 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Apr 12 2019, 7:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian J. Paul                                             Sean P. Burke
Faegre Baker Daniels LLP                                  Weston E. Overturf
Indianapolis, Indiana                                     Mattingly Burke Cohen &
                                                          Biederman LLP
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Subway Real Estate                                        April 12, 2019
Corporation,                                              Court of Appeals Case No.
Appellant-Defendant,                                      18A-CC-1671
                                                          Appeal from the Clark Circuit
        v.                                                Court
                                                          The Honorable Andrew Adams,
GIV Green Tree Mall                                       Judge
Investor, LLC,                                            Trial Court Cause No.
Appellee-Plaintiff                                        10C01-1707-CC-891




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019               Page 1 of 14
[1]   GIV Green Tree Mall Investor, LLC (Green Tree Mall), and Subway Real

      Estate Corporation (Subway) had a lease (the Lease) pursuant to which Subway

      rented retail space from Green Tree Mall to operate a restaurant. Subway

      cancelled the Lease, and Green Tree Mall sued for rent money due under the

      Lease. On summary judgment, the trial court ruled in favor of Green Tree

      Mall, concluding that the mall was entitled to rent under an acceleration

      provision and that it had attempted to mitigate its damages. Subway now

      appeals, arguing that the trial court erred by making such conclusions. Finding

      no error, we affirm.


                                                     Facts
[2]   Green Tree Mall owns a mall in Clarksville. On July 8, 2004, Green Tree

      Mall’s predecessor in interest, Macerich SCG Limited Partnership, entered into

      the Lease with Subway. Under the Lease, Subway rented space for a Subway

      sandwich restaurant. The Lease had an “Expiry Date” of June 30, 2014.

      Appellant’s App. Vol. II p. 29.


[3]   The Lease contains the following relevant provisions:


              10.3. Days and Hours of Operation. . . . If Tenant fails to
              comply with the provisions of this Section 10.3, then in addition
              to Landlord’s other remedies under this Lease, Landlord shall
              have the right to collect from Tenant, in addition to the Fixed
              Minimum Rent and other Rent, a sum equal to fifty percent
              (50%) of the Fixed Minimum Rent (prorated on a daily basis) for
              each such full or partial day Tenant fails to comply with the
              provisions of this Section 10.3. Tenant acknowledges that its
              failure to comply with this Section 10.3 will cause Landlord to

      Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 2 of 14
              suffer damages which will be difficult to ascertain and that the
              sum payable by Tenant under this Section 10.3 represents a fair
              estimate of such damages.


                                                       ***


              20.2. No Offsets. All covenants and agreements to be performed
              by Tenant under this Lease shall be performed by Tenant at
              Tenant’s sole cost and expense and without any offset to or
              abatement of Rent, except as otherwise expressly provided in this
              Lease. Tenant hereby waives any right to plead all compulsory
              counterclaims or offsets in any action or proceeding brought by
              Landlord against Tenant for any default. This waiver shall not
              be construed, however, as a waiver of any right of Tenant to
              assert any non-compulsory counterclaims or offsets in any
              separate action brought by Tenant. Notwithstanding anything in
              this lease to the contrary, Tenant’s liability for rental defaults
              only (i.e., the failure to pay any Fixed Minimum Rent or
              Percentage Rent due hereunder) shall be limited to an amount
              which shall not exceed the lesser of: (i) twelve (12) months Fixed
              Minimum Rent, or (ii) $40,000.00.


      Id. at 42, 58.


[4]   Exhibit E, which is an addendum to the Lease, includes the following relevant

      provisions:


              1.2. Prevailing Provisions. If there are any inconsistencies
              between the Lease and the provisions of this Exhibit E, the
              provisions of this Exhibit E shall prevail.


                                                       ***



      Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 3 of 14
              2.1.1. Article 20 (Landlord’s Remedies). Notwithstanding
              anything to the contrary set forth in Article 20, upon the occasion
              and in connection with the exercise by Landlord of any of its
              remedies specified in Article 20, including but not limited to
              terminating this Lease, if Landlord shall elect to terminate the
              Lease, all Rent reserved in this Lease for the remainder of the Term
              (through the Expiry Date) shall automatically accelerate and become
              immediately due and payable, subject, however, to Landlord’s
              obligations to mitigate damages by re-letting the Premises. In addition,
              all rights and remedies provided to Landlord in Article 20 or
              elsewhere in the Lease shall be without benefit of valuation and
              appraisement laws, which valuation and appraisement laws
              Tenant hereby waives.


      Id. at 93 (emphasis added).


[5]   On December 6, 2013, the parties amended the Lease (the 2013 Amendments).

      The amendments include the following provisions:


              1. TERM. Effective as of the date hereof (the “Effective Date”),
              the Term of the Lease is hereby extended for a period of 10 years
              (the “Extension Term”) commencing on July 1, 2014, the date
              immediately succeeding the present expiration date, and ending
              on June 30, 2024, unless the Lease is sooner terminated pursuant
              to the provisions thereof. During the Extension Term, except as
              expressly provided for herein, all of the terms, conditions and
              provisions of the Lease shall be applicable and shall continue in
              full force and effect . . . .


                                                       ***


              10. CONFLICT OF PROVISIONS. In the event of any conflict
              between the Lease and this Amendment, the terms, conditions
              and provisions of the latter shall govern. However, except as

      Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 4 of 14
              herein expressly amended, all of the terms, covenants, conditions
              and provisions of the Lease shall continue in full force and effect.


      Id. at 99, 102.


[6]   On February 21, 2017, Subway notified Green Tree Mall that on February 28,

      2017, it would close and vacate the leased space. Green Tree Mall notified

      Subway of Subway’s defaults of the Lease; Subway did not cure its defaults.

      On June 30, 2017, Green Tree Mall invoked Exhibit E’s acceleration provision

      and demanded $779,568.09 in damages, plus attorney fees and costs.


[7]   On July 18, 2017, Green Tree Mall filed a complaint against Subway, alleging

      breach of contract. On November 1, 2017, Green Tree Mall filed a motion for

      summary judgment, arguing that it is entitled to $779,568.09 in damages, plus

      interest, attorney fees, and costs. Its evidence included a Declaration of

      Christine Cullen, Green Tree Mall’s manager, in which Cullen stated, “[t]o

      date, notwithstanding its efforts to do so, Green Tree has not been able to relet

      the Premises.” Id. at 125.


[8]   On November 30, 2017, Subway filed a motion opposing summary judgment,

      arguing that genuine issues of material fact exist to preclude summary

      judgment, including the amount of damages owed and whether Green Tree

      Mall mitigated its damages as required by the Lease. On December 19, 2017,

      Green Tree Mall filed a reply in support of its motion for summary judgment,

      arguing in part that it has attempted to re-let the space. It submitted a




      Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 5 of 14
Supplemental Declaration of Christine Cullen, in which Cullen stated the

following:


        3. We employ two people to assist us with leasing open facilities
        in Green Tree Mall, including the premises Subway leased (the
        “Premises”) that is the subject of this litigation.


        4. Sherry Rawson, Green Tree Mall’s Director of Leasing, . . .
        focuses on trying to find permanent lessees for Green Tree Mall.
        In the normal course of her responsibilities she contacts and
        communicates with national and regional food chains and
        attempts to get them interested in spaces within the Green Tree
        Mall, including the Subway Premises.


        5. Ms. Rawson attempted to interest several national chains in
        the Premises. Specifically, she engaged in serious discussions
        about the Premises with Charley’s Subs and Las Maria’s and
        showed the Premises to these companies. I have personally been
        involved in these efforts. Despite these efforts, Green Tree has
        not yet found a national or regional food tenant to relet the
        Premises.


        6. Hillary Habermel, Green Tree’s Specialty Leasing Manager,
        generally attempts to find temporary lessees for Green Tree Mall.
        In the normal course of her responsibilities she contacts and
        communicates with local merchants and attempts to get them
        interested in spaces within the Green Tree Mall.


        7. Ms. Habermel discussed the Premises with several potential
        tenants, but specifically remembers discussing the space with the
        following five businesses: Go! Calendars, Beda Yves Martin-
        Barber Shop, Wayne Gullion; 0 Degrees, Eunice Marie Cronin,
        and Meyle’s Bakery. I have personally been involved with these



Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 6 of 14
        efforts. Despite these efforts, Green Tree has not yet found any
        local business to relet the Premises.


        8. Green Tree has and continues to attempt to interest national,
        regional, and local tenants in the Subway Premises either on a
        permanent or temporary basis.


        9. To date, notwithstanding its efforts to do so, Green Tree has
        not been able to relet the Premises.


Id. at 164-65. Green Tree Mall also submitted a Declaration of Hillary

Habermel, its specialty leasing manager, in which Habermel stated the

following:


        3. I generally attempt to find temporary lessees for Green Tree
        Mall. In the normal course of my responsibilities I contact and
        communicate with local merchants and attempt to get them
        interested in spaces within the Green Tree Mall.


        4. I have discussed Subway’s premises that is the subject of this
        litigation (the “Premises”) with several potential tenants, but
        specifically remember discussing the Premises with the following
        five businesses: Go! Calendars, Beda Yves Martin- Barber Shop,
        Wayne Gullion; 0 Degrees, and Eunice Marie Cronin.


        5. Despite these efforts, I have not yet found anyone to relet the
        Premises.


Id. at 167-68.




Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 7 of 14
[9]   On January 11, 2018, a hearing took place on Green Tree Mall’s motion for

      summary judgment. During the hearing, Green Tree Mall’s counsel stated that

      it had submitted affidavits from two employees who had personal knowledge

      about the mall’s efforts to mitigate damages. At the end of the hearing, the trial

      court advised the parties that they could submit supplemental briefing regarding

      the acceleration provision and mitigation of damages. On June 21, 2018, the

      trial court issued its order, making the following findings of fact:


              19. The Affidavit of Hillary Habermel, Green Tree’s Specialty
              Leasing Manager, states that she discussed the Premises with at
              least five potential tenants.


              20. Subway owes Green Tree $363,615.77 in Fixed Minimum
              Rent; $98,308.83 in Tenant’s Share of Costs; $71,033.57 in
              Tenant’s Share of Real Estate Taxes; $66,237.86 in Promotion
              Fund Charges, and $180,372 in Damages . . . .


                                                       ***


              22. Green Tree’s total damages recoverable totals $812,002.64
              plus interest thereon at the rate set forth in the Lease.


      Appealed Order p. 6 (citation omitted). The trial court then made the following

      conclusions of law:


              The parties’ principal agreement provides the remedy for
              Subway’s default. Green Tree argues that Exhibit E to the Lease
              controls, which allows Green Tree to accelerate and recover all
              its contractual damages. Subway, on the other hand, argues that
              Article 20.2’s contractual limitation of $40,000 prevails.


      Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 8 of 14
               The Court agrees with Green Tree that Exhibit E prevails for
               several reasons. The language of Exhibit E contemplates
               potential inconsistencies between the Lease and Exhibit E and
               specifically states, “If there are any inconsistencies between the
               Lease and the provisions of this Exhibit E, the provisions of this
               Exhibit E shall prevail.” Because courts are required to enforce
               unambiguous contractual language, the Court will do so here.


               This conclusion is bolstered by the fact that Exhibit E specifically
               amends and supplements Article 20.2 on which Subway relies.
               Exhibit E plainly states as such: “The following Sections of the
               Lease are amended and supplement . . . Article 20 (Landlord’s
               Remedies).”


       Id. at 8 (citations omitted). The trial court found that Green Tree Mall was

       entitled to recover $812,002.64 plus pre-judgment interest from Subway. The

       trial court noted “that Exhibit E places on Green Tree an ongoing duty to

       mitigate its damages by making a good faith attempt to reasonably re-let the

       premises.” Id. at 10. Subway now appeals.


                                    Discussion and Decision
                                       I. Standard of Review
[10]   Our standard of review on summary judgment is well settled:


               The party moving for summary judgment has the burden of
               making a prima facie showing that there is no genuine issue of
               material fact and that the moving party is entitled to judgment as
               a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
               Once these two requirements are met by the moving party, the
               burden then shifts to the non-moving party to show the existence
               of a genuine issue by setting forth specifically designated facts.

       Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 9 of 14
               Id. Any doubt as to any facts or inferences to be drawn
               therefrom must be resolved in favor of the non-moving party. Id.
               Summary judgment should be granted only if the evidence
               sanctioned by Indiana Trial Rule 56(C) shows there is no genuine
               issue of material fact and that the moving party deserves
               judgment as a matter of law. Freidline v. Shelby Ins. Co., 774
               N.E.2d 37, 39 (Ind. 2002).


       Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


                                     II. Lease Interpretation
[11]   Subway first argues that the trial court incorrectly found that the Lease’s term

       ended on June 30, 2024, and as a result, incorrectly applied the acceleration

       provision when calculating Green Tree Mall’s damages. The construction of a

       written contract is generally a question of law. The Winterton, LLC v. Winterton

       Investors, LLC, 900 N.E.2d 754, 759 (Ind. Ct. App. 2009). When interpreting a

       contract, we attempt to determine the intent of the parties at the time the

       contract was made. Id. When the language of the contract is unambiguous, the

       parties’ intent is determined from the four corners of the document. Id. “The

       unambiguous language of a contract is conclusive upon the parties to the

       contract as well as upon the court.” Id. A contract is ambiguous when a

       reasonable person could find its terms susceptible to more than one

       interpretation. Id. If a contract is ambiguous, the court may consider extrinsic

       evidence, and the construction of the contract becomes a matter for the trier of

       fact. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 10 of 14
[12]   Specifically, Subway asserts that the trial court misinterpreted the 2013

       Amendments to extend the lifespan of the Lease’s rent-acceleration provision.

       Subway points out that the 2013 Amendments created a new defined term—the

       Extension Term—to describe the ten-year renewal period of the Lease, yet did

       not alter the Expiry Date. Therefore, Subway argues, the 2013 Amendments

       did not extend the acceleration provision beyond the Lease’s original end date

       of June 30, 2014.


[13]   Exhibit E contains the acceleration provision, which becomes effective in the

       event of a default. Exhibit E clearly states that the acceleration provision

       applies “for the remainder of the Term (through the Expiry Date)[.]”

       Appellant’s App. Vol. II p. 93. The 2013 Amendments provide that “the Term

       of the Lease is hereby extended for a period of 10 years (the ‘Extension

       Term’)[.]” Id. at 99. By extending the Lease’s “Term” for ten years, the 2013

       Amendments extended the Lease’s provisions—including the obligations of

       Exhibit E. To interpret the amendments as Subway requests would lead to an

       impractical result in which only the amendments, rather than the Lease itself

       along with Exhibit E and the amendments, would govern the parties’

       agreement. Because the 2013 Amendments extended the terms of the Lease for

       an additional ten years, Exhibit E’s acceleration provision remained in effect

       through the extended term, which ended on June 30, 2024.


[14]   The trial court did not err by interpreting the language in the Lease, Exhibit E,

       and the 2013 Amendments, to find that Subway’s rent and fees were



       Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 11 of 14
       accelerated and became due in the event of a default and termination of the

       Lease. Consequently, the trial court did not err in its calculation of damages.


                                  III. Mitigation of Damages
[15]   Subway next contends that the trial court erred by concluding that Green Tree

       Mall met its prima facie summary judgment burden of showing that there was

       no genuine issue of material fact with respect to whether Green Tree Mall

       mitigated its damages pursuant to the Lease.


[16]   First, however, we must address Subway’s argument that the trial court erred by

       allowing Green Tree Mall to file a reply and supplemental designation of

       evidence regarding the issue of mitigation. Subway contends that the trial court

       should not have allowed the mall to submit supplemental declarations to

       compensate for what Subway considers the mall’s deficient initial designation

       of evidence.


[17]   We disagree. Subway neither moved to strike Green Tree Mall’s reply or

       supplemental evidence, nor did Subway object to the reply or supplemental

       evidence at the hearing below or in supplemental briefing. Regardless, our

       Court has previously addressed this issue:


               Trial Rule 56 neither expressly permits nor precludes such a reply
               brief. The supreme court has, in other instances, either expressly
               permitted or expressly prohibited reply briefs. Compare T.R. 56
               with App. R. 54(D) (“Reply briefs on Rehearing are prohibited.”)
               and App. R. 46(C) (“The appellant may file a reply brief
               responding to the appellee’s argument.”) In Trial Rule 56,
               however, the supreme court has remained silent on the specific

       Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 12 of 14
               subject of a reply brief. The Rule does, however, provide for
               affidavits submitted in support or in opposition to summary
               judgment to be supplemented or opposed by depositions, answers
               to interrogatories, and further affidavits. T.R. 56(E). Clearly,
               additional evidence after the initial filings is contemplated by the
               Trial Rule, . . .


       Spudich v. N. Ind. Pub. Serv. Co., 745 N.E.2d 281, 287 (Ind. Ct. App. 2001). See

       also Auto-Owners Ins. Co. v. Benko, 964 N.E.2d 886, 889-90 (Ind. Ct. App. 2012)

       (trial court did not err by denying motion to strike supplemental designation of

       evidence); Reed v. City of Evansville, 956 N.E.2d 684, 690 (Ind. Ct. App. 2011)

       (trial court may permit affidavits accompanying motion for summary judgment

       to be supplemented by additional affidavits accompanying the movant’s reply).

       Accordingly, the trial court did not err by allowing Green Tree Mall to file a

       reply and supplemental designation of evidence.


[18]   Subway next contends that the evidence Green Tree Mall designated with its

       motion for summary judgment regarding its mitigation of damages—

       specifically, Cullen’s statement that, “[t]o date, notwithstanding its efforts to do

       so, Green Tree has not been able to relet the Premises,” appellant’s app. vol. II

       p. 125—was insufficient to foreclose a genuine issue of material fact about

       whether Green Tree Mall reasonably tried to mitigate its damages. Yet, as

       discussed above, Green Tree Mall’s evidence included more than this

       statement: the mall’s supplemental evidence included affidavits by both Cullen

       and Habermel in which each person stated that the mall had attempted to lease

       the space to at least five different businesses. The trial court cited Habermel’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 13 of 14
       affidavit in its order to support its conclusion that Green Tree Mall was meeting

       its ongoing duty to mitigate its damages.


[19]   According to Subway, Green Tree Mall should have provided more evidence of

       its mitigation of damages, such as information about its efforts to re-let the

       space or about the rent that it offered to possible new tenants. And it contends

       that it did not respond with its own designated evidence because Green Tree

       Mall’s designated evidence did not negate any factual issue regarding its duty to

       mitigate damages. We see the matter differently. Green Tree Mall satisfied its

       prima facie burden by designating two affidavits as evidence, each of which

       established that it had attempted to mitigate its damages, thereby satisfying its

       prima facie burden. Subway had an opportunity to address this issue during the

       hearing on Green Tree Mall’s motion for summary judgment and in the

       supplemental briefing that the trial court requested. It did not do so. As a

       result, based on the evidence in the record, there was no genuine issue of

       material fact before the trial court. The trial court did not err by finding that

       Green Tree Mall was meeting its ongoing duty to mitigate its damages.


[20]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019   Page 14 of 14
