      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                        FILED
      this Memorandum Decision shall not be                                  May 29 2020, 9:11 am
      regarded as precedent or cited before any
                                                                                    CLERK
      court except for the purpose of establishing                            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                                   ATTORNEY FOR APPELLEE
      Mitchell A. Greene                                       Julie A. Camden
      Greene Law LLC                                           Camden & Meridew, P.C.
      Indianapolis, Indiana                                    Fishers, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      RE/MAX at the Crossing,                                  May 29, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A-PL-236
              v.                                               Appeal from the Marion Superior
                                                               Court
      Telecom, LLC d/b/a Priority                              The Honorable Marc Rothenberg,
      Communications,                                          Judge
      Appellee-Plaintiff                                       Trial Court Cause No.
                                                               49D07-1904-PL-15156



      Crone, Judge.


                                             Case Summary
[1]   Telecom, LLC d/b/a Priority Communications (Priority) contracted to provide

      telecommunications services to RE/MAX at the Crossing for a minimum of


      Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020                     Page 1 of 8
      thirty-six months. RE/MAX terminated the contract early. Priority sued

      RE/MAX for breach of contract and moved for summary judgment. The trial

      court granted the motion and awarded Priority over $12,000 in damages. On

      appeal, RE/MAX argues that the trial court erred in granting summary

      judgment as to both liability and damages. We disagree and therefore affirm.


                                   Facts and Procedural History
[2]   In August 2017, Priority entered into a contract with RE/MAX to provide

      telecommunications services in exchange for monthly payments of $638.

      Including the cover page, the contract has four pages. One of the last lines on

      the third page states, “Term of Service: 36 Months[.]” Appellant’s App. Vol. 2

      at 8. 1 The fourth of the eleven brief terms and conditions on the last page states,


               Unless otherwise specified in the Order Form, the Services are
               offered for a minimum term of thirty six (36) months. The Term
               shall automatically renew for a additional terms [sic] equal to the
               initial term unless and until either party notifies the other party in
               writing at least thirty (30) days prior to the expiration of the term
               in effect at the time that it does not wish to renew the Service.


      Id. at 9. In February 2019, RE/MAX terminated the contract.


[3]   Priority filed suit, alleging that RE/MAX breached the contract by terminating

      it early, and moved for summary judgment. In response, RE/MAX asserted




      1
        RE/MAX’s appendix does not contain a copy of the trial court’s chronological case summary in violation
      of Indiana Appellate Rule 50(A)(2)(a), and a copy of the trial court’s order appears at the end of the appendix
      in violation of Appellate Rule 51(B).

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020                         Page 2 of 8
      that the contract was ambiguous regarding its ability to terminate the agreement

      at will and that genuine issues of material fact existed regarding its affirmative

      defenses of mutual and unilateral mistake, as well as Priority’s alleged damages.

      After a hearing, the trial court issued an order granting Priority’s summary

      judgment motion. The court rejected RE/MAX’s arguments regarding

      ambiguity and mistake and awarded Priority $12,760 in damages for the twenty

      months of unpaid service remaining on the contract. RE/MAX now appeals.

      Additional facts will be provided below.


                                     Discussion and Decision
[4]   RE/MAX contends that the trial court erred in granting Priority’s summary

      judgment motion. “Summary judgment is appropriate only if the pleadings and

      designated materials considered by the trial court show 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.” Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 663 (Ind. Ct.

      App. 2011). Our standard of review is the same as the trial court’s. Id.


              We must construe all evidence in favor of the party opposing
              summary judgment, and all doubts as to the existence of a
              material issue must be resolved against the moving party.
              However, once the movant has carried its initial burden of going
              forward under Trial Rule 56(C), the nonmovant must come
              forward with sufficient evidence demonstrating the existence of
              genuine factual issues, which should be resolved at trial. If the
              nonmovant fails to meet his burden, and the law is with the
              movant, summary judgment should be granted.


      Id. (citations omitted).

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020   Page 3 of 8
[5]   A trial court’s findings and conclusions are helpful and offer insight into its

      rationale, but they are not binding on us. Hanna v. Ind. Farmers Mut. Ins. Co.,

      963 N.E.2d 72, 76 (Ind. Ct. App. 2012), trans. denied. “We will affirm on any

      theory or basis supported by the designated materials.” Id. “The party that lost

      in the trial court has the burden of persuading us that the trial court erred.”

      Denson v. Estate of Dillard, 116 N.E.3d 535, 539 (Ind. Ct. App. 2018).


[6]   “Summary judgment may be particularly appropriate in contract disputes, as

      interpretation of a contract presents a question of law and is reviewed de novo.”

      Sapp, 956 N.E.2d at 663. In construing a contract, the court must determine

      and effectuate the parties’ intent. Stenger v. LLC Corp., 819 N.E.2d 480, 484

      (Ind. Ct. App. 2004), trans. denied (2005).


                If the language of the agreement is unambiguous and the intent
                of the parties is discernible from the written contract, the court
                must give effect to the terms of the contract. A contract is
                ambiguous if a reasonable person would find the contract subject
                to more than one interpretation. The terms of a contract are not
                ambiguous merely because the parties disagree as to their
                interpretation.


      Id. (citations omitted). If contract language is unambiguous, the court may not

      look to extrinsic evidence to expand, vary, or explain the contract, but must

      determine the parties’ intent from the four corners of the document. Celadon

      Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App. 2017), trans.

      denied.




      Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020    Page 4 of 8
[7]   RE/MAX first contends that the contract “is at best ambiguous as to

      [RE/MAX’s] ability to terminate the contract at will.” Appellant’s Br. at 14.

      RE/MAX claims that the phrase that Priority’s services “‘are offered for a

      minimum term of thirty six (36) months’ could just as easily be construed by

      reasonable minds to be a guarantee by Priority that it will provide services for a

      period of at least 36 months, so long as [RE/MAX] chose to continue using its

      services.” Id. We disagree. As the trial court observed, it would be “plainly

      inconsistent” to interpret the contract’s thirty-six-month minimum term, “and

      each subsequent renewal period of thirty-six months, as also being ‘month-to-

      month’ or subject to cancellation at any time. There is no language suggesting

      a ‘month-to-month’ service agreement or that it could be cancelled at any

      time.” Appealed Order at 3. We will not add terms not agreed upon by the

      parties. Cherokee Air Prods., Inc. v. Buchan, 14 N.E.3d 831, 834 (Ind. Ct. App.

      2014).


[8]   Next, RE/MAX contends that genuine issues of material fact exist regarding

      the affirmative defenses of mutual and unilateral mistake, which may be

      grounds for equitably reforming a contract.


               In Indiana, courts may reform written documents in only two
               well-defined situations: (1) where there is a mutual mistake—
               meaning there has been a meeting of the minds, an agreement
               actually entered into, but the document in its written form does
               not express what the parties actually intended; or (2) where there
               has been a mistake by one party, accompanied by fraud or
               inequitable conduct by the remaining party.



      Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020   Page 5 of 8
       Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, 490 (Ind. Ct. App. 2004).

       “Reformations for mistakes are only available if they are mistakes of fact, not

       mistakes of law.” Id.


[9]    “In summary judgment proceedings, as at trial, the burden of establishing the

       existence of material affirmative defenses is on the defendant. In order to meet

       this burden, a defendant must show that a genuine issue of material fact exists

       as to each element of the asserted affirmative defense.” Paint Shuttle, Inc. v.

       Cont’l Cas. Co., 733 N.E.2d 513, 519 (Ind. Ct. App. 2000) (citation omitted),

       trans. denied (2001). Here, RE/MAX designated the affidavit of its owner, Mike

       Jones, who averred that he met with two Priority representatives who

       “explained the phone services, application, and pricing to [him] that would be

       covered by the contract.” Appellant’s App. Vol. 2 at 27. Jones “specifically

       asked [them] how long the contract was for[,]” and they told him “that the

       contract would be month to month and could be cancelled at any time.” Id.

       The Priority representatives “then showed [him] the contract that he was to

       sign.” Id. at 28. Jones “briefly read through the contract and did not see

       anything that gave [him] the impression that the contract could not be cancelled

       at any time, relying on the statements of the Priority representatives.” Id. He

       “signed the contract … under the impression that [he] was signing a month to

       month contract that could be cancelled at any time.” Id.


[10]   RE/MAX asserts that Jones’s affidavit establishes a genuine issue of material

       fact as to whether RE/MAX and Priority were mutually mistaken regarding the

       terms of the contract and/or whether Priority misrepresented those terms to

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020   Page 6 of 8
       RE/MAX. But RE/MAX’s argument disregards the axiom that “[e]quity

       should not intervene and courts should not grant reformation if the party

       seeking reformation failed to read the instrument or, if it was read, failed to give

       heed to its plain terms.” Monroe, 816 N.E.2d at 490. 2 Jones did read the

       contract and failed to give heed to its unambiguous thirty-six-month minimum

       term with no provision for at-will cancellation.


[11]   Finally, RE/MAX contends that Priority failed to establish that it is entitled to

       $12,760 in damages as a matter of law. RE/MAX observes that an “injured

       party may not be placed in a better position than he would have enjoyed if the

       breach had not occurred.” Fowler v. Campbell, 612 N.E.2d 596, 603 (Ind. Ct.

       App. 1993). RE/MAX further observes that Priority repossessed its

       telecommunications equipment shortly after the contract was terminated.

       RE/MAX states, “Priority now enjoys the use of that equipment to generate

       revenue by servicing other customers. To allow Priority to recover 20 months

       of revenue from [RE/MAX] and additional revenue from the returned

       equipment would place Priority in a better position than had the contract

       cancellation not occurred[.]” Appellant’s Br. at 18.


[12]   It is undisputed that if RE/MAX had not breached the contract, Priority would

       have been entitled to receive $638 per month over the last twenty months of the

       contract, for a total of $12,760. RE/MAX designated evidence, via Jones’s




       2
           We are unpersuaded by RE/MAX’s reliance on cases involving extrinsic mistakes of fact.


       Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020                  Page 7 of 8
       affidavit, that Priority retrieved its equipment shortly after RE/MAX

       terminated the contract, but it designated no evidence that Priority has in fact

       generated additional revenue from that equipment. Priority may well have

       done so to fulfill its common-law duty to mitigate its damages, Fischer v.

       Heymann, 12 N.E.3d 867, 871 (Ind. 2014), but RE/MAX failed to establish a

       genuine issue of material fact on this point. See Cmty. Fdn. of Nw. Ind. v.

       Miranda, 120 N.E.3d 1090, 1109 (Ind. Ct. App. 2019) (“guesses, supposition,

       and conjecture are not sufficient to create a genuine issue of material fact to

       defeat summary judgment”) (citation omitted). Accordingly, we affirm the trial

       court’s entry of summary judgment for Priority in all respects.


[13]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-236 | May 29, 2020   Page 8 of 8
