      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    FILED
      regarded as precedent or cited before any                           Feb 14 2019, 8:41 am
      court except for the purpose of establishing
                                                                               CLERK
      the defense of res judicata, collateral                              Indiana Supreme Court
                                                                              Court of Appeals
      estoppel, or the law of the case.                                         and Tax Court




      ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
      Adam J. Sedia                                            Jeffery A. Johnson
      Hoeppner, Wagner & Evans, LLP                            Hilary R. Johnson
      Merrillville, Indiana                                    May Oberfell Lorber
                                                               Mishawaka, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gordon Cummins and Richard                               February 14, 2019
      Bizzaro,                                                 Court of Appeals Case No.
      Appellants-Defendants,                                   18A-PL-911
                                                               Appeal from the St. Joseph Circuit
              v.                                               Court
      1st Source Bank,                                         The Honorable John E. Broden,
                                                               Judge
      Appellee-Plaintiff
                                                               Trial Court Cause No.
                                                               71C01-1708-PL-263



      May, Judge.


[1]   Gordon Cummins and Richard Bizzaro (collectively, “Appellants”) appeal the

      trial court’s entry of summary judgment in favor of 1st Source Bank (“Bank”).

      Appellants present two issues:



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019             Page 1 of 12
              1) Whether the trial court erred when it entered summary
                 judgment against Bizzaro as to liability under the guaranty
                 despite Bizzaro’s designation of evidence supporting his
                 denial that he executed the guaranty; and


              2) Whether the trial court erred when it entered summary
                 judgment as to damages because Bizzaro and Cummins
                 created a genuine issue of material fact regarding the
                 reasonableness of Bank’s efforts to mitigate the damages.


      We affirm in part, 1 reverse in part, and remand.



                             Facts and Procedural History
[2]   On March 7, 2017, All Resort Coach, Inc. (“All Resort”) entered into an

      agreement (“Lease”) with Bank to lease a “2017 Freightliner Turtle Top

      Odyssey XL 31 Passenger” bus (“Bus”). (App. Vol. II at 115.) Bizzaro, on

      behalf of All Resort, signed the “Master Equipment Lease Agreement[,]” (id. at

      106), and the “Equipment Lease Supplement – TRAC[.]” (Id. at 111.) To

      secure the amounts due under the Lease, Appellants in their individual

      capacities each separately signed a “Guaranty of Payment.” (Id. at 21, 23.)

      Both guaranties provided the signatory would “unconditionally guarantee[ ] to

      Bank the full and prompt payment and performance when due of all

      Obligations due and to become due to Bank.” (Id. at 21, 23.)




      1
       Cummins does not challenge the trial court’s entry of summary judgment against him as to liability. We
      accordingly summarily affirm the trial court’s ruling as to Cummins’ liability.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019              Page 2 of 12
[3]   On April 28, 2017, All Resort filed for bankruptcy. All Resort defaulted on the

      Lease. On August 2, 2017, Bank sent notice to Appellants the Lease account

      was in default. Bank also sent a “Demand and Acceleration Notice” to

      Appellants informing them the “remaining unpaid lease balance and

      indebtedness . . . [were] immediately due and payable[.]” (Id. at 25.) The

      amount due, “as of August 14, 2017[, was] $216,660.83.” (Id.) Appellants did

      not cure the default.


[4]   In the Bankruptcy Court, Bank filed a “Motion to Terminate the Automatic

      Stay or For Adequate Protection.” (Id. at 100.) Therein, Bank requested the

      Bankruptcy Court “terminate the automatic stay to allow [Bank] to exercise its

      rights in the Bus as an Owner and Lessor, including the right to recover

      possession of the Bus and to terminate the Debtor’s leasehold interest.” (Id. at

      103.) The Bankruptcy Court granted Bank’s motion. Bank repossessed Bus

      and advertised it for sale. Bank received three offers for Bus and sold it to the

      highest bidder for $137,500.


[5]   Bank filed a complaint seeking to enforce the guaranties signed by Appellants.

      On September 29, 2017, Bank filed a motion for summary judgment but it was

      denied for failure to follow local rules. On October 30, 2017, Appellants filed

      an answer and a motion to extend their time to respond to the motion for

      summary judgment. The trial court granted Appellants’ motion and vacated its

      denial of Bank’s motion for summary judgment. On November 30, 2017,

      Appellants filed their response to Bank’s motion for summary judgment. Both

      Appellants and Bank designated evidence.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 3 of 12
[6]   As to liability under the guaranty, Appellants contended neither had a “specific

      recollection” of signing the guaranty paperwork. (App. Vol. II at 69, 96, 98.)

      Bizzaro further asserted his signature was “not in fact [his] signature, but a

      stamped signature [and he] did not sign the alleged guaranty, nor did [he] stamp

      his signature . . . and [he did] not recall ever giving anyone authorization to sign

      or stamp [his] signature on any guaranty to 1st Source.” (Id. at 99.)


[7]   Then, as to damages, Appellants contended Bank had not properly mitigated its

      damages. Appellants designated evidence Bus had been appraised to have a

      value between $229,200 to $234,200. Appellants both asserted, based on their

      “long experience in the transportation industry . . . buses do not depreciate

      upon sale or lease in the same immediate way that personal vehicles do.” (Id.

      at 70, 97, 99.)


[8]   On January 24, 2018, the trial court held a hearing wherein counsel for both

      parties presented argument based on the designated evidence. The trial court

      concluded:


              6.    The Court FINDS that the issue of [Bank’s] obligation
              under the law to mitigate its damages is moot as [Bank] did
              indeed sell the bus and apply all the relevant sales proceeds to the
              debt owed by [Appellants].


              7.      Turning next to [Appellants’] assertion that they do not
              recall signing the guaranties in question or do not recall
              authorizing the use of a signature stamp, the Court finds the case
              of Harper v. Kampschaefer, 549 N.E.2d 1067 (Ind. Ct. App. 1990)
              to be persuasive. The Court in Harper held that “a plaintiff’s
              testimony that she could not recall a discussion regarding the


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 4 of 12
               existence of a dangerous condition does not ‘contradict’ other
               deponents’ testimony establishing that such a discussion
               occurred.” Harper, at 1070.


               8.     In the present case, the Court FINDS that [Appellants’]
               hazy memories about whether or not they signed or authorized
               the signing of the absolute guaranties are not sufficient to
               contradict or create a question of fact in regard to the authenticity
               of the documents attached to [Bank’s] Complaint evidencing the
               existence of [Appellants’] signatures on the absolute guaranties.


       (Id. at 198) (emphasis in original).


[9]    The trial court granted Bank’s motion for summary judgment and found

       Appellants to be “obligated to 1st Source Bank, jointly and severally, with

       respect to their unconditional Guaranties of Payment in the sum of One

       Hundred Nine Thousand One Hundred Nineteen and 32/100 Dollars

       ($109,119.32), plus interest, expenses, and attorneys’ fees.” (Appealed Order at

       1.)



                                  Discussion and Decision
[10]   Our standard of review for summary judgment is well-established:


               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.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 5 of 12
        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.” Id. (internal citations omitted).


        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. Id. at 761-62 (internal quotation marks
        and substitution omitted). 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.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
        916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
        omitted).


Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Therefore, for the trial court

to properly grant summary judgment, the movants must have “made a prima

facie showing that their designated evidence negated an element of the

nonmovants’ claims, and, in response, the nonmovants must have failed to

designate evidence to establish a genuine issue of material fact.” Cox v.

Mayerstein-Burnell Co., Inc., 19 N.E.3d 799, 804 (Ind. Ct. App. 2014). We will

affirm a trial court’s decision on summary judgment if it is sustainable on any

theory or basis found in the evidentiary matter designated to the trial court.

United Rural Elec. Membership Corp. v. Ind. Mich. Power Co., 648 N.E.2d 1194,

1196 (Ind. Ct. App. 1995), trans. denied.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 6 of 12
[11]   At issue here are guaranties that appear to be signed by Appellants in their

       individual capacities to secure the lease for All Resort. A guaranty is defined as

       “an undertaking by a guarantor to answer for payment of some debt, or

       performance of some contract, of another person in the event of default.” 38

       Am. Jur. 2d Guaranty § 1 (2019). A guaranty is “a conditional promise to pay

       because the guarantor promises to pay only on the condition that the principal

       debtor fails to pay and is immediately enforceable if that event occurs.” Id.


[12]   “The rules governing the interpretation and construction of contracts generally

       apply to the interpretation and construction of a guaranty contract.” S-Mart,

       Inc. v. Sweetwater Coffee Co., 744 N.E.2d 580, 585 (Ind. Ct. App. 2001), trans.

       denied. The guarantor’s liability is determined by the terms of the contract. Id.


               The terms of a guaranty should neither be so narrowly
               interpreted as to frustrate the obvious intent of the parties, nor so
               loosely interpreted as to relieve the guarantor of a liability fairly
               within its terms. The contract of a guarantor is to be construed
               based upon the intent of the parties, which is ascertained from
               the instrument itself read in light of the surrounding
               circumstances.


       Id. at 585-86 (internal citations omitted).


[13]   Here, the trial court granted summary judgment in favor of Bank because it

       found Appellants had executed unconditional guaranties, Bank’s “obligation

       under the law to mitigate its damages [wa]s moot as [Bank] did indeed sell the

       bus and apply all the relevant sales proceeds to the debt[,]” (App. Vol. II at

       198), and Appellants’ “hazy memories[,]” (id.), did not create a question of fact.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 7 of 12
                                                  Signatures
[14]   Bizzaro contends a genuine issue of material fact exists as to whether he had

       signed the guaranty. A signature on a written instrument is “deemed to be

       established and the instrument, if otherwise admissible, shall be deemed

       admitted into evidence in the action without proving its execution unless

       execution be denied under oath in the responsive pleading or by an affidavit[.]”

       T.R. 9.2(B) (emphasis added). “Trial Rule 9.2 does not conclusively establish

       the genuineness of a signature.” Miller v. NBD Bank, N.A., 701 N.E.2d 282, 285

       (Ind. Ct. App. 1998). It merely establishes the instrument and deems it

       admitted if the signature is not denied. T.R. 9.2(B). Therefore, Bizzaro’s

       signature on the guaranty instrument is admissible without further proof that he

       signed it, provided he does not deny doing so. However, Bizzaro did deny

       signing it and designated an affidavit to that effect.


[15]   Affidavits designated at summary judgment “shall be made on personal

       knowledge, shall set forth such facts as would be admissible in evidence, and

       shall show affirmatively that the affiant is competent to testify to the matters

       stated therein.” Ind. Trial Rule 56(E). Bizzaro submitted an affidavit, with his

       brief in opposition to Bank’s motion for summary judgment, denying his

       signature on the guaranty.


[16]   Bank asserts Bizzaro, in his affidavit, merely states he did not recall affixing, or

       causing to have affixed, his signature to the guaranty and that such a statement

       “was not a denial under oath.” (Br. of Appellee at 13.) However, Bizzaro filed

       an affidavit denying not just his memory of signing the guaranty but also


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 8 of 12
       alleging he “did not sign the alleged guaranty, nor did [he] stamp [his] signature

       on the alleged guaranty, and [he] do[es] not recall ever giving anyone

       authorization to sign or stamp [his] signature on any guaranty to 1st Source.”

       (App. Vol. II at 99.)


[17]   A “perfunctory and self-serving” affidavit is enough to overcome a motion for

       summary judgment if the affidavit presents sufficient evidence “to raise a

       factual issue to be resolved at trial.” Hughley, 15 N.E.3d at 1004. While Bank

       may have further evidence to dispute Bizzaro’s account, the evidence Bizzaro

       designated is sufficient to overcome summary judgment. See Miller, 701 N.E.2d

       at 287 (questions regarding the genuineness of a signature, even if affidavits are

       presented that could lead one to doubt that genuineness, are a question of fact

       for the fact-finder). Accordingly, we reverse the grant of summary judgment to

       the Bank as to Bizzaro’s liability under the guaranty, and we remand for further

       proceedings as to the authenticity of Bizzaro’s signature on the document.


                                                  Mitigation
[18]   Appellants also challenge the trial court’s entry of summary judgment for Bank

       as to the amount of damages due to Bank under the guaranty. Appellants assert

       Bank was required to mitigate its damages in the same manner it would have

       been required to do if collecting from All Resort and Bank did not reasonably

       mitigate damages because Bank sold Bus for approximately $100,000 less than

       its appraised value.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 9 of 12
[19]   Bank counters that it has no duty to mitigate its damages because Appellants

       signed unconditional guaranties. 2 Bank concedes, however, that it did attempt

       to mitigate damages by regaining possession of Bus from the bankruptcy

       proceedings and selling it “in a commercially reasonable manner.” (Br. of

       Appellees at 11.)


[20]   The trial court determined that, regardless whether Bank had a duty to mitigate,

       Bank did in fact attempt to mitigate damages. A duty to exercise care and skill

       may be imposed on one who, by affirmative conduct, assumes to act, even

       gratuitously, for another. Masick v. McColly Realtors, Inc., 858 N.E.2d 682, 692

       (Ind. Ct. App. 2006). The actor must specifically undertake to perform the task

       he is charged with having performed negligently, for without actual assumption

       of the undertaking there can be no correlative legal duty to perform the

       undertaking carefully. Id. In other words, the assumption of a duty creates a

       special relationship between the parties and a corresponding duty to act in a

       reasonably prudent manner. Id. The existence and extent of such duty are

       ordinarily questions for the trier of fact, but when there is no genuine issue of

       material fact, assumption of a duty may be determined as a matter of law. Id.




       2
         Bank cites Kruse v. Nat’l Bank of Indianapolis, 815 N.E.2d 137 (Ind. Ct. App. 2004), in support of its assertion
       that it has no duty to mitigate damages. To be sure, the Kruse panel did state Kruse “ha[d] not raised a
       genuine issue of material fact as to [National Bank of Indianapolis’] failure to mitigate damages[,]” id. at 151,
       but we found no legal holding therein about a creditor not having a duty regarding mitigation. Rather, the
       panel restated Kruse’s argument that a creditor does not have to “attempt collection from the principal debtor
       before looking to the guarantor.” Id. at 150 (quoting McEntire v. Indiana Nat’l Bank, 471 N.E.2d 1216, 1223
       (Ind. Ct. App. 1984), reh’g denied, trans. denied). Thereafter, the panel held Kruse had “failed to designate any
       evidence to factually support his assertion that NBI did not attempt to mitigate its damages.” Id. Therefore,
       Kruse is unpersuasive as to the issue for which Bank cites it.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019                    Page 10 of 12
[21]   Here, although Bank asserts it did not have a duty to mitigate, it, in fact,

       undertook steps to mitigate its damages. Bank accordingly either had or

       assumed a “duty to exercise care and skill.” See id. Accordingly, Bank had an

       obligation to act reasonably when mitigating damages, see id., and “[a] party’s

       reasonableness in mitigating damages is a question for the trier of fact[.]”

       Fischer v. Heymann, 12 N.E.3d 867, 870 (Ind. 2014), reh’g denied. Appellants

       designated evidence wherein they asserted the value of the bus was between

       $229,200 to $234,200. Appellants contend Bank did not act reasonably when it

       sold the bus for $137,500. This contention is enough to create a genuine issue

       of material fact as to whether Bank acted reasonably in its mitigation efforts.

       See id. Therefore, the trial court erred when it entered summary judgment for

       Bank on the issue of damages.



                                               Conclusion
[22]   Because the designation of Bizzaro’s affidavit offering an alternate version of

       the facts is sufficient to defeat summary judgment as to Bizzaro, we reverse and

       remand for the trial court to conduct a trial as to Bizzaro’s liability under the

       guaranty. Cummins has not asserted an argument on appeal as to his liability

       under the guaranty, such that the trial court’s summary judgment to Bank on

       that issue stands. Appellants’ designation of evidence created a genuine issue of

       material fact regarding the damages due under the guaranty because, regardless

       whether Bank had a duty to mitigate damages, Bank assumed the duty and was

       required to do so in a reasonable manner. Accordingly, we affirm the entry of




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 11 of 12
       summary judgment for liability against Cummins, reverse the entry of summary

       judgment for liability against Bizzaro, reverse the entry of summary judgment

       as to damages against Appellants, and remand to the trial court for proceedings

       consistent with this opinion.


[23]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-911 | February 14, 2019   Page 12 of 12
