      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Nov 15 2017, 8:12 am

      court except for the purpose of establishing                                 CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANTS                                ATTORNEYS FOR APPELLEE
      Julie A. Camden                                         Thomas B. Trent
      Scott C. Quick                                          Reanna L. Carver
      Camden & Meridew, P.C.                                  Rothberg Logan & Warsco LLP
      Fishers, Indiana                                        Fort Wayne, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Deidre L. Thompson, J. Larry                            November 15, 2017
      Thompson, and Thompson                                  Court of Appeals Case No.
      Quality Foods, Inc.,                                    41A04-1704-CC-884
      Appellants-Defendants,                                  Appeal from the Johnson Superior
                                                              Court
              v.                                              The Honorable Marla K. Clark,
                                                              Judge
      Wells Fargo Bank, National                              Trial Court Cause No.
      Association,                                            41D04-1610-CC-968
      Appellee-Plaintiff.



      Mathias, Judge.


[1]   Deidre L. Thompson, J. Larry Thompson, and Thompson Quality Foods, Inc.

      (“Quality Foods”) (collectively “Appellants”), appeal the trial court’s grant of


      Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017          Page 1 of 10
      summary judgment in favor of creditor/mortgagee Wells Fargo Bank, N.A.

      (“Wells Fargo”), in its collection action following Appellants’ default.1

      Appellants assert that a genuine issue of material fact exists regarding whether

      Wells Fargo failed to act reasonably to mitigate damages. Finding that

      summary judgment was appropriate as a matter of law, we affirm.


                                    Facts and Procedural History
[2]   On October 14, 2008, Quality Foods executed a promissory note in favor of

      Wells Fargo in the amount of $341,300, plus interest. In conjunction with the

      promissory note, the Thompsons signed a guaranty agreement (collectively “the

      Note”), personally guaranteeing repayment of the Note and offering as

      collateral a first-position lien on real estate owned by Quality Foods and located

      in Trafalgar, Indiana (the “Property”). Quality Foods failed to make payments

      on the Note, and Wells Fargo brought an action against Appellants on the Note

      under cause number 41D01-1205-MF-357 (“Cause 357”). In July 2013, the

      court in Cause 357 found Appellants in default and awarded Wells Fargo a

      $366,921.26 judgment.




      1
        Appellants also challenge the trial court’s denial of their motion to reconsider. However, Appellants have
      failed to support this argument with citation to authority or recitation of the proper standard of review. As
      such, they have waived this issue for consideration on appeal. See Weaver v. Niederkorn, 9 N.E.3d 220, 223
      (Ind. Ct. App. 2014) (failure to present cogent argument with citation to authority results in waiver); see also
      Ind. Appellate Rule 46(A)(8) (requiring that contentions in appellant’s brief be supported by cogent reasoning
      and citations to relevant authority). In any event, because we affirm the trial court’s grant of summary
      judgment in favor of Wells Fargo, and Appellants’ motion to reconsider was based solely on the grant of
      summary judgment, we conclude that their argument does not merit separate consideration on appeal.

      Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017            Page 2 of 10
[3]   Quality Foods failed to pay real estate taxes on the Property. Therefore, a tax

      sale was held in September 2014, and the Property was sold to Peter D.

      Cleveland (“Cleveland”).


[4]   During the redemption period, on January 9, 2015, Appellants entered into a

      purchase agreement (“Purchase Agreement”) with Cleveland to purchase the

      Property for $175,000. The Thompsons submitted the Purchase Agreement to

      Wells Fargo for approval. Wells Fargo requested financial statements from the

      Thompsons so that it could evaluate its position on the Purchase Agreement.2

      The Thompsons did not submit financial statements, and Wells Fargo rejected

      the Purchase Agreement.


[5]   Due to the tax sale of the property, on January 29, 2016, the court in Cause 357

      vacated its judgment without prejudice. Approximately nine months later, in

      October 2016, Wells Fargo filed the present cause against Appellants for

      collection of $341,300, plus interest due under the Note. Appellants filed a

      general denial, and Wells Fargo filed a motion for summary judgment, with

      designated materials. Appellants filed a motion in opposition to summary

      judgment, which was followed by Wells Fargo’s reply. Following a hearing, the

      trial court issued an order granting summary judgment in favor of Wells Fargo




      2
        Appellants cite as an issue of material fact whether Wells Fargo ever requested any financial information
      from the Thompsons. However, designated emails from Appellants’ counsel and Cleveland to Wells Fargo’s
      counsel indicate that Cleveland and the Thompsons were aware of the request. See Appellants’ App. Vol. 2 at
      42–47.

      Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017        Page 3 of 10
      for $364,819.41. Appellants filed a motion to reconsider, which the trial court

      denied.


[6]   Appellants now appeal. Additional facts will be provided as necessary.


                                     Discussion and Decision
[7]   Appellants contend that the trial court erred in granting Wells Fargo’s motion

      for summary judgment. We review a summary judgment de novo, applying the

      same standard as the trial court and drawing all reasonable inferences in favor

      of the nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In

      conducting our review, we consider only those matters that were designated at

      the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind.

      Ct. App. 2011). Summary judgment is appropriate if the designated evidence

      shows that there is no genuine issue as to any material fact and that the moving

      party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d at 1003;

      Ind. Trial Rule 56(C).


[8]   The moving party bears the initial burden of demonstrating the “absence of any

      genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d

      756, 761 (Ind. 2009). Then the burden shifts to the nonmoving party to “come

      forward with contrary evidence” showing a genuine issue for the trier of fact.

      Id. at 762. The nonmoving party cannot rest upon the allegations or denials in

      the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). In

      Hughley, our supreme court emphasized that the moving party bears an onerous

      burden of affirmatively negating the opponent’s claim. 15 N.E.3d at 1003. This

      Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017   Page 4 of 10
       approach is based on the policy of preserving a party’s day in court, thus erring

       on the side of allowing marginal cases to proceed to trial on the merits rather

       than risking the short-circuiting of meritorious claims. Id. at 1003–04.


[9]    In determining whether issues of material fact exist, we neither reweigh

       evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

       (Ind. Ct. App. 2008), trans. denied. Rather, we must accept as true those facts

       established by the designated evidence favoring the nonmoving party. Brill v.

       Regent Commc’ns, Inc., 12 N.E.3d 299, 309–10 (Ind. Ct. App. 2014), trans. denied.

       A trial court’s grant of summary judgment arrives on appeal clothed with a

       presumption of validity. Williams, 914 N.E.2d at 762. We may affirm a grant of

       summary judgment on any legal basis supported by the designated evidence.

       Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010).


[10]   This case involves interpretation of provisions in the Note and Purchase

       Agreement. “Summary judgment is especially appropriate in the context of

       contract interpretation because the construction of a written contract is a

       question of law.” Vincennes Univ. ex rel. Bd. of Tr. of Vincennes v. Sparks, 988

       N.E.2d 1160, 1165 (Ind. Ct. App. 2013) (citation omitted), trans. denied. When

       interpreting an unambiguous contract, we give effect to the intentions of the

       parties as expressed within the four corners of the instrument. Id. “A contract is

       not ambiguous merely because the parties disagree as to its proper construction;

       rather, a contract will be found to be ambiguous only if reasonable persons

       would differ as to the meaning of its terms.” Id.



       Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017   Page 5 of 10
[11]   Appellants maintain that Wells Fargo’s refusal to ratify the Purchase

       Agreement between Appellants and tax-sale purchaser Cleveland amounts to an

       unreasonable failure to mitigate its damages. The duty to mitigate damages is a

       common-law duty requiring the nonbreaching party to make a reasonable effort

       to decrease the damages caused by the breach. Fischer v. Heymann, 12 N.E.3d

       867, 871 (Ind. 2014). The reasonableness of the nonbreaching party’s efforts

       toward mitigation is a question of fact. Id. at 870.


[12]   Before we can fully evaluate the issue of mitigation, we must consider relevant

       contractual terms to determine the rights and duties of the parties. The Note,

       drafted by Wells Fargo and signed by Appellants (with Quality Foods as

       borrower and the Thompsons as guarantors), included the following waiver

       provision:


               3.5 Guarantor Waivers

               Except as prohibited by applicable law, Guarantor waives any
               right to require Bank to … (b) proceed against any Collateral or
               any person, including Borrower, before proceeding against
               Guarantor ….
               Guarantor also waives any and all rights or defenses arising by
               reason of … (d) any act of omission or commission by Bank
               which directly or indirectly results in or contributes to the
               discharge of Borrower or any other guarantor or surety, or the
               Indebtedness, or the loss or release of any Collateral by operation
               of law or otherwise.
               …. Guarantor waives all rights and protections of any kind which
               Guarantor may have for any reason which would affect or limit the
               amount of any recovery by Bank from Guarantor following a nonjudicial
               sale or judicial foreclosure of any real or personal property security for the
               Indebtedness[.]
       Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017   Page 6 of 10
       Appellants’ App. Vol. 2 p. 23 (emphasis added).


[13]   The Purchase Agreement between Appellants and Cleveland (with Wells Fargo

       as a nonparty whose approval was required) included the following provision:


               4.1 “Short Sale” of Real Estate. Seller’s obligations shall be
               contingent upon execution of the Short Sale Agreement by Seller
               and Wells Fargo Bank containing terms and conditions satisfactory
               to Seller including but not limited to an agreement by Wells Fargo
               Bank to waive any claim for enforcement and collection of the
               Judgment (or any deficiency after application of the net proceeds of
               Closing against the Judgment) against personal guarantors of the
               loan that is the subject of the Judgment.


       Appellee’s App. Vol. 2 p. 27 (emphases added).


[14]   The Guarantor Waivers provision in the Note unambiguously states that the

       Thompsons waive all rights and protections that would affect or limit the

       amount of recovery by Wells Fargo following a sale of the Property. The Short

       Sale provision in the Purchase Agreement unambiguously states that the short

       sale is contingent upon execution of the agreement by the Thompsons and

       Wells Fargo and includes Wells Fargo’s agreement to waive any claim for

       enforcement and collection of the judgment or deficiency against the Thompsons.


[15]   In support of their arguments, both parties rely on Fischer, a case involving the

       seller’s mitigation of damages where the buyers breached a contract to purchase

       real property. 12 N.E.3d at 867. The contract in Fischer authorized the buyers to

       terminate their agreement to purchase the seller’s condo if the seller refused to

       fix any “major defect” discovered during inspection but did not allow them to

       Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017   Page 7 of 10
       terminate if the seller refused to perform “routine maintenance” or make

       “minor repairs.” Id. at 869. After the inspection, the buyers sent a demand to

       the seller to fix an electrical problem or void the contract. Id. The seller did not

       act immediately but, ten days later, paid an electrician $117 to fix the problem

       by pushing the reset buttons on three outlets and changing a light bulb. Id. at

       872. The buyers presented the seller with a tender of release. The seller refused

       to sign the release and, two days before the original closing date, sued the

       buyers for specific performance or damages. Id. at 869.


[16]   After examining the buyers’ release demand and the seller’s duty to mitigate

       damages, our supreme court addressed the buyers’ argument that the seller’s

       duty to mitigate damages required that she surrender to their demand to fix the

       problem or release them from the contract. Id. at 871–73. The Fischer court

       disagreed, emphasizing that the seller’s duty to mitigate did not require her to

       surrender to the very demand that generated the buyers’ breach. Id. at 872. The

       court explained:


               Just as breaching parties may not take advantage of their breach
               to relieve them of their contractual duties, neither may they take
               advantage of their breach to require non-breaching parties to
               perform beyond their contractual duties. And just as non-
               breaching parties may not place themselves in a better position
               because of the breach, neither may breaching parties.


               Holding otherwise would require sellers like Fischer to choose
               between surrendering to the terms of a breach or forfeiting
               damages whenever a buyer breaches an agreement by



       Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017   Page 8 of 10
                conditioning purchase on strict compliance with an unreasonable
                demand.


       Id. at 872–73 (citations omitted).3


[17]   Here, Appellants assert that Wells Fargo’s duty to mitigate required it to

       approve the Purchase Agreement between themselves and Cleveland. We

       disagree. Wells Fargo was not a party to the Purchase Agreement.

       Notwithstanding the fact that the duty to mitigate damages is an independent

       common-law duty, the Appellants’ assertion is similar to the buyers’ assertion

       in Fischer, where the breaching parties, under the banner of mitigation,

       demanded release from the contract. Per the guarantor provision in the Note,

       the Thompsons waived any rights/protections they might otherwise have to

       limit Wells Fargo’s recovery for any deficiency following a sale of the property.

       Conversely, the short sale provision in the Purchase Agreement between

       Appellants and Cleveland would essentially operate as a waiver/release

       provision preventing Wells Fargo from collecting any deficiency.


[18]   In other words, reviewing the two provisions side-by-side, we conclude that the

       Appellants improperly tried to gain an advantage from their own breach by

       equating Wells Fargo’s rejection of their Purchase Agreement with a third-party

       buyer to the failure of the Wells Fargo, the nonbreaching party, to mitigate




       3
         Appellants correctly observe that the Fischer court affirmed the trial court’s conclusion that the seller should
       have mitigated her damages by accepting a lower offer received from a subsequent buyer one year after the
       initial breach. 12 N.E.3d at 874.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017               Page 9 of 10
       damages. Wells Fargo was not obligated to ratify the Purchase Agreement (and

       thereby forfeit its right to a significant deficiency) as a means of mitigating its

       damages. Appellants defaulted on their obligations to Wells Fargo, and Wells

       Fargo is entitled to judgment as a matter of law.4 Based on the foregoing, we

       conclude that the trial court did not err in granting Wells Fargo’s motion for

       summary judgment. Accordingly, we affirm.


[19]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       4
          To the extent that Appellants attempt to create issues of material fact, i.e., whether Wells Fargo really
       needed the financial information it requested from the Thompsons, or whether it was commercially
       reasonable for Wells Fargo to “stonewall or otherwise scuttle the proposed Purchase Agreement over the
       issue of the deficiency balance,” Appellants’ Br. at 13, we note that these assertions amount to speculation
       and conjecture and that Appellants failed to designate affidavits or other evidence to support these claims. See
       Brill, 12 N.E.3d at 309 (“Mere speculation cannot create questions of fact, meaning that ‘guesses, supposition
       and conjecture are not sufficient to create a genuine issue of material fact to defeat summary judgment.’”)
       (quoting Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1704-CC-884 | November 15, 2017           Page 10 of 10
