same creditor.”).

By analogy, consider again a typical housing development. Our lien

statute codifies a policy that a homeowner who actively consents to their

property being improved through a connection to the neighborhood’s

sidewalks, streets, sewer, and other utilities might be compelled to

guarantee the debt for the costs of their connection. But it does not follow

that the same homeowner should also shoulder the costs for

improvements to other homeowners’ properties. It is one thing to give a

contractor a security interest in property it has improved; it is quite

another to make that property owner the guarantor for the debts of all the

surrounding property owners.

Having concluded that EdgeRock and ZPS are correct that Garmong’s

and Fox’s duplicate liens are improper, we must turn to determining the

remedy.

B. Lien Reduction

The trial court did not allocate the lien amounts between EdgeRock’s

and ZPS’s properties because the court mistakenly believed each

contractor could apply the entire debt to both property owners. EdgeRock

and ZPS argue, and the Court of Appeals agreed, that Garmong’s and

Fox’s overstatement of their liens renders them void. But no reported case

in Indiana has ever held that a lien was void because the vendor

overstated the amount owed, and this case should not be the first.

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Our Court of Appeals has observed that where a party “intentionally or

through culpable negligence” overstates the lien amount, the

overstatement voids the whole lien. Abbey Villas Dev. Corp. v. Site

Contractors, Inc., 716 N.E.2d 91, 100–01 (Ind. Ct. App. 1999) (quotations

omitted). But that same authority recognizes that “a mere mistake in the

statement will not necessarily render the whole lien void when it is

evident that no fraud is intended, and where it has not misled the

defendant owner to his prejudice in making his defense.” Id. (quotations

omitted). Both sides accept these statements as accurate reflections of

Indiana law.

The trial court held that even if Garmong and Fox overstated the lien

amount, the overstatement does not void their liens because the

overstatement was based on a good faith dispute about Indiana law; it

was an open question whether the liens tracked the contract or property

ownership. Neither EdgeRock nor ZPS point to any basis on which we

could conclude the trial court misapprehended the law when concluding

that a lien is not void when an overstatement is based on a good faith legal

dispute, nor do they point to any evidence that Garmong or Fox acted

fraudulently.

We therefore conclude the trial court did not clearly err by declining to

void the liens based on overstatement. But the liens on each property still

need to be revised to reflect the materials and services directly improving

the property to which each lien attaches. Next, we apply that limitation to

the three pairs of liens.

1. Garmong’s Liens for Improvements Under

the EdgeRock-Garmong Contract

The trial court approved $943,042.64 (plus fees and interest) for

Garmong’s duplicate liens against (a) ZPS’s Lots 1 and 2, and (b)

EdgeRock’s Lots 4 and 5. Those liens reflect Garmong’s final two unpaid

invoices (Invoices 6224-10 and 6224-11) for the EdgeRock-Garmong

contract, which was a contract (a) to construct buildings on Lots 1 and 2,

and (b) to construct common infrastructure (including grading, sewer, and

water) for all lots.

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We start with the work related to constructing buildings on ZPS’s Lots

1 and 2. As we discussed above, the lien for those improvements can

attach only to the property directly benefited, so the lien amounts for

constructing buildings on ZPS’s lots can attach only to those lots, not

EdgeRock’s lots. And for the building construction on ZPS’s lots, there is

no dispute that ZPS approved the construction, that the construction

directly improved ZPS’s property, and that it was therefore proper for

Garmong to assert a lien for those improvements. As to ZPS, the dispute is

only over which charges on Invoices 6224-10 and 6224-11 relate to

constructing the buildings on ZPS’s lots instead of work and materials for

common infrastructure improving other owners’ properties.

The trial court examined the invoices and concluded that the line items

totaling “$520,509.70 for Masonry, Metal Panels, Membrane Roofing, Ipe

Siding, Entrances and Storefronts, Painting, Plumbing and HVAC,

Electrical, Asphalt Paving, Fences and Gates, Landscaping, and [Change

Order] #4” reflect work and materials that “went directly into ZPS’s

buildings and land.” App. Vol. 2 at 153, ¶ 48. ZPS does not claim these

charges were for work or materials that went somewhere other than to

directly improve its Lots 1 and 2. It instead argues there is no evidentiary

support for the trial court’s finding.

We disagree. The only building construction under the Garmong-

EdgeRock contract was for the two buildings on ZPS’s Lots 1 and 2, so it

was reasonable for the trial court to infer that these building-related

construction charges were for ZPS’s lots. Thus, we affirm the trial court’s

judgment as to a lien on ZPS’s Lots 1 and 2 for $520,509.70.

Beyond that, though, the evidence does not support the trial court’s

conclusion that “the full $943,042.64 owed on invoices 6224-10 and 6224-11

directly benefited ZPS’s property.” App. Vol. 2 at 153, ¶ 52. Just the

opposite—Garmong’s Regional Manager, Mitch Hannum, who was

involved in calculating the lien amount, testified that the amounts were

not apportioned by lot, and the lien amounts include work on all five lots.

Similarly, Garmong’s Chief Financial Officer, Michael Preyss, who

executed the lien on Garmong’s behalf, testified he does not know the

allocation of the lien amounts between lots.

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Despite this testimony, the trial court inferred from Fox’s pay

applications as a subcontractor that this work benefited ZPS. On appeal,

the closest Garmong comes to justifying the attribution of these remaining

expenses to ZPS is to say that the “bulk” of some of the categories of

charges should be attributable to ZPS, and that other charges benefited

ZPS in an unspecified “part.” Br. of Appellee C.H. Garmong & Sons, Inc.

at 46. But ZPS is responsible only for those improvements it consented to

for the direct benefit of its own property; it is not responsible for other

amounts merely because they include an unspecified portion that directly

benefited ZPS’s property. The lien on ZPS’s Lots 1 and 2 must therefore be

reduced to $520,509.70, reflecting the building expenses to which ZPS

consented and which directly benefited ZPS’s property.

Because there is no finding that the remaining amount is attributable to

improvements directly benefiting EdgeRock’s property—and the evidence

is that the work was across all five lots—EdgeRock’s Lots 4 and 5 are not

subject to a construction lien for any of the $943,042.64. That said, while

EdgeRock’s property is not subject to a construction lien for any of that

amount, the property remains subject to a judgment lien for the entire

amount based on Garmong’s successful breach of contract claim against

EdgeRock. (We recognize that a judgment lien has a lower priority than a

construction lien, though.)

Also, ZPS already paid EdgeRock for the improvements to its property

that are the subject of the liens against Lots 1 and 2, and it was EdgeRock

that failed to pass along ZPS’s payment to Garmong. So to minimize the

extent to which ZPS will otherwise pay for the same work twice, the trial

court ordered that EdgeRock’s Lots 4 and 5 must be sold first, and any

sums paid to Garmong from that sale will reduce the judgment against

ZPS in the same amount. No party has challenged that instruction on

appeal, and we leave it undisturbed.

The trial court also mistakenly included pre-judgment interest in its

award to Garmong against ZPS. Garmong argues pre-judgment interest

“is warranted if the contract terms make the claim ascertainable and the

amount rests upon mere calculation.” Br. of Appellee C.H. Garmong &

Son, Inc. at 52 (quoting Johnson v. Blankenship, 679 N.E.2d 505, 509 (Ind. Ct.

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 22 of 41

App. 1997), summarily aff’d, 688 N.E.2d 1250 (Ind. 1997)). But the claim did

not rest upon mere calculation because Garmong declined to allocate the

charges by lot, so it was only through trial that ZPS could learn how to

excise its debt from others’ debts for which ZPS was not a guarantor.

See Pichon v. Am. Heritage Banco, Inc., 983 N.E.2d 589, 601 (Ind. Ct. App.

2013) (“Damages that are the subject of a good faith dispute cannot allow

for an award of prejudgment interest.”), trans. denied.

In sum, although Garmong’s construction liens against EdgeRock’s Lots

4 and 5 are invalid, its judgment liens against EdgeRock remain valid.

Garmong’s construction liens on ZPS’s Lots 1 and 2 are valid only for the

amount of $520,509.70,3 and they may be enforced only if the sale of

EdgeRock’s Lots 4 and 5 does not satisfy the debt.4

2. Fox-Garmong Subcontract

Garmong engaged Fox as a subcontractor under the EdgeRock-

Garmong contract “to provide earthmoving and common utility and

private infrastructure work in the Project (the ‘Garmong Subcontract’).”

App. Vol. 2 at 128, ¶ 125. The subcontract price was $1,315,000, and

Garmong and Fox have stipulated that $202,623.56 of that amount remains

unpaid.

The trial court concluded that Fox could assert duplicate liens for this

debt against both EdgeRock’s and ZPS’s properties. It found that “[t]he

common utility and infrastructure work in the Project was phased across

the entire Project, and Fox performed this common infrastructure and

3ZPS incorporates EdgeRock’s argument that Garmong’s liens were not timely, but the

arguments for these charges are specific to EdgeRock’s lots. ZPS does not make a timing

argument specific to the charges that we have concluded the trial court properly validated for

the liens on Lots 1 and 2. We therefore do not disturb the trial court’s conclusion that

Garmong’s liens were timely as to ZPS.

4We summarily affirm the holding of the Court of Appeals that the trial court did not err in

concluding that factual disputes precluded summary judgment on EdgeRock’s claim that

Change Order #3 was invalid because it was not approved in writing. EdgeRock Dev., LLC v.

C.H. Garmong & Son, Inc., 227 N.E.3d 907, 931–32 (Ind. Ct. App. 2024).

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 23 of 41

utility work in accordance with the general phasing of the Project’s

infrastructure plans.” App. Vol. 2 at 154, ¶ 63(d). The trial court further

found that the work “benefit[s] the entire development.” Id. ¶ 64(e).

We affirm the trial court’s judgment for this amount as to EdgeRock but

not ZPS. The “trial court’s judgment comes to this court clothed with a

presumption of validity, and the appellant bears the burden of proving

that the trial court erred.” Consumer Att’y Servs., P.A. v. State, 71 N.E.3d

362, 364 (Ind. 2017) (quotation omitted). On appeal, EdgeRock does not

dispute that these specific remaining charges were for infrastructure

improvements on or connecting to its lots, that it requested these

improvements, and that the improvements directly benefited its property.

Instead, EdgeRock claims it was entitled to summary judgment based

on its argument that Fox did not record its lien within the statutorily

required ninety days. But as the trial court appropriately concluded, the

lien was timely because “Fox last performed common utility and

infrastructure work for the Project under the Edgerock Contract on June 3,

2019,” which was less than ninety days before Fox recorded its lien on

EdgeRock’s Lots 4 and 5 on August 30, 2019. App. Vol. 2 at 138, ¶ 150.

And we find no error in the trial court’s conclusion that the work fell

within the scope of the Garmong subcontract, rather than reflecting

merely incidental repair work as EdgeRock suggests.

EdgeRock also argues that Garmong’s and Fox’s liens are invalid

because Garmong expressly released “any and all claims and liens”

against EdgeRock “by reason of labor, materials or equipment furnished

by it in connection with” Garmong’s “installation of the water and

sanitary mains under the contract.” Br. of Appellant EdgeRock

Development, LLC at 62 (quoting Release of Liens, App. Vol. 5 at 142);

see also Br. of Appellant ZPS Westfield, LLC at 57 (joining EdgeRock’s

argument). But the parties’ briefing does not reveal what, if any, portion

of the liens relate to the water and sanitary mains. And if any portion

does, that would be a reason to reduce rather than invalidate the liens, as

discussed above. The trial court therefore did not err by declining to

invalidate the liens through summary judgment on this basis, and

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EdgeRock does not challenge the trial court’s findings and conclusions on

this same basis.

ZPS is in a much different position than EdgeRock, though, because it

did not consent to the work on EdgeRock’s lots under the Garmong-Fox

subcontract. We therefore reverse the trial court’s judgment validating

these liens on ZPS’s Lots 1 and 2.

3. 175th Street Project

Lastly, the trial court approved Fox’s duplicate $1,166,728.23 liens

against EdgeRock’s and ZPS’s properties for outstanding debts stemming

from the 175th Street Project.5 For that project, Fox “entered into a direct

contract with Edgerock to construct 175th Street, to provide additional

common utility work for the Project, and to relocate the Anna Kendall

Drain.” App. Vol. 2 at 131, ¶ 133. This work consisted of:

• Clearing and demolition work and erosion control;

• Excavated existing Anna Kendall Drain, placed stone base

and then filled the area with B-Borrow;

• Relocated and stabilized Anna Kendall Drain;

• Installed stormwater infrastructure end along 175th Street,

including piping and [outlet] into detention pond;

• Excavated part of detention pond southeast of lift station;

5 EdgeRock argues this lien was also untimely. The trial court concluded that the lien was

timely because Fox’s work under this contract continued until June 3, 2019, less than ninety

days before Fox recorded its lien on EdgeRock’s Lots 4 and 5 on August 30, 2019. Again, we

find no error in the trial court’s conclusion.

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• Installed box culvert extension on east side of Oakridge

Road – extended existing culvert with the relocation of the

Anna Kendall Drain;

• Graded and prepped roadway from first 200 feet east to

connect to Wheeler Road, and paved in front of Crew

Carwash area;

• Installed part of the waterline that was to continue on east to

connect into the main at the end to complete the loop all the

way to Wheeler Road.

App. Vol. 2 at 132–33, ¶ 137 (letters replaced with bullet points).

Some of the work was “actually performed on the Edgerock Real

Estate,” and the remainder “would benefit the entire Project” because it

“made the development of the entire Project possible,” which no party

disputes on appeal. App. Vol. 2 at 132–33, ¶¶ 136, 138. Those findings are

sufficient to support the trial court’s conclusion that the liens on

EdgeRock’s Lots 4 and 5 for these improvements are valid. EdgeRock

requested all this work; the work was for infrastructure physically

connected to EdgeRock’s lots; and all the work directly benefited

EdgeRock’s property and its commercial enterprise, much as physically

connecting the infrastructure to the boiler operation in Wells was

“necessary to accomplish the objects for which” the “plant was erected.”

76 N.E. at 519.6

But again, it is a different story with ZPS. While these improvements

indirectly benefited ZPS’s lots by making them amenable to development,

ZPS never bargained for or consented to this work, and there is no

6We summarily affirm the holding of the Court of Appeals that the trial court did not err in

granting Garmong’s summary judgment motion (and denying EdgeRock’s competing

summary judgment motion) on EdgeRock’s claim that it was entitled to a credit for amounts

owed under the EdgeRock-Garmong contract for work related to the 175th Street Project and

the drain relocation. EdgeRock Dev., LLC, 227 N.E.3d at 932 (Ind. Ct. App. 2024).

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 26 of 41

evidence that ZPS would have agreed to develop Lots 1 and 2 had it

known it would be responsible for preparing the lots for development

along with preparing the surrounding lots for development too. In other

words, unlike EdgeRock, ZPS never agreed to be a guarantor of the debts

for this work.

Thus, for the amounts due under the EdgeRock-Fox contract, we affirm

the trial court’s foreclosure of Fox’s liens on EdgeRock’s property but

reverse Fox’s judgment against ZPS.

II. Lien Priority

Because Garmong’s and Fox’s lien foreclosures force the sale of

EdgeRock’s Lots 4 and 5, we must next determine the order—the

priority—that those sale proceeds will be applied to (a) the debts that the

construction liens secure, and (b) the $4.9 million debt that First Bank’s

mortgage lien secures. To recap, this is the timeline of relevant events for

that dispute:

March 31, 2016 Oak Ridge Investments mortgaged Lots 4 and 5 to

secure the purchase of the lots.

Dec. 4, 2018 Garmong recorded a $2,140,722.51 lien on Lots 4

and 5.

Feb. 25, 2019 First Bank recorded a mortgage lien on Lots 4

and 5 to secure its $4.9 million loan to EdgeRock

after: (a) EdgeRock used some of the bank’s loan

proceeds to satisfy Garmong’s December 2018

lien; (b) EdgeRock used other of those loan

proceeds to satisfy the Oak Ridge Investments’

mortgage; and (c) Oak Ridge Investments

quitclaimed Lots 4 and 5 to EdgeRock.

Aug. and Sept. 2019 Garmong and Fox recorded construction liens on

Lots 4 and 5 covering work that began before First

Bank recorded its mortgage lien.

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The parties and the trial court all agree that the bank’s mortgage lien is

senior for the $2,140,722.51 the bank loaned EdgeRock to satisfy

Garmong’s December 2018 construction liens, but the trial court

concluded the construction liens were senior to the mortgage lien securing

the remainder of the loan proceeds.

On appeal, the bank argues its mortgage lien is senior for all the funds

its lien secures for three reasons. First, the bank recorded its lien before

Garmong and Fox recorded their liens. Second, even if the construction

liens would otherwise be senior, there is a statutory exception granting

seniority to a mortgage lien that secures construction project financing.

And the bank claims all the funds it loaned EdgeRock qualify under this

exception, not just the funds to satisfy Garmong’s prior lien. Third, the

bank argues that equitable subrogation puts its mortgage lien in the same

priority position as the previous mortgage that the bank’s loan funds

satisfied.

We address the bank’s three arguments in turn, ultimately agreeing

with Garmong and Fox as to each.

A. Construction lien priority is determined by the

date work begins, not the date the lien is recorded.

Generally, “priority in time gives a lien priority in right.” Johnson v.

Johnson, 920 N.E.2d 253, 256 (Ind. 2010). So the bank’s first argument is

that its mortgage lien is senior because its lien was prior in time—the bank

recorded its lien before Garmong and Fox recorded their construction

liens. See I.C. § 32-21-4-1(c) (providing that a mortgage lien “takes priority

according to the time of its recording”). But that argument fails because

while the recording date establishes the priority date for a mortgage lien,

the recording date does not establish the priority date for a construction

lien.

Instead, when a lienholder records a construction lien, the priority date

relates back to the date when the lienholder began performing labor or

providing materials or machinery. The relevant statute provides:

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The recorder shall record the statement and notice of intention

to hold a lien when presented under section 3 of this chapter in

the miscellaneous record book. The recorder shall charge a fee

for recording the statement and notice in accordance with IC

36-2-7-10. When the statement and notice of intention to hold a

lien is recorded, the lien is created. The recorded lien relates

back to the date the mechanic or other person began to

perform the labor or furnish the materials or machinery.

Except as provided in subsections (c) and (d), a lien created

under this chapter has priority over a lien created after it.

I.C. § 32-28-3-5(b) (emphasis added). Because the parties agree that

Garmong and Fox began their work before First Bank recorded its

mortgage lien, the trial court properly found that their construction liens

were prior in time and therefore generally have priority over the mortgage

lien.

First Bank argues the trial court’s conclusion reflects a legal error

because the bank reads the construction lien priority provision as

establishing priority based on the date of recording—just like a mortgage

lien—not the date the construction lienholder began performing work or

supplying materials or machinery. As First Bank reads the statute, the lien

is “created” when it is recorded, which establishes lien priority. I.C. § 32-

28-3-5(b). And the relation-back provision refers to the scope of the debt

that the lien secures, allowing the lien to secure debt for work, materials,

and machinery provided before the lien was recorded.

But more than 150 years’ worth of cases from our Court and the Court

of Appeals say otherwise, interpreting similar statutory relation-back

provisions as establishing a construction lien’s priority, not just its scope.

See 5 Tiffany Real Prop. § 1578 (3d ed. 2024) (including Indiana among the

states where construction lien priority is established “when the person

asserting the lien first began to furnish the labor or materials for which the

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lien is claimed”).7 And that case law mirrors how courts around the

country interpret these sorts of relation-back provisions in lien statutes.

See 1 Alvin L. Arnold and Myron Kove, Construction & Development

Financing § 4:247 (3d ed. 2024) (“Mechanics liens statutes often permit the

7 See also Ward v. Yarnelle, 91 N.E. 7, 14 (Ind. 1910) (stating that “where some labor is

performed, or material is furnished prior to the execution of a mortgage, in which event, upon

notice being filed within the statutory period, though after the mortgage is given, the lien

reaches back of the mortgage to the time when the work is begun or the material furnished,

and gains priority both as to the land and the building”), overruled on other grounds by Moore-

Mansfield Constr. Co. v. Indianapolis, New Castle & Toledo Ry. Co., 101 N.E. 296 (Ind. 1913);

Jenckes v. Jenckes, 44 N.E. 632, 634 (Ind. 1896) (explaining that a mechanic’s lien’s priority was

measured by “the time when work was begun or material furnished”), overruled on other

grounds by Sulzer-Vogt Mach. Co. v. Rushville Water Co., 65 N.E. 583 (Ind. 1902); Fleming v.

Bumgarner, 29 Ind. 424, 425 (1868) (“A fair construction of the law is, that the lien of a

mechanic or material man relates to the time when the work commenced, or the materials

began to be furnished, as to subsequent conveyances as well as to other liens.”); Wells Fargo

Bank, N.A. v. Rieth-Riley Constr. Co., 38 N.E.3d 666, 671 (Ind. Ct. App. 2015) (explaining that

the priority of the mechanic’s lien was measured by when “the mechanic’s work was begun or

materials [were] furnished”); Provident Bank v. Tri-Cnty. Southside Asphalt, Inc., 804 N.E.2d 161,

163 (Ind. Ct. App. 2004) (measuring the mechanic’s lien priority from the date when the

lienholder “began paving the driveway”), on reh’g in part, 806 N.E.2d 802 (Ind. Ct. App. 2004);

Greyhound Fin. Corp. v. R.L.C., Inc., 637 N.E.2d 1325, 1327 (Ind. Ct. App. 1994) (“Before a

proper notice has been recorded, only a latent, unperfected mechanic’s lien exists. When the

notice is recorded, the lien is perfected and its priority is determined by the date the lien

claimant began work on the property.”); Beneficial Fin. Co. v. Wegmiller Bender Lumber Co., 402

N.E.2d 41, 43 (Ind. Ct. App. 1980) (holding that a mechanic’s lien had priority where materials

were furnished before the mortgage was recorded and the mechanic’s lien was recorded after

the mortgage); Stanray Corp. v. Horizon Constr., Inc., 342 N.E.2d 645, 650 (Ind. Ct. App. 1976)

(explaining that a mechanic’s lien has priority “where, for example, the mechanic’s earliest

work or delivery of materials antedates recordation of the competing mortgage”); Krotz v.

A.R. Beck Lumber Co., 73 N.E. 273, 278 (Ind. App. 1905) (explaining that a properly recorded

mechanic’s lien “would have been effective from the time the materials were furnished, and

would have had priority over all liens suffered or created thereafter, except the liens of other

mechanics and materialmen, as to which there is no priority”); Zehner v. Johnston, 53 N.E.

1080, 1082 (Ind. App. 1899) (measuring the priority of a mechanic’s lien based on “the time

when the work for which the lien is claimed was commenced, or to when the first material for

which the lien is claimed was furnished”).

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 30 of 41

liens, once recorded, to relate back to an earlier time for priority

purposes.”).8

To support its interpretation, First Bank cites Robert Neises Construction

Corp. v. Grand Innovations, Inc., 938 N.E.2d 1231, 1235 (Ind. Ct. App. 2010),

which held that a bank’s mortgage lien was senior to a later-recorded

mechanic’s lien even though the work underlying the mechanic’s lien

predated the bank recording its mortgage lien. The Court of Appeals

provided only a paragraph of analysis, stating in conclusory fashion that

this statutory construction was required “to avoid an absurd result,” but

the court did not provide any explanation of what absurd result it was

avoiding. See id. Of course, courts cannot override the legislature’s policy

choice based on their own view that a different policy would be better.

See R.R. v. State, 106 N.E.3d 1037, 1042 (Ind. 2018) (explaining that the

absurdity doctrine applies only when a contrary reading “truly is absurd,

and not merely unwise or unsound”).

The Court of Appeals also did not acknowledge all the prior case law

establishing that construction lien priority relates back to when the

lienholder began performing labor or furnishing materials or machinery

on the encumbered property. First Bank argues that Neises pivoted from

prior precedent because the legislature tweaked the statutory language

after those cases were decided, changing the reference from construction

liens “so created” by recording a notice to instead referring to a lien that

“is created” when it “is recorded.” Br. of Appellant First Bank Richmond

at 27–28. But Neises did not discuss any change in the statutory language,

8See also 3 Bruner & O'Connor Construction Law § 8:177 (2024) (“In many jurisdictions, the

mechanics’ lien will relate back to an earlier time. A number of states treat the lien as taking

priority from the time of ‘commencement’ or ‘visible commencement’ of the improvement,

provided that the claimant records its lien within the statutorily required time after it

completes its work on the project.”); Greene v. Thompson, 554 So. 2d 376, 379 (Ala. 1989)

(holding that a mechanic’s lien has priority over any “encumbrances attaching after the

commencement of the work.”); Trustees of Mortg. Tr. of Am. v. Dist. Ct. In & For Routt Cnty., 621

P.2d 310, 312 (Colo. 1980) (explaining that “the mechanics’ lien statutes provide that an

effective mechanic’s lien relates back in time to the ‘commencement of work’ upon the

construction project at issue, thus gaining a preference over other liens and interests in land

which may have been recorded prior to the actual filing of the mechanic’s lien”).

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 31 of 41

and when the legislature recodified the statute with the tweaks First Bank

notes, the legislature instructed that it was not altering the substance of

the law. See I.C. § 32-16-1-5 (“[I]f the literal meaning of [the recodification]

(including a literal application of an erroneous change to an internal

reference) would result in a substantive change in the prior property law,

the difference shall be construed as a typographical, spelling, or other

clerical error”).

We therefore do not find Neises’s reasoning persuasive. And to the

extent Neises held that a construction lien’s priority is measured from its

recording date rather than from the date when the lienholder began

performing labor or furnishing materials or machinery, that holding was

mistaken, and we disavow it.

Because Garmong and Fox began providing their improvements before

First Bank recorded its mortgage lien, the construction liens generally

have priority over the mortgage lien, with one important exception we

discuss next.

B. First Bank’s mortgage lien is senior for the money

it loaned to satisfy Garmong’s prior lien, but not

for the remainder of the loan funds.

Even where a construction lien would otherwise be senior to an earlier

recorded mortgage lien, there is a statutory exception for a mortgage lien

that secures project financing: “The mortgage of a lender has priority over

all liens created under this chapter that are recorded after the date the

mortgage was recorded, to the extent of the funds actually owed to the

lender for the specific project to which the lien rights relate.” I.C. § 32-

28-3-5(d) (emphasis added); see also Harold McComb & Son, Inc. v. JPMorgan

Chase Bank, NA, 892 N.E.2d 1255, 1262 (Ind. Ct. App. 2008) (explaining that

“our legislature adopted Indiana Code section 32–28–3–5(d) to establish

that where the funds from the loan secured by the mortgage are for the

project which gave rise to the mechanic’s lien the mortgage lien has

priority over the mechanic’s liens recorded after the mortgage” (cleaned

up)).

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 32 of 41

First Bank loaned EdgeRock $4.9 million, and it is undisputed that the

bank recorded its mortgage lien before Garmong and Fox recorded the

construction liens in dispute. EdgeRock used $2,140,722.51 of the loan

funds to satisfy Garmong’s prior construction lien; $2,028,443.62 to pay

partners in Oak Ridge Investors; $300,000 for First Bank loan charges;

$15,000 for EdgeRock’s attorney fees; $9,269 for title charges; $5,000 for an

insurance premium; and $165 for recording charges. EdgeRock retained

the remaining $401,399.87 for its general use. The $2,028,443.62 EdgeRock

paid to Oak Ridge’s investors led to the release of the prior mortgage on

Lots 4 and 5, allowing EdgeRock to then mortgage the lots as security

(along with other security) for First Bank’s $4.9 million loan.

The parties and the trial court all agree that the statutory exception for

project financing makes First Bank’s mortgage lien senior to the

construction liens for the $2,140,722.51 that First Bank loaned EdgeRock to

pay off Garmong’s prior construction lien. That is because the funds to

satisfy the prior lien were used “for the specific project to which” the

construction lien rights relate. I.C. § 32-28-3-5(d). But the trial court

concluded that was the only portion of the mortgage lien that was senior

to the construction liens because none of the remaining “loan proceeds

went to future development.” App. Vol. 2 at 144, ¶ 178.

First Bank argues its entire mortgage lien is senior to the construction

liens, and, if not, at least all but the $401,399.87 for EdgeRock’s general use

should be senior. The bank contends the trial court made a legal error by

“inappropriately interpret[ing] the statutory phrase ‘for the specific

project’ to mean only loan proceeds earmarked for construction of

improvements, and not loan proceeds to acquire or satisfy preexisting

liens against the project’s land.” Br. of Appellant First Bank Richmond at

21 (citing I.C. § 32-28-3-5(d)). First Bank also worries this will “have a

chilling effect on refinance transactions.” Id.

We read the trial court’s order differently. As we read the order, the

trial court did not conclude that land acquisition costs or refinancing can

never be for the specific project to which construction lien rights relate; it

just found that in this case the payment to the partners in Oak Ridge

Investors was not for land acquisition or refinancing to support the

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 33 of 41

project. Instead, the court found that this portion of the loan was simply a

mechanism for the investors to retrieve their capital without paying the

contractors who had improved the properties composing the project in

which the investors had invested.

As the trial court explained, the bank’s loan was a “half after-the-fact

construction loan for an in-progress project” (the portion for which the

parties agree the bank’s lien is senior) and “half a mechanism to allow

Edgerock to move money from one related LLC to another” for uses that

had nothing to do with the project (the portion for which the trial court

held the bank’s lien is junior). Id. at 170–71, ¶¶ 137, 139. And the trial court

had many reasons for that finding.

One reason was that the description on the commercial loan application

was that the funds were for “non-purchase money collateral.” App. Vol. 2

at 141, ¶ 165. Left unchecked were boxes for “construction and permanent

loans, revolving draw construction line of credit,” and “draw construction

loan.” Id. Also left unchecked was a box where “the loan proceeds will be

for the purchase of collateral” along with a description left blank for

“purchase-money collateral.” Id. While EdgeRock used some of the loan

funds to satisfy Garmong’s prior lien, “none of the [First Bank] loan

proceeds were used to fund any construction or development costs

associated with Fox’s construction of the Project’s new public

infrastructure, i.e., the relocation of the Anna Kendall Drain and the

construction of 175th Street.” Id. at 142–43, ¶ 173. There was also “no

purchase agreement between Oak Ridge Investors and Edgerock for the

transfer of Lots 4 and 5.” Id. at 143. The “Oak Ridge Investors quitclaimed

the real estate to Edgerock” with the deed noting that there was no

consideration and that it was “a transfer between related LLCs with a

common principal for internal company purposes.” Id. at 143–44, ¶ 176.

Put simply, “[n]one of [the bank’s] loan proceeds went to future

development,” id. at 144, ¶ 178, and the “acquisition of Lots 4 and 5 by

Edgerock was unnecessary to complete this specific project,” id. at 171,

¶ 143. “The Bank knew that the lien it was paying off was for work

already completed” and that “it was not funding a traditional construction

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 34 of 41

loan where the bank provides acquisition funding that allows the project

to proceed.” Id. at 144, ¶ 180.

First Bank does not identify any findings that are unsupported by

evidence, and these findings support the trial court’s conclusion that the

loan funds beyond those to pay Garmong’s prior lien were not for the

specific project related to the lien.9 The bank itself says that its loan

enabled EdgeRock to “reorganize the finances[]” of “the whole

development company.” Reply Br. of Appellant First Bank Richmond

at 36. But the statute covers refinancing only for the project related to the

liens.

We therefore affirm the trial court’s judgment that the bank’s mortgage

lien is senior for the $2,140,722.51 of the loan funds EdgeRock used to

satisfy Garmong’s prior construction lien and junior to the construction

liens for the remainder of the loan funds.

C. The trial court did not clearly err by declining to

apply equitable subrogation.

Lastly, First Bank argues that equitable subrogation allows the bank to

assume the senior position of the Oak Ridge investors’ earlier acquisition

mortgage that First Bank paid off. As First Bank sees it, the contractors’

construction lien was already junior to the investors’ mortgage lien that

secured the purchase of Lots 4 and 5 before the contractors began working

on the lots, so the contractors are no worse off with First Bank assuming

that same senior mortgage priority position. If anything, First Bank

argues, the contractors are better off because it was First Bank’s loan that

enabled EdgeRock to pay Garmong’s outstanding invoices.

9First Bank argues that Signworks is not on equal footing with Garmong and Fox because

Signworks performed work only on ZPS’s Lots 1 and 2, not EdgeRock’s Lots 4 and 5. So

Signworks’s only claim to an interest in Lots 4 and 5 is through its money judgment against

EdgeRock, which the bank argues is junior to its mortgage lien. Signworks does not respond

to this argument, which we treat as conceded.

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 35 of 41

Equitable subrogation is a common-law doctrine for avoiding the

“inequitable application of the general principle that priority in time gives

a lien priority in right.” Neu v. Gibson, 928 N.E.2d 556, 560 (Ind. 2010).

Under the doctrine, when a payor discharges the entire debt that a debtor

held subject to a mortgage, the payor succeeds to the previous

mortgagee’s rights, including the priority over junior liens, so long as

there is no prejudice to the interests of junior lienholders. Bank of New York

v. Nally, 820 N.E.2d 644, 651, 655 (Ind. 2005). The basis for the doctrine is

“the lender’s justified expectation of receiving a security interest in the

property.” Id. at 653 (brackets and quotations omitted). Otherwise, junior

lienholders would obtain a windfall through promotion in priority. Id. “In

considering whether to order subrogation and thus bypass the general

principle of priority, courts base their decisions on the equities,

particularly the avoidance of windfalls and the absence of any prejudice to

the interests of junior lienholders.” Neu, 928 N.E.2d at 560.

As we’ve previously explained:

We agree with the Restatement at least in the context of a

conventional refinancing. A lender providing funds to pay off

an existing mortgage expects to receive the same security as the

loan being paid off. Refinancings are commonplace in today’s

economy. Permitting a junior lienholder to leapfrog the priority

of the current senior mortgage would impair the owner’s access

to more favorable interest rates. Unless a junior lienholder is

disadvantaged by permitting subrogation, we see no reason to

give the junior lienholder in effect the right to block or object to

the refinancing. We conclude that a mortgagee who refinances

an existing mortgage is entitled to equitable subrogation even if

it had actual or constructive knowledge of an existing lien on

the property unless the junior lienholder is disadvantaged or

the mortgagee is “culpably negligent” . . . but this remedy is

subject to the rights and limitations of the subrogor.

Nally, 820 N.E.2d at 653–54.

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 36 of 41

First Bank argues equitable subrogation applies here because it paid off

the investors’ acquisition mortgage for Lots 4 and 5 expecting to receive

the same security—a mortgage on the property with senior priority—as

the investor loan that First Bank paid off. And, the bank argues, allowing

the contractors to leapfrog the priority of the mortgage security would

produce a windfall to them at First Bank’s expense. The bank also argues

this would put contractors in a position to block a project owner’s access

to refinancing options on more favorable lending terms.

The trial court found that the equities favored the contractors because

the portion of the loan in dispute was not a traditional refinancing but a

vehicle for the investors to retrieve their capital without paying the

contractors that had improved the properties composing the project in

which they had invested. As the court explained, “[t]he Bank knew it was

paying off an existing mechanic’s lien for an in-trouble project through an

unconventional financing arrangement,” including that “[t]he Bank knew

that it was not making a traditional construction loan or purchase-money

loan where it would finance the purchase of the properties and pay

additional draws as the construction progressed.” App. Vol. 2 at 169–70,

¶ 132. None of the disputed funds were spent on the project, and the loan

application noted that the loan was for non-purchase collateral.

“The Bank also knew the transaction between Oak Ridge Investors and

Edgerock was not an arm’s-length deal,” that “Edgerock had an interest in

Oak Ridge Investors,” and “that Birch Dalton was the manager of both

entities.” Id. at 170, ¶ 133. There was no purchase agreement for

transferring Lots 4 and 5 from Oak Ridge to EdgeRock, and the quitclaim

deed noted both that the transaction was for “no consideration” and that it

was “a transfer between related LLCs with a common principal for

internal company purposes.” Id. at 170, ¶ 134.

First Bank argues the trial court should have balanced the equities

differently and concluded that declining to apply equitable subrogation

gives the contractors “an unearned windfall” and places them “in a far

better position than they would have been without [the bank’s] loan.”

Br. of Appellant First Bank Richmond at 45. Without the loan, the bank

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 37 of 41

argues, “Garmong would not have received a sizeable payment for its

work.” Id. But there are two problems with this argument.

The first problem is that while it is certainly true that the bank’s loan

proceeds enabled EdgeRock to pay Garmong’s outstanding invoices, the

parties agree that the bank’s mortgage lien is senior as to those funds. But

those funds were less than half the loan. It is the rest of the loan proceeds

that are in dispute. And as to those proceeds, there was evidence

supporting the trial court’s finding that those funds were not for

refinancing a construction project but for returning capital to investors,

which then avoided paying the contractors for improvements they made

to the property in the project in which the investors had invested.

The second problem is that the argument contradicts our standard of

review. While the trial court could have weighed the equities as the bank

proposes, the court didn’t have to. We cannot second-guess the court’s

judgment because the evidence supports its findings, and its findings

support its conclusion.10

We therefore affirm the trial court’s judgment declining to apply

equitable subrogation.11

Conclusion

For these reasons, we affirm in part, reverse in part, and remand for the

trial court to amend the judgment consistent with this opinion. That

includes amending the judgment to reflect:

10We summarily affirm the decision of the Court of Appeals reversing the trial court’s award

to EdgeRock of the Road Impact Fees and instructing the trial court to distribute the funds

consistent with the outcome of related litigation in the Hamilton County Commercial Court.

EdgeRock Dev., LLC, 227 N.E.3d at 936. We also summarily affirm the decision of the Court of

Appeals awarding First Bank its attorney fees. Id. at 938.

11The trial court also concluded, and Garmong and Fox agree, that the legislature’s statutory

scheme for construction lien priority abrogated the doctrine of equitable subrogation in this

context. Because we affirm the trial court’s decision not to apply the doctrine, we need not

decide whether the lien statute has abrogated the doctrine in this context.

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 38 of 41

• Garmong’s construction liens against EdgeRock’s Lots 4 and 5

securing the $943,042.64 debt under the EdgeRock-Garmong

contract are invalid, but the related judgment liens against

EdgeRock remain valid.

• Garmong’s construction liens on ZPS’s Lots 1 and 2 securing the

debt under the EdgeRock-Garmong contract are valid only for the

amount of $520,509.70, and they may be enforced only if the sale of

EdgeRock’s Lots 4 and 5 does not satisfy the debt.

• Fox’s construction liens on EdgeRock’s Lots 4 and 5 securing the

$202,623.56 debt under the Fox-Garmong subcontract are valid, but

Fox’s liens for that amount on ZPS’s Lots 1 and 2 are not.

• Fox’s construction liens on EdgeRock’s Lots 4 and 5 securing the

$1,166,728.33 owed under the EdgeRock-Fox contract are valid, but

Fox’s liens on ZPS’s Lots 1 and 2 securing that debt are not.

• Signworks’s judgment lien on EdgeRock’s Lots 4 and 5 is junior to

First Bank’s mortgage lien on those lots.

In addition, we summarily affirm the holdings of the Court of Appeals:

(1) that the trial court did not err in concluding that factual disputes

precluded summary judgment on EdgeRock’s claim that Change Order #3

was invalid because it was not approved in writing; (2) that the trial court

did not err in granting Garmong’s summary judgment motion (and

denying EdgeRock’s competing summary judgment motion) on

EdgeRock’s claim that it was entitled to a credit for amounts owed under

the Garmong contract for work related to the 175th Street Project and the

drain relocation; (3) reversing the trial court’s award to EdgeRock of the

Road Impact Fees and instructing the trial court to distribute the funds

consistent with the outcome of related litigation in the Hamilton County

Commercial Court; and (4) that First Bank is entitled to recover attorney

fees from EdgeRock.

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 39 of 41

Finally, we affirm the trial court’s judgment in all respects not

appealed. Also, like the Court of Appeals, we note that our holdings do

not disturb the in personam judgments against EdgeRock on Garmong’s

and Fox’s breach-of-contract claims.

Rush, C.J., Massa, Slaughter, and Goff, JJ., concur.

ATTORNEYS FOR APPELLANT EDGEROCK DEVELOPMENT, LLC

Maggie L. Smith

Darren A. Craig

Frost Brown Todd LLP

Indianapolis, Indiana

A TTORNEYS FOR APP EL LAN T ZPS WE STF I EL D, LLC

Nathaniel M. Uhl

Jenny R. Buchheit

Adam M. Alexander

Ice Miller LLP

Indianapolis, Indiana

A TTORNEYS FOR APP EL LAN T F IRS T BANK R I CHM ON D

Scott J. Fandre

David M. Johnson

Krieg Devault LLP

Mishawaka, Indiana

Bryan H. Babb

James E. Carlberg

Nathan T. Danielson

Bose McKinney & Evans LLP

Indianapolis Indiana

Ronald L. Cross

Boston Bever Forrest Cross & Sickmann

Richmond, Indiana

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 40 of 41

A T T OR N EYS FOR APP EL LE ES C. H. GAR MO N G & S ON , IN C., AN D

S I GNW ORK S, IN C .

Peter S. French

Jeffrey D. Stemerick

Neil R. Peluchette

Taft Stettinius & Hollister LLP

Indianapolis, Indiana

A T T OR N EYS FOR APP EL LE E FO X CO NTRA CTORS CO RP.

Robert W. Eherenman

Haller Colvin PC

Fort Wayne, Indiana

ATTORNEYS FOR AMI CUS CURIAE INDIAN A BANKERS ASSOCIATION

Thomas W. Dinwiddie

Daniel R. Kelley

Dinsmore & Shohl LLP

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE IND I ANA CON S TRU C T OR S , IN C. ,

IN DIANA B U IL DERS AS SOCIA TION, AND AS SOCIA TE D GENERA L

CO NTR A CTOR S OF IN D IANA , IN C.

Joseph M. Leone

Michael F. Drewry

Sean T. Devenney

Drewry Simmons Vornehm, LLP

Carmel, Indiana

Indiana Supreme Court | Case No. 24S-PL-184 | June 3, 2025 Page 41 of 41