MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           Dec 06 2017, 8:53 am

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


ATTORNEY FOR APPELLANTS                              ATTORNEY FOR APPELLEES
John A. Kraft                                        James F. Guilfoyle
Young, Lind, Endres & Kraft                          Guilfoyle Law Office
New Albany, Indiana                                  Jeffersonville, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Mary Angela Bowser, Randall                           December 6, 2017
Bowser, Cathleen C. Perry, and                        Court of Appeals Case No.
Anthony P. Perry,                                     10A01-1702-CC-327
Appellants (Third-Party Defendants),                  Appeal from the Clark Circuit Court
        v.                                            The Honorable Bradley Jacobs,
                                                      Judge
Paulette Oakes and Garland
                                                      The Honorable Kenneth Abbott,
Oakes,                                                Magistrate
Appellees (Third-Party Plaintiffs).                   Trial Court Cause No.
                                                      10C02-1307-CC-1077

PNC Bank, N.A.,
Plaintiff,
        v.
Click Portrait Studio, LLC, Paulette
Oakes, and Garland Oakes,
Defendants.


Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017         Page 1 of 16
      Brown, Judge.


[1]   Cathleen C. Perry and Anthony P. Perry appeal the trial court’s entry of

      summary judgment in favor of Paulette Oakes and Garland Oakes.1 The Perrys

      raise three issues which we consolidate and restate as whether the court erred in

      entering summary judgment in favor of the Oakeses. We affirm.


                                      Facts and Procedural History

[2]   On or about May 25, 2011, Angela and Randall Bowser and Garland Oakes,

      three members of the Indiana limited liability company, Click Portrait Studios,

      LLC, (the “LLC”), adopted and signed a resolution that states:


              WHEREAS, the members of the LLC deem it advisable and in
              the best interest of the Company that [Garland] Oakes withdraw
              from the LLC; thereby relinquishing his interest in the LLC; and

              WHEREAS, the members of the LLC deem it advisable and in
              the best interest of the Company that the members memorialize
              their agreement in writing;

              NOW, THEREFORE, BE IT:

              RESOLVED, that the members hereby approve and authorize
              the withdrawal of [Garland] Oakes as a member of the LLC; and

              RESOLVED FURTHER, that any interest [Garland] Oakes may
              have in the LLC shall terminate; and

              RESOLVED FURTHER, that the members have entered into a
              DEBT SERVICING AGREEMENT and a GUARANTY


      1
       Third-party plaintiff Garland Oakes signed documents as “Grant Oakes.” See Appellants’ Appendix
      Volume 2 at 75-76; Appellants’ Brief at 6 n.1.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017     Page 2 of 16
              AGREEMENT memorializing the conditions under which
              [Garland] Oakes is agreeing to withdraw as a member of the
              LLC; and

              RESOLVED FURTHER, that Angela Bowser and Randall
              Bowser shall continue as members of the LLC, and Cathleen C.
              Perry and Anthony P. Perry shall become members of the LLC;
              and

              RESOLVED FURTHER, that Angela Bowser and Randall
              Bowser shall amend the Operating Agreement of the LLC,
              subject to the terms and conditions of the DEBT SERVICING
              AGREEMENT and the GUARANTY AGREEMENT; and

              RESOLVED FURTHER, that all acts and deeds heretofore
              performed by the members of the LLC in carrying out the terms
              and intentions of these resolutions, are hereby ratified, approved
              and confirmed.


      Appellants’ Appendix Volume 2 at 75.


[3]   On or about the same day, Garland Oakes, the Bowsers, and the Perrys signed

      an instrument prepared by Rachele L. Cummins, titled “Guaranty Agreement,”

      which provides:


              THIS AGREEMENT . . . by Angela Bowser, Randall Bowser,
              Cathleen C. Perry, and Anthony P. Perry, (hereinafter
              collectively referred to as “Guarantors”) in favor of [Garland]
              Oakes (and/or Paulette Oakes, his spouse, as her name may
              appear) (hereinafter referred to as “Oakes”),

              WHEREAS, Guarantors are the current Members of the Indiana
              limited liability company known as Click Portrait Studio, LLC
              (hereinafter referred to as “LLC”); and



      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 3 of 16
              WHEREAS, Oakes was a former member of the LLC but has
              resigned; and

              WHEREAS, contemporaneously with the execution of this
              Guaranty Agreement, the parties are entering and executing a
              “Debt Servicing Agreement” which is attached hereto and made
              a part hereof, as if totally set out; and

              WHEREAS, the parties desire to memorialize their Guaranty
              Agreement,

              THEREFORE, for and in consideration of the mutual promises
              and covenants existing herein, the parties acknowledge and agree
              as follows:

              The Guarantors do hereby jointly and severally, guaranty
              absolutely, irrevocably, personally, and unconditionally Oakes
              the due and punctual payment of all installments of principal and
              interest now or in the future due on the debts until the debts are
              paid in full.


      Id. at 77.


[4]   On or about the same day, the same parties entered into a second instrument

      prepared by Cummins, titled “Debt Servicing Agreement,” which provides:


              THIS AGREEMENT . . . by and between Click Portrait Studio,
              LLC (hereinafter referred to as the “LLC”) and [Garland] Oakes
              (hereinafter referred to as “Oakes”).

              WHEREAS, Oakes has elected to withdraw his membership
              interest in the LLC; and

              WHEREAS there are certain debts owed by the LLC that may be
              in Oakes [sic] name individually or jointly with his spouse
              and/or Oakes may have personally guaranteed; and


      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 4 of 16
        WHEREAS the LLC and its remaining members are not able to
        refinance the debt to remove Oakes [sic] name; and

        WHEREAS OAKES agrees to allow his name to remain on the
        debt and his property pledged as collateral provided that the LLC
        and its individual members, jointly and severally, pay, indemnify
        and hold him harmless from said debt and, in addition thereto,
        pay $45,000 for debt servicing; and

        WHEREAS, the parties desire to memorialize their Agreement,

        THEREFORE, for and in consideration of the mutual promises
        and covenants existing herein, the parties acknowledge and agree
        as follows:

                1. The Parties agree that the following debts of the LLC
                   may be in the name of Oakes individually or jointly
                   with his spouse or guaranteed by Oakes but shall
                   remain the sole and separate obligation of the LLC and
                   its individual members, jointly and severally:

                   i.    PNC credit card with an approximate balance of
                         $18,340

                  ii.    US Bank credit card with an approximate balance of
                         $11,105

                 iii.    First Savings Bank with an approximate balance of
                         $73,823

                 iv.     PNC bank loan with an approximate balance of
                         $178,475

                2. The LLC and its individual members, jointly and
                   severally, shall pay, indemnify and hold [Garland]
                   Oakes and his spouse harmless on the indebtedness
                   listed in paragraph 1 above from and against any and
                   all losses, liabilities, damages, costs and expenses,
                   including all legal fees and expenses that he may incur
                   as a result of failure to pay said indebtedness. In
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 5 of 16
                           addition, should any regular and scheduled payment on
                           any of the debts listed in paragraph 1 above be paid late
                           or paid untimely for any reason whatsoever, Oaks [sic]
                           shall be entitled to additional liquidated damages in the
                           amount of Thirty Dollars ($30.00) for each day said
                           payment is lae [sic] or untimely. Oakes’ remedies for
                           late or non-payment shall be cumulative and may be
                           enforced at law or in equity.

                      3. The LLC and/or its individual members, jointly and
                         severally shall pay to Oakes the total sum of $45,000,
                         payable in 3 installments of $15,000 each due and
                         payable on the following dates: immediately upon
                         execution of this agreement; June 1, 2012; and June 1,
                         2013.


      Id. at 79-80.


[5]   The Perrys and the Bowsers signed a Purchase Agreement of Membership

      Interest on December 13, 2012, providing:


              1. Angela Bowser and Randall Bowser shall transfer their
              respective membership interest in the [LLC] to Cathleen C.
              Perry.


                                                *****


              5. That Cathleen C. Perry, on behalf of the [LLC], assumes the
              current outstanding obligations of the [LLC], including, but not
              limited to the indebtedness thereunder.

              6. The Parties agree to indemnify and hold harmless each other
              with respect to any and all issues resulting from their ownership
              of their respective membership interest in the [LLC].


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      Id. at 111-112.


[6]   On July 23, 2013, PNC Bank, N.A. (“PNC”) filed a complaint against the LLC

      and the Oakeses, which states in part that, on or about May 15, 2007, the LLC,

      as the borrower, “executed and delivered a Promissory Note in favor of PNC in

      the amount of Three hundred Thousand Six Hundred and 00/100 Dollars

      ($317,600.00),”2 which was due and payable in full by its terms, that the

      Oakeses as guarantors “absolutely and unconditionally guaranteed the

      obligations of [the LLC] to PNC by virtue of their Commercial Guaranties,”

      and that the LLC “executed and delivered a Commercial Security Agreement.”

      Id. at 34. The complaint also states that, as of January 8, 2013, the “principal

      sum of $121,660.97, accrued interest of $4,249.45, late charges in the amount of

      $2,328.60, plus per diem interest that continues to accrue, costs and attorney

      fees to be determined at judgment” is due on the note. Id.


[7]   On September 19, 2013, the Oakeses filed an answer and a third-party

      complaint against the Bowsers and the Perrys which alleging in part:


              11. On or about May 25, 2011, [the Bowsers and the Perrys]
              became the members of [the LLC]. Defendant [Garland] Oakes
              withdrew from the LLC. See Exhibit 2.

              12. On or about May 25, 2011, third party defendants, [agreed]
              jointly and severally, to pay, indemnify and hold the [Oakeses]



      2
        The original PNC complaint included an attached exhibit containing the original promissory note and the
      pair of unconditional guarantee agreements, which state in part that the note is “dated 5-15-07 in the
      principal amount of Three Hundred Seventeen Thousand Six Hundred & 00/100 Dollars.” Appellants’
      Appendix Volume 2 at 40. (Appellants’ App. Vol. 2 at 33-51)

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017        Page 7 of 16
              harmless on the debt which forms the basis of the complaint. See
              Exhibits 3 (“Guaranty Agreement”) and 4 (“Debt Servicing
              Agreement”).

              13. Additionally, third party defendants, jointly and severally,
              agreed to pay any losses, liabilities, damages, costs, expenses,
              and legal fees for the failure to pay said debt. See Exhibit 4.

                                                *****

              15. In the event PNC recovers judgment against the [Oakeses]
              on its complaint, third party defendants are liable to the
              [Oakeses] in a like amount, and are also liable for costs,
              expenses, fees and liquidated damages.


      Id. at 53-54. On October 10, 2013, PNC subsequently amended its complaint to

      reflect the new third-party claim. Summary judgment was granted on the

      amended complaint in favor of PNC against the Oakeses and the LLC on

      December 26, 2014.


[8]   On November 24, 2015, the Oakeses filed a motion for summary judgment

      against the Perrys as third-party defendants. In their supporting memorandum,

      the Oakeses argued that on or about May 25, 2011, the Perrys “assumed the

      obligations of [the LLC], as well as the obligations associated with the

      [Oakeses] involvement in the business. The Perrys promised and pledged their

      willingness to hold the [Oakeses] harmless on these debts,” and that the Perrys


              assented to the terms of an indemnification agreement wherein
              they promised due and punctual payments would be made on
              behalf of the [Oakeses]. The payments were not made, and these
              documents, taken together, remove all doubt as to whether a
              factual dispute can exist regarding indemnity liability. The

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 8 of 16
              Perrys signed the agreements, signatures which they do not deny,
              and now must be held to the terms of those agreements.


      Id. at 122.


[9]   In their response to the motion for summary judgment, the Perrys designated as

      evidence the Purchase Agreement of Membership Interest, the Affidavit of

      Cathleen C. Perry, and the opinion of the Indiana Supreme Court case, In re

      Indiana State Fair Litig., 49 N.E.3d 545 (Ind. 2016), as well as the May 25, 2011,

      Resolutions of the Members, and Guaranty and Debt Servicing Agreements.


      The Affidavit of Cathleen C. Perry, signed and dated January 28, 2016, states:


              1. . . . I am an owner of [the LLC].

              2. I, along with Anthony P. Perry, purchased a membership
              interest in [the LLC] on December 13, 2012.

              3. Before purchasing the membership interest, I communicated
              with PNC regarding the debt of [the LLC].

              4. During these conversations, PNC knew that some of [the
              LLC’s] assets had been misappropriated at a time before I
              purchased my membership interest.

              5. During these conversations, PNC knew that unauthorized
              distributions of [the LLC’s] capital had been made at a time
              before I purchased my membership interest.

              6. PNC never disclosed to me nor Anthony that any
              misappropriation or unauthorized distribution had occurred.

              7. I asked PNC about [the LLC’s] financial background. PNC
              would not disclose financial details because to do so would
              violate their confidentiality rules.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 9 of 16
               8. I executed the Purchase Agreement to become owner of [the
               LLC].

               9. Solely, in my capacity as owner of [the LLC], I assumed
               financial responsibility for outstanding obligations of [the LLC].

               10. Garland Oakes had entered into a debt servicing agreement
               with [the LLC] on May 25, 2011.

               11. Upon his departure, Garland Oakes wanted to be released
               from certain debt he had taken on as a member, but could not
               have his name removed.

               12. Garland Oakes agreed to stay on the debt servicing
               agreement only if all of the four (4) members of Click assumed
               this specific debt.

                                                 *****

               15. The Purchase Agreement did not cover the familial debt and
               any personal obligation to pay.


                                                 *****

               17. Any notes and/or other debts executed prior to my tenure as
               an owner were executed by [the LLC] in its business capacity,
               not by any individual members in their personal capacities.

               18. I have never changed limited liability status of [the LLC].

               19. [The LLC] was dissolved in 2013 and has not been
               reinstated.


       Id. at 143-144.


[10]   In their response, the Perrys also argued that “misappropriations and

       unauthorized distributions had occurred, unbeknownst to [the Perrys] upon


       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 10 of 16
       execution,” and that the LLC “should only be deemed responsible for any debts

       related to the photography business. It should not be held accountable for non-

       business debts to which its members, [the Perrys], were not aware.” Id. at 139.


[11]   An entry in the chronological case summary dated April 25, 2016, states in part,

       “[a]fter having taken this matter under advisement, the Court finds as follows: .

       . . The Court grants Third Party Plaintiff’s (Oakes) Motion for Summary

       judgment against Third Party Defendant (Perry).” Id. at 18. The trial court

       entered a first amended order granting summary judgment on August 30, 2016,

       and a second amended order on January 20, 2017, which granted the Perrys’

       motion for certification for interlocutory appeal.


                                                   Discussion

[12]   The issue is whether the trial court erred in entering summary judgment in

       favor of the Oakeses. We review an order for summary judgment de novo,

       applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000,

       1003 (Ind. 2014). Our review of a summary judgment motion is limited to

       those materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t

       of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). In reviewing a trial court’s

       ruling on a motion for summary judgment, we may affirm on any grounds

       supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox

       Cnty., 779 N.E.2d 1, 3 (Ind. 2002). The moving party bears the initial burden of

       making a prima facie showing that there are no genuine issues of material fact

       and that it is entitled to judgment as a matter of law. Manley v. Sherer, 992

       N.E.2d 670, 673 (Ind. 2013). Summary judgment is improper if the moving
       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 11 of 16
       party fails to carry its burden, but if it succeeds, then the nonmoving party must

       come forward with evidence establishing the existence of a genuine issue of

       material fact. Id. We construe all factual inferences in favor of the nonmoving

       party and resolve all doubts as to the existence of a material issue against the

       moving party. Id.


[13]   The Perrys contend on appeal that the Oakeses did not demonstrate that there

       were no genuine issues of material fact, that “contracts for indemnification are

       construed strictly and, in this case, as it was for past wrongdoings, the Perrys

       cannot be held to have assumed those damages unless they knowingly and

       willingly did so,” and that “there was no agreement between the [Oakeses] and

       the Perrys that the Perrys would assume non-[LLC] debt or any debts that

       occurred due to embezzlement, conversion, deceit, or other wrongdoing.”

       Appellants’ Brief at 9. They also argue that the Oakeses “failed to disclose

       certain loan defaults to the Perrys,” that this failure of the meeting of the minds

       necessitates a finding of failure to form a binding contract, and that the Debt

       Servicing Agreement and the Guaranty Agreement were “vague and unspecific

       and did not illustrate the previously incurred debt of which the [Oakeses] were

       attempting to transfer their liability.” Appellants’ Reply Brief at 12-13.


[14]   The Oakeses contend that summary judgment entered on the “attempt to

       recover under the indemnity agreement related to the sale of their small

       business was proper,” that the dispute “involves whether a fraud occurred as

       alleged by the Perrys, and if it did, whether the Perrys should have plead those

       facts with specificity,” and that, because the Indiana Rules of Trial Procedure

       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 12 of 16
       “require specificity when dealing with averments of fraud,” the “failure to

       comply therewith” should control in this case.3 Appellees’ Brief at 11-12.


[15]   The construction of a contract is particularly well-suited for de novo appellate

       review because it generally presents questions purely of law. Holiday Hospitality

       Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind. 2013) (citing

       Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997)). A contract

       may be construed on summary judgment “if it ‘is not ambiguous or uncertain,’

       or if ‘the contract ambiguity, if one exists, can be resolved without the aid of a

       factual determination.’” In re Indiana State Fair Litig., 49 N.E.3d 545, 548 (Ind.

       2016) (quoting Warrick County ex rel. Conner v. Hill, 973 N.E.2d 1138, 1144 (Ind.

       Ct. App. 2012), trans. denied). The meaning of a contract is a question for the

       factfinder, precluding summary judgment, only where interpreting an ambiguity

       requires extrinsic evidence. Id. (citing Tate v. Secura Ins., 587 N.E.2d 665, 668

       (Ind. 1992)).


[16]   A contract is not ambiguous merely because the parties disagree as to its proper

       construction. Ethyl Corp. v. Forcum-Lannom Assocs., Inc., 433 N.E.2d 1214, 1218

       (Ind. Ct. App. 1982). When this court interprets an unambiguous contract, we

       must give effect to the intentions of the parties as expressed in the four corners

       of the instrument. Id.; Collins v. McKinney, 871 N.E.2d 363, 372 (Ind. Ct. App.

       2007). Clear, plain, and unambiguous terms are conclusive of that intent. Fetz



       3
        In response to the Oakeses’ brief, the Perrys filed a motion to strike on May 19, 2017. By separate order we
       deny the motion.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017          Page 13 of 16
       v. Phillips, 591 N.E.2d 644, 647 (Ind. Ct. App. 1992). We will not construe

       clear and unambiguous provisions, nor will we add provisions not agreed upon

       by the parties. Id. (citing Wilson v. Elliott, 589 N.E.2d 259, 264 (Ind. Ct. App.

       1992)). In interpreting an agreement, we are under an obligation to read the

       agreement in a manner which harmonizes its provisions as a whole and to give

       effect to the parties’ expressed intent. Kelly v. Smith, 611 N.E.2d 118, 121 (Ind.

       1993); see also Trustees of Ind. Univ. v. Cohen, 910 N.E.2d 251, 257-260 (Ind. Ct.

       App. 2009).


[17]   The designated evidence reveals that the Perrys became members of the LLC

       on or about May 25, 2011, by way of a resolution signed by three of its then-

       current members. The Perrys signed a document on or about the same day,

       titled “Guaranty Agreement,” which references the “Debt Servicing

       Agreement” and states that Garland Oakes was a former member of the LLC

       and that the Perrys and the Bowsers “jointly and severally, guaranty absolutely,

       irrevocably, personally, and unconditionally . . . the due and punctual payment

       of all installments of principal and interest now or in the future due on the debts

       until the debts are paid in full.” Appellants’ Appendix Volume 2 at 77. The

       Perrys also signed the Debt Servicing Agreement, which states that “certain

       debts owed by the LLC” may have been “personally guaranteed” by the

       Oakeses, that Garland Oakes allowed his name to remain on the debt

       “provided that the LLC and its individual members, jointly and severally, pay,

       indemnify and hold him harmless from said debt,” and that the debts, including

       the “PNC bank loan with an approximate balance of $178,475,” which may


       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 14 of 16
       have been “in the names of [Garland] Oakes individually or jointly with his

       spouse or guaranteed by Oakes,” shall remain “the sole and separate obligation

       of the LLC and its individual members, jointly and severally.” Id. at 79. The

       agreement also contains a second paragraph that states the LLC and its

       individual members, “jointly and severally,” shall “pay, indemnify and hold

       [Garland] Oakes and his spouse harmless on the indebtedness listed [above]

       from and against any and all losses, liabilities, damages, costs and expenses,

       including all legal fees and expenses that he may incur as a result of failure to

       pay said indebtedness.” Id. at 79-80. Given the clear, plain, and unambiguous

       recitation of the rights and responsibilities of the parties, we will not read the

       agreements in a manner inconsistent with the intent as unambiguously

       expressed by the language in the agreements. See Ethyl Corp., 433 N.E.2d at

       1218. We cannot say that the trial court erred in granting summary judgment

       in favor of the Oakeses based on the agreements as set forth above and in the

       record.


[18]   To the extent that the Perrys assert that a material issue of fact exists regarding

       their defense of fraud and that they did not agree to guarantee non-LLC debt,

       we observe that Cathleen Perry’s affidavit relates primarily to PNC’s knowledge

       and failure to disclose that any misappropriation or unauthorized distribution

       had occurred. Construing the agreements together, we conclude there is not a

       genuine issue of material fact as to the debt guaranteed by the Perrys or their

       fraud defense. See Kruse v. Nat’l Bank of Indianapolis, 815 N.E.2d 137, 144 (Ind.

       Ct. App. 2004) (observing that the appellant argued that ambiguities existed as


       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 15 of 16
       to what debt he had guaranteed, that in construing the guarantee the court

       would give effect to the intentions of the parties as ascertained from the

       language of the contract in light of the surrounding circumstances, and that it

       was clear from the face of a loan agreement and a guaranty signed by the

       appellant that he had agreed to act as a guarantor of certain indebtedness, and

       rejecting the claim by the appellant that there was a genuine issue of material

       fact as to what debt he guaranteed).


                                                   Conclusion

[19]   For the foregoing reasons, we affirm the entry of summary judgment in favor of

       the Oakeses and against the Perrys.


[20]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017   Page 16 of 16
