                                                                        Jan 26 2015, 9:43 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Sean M. Clapp                                              Drew Miroff
      Ian T. Keeler                                              Brian J. Paul
      Clapp Ferrucci                                             Christina L. Fugate
      Fishers, Indiana                                           Ice Miller LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Curt Pearman d/b/a Greenwood                              January 26, 2015
      Professional Park,                                        Court of Appeals Cause No.
                                                                41A04-1408-CC-381
      Appellant-Plaintiff,
                                                                Appeal from the Johnson Superior
              v.                                                Court.
                                                                The Honorable Kevin M. Barton,
                                                                Judge.
      T. Ryan Jackson and Kristin M.                            Cause No. 41D01-1111-CC 1246
      Jackson,
      Appellees-Defendants.




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Curt Pearman, who as a landlord does business as Greenwood Professional

      Park, appeals from the trial court’s order granting partial summary judgment in

      favor of former tenants, T. Ryan Jackson and Kristin Jackson (the Jacksons), in


      Court of Appeals of Indiana | Opinion 41A04-1408-CC-381 | January 26, 2015               Page 1 of 17
      his action against them alleging breach of a lease agreement by abandoning the

      leased premises before the expiration of a new lease term. Pearman contends

      that the trial court erred by concluding that the lease requirement for written

      notice of renewal was not waived and that the Jacksons had not exercised the

      option to renew the lease for an additional term of three years by the payment

      of rent for a few months after the most recent lease term had expired. We

      affirm.


                                                      Issue
[2]   We combine and restate the issues Pearman presents for our review as follows:


[3]   Whether the trial court correctly determined that, standing alone, holding over

      and paying rent did not constitute the exercise of the option to renew the lease,

      and that the lease requirement of a written notice of renewal was not waived.


                                Facts and Procedural History
[4]   Pearman and the Jacksons entered into a lease agreement for premises located

      in Greenwood Professional Park on December 20, 2007, including the

      following terms which are pertinent to the disposition of this appeal:

              2.       Term.


              A.     The term of this Lease shall be for a period of Three (3) years
              and zero (0) months commencing on the first day of January, 2008,
              and ending on the last day of December, 2011.




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        ....




        12.      Abandonment.


        If Lessee shall abandon or vacate said Premises before the end of the
        term, or any other event shall happen entitling Lessor to take
        possession thereof, Lessor may take possession of said Premises and
        re-let the same, without such action being deemed an acceptance of a
        surrender of this lease or in any way terminating the Lessee’s liability
        hereunder, and the Lessee shall remain liable to pay the rent herein
        reserved, less the net amount realized from such re-letting, after
        deduction of any expenses incidental to such repossession and re-
        letting.


        ....


        14.      Holding Over.


        If Lessee shall occupy the Premises without or with Lessor’s consent
        after the expiration of the term of this lease and rent is accepted from
        Lessee such occupancy and payment shall be construed as an
        extension of this lease for the term of one month only from the date of
        such expiration and occupancy thereafter shall operate to extend this
        lease for but one month at a time unless other terms of such extensions
        are endorsed hereon in writing and signed by the Parties hereto. If
        either Lessor or Lessee desire to terminate said occupancy at the end
        of any month after the termination of this lease the Party desiring to
        terminate shall give the other Part at [least] thirty (30) days written
        notice to that effect. However, the Lessor shall not be required to give
        any such notice if Lessee has failed to pay the rent in advance when
        due. Failure to give such notice [on] the part of Lessee shall obligate it
        to pay rent for an additional calendar month following the month in
        which the Lessee vacates the Premises.



Court of Appeals of Indiana | Opinion 41A04-1408-CC-381 | January 26, 2015         Page 3 of 17
              ....


              25.      Option of Lessee to Renew.


              Lessor hereby grants to Lessee an option to renew this Lease, upon the
              same Terms and conditions as herein above provided, except as to
              Rental which shall be adjusted as provided in Section 3b, for Three (3)
              successive terms of three (3) years each. Lessee may exercise these
              options by giving written notice thereof to Lessor at least six (6)
              months prior to the expiration of the then current term.


[5]   Appellant’s App. at 38-44.


[6]   The Jacksons are periodontists who leased the premises as a location for their

      practice. Near the end of the initial lease term, the Jacksons considered

      renewing the lease for an additional term of three years, but decided against

      that option. Instead, they searched for other locations for their practice, and

      paid rent on a monthly basis to Pearman, who accepted the Jacksons’ rent

      payments, after the original lease term expired. In February 2011, at Pearman’s

      request, the parties executed an addendum to the lease agreement specifying

      that the initial lease term was to end on the last day of December 2010. The

      addendum corrects the scrivener’s error and reflects the parties’ intention that

      the initial term of the lease would be for three years and not four years, as the

      scrivener’s error implied. Appellant’s App. pp. 128, 131. On March 16, 2011,

      the Jacksons sent a written notice via certified mail to Pearman expressing that

      they no longer wished to continue holding over on a monthly basis and that

      they wanted to terminate holding over as of May 31, 2011.



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[7]   Pearman filed his complaint against the Jacksons on November 28, 2011,

      claiming that they had breached the lease by prematurely abandoning the

      premises. More specifically, he claimed that by remaining in the premises after

      the expiration of the first lease term of three years the Jacksons entered into

      another lease term of three years and were bound to pay rent for the entirety of

      that second term. Pearman also claimed that the Jacksons had been submitting

      rent payments to another corporation and that Pearman had not received some

      rent payments.


[8]   The Jacksons filed their answer to Pearman’s complaint, denying Pearman’s

      claims against them, asserting affirmative defenses against him, and asserting a

      counterclaim. On March 23, 2012, the Jacksons filed a motion for partial

      judgment on the pleadings under Indiana Trial Rule 12(C) on the sole issue of

      liability. On April 16, 2012, the trial court entered an order directing Pearman

      to file, as a supplement to his complaint under Indiana Trial Rule 9.2 and

      within twenty days of the order, the written notice upon which Pearman based

      his allegation that the Jacksons exercised their option to renew the lease.


[9]   Pearman did not do so, but, instead, filed a response to the Jacksons’ motion

      and his own motion for summary judgment on the issue of liability on April 18,

      2012. In his motion for summary judgment Pearman argued that he had

      waived the written notice requirement and that by holding over the Jacksons

      had agreed to a renewal of the lease for three years. The trial court denied both

      motions for summary judgment by order on May 16, 2012, finding that a



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       judgment could not be made on the pleadings because a genuine issue of

       material fact existed regarding waiver of the written notice requirement.


[10]   On November 12, 2013, after some discovery was conducted, the Jacksons filed

       their motion for partial summary judgment on the issue of liability. Among the

       designated materials, were excerpts of Pearman’s deposition in which he

       admitted that the Jacksons had never tendered a written or other kind of notice

       exercising the renewal option under the lease. Pearman filed his reponse to the

       Jacksons’ motion designating, but without submitting, the following: (1) the

       lease; (2) the Jacksons’ admission, contained in their answer and motion for

       partial judgment on the pleadings, that they entered into the lease; and (3)

       Pearman’s deposition in its entirety, without the designation of specific excerpts

       of the deposition.


[11]   On December 27, 2013, the trial court entered its order granting the Jacksons’

       motion for partial summary judgment, concluding that the Jacksons did not

       breach the lease agreement. The trial court concluded that Pearman had

       attempted to support his claim of waiver of the written notice requirement by

       evidence of payment of rent by the Jacksons after the initial lease period had

       ended, which was insufficient as a matter of law to support his claim.


[12]   On January 24, 2014, Pearman filed a motion to correct error from the trial

       court’s order granting partial summary judgment. In that motion, Pearman

       argued that he had designated his entire deposition in response to the Jacksons’

       motion for partial summary judgment, and specifically set forth excerpts of the


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       deposition, with page and line numbers, which he contended supported his

       claim that he had waived the requirement of written notice of renewal of the

       lease.


[13]   On January 27, 2014, the trial court entered an order acknowledging that

       Pearman had filed a motion to correct error, a motion appropriate following the

       entry of a final judgment pursuant to Indiana Trial Rule 59(C). The trial court

       further noted that Pearman’s motion addressed the trial court’s December 27,

       2013 order, which was interlocutory as it was not entered as a final order under

       Indiana Trial Rule 54(B). The trial court, therefore, agreed to consider

       Pearman’s motion as a motion to reconsider its prior decision, and per local

       rules, allowed the Jacksons the opportunity to respond to the motion by

       February 3, 2014.


[14]   On February 3, 2014, the Jacksons filed their response to Pearman’s motion,

       contending that the trial court’s prior order should not be reversed and arguing

       that Pearman’s designation of his entire deposition did not comply with the

       specificity required under Indiana Trial Rule 56(C). The trial court entered an

       order on February 18, 2014 denying Pearman’s motion concluding that by

       designating the entire deposition, the designation was not proper for purposes

       of summary judgment, and otherwise upheld its prior decision granting partial

       summary judgment in favor of the Jacksons.


[15]   Later, the parties filed a stipulation of dismissal of the Jacksons’ counterclaim

       with prejudice. In an order dated April 28, 2014, the trial court set the


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       remaining claims for trial. On July 5, 2014, Pearman filed a second motion to

       reconsider the trial court’s order granting partial summary judgment to the

       Jacksons on the issue of liability. In this motion, Pearman designated

       additional evidence in support of his claim that he had waived the written

       notice requirement for renewal of the lease. Pearman designated specific

       portions of his deposition testimony, his affirmation dated July 5, 2014, and a

       letter dated February 11, 2011 he had sent to the Jacksons reflecting an increase

       in the amount of rent for 2011. Pearman’s motion was deemed denied by

       operation of Indiana Trial Rule 53.4(B).


[16]   After notifying the trial court that a trial on the remaining issues would not be

       necessary, on July 17, 2014, the parties filed an Agreed Stipulation of Dismissal

       of Claims (“Agreed Stipulation”). By the terms of the Agreed Stipulation, all

       claims, except the issues concerning liability that were addressed in the trial

       court’s December 27, 2013 order, were subject to dismissal upon acceptance of

       the Agreed Stipulation.


[17]   In an order issued on August 15, 2014, the trial court accepted the Agreed

       Stipulation. In that same order, the trial court acknowledged that Pearman’s

       motion, which was deemed denied, asked the trial court to do more than

       reconsider its prior ruling, because additional evidence had been submitted with

       the motion. The trial court declined to consider the additional evidence as it

       had not been properly and timely before the trial court at the time the first order

       was entered. Further, the trial court declined to reconsider its order granting

       partial summary judgment and directed the entry of its order granting partial

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       summary judgment in favor of the Jacksons as a final order under Indiana Trial

       Rule 54. Pearman now appeals.


                                     Discussion and Decision
[18]   Pearman challenges the trial court’s ruling on a motion for summary judgment.

       Our Supreme Court has recently set forth our standard of review as follows:

               We review summary judgment de novo, applying the same standard as
               the trial court: “Drawing all reasonable inferences in favor of . . . the
               non-moving parties, summary judgment is appropriate ‘if the
               designated evidentiary matter 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.’ “A fact is ‘material’ if its resolution would affect
               the outcome of the case, and an issue is ‘genuine’ if a trier of fact is
               required to resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable inferences.”




               The initial burden is on the summary-judgment movant to
               “demonstrate[ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an issue
               for the trier of fact. And “[a]lthough the non-moving party has the
               burden on appeal of persuading us that the grant of summary
               judgment was erroneous, we carefully assess the trial court’s decision
               to ensure that he was not improperly denied his day in court.”


               ....


               Even though Indiana Trial Rule 56 is nearly identical to Federal Rule
               of Civil Procedure 56, we have long recognized that “Indiana’s
               summary judgment procedure . . . diverges from federal summary
               judgment practice.” In particular, while federal practice permits the

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               moving party to merely show that the party carrying the burden of
               proof lacks evidence on a necessary element, we impose a more
               onerous burden: to affirmatively “negate an opponent’s claim.” Our
               choice to heighten the summary judgment burden has been criticized
               because it may let summary judgment be precluded by as little as a
               non-movant’s “mere designation of a self-serving affidavit.”


               That observation is accurate, but using it as the basis for criticism
               overlooks the policy behind that heightened standard. Summary
               judgment “is a desirable tool to allow the trial court to dispose of cases
               where only legal issues exist.” But it is also a “blunt . . . instrument,”
               by which “the non-prevailing party is prevented from having his day in
               court[ ]”. We have therefore cautioned that summary judgment “is
               not a summary trial,”; and the Court of Appeals has often rightly
               observed that it “is not appropriate merely because the non-movant
               appears unlikely to prevail at trial.” In essence, Indiana consciously
               errs on the side of letting marginal cases proceed to trial on the merits,
               rather than risk short-circuiting meritorious claims.


       Hughley v. State 15 N.E.3d 1000, 1003-04 (Ind. 2014) (citations omitted).


[19]   “On appeal, a trial court’s grant of summary judgment is ‘clothed with a

       presumption of validity.’” Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434

       (Ind. 1993). Thus, Pearman bears the burden of convincing us that the trial

       court erred in its determination that there were no genuine issues of material

       fact and that the Jacksons were entitled to judgment as a matter of law on the

       issue of liability. See id. Pearman contends that the trial court erred by

       concluding that the lease requirement of a written notice of renewal had not

       been waived, and that by holding over and paying rent, the Jacksons had not

       exercised their option to renew the lease. Resolution of this appeal requires an




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       examination of the designated materials that were properly before the trial

       court.


[20]   Indiana Trial Rule 56(C) governs the designation of materials to the trial court

       in the summary judgment process. The Supreme Court stated as follows:

                Effective January 1991, we modified the summary judgment process
                through amendments to T.R. 56. No longer can parties rely without
                specificity on the entire assembled record-depositions, answers to
                interrogatories, and admissions-to fend off or support motions for
                summary judgment. It is not within a trial court’s duties to search the
                record to construct a claim or defense for a party. Babinchak v. Town of
                Chesterton (1992), Ind. App., 598 N.E.2d 1099, 1101 (“It is clear from .
                . . amended [T.R. 56] that a court may not search the record when
                making a decision about [a] motion” for summary judgment.).


                To promote the expeditious resolution of lawsuits and conserve
                judicial resources, T.R. 56(C) now requires each party to a summary
                judgment motion to “designate to the court all parts of pleadings,
                depositions, answers to interrogatories, admissions, matters of judicial
                notice, and any other matters on which it relies for purposes of the
                motion.” In addition, the opposing party must designate to the trial
                court “each material issue of fact which that party asserts precludes
                entry of summary judgment and the evidence relevant thereto.” T.R.
                56(C). The trial court must enter summary judgment if the
                “designated evidentiary matter shows that there is no genuine issue as
                to any material fact and that the moving party is entitled to a judgment
                as a matter of law.” Id. (emphasis added).


       Rosi, 615 N.E.2d at 434. (footnote omitted). In that footnote, the Supreme Court,

       in Rosi, stated


                Although we will liberally construe the nonmovant’s designated
                evidence to ensure that he is not improperly denied his day in court,
                Department of Revenue v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d

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               1311, 1313, a nonmoving party will not survive summary judgment
               merely by designating entire portions of the record, such as
               depositions. T.R. 56(C) expressly requires the nonmoving party to
               identify specifically the parts of pleadings, depositions, answers to
               interrogatories, and admissions on which he relies.


       Id. at 434 n.2.


[21]   In Filip v. Block, 879 N.E.2d 1076 (Ind. 2008), our Supreme Court revisited the

       topic of the designation of evidence in the summary judgment context. In

       particular, the Supreme Court stated as follows:

               Trial Rule 56(C) does not mandate either the form of designation, i.e.,
               the degree of specificity required, or its placement, i.e., the filing in
               which the designation is to be made. Trial Rule 56(C) does compel
               parties to identify the “parts” of any document upon which they rely.
               The Rule thus requires sufficient specificity to identify the relevant
               portions of a document, and so, for example, the designation of an
               entire deposition is inadequate. AutoXchange.com, Inc. v. Dreyer &
               Reinbold, Inc., 816 N.E.2d 40, 45 (Ind. Ct. App. 2004). Although page
               numbers are usually sufficient, a more detailed specification, such as
               supplying line numbers, is preferred. Adding verbatim quotations of
               the selected items gives the trial court a more convenient reference, but
               is not required and may be excessive if large quantities of text are
               designated.


               Parties may choose the placement of evidence designation. Id. at 46;
               Am. Osteopathic Ass’n, 645 N.E.2d at 615. Designation may be placed
               in a motion for summary judgment, a memorandum supporting or
               opposing the motion, a separate filing identifying itself as the
               designation of evidence, or an appendix to the motion or
               memorandum. The only requirement as to placement is that the
               designation clearly identify listed materials as designated evidence in
               support of or opposition to the motion for summary judgment. If the
               designation is not in the motion itself, it must be in a paper filed with



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               the motion, and the motion should recite where the designation of
               evidence is to be found in the accompanying papers.


       879 N.E.2d at 1081.


[22]   The Jacksons designated the following exhibits and attached them to their

       November 12, 2013 motion for partial summary judgment: 1) Pearman’s

       complaint; 2) Pearman’s July 16, 2013 deposition, denoting particular lines of

       particular pages, with only those pages attached; 3) Kristin Jackson’s affidavit;

       4) a February 18, 2011, letter from Pearman addressing the addendum to the

       lease; and 5) the Jacksons’ letter notifying Pearman of the termination of their

       holdover period. In response to the Jacksons’ motion, Pearman designated, but

       did not attach, the following documents: 1) the Lease that “was attached to the

       Complaint in this matter”; 2) the Jacksons’ admissions that they entered into

       the lease “in their Answer and in their Motion for Partial Judgment on the

       Pleadings”; and 3) the “Deposition of Plaintiff Curt Pearman.” Appellant’s

       App. at 142-43. Thus, because the portions of the deposition Pearman later

       contended and now contends on appeal support his claim were not before the

       trial court, they could not be considered by the trial court in ruling on the

       Jacksons’ motion.


[23]   Indiana Trial Rule 56(H) controls our review of a trial court’s ruling on a

       motion for summary judgment by providing that “[n]o judgment rendered on

       the motion shall be reversed on the ground that there is a genuine issue of

       material fact unless the material fact and the evidence relevant thereto shall

       have been specifically designated to the trial court.” “The Rule thus requires
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       sufficient specificity to identify the relevant portions of a document, and so, for

       example, the designation of an entire deposition is inadequate.” Filip, 879

       N.E.2d at 1081 (citing AutoXchange.com, Inc. v. Dreyer & Reinbold, Inc., 816

       N.E.2d 40, 45 (Ind. Ct. App. 2004)). Therefore, to the extent Pearman argues

       that there is deposition testimony to support his claim of waiver, that evidence

       was not specifically designated to the trial court in a timely manner, and we

       cannot find reversible error based on that evidence.


[24]   Having determined what was properly before the trial court and agreeing that

       the trial court could not consider more specific designations and additional

       evidence tendered after the trial court’s order, we turn to the merits of this

       appeal. The designated evidence established that the lease required written

       notice of the option to renew the lease for an additional term of three years, six

       months prior to the expiration of the current term. No such written notice was

       submitted to the trial court. Kristin Jackson’s affidavit stated that 1) the

       Jacksons decided against exercising their option to renew the lease and did not

       do so, and 2) the Jacksons continued to occupy the premises and paid rent each

       month under the lease’s holdover provision.


[25]   Pearman argues that he unilaterally waived the written notice requirement.

       The trial court disagreed, relying in part on Carsten v. Eickhoff, 323 N.E.2d 664

       (Ind. Ct. App. 1975). Pearman relies on the Jacksons’ continued payment of

       rent to establish that the lease term was in fact renewed. In Carsten, the issue

       involved whether an option in the lease could be construed as containing an

       option to extend or an option to renew and how to interpret the lessee’s acts of

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       holding over and paying rent under both scenarios. In that case, we discussed

       case law establishing that when a lessee has a privilege or option to extend,

       holding over and paying rent is sufficient to exercise that privilege. Id. at 667.

       On the other hand, case law had established that when a lessee has an option to

       renew, holding over and paying rent is not sufficient to exercise the option to

       renew. Id. We reasoned that the distinction existed “as an aid to the courts in

       determining the intention of the parties regarding the effect of holding over

       when there was some right in the lessee to a further term but no express

       contract provision regarding the effect of holding over.” Id. at 667-68. In that

       case, there was no need to make the distinction—option to extend or option to

       renew—because the lease contained a notice requirement to exercise the option.

       The evidence cited to support a claim of waiver of the notice requirement or the

       right to equitable relief for late notice was in conflict and insufficient to support

       the waiver claim. We affirmed the decision of the trial court denying equitable

       relief and finding that there was no waiver of the notice requirement. 323

       N.E.2d at 669.


[26]   In Powers v. City of Lafayette, 622 N.E.2d 1311 (Ind. Ct. App. 1993), trans. denied,

       we again addressed the issue of the effect of holding over and payment of rent

       after the initial lease term had expired. We reviewed the trial court’s holding as

       a matter of law, which applied the holding in Carsten, that merely holding over

       and paying rent after the original lease term had expired and without providing

       notice of the exercise of the option to renew was not, standing alone, evidence

       of waiver by the lessor. We held that the trial court erred by instructing the jury


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       that the option to renew had not been exercised because it was not correct if

       there was substantive evidence of waiver and acceptance by the lessor. 622

       N.E.2d at 1315. We remanded the matter for a new trial because in Powers,

       unlike in Carsten, there was evidence from which the trier of fact could conclude

       waiver of the required notice had been established, as notice had been given

       late, but prior to the expiration of the lease. 622 N.E.2d at 1315.


[27]   In the present case, the lease contained a provision for the option to renew,

       including a written notice requirement, and a provision for holding over after

       the lease term ended, including the written notice of termination requirement

       and providing that the lease periods during the holding over were monthly.

       The requirement for written notice to affect a renewal was precisely to

       differentiate between a renewal and a holdover from month to month for the

       benefit of both the lessor and lessee. Therefore, the Jacksons’ payment of rent

       and continued occupation of the leased premises standing alone was insufficient

       under both case law and the explicit terms of the lease agreement to establish

       that they had exercised their option to renew the lease for an additional term of

       three years. Furthermore, there was no properly designated evidence before the

       trial court to establish that there had been a waiver of the written notice

       requirement to renew the lease for an additional term of three years.


[28]   Consequently, in the absence of substantive evidence to support a claim of

       waiver, the trial court’s decision was based on established case law regarding

       contract interpretation, which the Supreme Court has stated as follows:



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               Indiana courts recognize the freedom of parties to enter into contracts
               and, indeed, presume that contracts represent the freely bargained
               agreement of the parties. Thus, when the terms of a contract are
               drafted in clear and unambiguous language, we will apply the plain
               and ordinary meaning of that language and enforce the contract
               according to those terms. This approach best effectuates the primary
               goal in appellate review of contract cases: to ascertain and give effect
               to the mutual intention of the parties. This also makes contract cases
               particularly suited for summary judgment.


       Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012) (internal citations

       and quotations omitted).              The clear and unambiguous terms of the lease

       agreement support the trial court’s conclusion.


                                                 Conclusion
[29]   In light of the above, we affirm the trial court’s decision.


[30]   Affirmed.


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




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