                                                                           Sep 19 2013, 5:44 am
FOR PUBLICATION



ATTORNEY FOR APPELLANTS:                    ATTORNEYS FOR APPELLEE:

ROBERT R. FAULKNER                          JAMES D. JOHNSON
Evansville, Indiana                         JOSEPH H. LANGERAK, IV
                                            Rudolph, Fine, Porter & Johnson, LLP
                                            Evansville, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LILY, INC. d/b/a WEINBACH                   )
CAFETERIA and FERNANDO                      )
TUDELA,                                     )
                                            )
     Appellants-Defendants,                 )
                                            )
              vs.                           )    No. 82A05-1209-PL-459
                                            )
SILCO, LLC,                                 )
                                            )
     Appellee-Plaintiff.                    )


                APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Carl A. Heldt, Judge
                           Cause No. 82C01-0904-PL-151



                                September 19, 2013


                           OPINION - FOR PUBLICATION


BROWN, Judge
       Lily, Inc., d/b/a Weinbach Cafeteria and Fernando Tudela (collectively, the

“Appellants”) appeal the trial court’s September 6, 2012 order granting summary

judgment to Silco, LLC (“Silco”).          The Appellants raise seven issues which we

consolidate and restate as whether the court erred in granting Silco’s motion for summary

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

                         FACTS AND PROCEDURAL HISTORY

       In 2003, Four O Three, Inc., and David Nelson, the “owner, member and sole unit

holder” of Silco, signed a lease agreement (the “Lease”) dated March 25, 2003, in which

Four O Three, Inc. became the tenant of certain property in the Weinbach Shopping

Center in Evansville.1 Appellants’ Appendix at 121. In August 2004, Tudela purchased

the Weinbach Cafeteria for an amount between $90,000 and $100,000.

       On August 13, 2004, Four O Three, Inc. and Tudela signed an “Assignment and

Assumption of Building Lease” (the “Assignment”) related to “a certain Lease

Agreement with Silco, LLC, dated March, 25, 2003, for the lease of property commonly

described as 1 N. Weinbach, Evansville, Indiana.” Id. at 78. The Assignment stated in

part that Four O Three, Inc. assigned to Tudela all of its right, title, and interest in the

Lease. That same day, Silco and Tudela entered into a “Consent to Assignment of Lease

Agreement and Release” (the “Consent”) in which Silco consented to the assignment of

the Lease, and Tudela agreed to be responsible for the upkeep, maintenance, and repairs

of the area inside the building on the leased premises from the top of the stairs to the

cafeteria, the area from the freight elevator to the entrance of the main service corridor,

       1
         Under the heading “PREMISES,” the Lease states “As shown on Exhibits A and A-1,” but the
record does not contain a copy of Exhibits A and A-1. Appellants’ Appendix at 80.
                                               2
and the 700 square foot common area outside of the building in front of the drive-through

counter. Id. at 79. That same day, Tudela and Silco signed a Mortgage in which Tudela

granted a security interest in certain properties to Silco, and the Mortgage stated: “THIS

MORTGAGE IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS

AND (2) PERFORMANCE OF ALL OBLIGATIONS OF GRANTOR UNDER THIS

MORTGAGE AND THE LEASE.” Id. at 108.

      Under the Lease, monthly rent was due and payable in advance, and by the end of

July 2006, Tudela owed Silco $5,892.75 and was in default of the Lease from that date

forward. In September 2006, Tudela and Nelson had a conversation in which Tudela

described his business activities as struggling and agreed to perform some work around

the complex in order to reduce his rent. The agreement included picking up trash from

the parking lot, emptying the trash on a daily basis, and cleaning the common areas inside

the building containing the cafeteria. This agreement continued through June 2007.

      In October 2006, Silco leased other space in the Weinbach Shopping Center to a

blood plasma center. In a fax dated August 2007, Tudela informed Nelson of problems

with respect to the patrons of the blood plasma center. Tudela indicated that the blood

plasma center had a negative effect on the cafeteria business. Specifically, Tudela wrote:

      We have customers that have call [sic] us and tell us they are not coming
      because of the Blood Plasma Center. They do not feel safe and that [e]ven
      when they try to come in there are no spaces to park other than spaces near
      Wesselmans which are very unrealistic for Senior Citizens to park that far
      away. I have documentation of no parking available, I have a video of
      people in the parking lot waiting with their trunk open and there [sic] stereo
      playing loud while waiting their turn to go into the Blood Bank. People not
      only congregate outside the door but also in their cars taking up parking
      spaces. I have called the police many times because they park their cars in
      the handicapped parking spaces. . . . My business decreased substantially
                                            3
       after the opening of this facility. . . . I will enclose the Cafeteria sales the
       year prior Blood Plasma Center and the sales after. You will see a
       significant difference.

Id. at 434-435.

       In a letter dated March 6, 2008, and addressed to Tudela, Nelson stated that the

letter would serve as default notice for failure to pay rent and charges totaling

$63,323.82. The letter stated that the “charges must be paid within 5 business days of

receipt of this letter to avoid termination and possibly eviction as provided in the lease.”

Id. at 104. A document attached to the letter contained a “Recap of Account” and listed

the balance due from Tudela beginning on May 1, 2007. Id. at 29. Later that month,

Tudela met with Nelson and discussed reducing the rent, and Nelson agreed to reduce the

rent by half.

       In September 2008, Silco locked Tudela out of the premises for nonpayment of

rent. Nelson spoke to Tudela and said: “[Y]ou owe me a lot of money. . . . [W]e’re

taking over. . . . [W]hat we’re going to do . . . we’re going to have your equipment

appraised, and if you owe me any money, you know, you’re going to settle up with me.

If I owe you any money, we’re going to get settled up.” Id. at 406. Tudela worked at the

cafeteria for three days and helped with the transition to “make sure that everything went

smoothly.”      Id. at 389.   During 2008 and 2009, Nelson “owned and operated a

restaurant.” Id. at 188.

       In a letter addressed to Nelson and dated October 8, 2008, Tudela’s attorney wrote

that Tudela had informed him that Silco had taken possession of the Weinbach Cafeteria.

The letter stated: “Mr. Tudela also advised me that you have reached an agreement to

                                              4
resolve this matter by applying the value of the assets in the Weinbach Cafeteria to the

rental arrearage. If the value of the assets exceeds the rental arrearage, you will pay the

excess value to Mr. Tudela.” Id. at 193. The letter also mentioned receiving appraisals

for the equipment and concluded: “Mr. Tudela needs to obtain from you as soon as

possible your calculation as to the amount of rental arrearage. As soon as you can

provide this number, a meeting could be scheduled to determine the final calculation of

what is owed for the assets of the Weinbach Cafeteria.” Id. at 194.

       In a letter dated December 12, 2008, Tudela’s attorney wrote Nelson again

indicating that he had not received a response to his October 8, 2008 letter. Tudela’s

attorney again requested an accounting “of the back rent and any other expenses which

you claim to be owed to you by Fernando Tudela.” Id. at 195. At one point during

January and February 2009, Tudela drove by the Weinbach Cafeteria and witnessed

Nelson and his employees removing restaurant equipment.                      Silco hired Sohn &

Associates (“Sohn”) to consign and auction property of Tudela found in the Weinbach

Cafeteria. On March 23, 2009, Sohn sold the equipment, and the total sales revenue less

expenses and Sohn’s commission amounted to $43,173.59.

       On April 20, 2009, Silco filed a complaint for breach of lease agreement,

ejectment, foreclosure of Mortgage, and conversion. On July 8, 2009, Appellants filed

their Answer and Affirmative Defenses.2                  The Appellants also filed a counterclaim


       2
           The Appellants set forth the following defenses:

       1.        The Plaintiff failed to mitigate damages which completely or partially bar any
                 recovery by Plaintiff herein.
       2.        Defendants are entitled to offsetting amounts which constitute a complete or
                 partial bar to recovery by Plaintiff of its claim.
                                                     5
alleging breach of contract and conversion and requesting an accounting. On August 31,

2009, Silco filed an answer to Appellants’ counterclaim.

       On June 6, 2012, Silco filed a motion for summary judgment and to foreclose the

Mortgage.     Silco alleged that the Appellants “failed to make payments required by

promissory notes, the indebtedness under the Assignment and Assumption of Lease

which is secured by the Mortgage” and that Silco was entitled to judgment of foreclosure

on the Mortgage and judgment on the amount owed pursuant to the Assignment. Id. at

60.

       On August 13, 2012, the Appellants filed a response to Silco’s motion for

summary judgment. Under the heading “STATEMENTS/ISSUES OF FACT WHICH

PRECLUDE SUMMARY JUDGMENT,” the Appellants listed twenty-six items and

designated the deposition of Tudela referring to specific portions of the deposition in its

issues of fact. Id. at 172-176. That same day, the Appellants filed a motion to publish

the deposition of Tudela and argued that Silco “took said deposition, has designated same

in its motion for summary judgment, would be in possession of the original and should be




       3.      The Plaintiff is barred from recovery of its claim by its election of remedies to
               assume control of the Weinbach Cafeteria on September 16, 2008.
       4.      Plaintiff and Defendants had agreed on procedures to divide the assets of the
               business which bars Plaintiff’s recovery completely or partially.
       5.      Defendants plead the doctrines of estoppel and waiver as a complete or partial
               bar to any recovery by Plaintiff.
       6.      Defendants plead discharge by performance as a complete or partial bar to any
               recovery by Plaintiff herein.
       7.      Defendants plead that Plaintiff has been fully compensated for its losses.
       8.      Defendants affirmatively plead that Plaintiff is discharged completely or partially
               by its own breach of the lease agreement.

Appellants’ Appendix at 49-50.
                                                   6
directed to tender same to the Court for use in its consideration of [Silco’s] Motion for

Summary Judgment.” Appellants’ Supplemental Appendix at 1.

        On August 28, 2012, Silco filed a reply to Appellants’ response and a

supplemental designation of evidence. On August 29, 2012, the Appellants filed a notice

of filing deposition. On September 4, 2012, the court held a hearing on Silco’s motion

for summary judgment.3

        On September 6, 2012, the court granted summary judgment to Silco and against

the Appellants on their counterclaim. The court’s order states, in part:

                  IT IS FURTHER ORDERED Defendants breached the Lease.

               IT IS FURTHER ORDERED by the Court that SILCO is given a
        personal judgment against the Defendants, jointly and severally, in the
        amount of $183,605.52, comprised of $236,661.86[4] minus the amount in
        Sohn & Associates’ escrow for sale of Weinbach Cafeteria property in the
        amount of $43,171.59 and minus the credit SILCO has allowed Defendants
        based on items it has been unable to locate amounting to $3,992.00, and
        minus payment made by Defendants in the amount of $5,892.75 dated July
        13, 2006 which has now been proven as received by SILCO, plus post
        judgment interest, plus advances by SILCO for real estate taxes, insurance
        premiums, maintenance costs, attorney and paralegal fees, and all other
        advances and any additional costs of collection, expenses and
        disbursements incurred including, but not limited to, attorney fees and
        costs, Sheriff’s Sale costs, environmental studies on the property,
        disbursements for real estate taxes, appraisals, bankruptcy fees and costs,
        court costs, and disbursement for hazard insurance premiums which SILCO
        must pay to preserve the subject property and SILCO’s interest and rights
        therein, all without relief from valuation of appraisement laws.

              IT IS FURTHER ORDERED that Sohn & Associates release monies
        they are holding in their escrow account from the sale of Weinbach
        3
            The record does not contain a transcript of the hearing.
        4
          We observe that Nelson’s affidavit states: “From the beginning of the default under the lease,
until May 4, 2012, SILCO has incurred damages in the amount of $236,671.86. The amount due will
continue to increase due to interest and attorney fees and monthly late charges.” Appellants’ Appendix at
123. The amount mentioned in the order is ten dollars less than the amount stated in Nelson’s affidavit.
                                                       7
Cafeteria properties in the amount of $43,171.59 to SILCO as of the date of
this Order.

                                  *****

        IT IS FURTHER ORDERED by the Court that the mortgage of
SILCO, recorded on August 19, 2004, as Document No. 2004R00029044 in
the Office of the Recorder of Vanderburgh County, Indiana, be and hereby
is, foreclosed as first and prior liens subject to any county real estate tax
liens and that equity of redemption of all of the parties herein and all
persons claiming under and through them hereby are foreclosed; and that
the property specifically described below and all right, title and interest in
the claim of the parties hereto and all persons claiming under and through
them shall be sold by the Sheriff of Vanderburgh County, Indiana, without
relief from valuation and appraisement laws, subject to and in accordance
with the applicable laws of the State of Indiana and subject to the
provisions hereinafter set forth.

      IT IS FURTHER ORDERED by the Court that the Sheriff of
Vanderburgh County shall sell the [Defendants’] real estate . . . .

        IT IS FURTHER ORDERED, ADJUDGED AND DECREED by
the Court that in connection with the sale of the Collateral that said
property shall be sold as a single unit; the Sheriff of Vanderburgh County
shall require the highest bidder to immediately deposit with him cash or a
certified or cashier’s check, for the full amount of the bid, and, if said
deposit is not made, the Collateral shall again be offered for sale at one or
more times until said Sheriff has received from the highest bidder the
deposit as aforesaid in the full amount of the bid; provided, however, if the
highest bidder for the Collateral is SILCO, SILCO, in lieu of making a
deposit as aforesaid, will provide for payment of the purchase price by
delivering to the Sheriff a receipt in the amount of said bid to be credited
against SILCO’s judgment herein and by depositing any amount of the bid
greater than SILCO’s judgment with the Sheriff as aforesaid; and that the
Sheriff shall complete the sale of the Collateral by executing and delivering
a deed or bill of sale, as the case may be, to the person, firm or corporation
making the bid and deposit, if any, on the Collateral and make his return on
the order of sale to the Clerk in accordance with statute.

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED by
the Court that upon execution by the Sheriff of a deed of conveyance of the
Collateral sold by the Sheriff and any bill of sales related to the Collateral,
pursuant to this order, and said Collateral not having been previously
redeemed by any person entitled thereto, any person who may be in
                                     8
      possession of the Collateral or any party thereof upon demand and
      exhibition of said Sheriff’s deed or bill of sale shall forthwith surrender the
      Collateral to the holder of such deed or bill of sale, and in the event such
      persons so in possession of the Collateral shall refuse to fully and
      peacefully surrender possession, the Sheriff shall vacate and/or otherwise
      take possession of the Collateral and give full and peaceful possession to
      the purchaser.

              IT IS FURTHER ORDERED, ADJUDGED AND DECREED by
      the Court that the proceeds derived from the aforementioned sale be applied
      as follows: (i) to the payment of costs and accruing costs herein existing as
      of the date of said sale; (ii) payment of any outstanding property taxes on
      the Collateral that are due and owing and for which the due date has passed
      as of the date of such sale; (iii) payment to SILCO in the amount of its
      judgment; and, (iv) the surplus, if any, shall be paid by the Sheriff to the
      Clerk of this Court for the use of the parties and remaining defendants
      lawfully entitled thereto.

             IT IS FURTHER ORDERED, ADJUDGED AND DECREED by
      the Court that a duly certified copy of this judgment and associated decrees
      under the hand and seal of the Clerk of this Court shall be sufficient to the
      Sheriff to execute any and all portions of this judgment.

            IT IS FURTHER ORDERED, ADJUDGED AND DECREED by
      the Court that pursuant to Trial Rule 56(C) there is no just reason for delay
      and directs entry of judgment in favor of SILCO and this is a final
      appealable order.

Appellants’ Appendix at 13-17.

                                     DISCUSSION

      The issue is whether the court erred in granting Silco’s motion for summary

judgment. Our standard of review for a trial court’s grant of a motion for summary

judgment is well settled. Summary judgment is appropriate only where there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of

law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756

N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts

                                            9
are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a

summary judgment motion is limited to those materials designated to the trial court. Id.

We must carefully review a decision on summary judgment to ensure that a party was not

improperly denied its day in court. Id. at 974.

       Where a trial court enters findings of fact and conclusions thereon in granting a

motion for summary judgment, the entry of specific findings and conclusions does not

alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the

summary judgment context, we are not bound by the trial court’s specific findings of fact

and conclusions thereon. Id. They merely aid our review by providing us with a

statement of reasons for the trial court’s actions. Id.

       To the extent that the issue requires us to interpret the contracts, we observe that

“[i]nterpretation of a contract is a pure question of law and is reviewed de novo.” Dunn

v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind. 2005); see also Fresh Cut, Inc. v.

Fazli, 650 N.E.2d 1126, 1129 (Ind. 1995) (noting that a real estate lease is subject to

principles of contract law); Coleman v. Witherspoon, 76 Ind. 285, 287 (1881) (“A

mortgage is a contract . . . .”). If a contract’s terms are clear and unambiguous, courts

must give those terms their clear and ordinary meaning. Id. Courts should interpret a

contract so as to harmonize its provisions, rather than place them in conflict. Id. “We

will make all attempts to construe the language of a contract so as not to render any

words, phrases, or terms ineffective or meaningless.” Rogers v. Lockard, 767 N.E.2d

982, 992 (Ind. Ct. App. 2002). “Rules of contract construction and extrinsic evidence

may be employed in giving effect to the parties’ reasonable expectations.” Johnson v.

                                              10
Johnson, 920 N.E.2d 253, 256 (Ind. 2010). “When a contract’s terms are ambiguous or

uncertain and its interpretation requires extrinsic evidence, its construction is a matter for

the fact-finder.” Id. When a summary judgment ruling is based upon the construction of

a written contract, the trial court has either determined as a matter of law that the contract

is not ambiguous or uncertain, or that the contract ambiguity, if one exists, can be

resolved without the aid of a factual determination. Pinkowski v. Calument Twp. of Lake

Cnty., 852 N.E.2d 971, 981 (Ind. Ct. App. 2006), trans. denied.

A.     Breach of Contract

       The Appellants argue that Silco committed “[c]ontractual [s]abotage,” that Silco

contracted to control and police the common areas, and thus that Silco is responsible for

any nuisance it allowed to occur in other tenants’ use of the common areas. Appellants’

Brief at 15. The Appellants state that “[b]y leasing to a business, the operation of which

created a nuisance within the common area parking lot, [Silco] breached the duties it

undertook to operate, manage, equip, light and maintain the common areas in a first class

attractive condition throughout the lease term.” Id. at 17-18. They contend that Silco

“breached the lease by allowing the nuisance and was so notified at least seven (7)

months prior to its March 2008 notice to Tudela.” Id. at 18. The Appellants argue that

“[o]ne party may not successfully accuse the other party of failure to perform a contract

when the former party has in some manner prevented such performance.” Id. (citing

Stephenson v. Frazier, 399 N.E.2d 794, 798 (Ind. Ct. App. 1980), trans. denied). The

Appellants state further that “[i]t was unrefuted that . . . the Landlord leasing nearby

property to a business, the operation of which constituted a nuisance, was the major

                                             11
factor in the inability of the Weinbach Cafeteria to pay rent and Landlord should bear the

inevitable foreseeable consequences of its actions in leasing to an entity the operation of

which constituted a nuisance.” Id.

        Silco argues that while the Appellants use the phrase “contractual sabotage,” they

do not elaborate or cite any cases as to its meaning. Appellee’s Brief at 13. Silco

contends that “Tudela seems to argue that SILCO had an affirmative obligation to ensure

the tenant mix at the center maximized Tudela’s revenue; such an obligation is not found

in the Lease and does not exist.” Id. Silco’s position is that the nuisance claim is waived

because Tudela never pled a nuisance claim or asserted it as an affirmative defense, and

further, that Tudela did not have a right under the Lease to quiet enjoyment because his

rent payments were not current prior to Silco renting to the blood plasma center.

        The Appellants did not specifically mention nuisance in their answer, affirmative

defenses, or counterclaims. Accordingly, we cannot say that the Appellants properly pled

nuisance and conclude that they have waived the issue. See Briggs v. Finley, 631 N.E.2d

959, 964 (Ind. Ct. App. 1994) (“A memorandum opposing summary judgment is not a

proper place to assert a claim against a defendant.”), trans. denied.

        Waiver notwithstanding, we observe that the Appellants do not cite to any

provision of the Lease or Consent which prohibits Silco from renting to a blood plasma

center or place any specific restrictions on parking.5 The Consent provides that “In

consideration of this Assignment, [Tudela] hereby agrees to be responsible for the


        5
          We note that a rider to the Lease provides that Silco was “prohibited from permitting any other
restaurant or retail food service (other than those existing tenants at the Commencement Date of this
Lease) from operating within the Shopping Center.” Appellants’ Appendix at 103.
                                                   12
upkeep, maintenance and repairs of the following: a) the area inside the building from the

top of the stairs to the cafeteria; b) the area from the freight elevator to the entrance of the

main service corridor; and (c) the 700 square foot common area outside of the building,

in front of the drive through counter.” Appellants’ Appendix at 79. Paragraph 32 of the

Lease provides that “[a]ll common areas and other common facilities . . . made available

by Landlord in or about the Shopping Center shall be subject to the exclusive control and

management of Landlord,” and defines common areas to include, among other areas,

sidewalks and parking areas. Id. at 90. Paragraph 32 of the Lease also states that

“Landlord shall operate, manage, equip, light and maintain the common areas in a first

class attractive condition throughout the lease term . . . .” Id. The Lease does not define

what constitutes a “first class attractive condition,” and there is no claim that prior to

Tudela’s failure to pay rent, Silco was not in compliance with this provision.         Further,

Paragraph 48 of the Lease provides:

       QUIET ENJOYMENT: If Tenant timely pays the rents reserved and
       performs all of the other terms, covenants and conditions of this Lease on
       the Tenant’s part to be performed, then Tenant shall peaceably and quietly
       have, hold and enjoy the Premises during the Lease Term, subject to the
       terms of this Lease, and to any mortgages, ground or underlying leases,
       agreements and encumbrances to which this Lease is or may be
       subordinated.

Id. at 98.

       The designated evidence reveals that the Tudela owed Silco $5,892.75 as of July

31, 2006, and that thereafter and until Tudela was locked out of the premises there was

always a balance of rents and other obligations due Silco by Tudela. Thus, at the time

that the blood plasma center opened in October 2006 and thereafter, Tudela was not in

                                              13
compliance with the rent provisions of the Lease. There is no claim that any breach by

Silco occurred prior to this date.    Based upon the language in the Lease and the

designated evidence, Tudela was not entitled to quiet enjoyment of the premises after he

failed to timely pay the rent and did not cure such failure as provided in the Lease. Under

the circumstances, we cannot say that there is a genuine issue of material fact on this

issue.

B.       Mortgage

         The Appellants argue that the Mortgage was void for lack of consideration and

that the trial court “apparently based its ruling upon the argument that the mortgage it

seeks to foreclose was given as security for the lease on which it is also suing.”

Appellants’ Brief at 14. The Appellants argue that the Lease, riders, and Assignment did

not mention a mortgage and that “[a]s the mortgage was not required by Landlord’s

transaction documents on which Landlord has based its lawsuit, it would have been

superfluous and unsupported by consideration and thus it is void.” Id. at 15. The

Appellants argue “[w]hen executing the ‘mortgage’ being sued upon by Landlord Tudela

mistakenly believed himself to be owner of the properties through the will of his

deceased mother believing its provisions to be self effectuating upon her death.” Id. at

36. The Appellants contend that “[a]s the ownership of the properties seems to have been

in a state of limbo at the time the mortgage was executed, there was arguably no owner to

consent to the mortgage and . . . there would likely have been a genuine issue of material

fact as to whether it would be enforceable on that basis.” Id. The Appellants also assert



                                            14
that even if the Mortgage was not void then Silco’s inequitable conduct bars it from being

awarded the equitable remedy of foreclosure.

      Silco argues that there are multiple reasons why there is adequate consideration for

the Mortgage. Silco points out that Count III of its complaint was titled “Foreclosure of

Mortgage” and that the Appellants admitted to the relevant portions of its complaint.

Appellants’ Appendix at 21. Silco also asserts that the Appellants’ lack of consideration

argument was made for the first time in opposition to the summary judgment action, and

Ind. Trial Rule 8(C) requires that failure of consideration be pled as an affirmative

defense.    Silco further contends that the Appellants’ arguments that Tudela lacked

standing to execute the Mortgage fail because the Appellants waived that argument, are

estopped from asserting it, and Tudela had a valid interest in the properties that were

mortgaged. Finally, Silco asserts that the Appellants waived the defense of unclean

hands and that such a defense does not apply because Silco did not engage in intentional

misconduct and the Appellants’ argument is based on a premise that Tudela executed a

fraudulent document and then used that fraudulent document to induce Silco to allow him

to assume the Lease.

      Initially, we observe that the Appellants admitted that Tudela executed and

delivered the Mortgage as security for the Lease. Specifically, Silco’s complaint alleged:

      25.     As security for the Lease Agreement, Tudela executed and delivered
              unto SILCO a Mortgage dated August 13, 2004 and recorded August
              19, 2004, as Instrument Number 2004R00029044, in the office of
              the Vanderburgh County Recorder (“Mortgage”)[.]

      26.     A true, correct and complete copy of the Mortgage is attached
              hereto, and made a part hereof, as Exhibit E.

                                            15
       27.      The Mortgage granted SILCO a real estate mortgage interest in the
                real estate located in the County of Vanderburgh . . . .

Id. at 21-22.     In their answer, the Appellants admitted the allegations contained in

Paragraphs 25, 26, and 27 of Silco’s complaint.

       Even assuming that the Appellants did not waive the argument that the Mortgage

lacked consideration and did not admit the existence of the Mortgage, we cannot say that

the Appellants’ arguments are persuasive.       With respect to their argument that the

ownership of the properties “seems to have been in a state of limbo,” we observe that the

legal descriptions of the properties bequeathed to Tudela from his mother match the legal

descriptions of the properties in the Mortgage. Tudela’s mother died on April 21, 2002,

and the docket information from the estate of Tudela’s mother indicates that her will was

offered and admitted to probate on January 24, 2003. Id. at 221. Both of these events

occurred before Tudela signed the Mortgage on August 13, 2004.                  Under the

circumstances, we cannot say that the Appellants’ argument that the Mortgage is void is

persuasive. See Burkam v. Burk, 96 Ind. 270, 273 (1884) (holding that while a party was

not invested with the legal title, she was with an equitable estate and that was the subject

of the mortgage).

       To the extent Silco contends that the Appellants are estopped from claiming that

Silco was not entitled to foreclose Tudela’s interest in the mortgaged properties, we

observe that the Mortgage provided:

       WARRANTY: DEFENSE OF TITLE: The following provisions relating
       to ownership of the Real Property are a part of this Mortgage:

       Title: [Tudela] warrants that: (a) [Tudela] holds good and marketable title
       of record to the Real Property in fee simple, free and clear of all liens and
                                            16
       encumbrances, and (b) [Tudela] has the full right, power, and authority to
       execute and deliver this Mortgage to [Silco].

Appellants’ Appendix at 112-113.       Under the circumstances, we conclude that the

Appellants are estopped from claiming that the Mortgage is void.            See Boone v.

Armstrong, 87 Ind. 168, 169 (1882) (holding that the appellant was estopped by the

covenants of her mortgage from asserting that she did not own the estate which the

mortgage purports to encumber); Plowman v. Shidler, 36 Ind. 484, 488 (1871) (“The fifth

paragraph alleges that at the date of the mortgage, the defendants had not, nor have they

at any time since had, any title to the mortgaged property. This answer is merely trifling,

and deserves no further notice than to say that it was bad, and the demurrer was properly

sustained to it.”).

       Even assuming that the Appellants are not estopped, we do not find their

arguments persuasive. A mortgage must be supported by consideration to be enforceable.

Huntingburg Prod. Credit Ass’n v. Griese, 456 N.E.2d 448, 451 (Ind. Ct. App. 1983).

Any consideration which will sustain a promise to pay will suffice.          Id.   It is not

necessary that the obligee actually give anything of value to the obligor, and sufficient

consideration will be found if it is shown that the mortgagee suffered any damage,

inconvenience, detriment or loss, or that he extended any forbearance in reliance upon the

mortgage. Id. Consideration exists if it is shown that any right, profit, or benefit accrued

to the mortgagor, or that responsibility was suffered or undertaken by another.          Id.

Where the thing agreed upon as the consideration has no determined value, the judgment

of the parties as to its sufficiency will not be disturbed by the court; and where a party

without fraud or deception enters into a contract for consideration and receives all he
                                          17
contracts for, he cannot be relieved on the ground of want of consideration. Id. at 452.

Whether consideration is given is a question of fact for the jury. Ind. Dep’t of State

Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174, 179 (Ind. 2010), reh’g granted on

other grounds, 942 N.E.2d 796 (Ind. 2011). However, whether consideration exists is

generally a question of law for the court. Id.

       The contemporaneous document doctrine provides that “[i]n the absence of

anything to indicate a contrary intention, writings executed at the same time and relating

to the same transaction will be construed together in determining the contract.” Gold v.

Cedarview Mgmt. Corp., 950 N.E.2d 739, 743 (Ind. Ct. App. 2011) (citing Salcedo v.

Toepp, 696 N.E.2d 426, 435 (Ind. Ct. App. 1998)). Even if documents are executed at

different times, they may still be construed together as long as they relate to the same

transaction. Id. Application of the contemporaneous document doctrine is determined on

a case-by-case basis, and the doctrine should be applied cautiously when the documents

involve different parties. Murat v. South Bend Lodge No. 235 of Benev. & Protective

Order of Elks of U.S., 893 N.E.2d 753, 757 (Ind. Ct. App. 2008), reaff’d on reh’g, trans.

denied. The designated evidence reveals that the Assignment, the Consent, and the

Mortgage were all signed by Tudela on the same day, and the Mortgage specifically

refers to the Lease. The Mortgage states: “THIS MORTGAGE IS GIVEN TO SECURE

(1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE OF ALL

OBLIGATIONS OF GRANTOR UNDER THIS MORTGAGE AND THE LEASE,” and

the Mortgage defined the “Lease” as “that certain Lease Agreement entered into on

March 25, 2003, by and between Landlord and Four O Three, Inc., an Indiana

                                             18
corporation relating to the property commonly described as 1 N. Weinbach, Evansville,

Indiana and which Lease has been assigned to [Tudela] pursuant to that certain Consent

to Assignment of Lease Agreement and Release dated August 13, 2004.” Appellants’

Appendix at 108.     The Mortgage also states: “For valuable consideration, [Tudela]

mortgages, warrants, and conveys to [Silco] all of [Tudela’s] right, title, and interest in

and to the following described property . . . .”          Id. at 107.     Based upon the

contemporaneous document doctrine and construing the documents together, we cannot

say that the Mortgage lacked consideration or that there is a genuine issue of material fact

on this issue.

C.     Surrender of Tenancy

       The Appellants argue that there was at least a genuine issue of material fact as to

whether there had been a “surrender of tenancy.”          Appellants’ Brief at 19.      The

Appellants contend that Silco’s “representations to Tudela and actions manifest

agreement to accept a surrender of the tenancy which was reasonably relied upon by

Tudela.” Id. at 20. The Appellants point to the letters from Tudela’s attorney to Nelson

which were dated October 8, 2008, and December 12, 2008, and argue that “the first time

Landlord ever denied and disputed that a surrender of tenancy had taken place is more

than three (3) years later, in June of 2012, when Nelson made his first affidavit.” Id. at

21. The Appellants contend that Silco made an agreement, initially acted in conformity

with the agreement, remained silent when presented with letters from Appellants’

counsel, and now is attempting to “hide behind provisions in the lease after he later

changes his mind.” Id. The Appellants also contend that “[t]he fact that Landlord failed

                                            19
to respond when sent the correspondence . . . also gives rise to a genuine issue of material

fact as to equitable estoppel.” Id. at 22. The Appellants argue that “Landlord’s positive

actions in taking over and operating the cafeteria as his own also constituted such a

representation through an act of the Landlord.” Id. at 23. The Appellants further contend

that “[i]t cannot be questioned that Landlord intended that Tudela act in reliance on those

representations, which Tudela did, in willingly turning over operation of the Cafeteria to

Landlord and even assisting with the transition.” Id. The Appellants finally allege that

they designated evidence sufficient to support a prima facie case of conversion and theft

sufficient to sustain a civil claim under Ind. Code § 34-24-3-1 and the common law of

conversion.

       Silco argues that Tudela never pled surrender of tenancy, that there was no

surrender of tenancy, that it had a specific right to lock out Tudela pursuant to the Lease,

that Tudela testified that he understood that Silco’s re-entry onto the premises did not

constitute a termination of the Lease, and that there was no written authorization by Silco

of the surrender as required by the Lease. Generally, termination of a lease agreement

occurs when the tenant surrenders the tenancy and the landlord accepts the tenant’s

surrender. Floyd v. Rolling Ridge Apartments, 768 N.E.2d 951, 955 (Ind. Ct. App.

2002). “A surrender of tenancy is a yielding of the tenancy to the owner of the reversion

or remainder, wherein the tenancy is submerged and extinguished by agreement.” Id. A

surrender may be express or by operation of law. Id. By examining the actions of the

respective parties, surrender and acceptance is determined on a case-by-case basis. Id. It

is a general rule that a tenant will be relieved of any obligation to pay further rent if the

                                             20
landlord deprives the tenant of possession and beneficial use and enjoyment of any part

of the premises by an actual eviction. Nylen v. Park Doral Apartments, 535 N.E.2d 178,

181 (Ind. Ct. App. 1989), trans. denied. An exception to the general rule exists when the

lease includes a savings clause expressly providing that termination shall not affect the

accrual of liability for rent. Id. If a lessee abandons the leased estate and the lessor

resumes possession, this conduct is generally held to have worked a surrender by

operation of law because possession by the lessor for its own purpose is inconsistent with

the continuance of the lease, unless the lease contains a provision preserving the lessee’s

liability for future rent under such circumstances. Grueninger Travel Serv. of Ft. Wayne,

Ind., Inc. v. Lake Cnty. Trust Co., 413 N.E.2d 1034, 1045 (Ind. Ct. App. 1980).

      Paragraph 41 of the Lease governs default and provides:

      (c)    No such re-entry or taking possession of the Premises by Landlord
             shall be construed as an election on its part to terminate this Lease
             and Tenant hereby specifically waives any law, statute, rule, decree
             or judgment of any court to the contrary. Notwithstanding any such
             re-entry without termination, Landlord reserves the right to elect to
             terminate this Lease for such previous breach.

      (d)    If an Event of Default shall occur and shall not be cured in the
             manner as herein provided (unless Tenant is not entitled to an
             opportunity to cure such default), Landlord and Tenant covenant and
             agree that Landlord shall immediately have the following rights and
             remedies: (i) to immediately re-enter the Premises by summary
             proceedings, if necessary, and to dispossess Tenant and all other
             occupants thereof and to remove and dispose of all property therein
             or to store such property in a public warehouse or elsewhere at the
             cost and for the account of Tenant without Landlord being deemed
             guilty of trespass or becoming liable for any loss or damage which
             may arise out of such action; (ii) to cancel and terminate this Lease
             upon three (3) days notice to Tenant stating that this Lease and the
             term hereof shall expire and terminate on the date specified in such
             notice, and upon such specified notice, this Lease and all rights of
             the Tenant under this Lease shall expire and terminate as if that date
                                           21
             were the date definitely fixed in this Lease for the termination of the
             term; (iii) to cancel and terminate Tenant’s right to possession of the
             Premises only, and in the event of such election, Tenant shall
             immediately quit and surrender possession of the Premises only but
             Tenant shall remain liable for damages as hereinafter provided.
             Landlord shall have the right, at its election, to pursue any and/or all
             of such rights together with any other right or remedy which may be
             available to Landlord under any statute or rule of law then in effect.

                                        *****

      (j)    The rights and remedies herein reserved by or granted to Landlord
             and Tenant are distinct, separate and cumulative, and the exercise of
             any one of them shall not be deemed to preclude, waive or prejudice
             their right to exercise any or all others.

Id. at 95-96 (emphasis added). Paragraph 42 of the Lease is titled “Landlord’s Lien” and

provides:

      Tenant hereby expressly grants to Landlord a security interest in and an
      express contractual lien upon Tenant’s or any other party’s goods, wares,
      equipment, signs, fixtures, furniture and other personal property situated in
      or on the Premises, including all after-acquired property, replacements and
      proceeds (“secured property”) to secure the performance by Tenant of its
      obligations under this Lease, and such property shall not be removed from
      the Premises without the written consent of Landlord until all rents and
      other sums of money then due to Landlord shall have first been paid except
      for the sale of inventory in the ordinary course of Tenant’s business so long
      as such inventory is replaced by Tenant. Tenant hereby appoints Landlord
      as Tenant’s attorney-in-fact, and authorizes Landlord to execute and to file
      financing statements signed only by Landlord (as attorney-in-fact) covering
      such security or to otherwise take such action as may be necessary to
      perfect such security interest and/or contractual lien. Upon an occurrence
      of an Event of Default by Tenant, Landlord may, in addition to any other
      remedies, enter upon the Premises and take possession of such secured
      property situated on the Premises without liability for trespass or
      conversion, and sell the same with notice at public or private sale, with or
      without having such property at the sale, at which Landlord or its assigns
      may purchase, and may apply the proceeds thereof less any and all
      expenses connected with the taking of possession and sale of the property,
      as a credit against any sums due by Tenant to Landlord. Any surplus shall
      be paid to Tenant, and Tenant agrees to pay any deficiency forthwith, after
      demand. Landlord, at its option may foreclose said security interest and/or
                                            22
      contractual lien in the manner provided by law. The security interest and
      contractual lien herein granted to Landlord shall be in addition to any
      Landlord’s lien that may now or at any time hereafter be provided by law.

Id. (emphases added).

      Paragraph 59(c) of the Lease provides: “This Lease shall not be modified except in

writing, nor may this Lease be canceled by Tenant or the Premises surrendered except

with the express written authorization of Landlord, unless otherwise specifically provided

herein.” Id. at 99. The designated evidence indicates that Tudela acknowledged that he

did not receive any letter from Silco in which it agreed to terminate the Lease.

Specifically, a deposition of Tudela contains the following exchange:

      Q      . . . Are you going to contend at the trial of this case that there was
             ever an agreement between you and Mr. Nelson to terminate the
             lease?

      A      Yes. As of September 15th when he took over, that was what I’m
             going to say that that was the end of my obligations to the lease.

      Q      And are you going to have any evidence that Mr. Nelson agreed to
             that conclusion?

      A      Other than him taking over the business and running it as his
             business.

      Q      So you didn’t – you didn’t have a conversation with him in which he
             agreed to terminate the lease. Is that a true fact?

      A      Not exactly about the lease, correct.

      Q      Okay. And you didn’t have any letter from him in which he agreed
             to terminate the lease?

      A      Correct.

                                        *****


                                           23
       Q      Did Mr. Nelson ever tell you that SILCO would not enforce the
              provisions of the lease upon your default?

       A      No, he did not.

       Q      Do you claim that SILCO waived any of its rights under the lease?

       A      When they took possession, yes.

       Q      And it’s your contention that him taking possession of the premises,
              what, waived his rights under the lease?

       A      Right. Whenever he decided to take over the business and run it as
              his business, yes.

       Q      Yes what?

       A      Yes, he took – that my lease stopped and he took over the –

       Q      Did he ever tell you that?

       A      He didn’t tell me that, per se.

       Q      Do you have any letter that records that agreement between you and
              he?

       A      No, other than he saying we’re taking over the business, that’s all.

                                           *****

       Q      I’m wanting to know, do you have any evidence from Mr. Nelson
              that he agreed to terminate your lease?

       A      No, I do not.

       Q      Do you have any record or document or letter from Mr. Nelson in
              which he agreed to waive any of his rights under the lease?

       A      I do not.

Id. at 169-171.



                                                24
       Based upon the designated evidence, we conclude that there is no genuine issue of

material fact and that the trial court did not err in granting Silco summary judgment on

this basis. See Nylen, 535 N.E.2d at 182 (holding that the savings clause in a rental

agreement was valid and enforceable and that “[i]t is entirely consistent with existing

Indiana case law to uphold a lease provision which states that the lessee’s liability for

rent for the balance of the lease term will continue, notwithstanding an order of eviction,”

and concluding that the award of future rents based upon the rental agreement was not

contrary to law); Grueninger, 413 N.E.2d at 1043 (upholding a lease provision which

authorized the landlord to re-enter and re-let the leased premises without terminating the

original tenant’s liability).

D.     Late Fees and Interest

       Without citation to authority other than the Lease, the Appellants argue that the

court erred when it awarded late fees and interest. The Appellants argue that Paragraph

13 of the Lease imposes a one-time late fee for each month or part of a month in which

rent is paid more than ten days late and that the Lease does not impose an ongoing

compounding “$50.00 per month fee that accumulates ad infinitum as charged by

Landlord and awarded by the Trial Court.” Appellants’ Brief at 29. The Appellants

contend that even though the Lease expired on March 31, 2009, that the court “awarded a

compounded ongoing, per month, compounding late fee of $50.00 per month for more

than two years after March 31, 2009.” Id. The Appellants also argue that the court

awarded Silco compound interest and that the Lease does not provide for compounding

of interest. Silco argues that the Lease provides for interest charged on past due rents and

                                            25
also provides for a late fee of $50.00 per month and that Indiana law allows fees for late

payment to be added to the rental amount past due and for interest to be chargeable upon

all unpaid rental balances.

       Paragraph 13 of the Lease governs past due rents and provides:

       (a)    If Tenant shall fail to pay any rents, Additional Rents or other
              charges after the same become due and payable, such unpaid
              amounts shall bear interest from the due date thereof to the date of
              payment at the maximum legal rate of interest allowed to be charged
              to Tenant under any applicable law of the state of Indiana.

       (b)    In addition thereto, if Tenant shall fail to pay any rents, Additional
              Rents, or other charges within ten (10) days after the same become
              due and payable, then Tenant shall also pay to Landlord a late
              payment service charge covering administrative and overhead
              expense . . . equal to Fifty Dollars ($50.00) for each calendar month
              or part thereof after the due date of such payment until received by
              Landlord. The provisions herein for late payment service charges
              shall not be construed to extend the date for payment of any sums
              required to be paid by Tenant hereunder or to relieve Tenant of its
              obligation to pay all such sums when due. Notwithstanding the
              imposition of such service charges, Tenant shall be in default under
              this Lease if any or all payments required to be made by Tenant are
              not made within five (5) business days of Landlord’s notice to
              Tenant that any such payment has not been received when due. The
              notice for demand by Landlord for payment of such late payment
              service charges shall not be construed as a cure of such default on
              the part of the Tenant.

Appellants’ Appendix at 83 (emphases added).

       We observe that the trial court’s order did not explicitly mention a late payment

service charge as detailed in the Lease or compound interest. However, as noted earlier,

the total amount awarded by the trial court is within ten dollars of the amount mentioned

by Nelson in his affidavit, and a spreadsheet attached to that affidavit appears to indicate



                                            26
late charges of $50 as well as interest. Based upon the emphasized language in the Lease,

we cannot say that the trial court erred on this basis.

E.     Attorney Fees

       The Appellants contend that the court erred when it awarded Silco its request for

$38,000 in attorney fees without reduction, and argues that Paragraph 41(o) of the Lease

entitles the successful party in litigation to the lesser of its actual attorney fees, costs and

expenses or $2,000. Without citation to the record, Silco argues that the trial court

awarded attorney fees for both breach of the Lease and foreclosure of the Mortgage.

Silco contends that the fees related to the foreclosure are not limited by the Lease.

       Paragraph 41 of the Lease governs default and states in part:

       (e)    If an Event of Default shall occur and shall not be cured in the
              manner as herein provided (unless Tenant is not entitled to an
              opportunity to cure such default) and if Landlord has not elected to
              cancel and terminate this Lease as provided in subsection (d)(ii)
              hereof, then Landlord and Tenant covenant and agree that Landlord
              shall have the right to recover all damages that Landlord may sustain
              by reason of such default, including, without limitation, the cost of
              recovering the Premises, reasonable attorney’s fees and court costs.

                                           *****

       (o)    In the event of any litigation or formal legal proceeding between the
              parties to this Lease, Landlord and Tenant specifically covenant and
              agree that the prevailing party in such litigation, including appellate
              proceedings, shall be entitled to recover, in addition to other
              damages, as full and complete compensation for all court costs,
              expenses and reasonable attorneys’ fees that it may incur in
              connection with such litigation or proceeding, the lesser of (i) the
              total amount of such costs, expenses, and attorneys’ fees actually
              incurred by it, or (ii) the sum of Two Thousand Dollars ($2,000.00),
              and the parties expressly waive any statute, rule of law or public
              policy to the contrary and further covenant and agree that they shall
              confirm such waiver in writing at the time of commencement of any
              such action, proceeding or counterclaim.
                                              27
Appellants’ Appendix at 97.

       The Mortgage contains the following:

       Attorneys’ Fees: Expenses. If Lessor institutes any suit or action to enforce
       any of the terms of this Mortgage, Lessor shall be entitled to recover such
       sum as the court may adjudge reasonable as attorneys’ fees at trial and on
       any appeal. Whether or not any court action is involved, all reasonable
       expenses incurred by Lessor that in Lessor’s opinion are necessary at any
       time for the protection of its interest or the enforcement of its rights shall
       become a part of the indebtedness payable on demand and shall bear
       interest from the date of expenditure until repaid at the rate of eighteen
       percent (18%) per annum. Expenses covered by this paragraph include,
       without limitation, however subject to any limits under applicable law,
       Lessor’s attorneys’ fees and Lessor’s legal expenses whether or not there is
       a lawsuit, including attorneys’ fees for bankruptcy proceedings (including
       efforts to modify or vacate any automatic stay or injunction), appeals and
       any anticipated post-judgment collection services, the cost of searching
       records, obtaining title reports (including foreclosure reports), surveyors’
       reports, and appraisal fees, and title insurance, to the extent permitted by
       applicable law, Grantor also will pay any court costs, in addition to all other
       sums provided by law.

Id. at 117.

       The trial court’s order mentioned attorney fees but did not mention a specific

amount. Specifically, the order states:

              IT IS FURTHER ORDERED by the Court that SILCO is given a
       personal judgment against the Defendants, jointly and severally, in the
       amount of $183,605.52, comprised of $236,661.86 minus the amount in
       Sohn & Associates’ escrow for sale of Weinbach Cafeteria property in the
       amount of $43,171.59 and minus the credit SILCO has allowed Defendants
       based on items it has been unable to locate amounting to $3,992.00, and
       minus payment made by Defendants in the amount of $5,892.75 dated July
       13, 2006 which has now been proven as received by SILCO, plus post
       judgment interest, plus advances by SILCO for real estate taxes, insurance
       premiums, maintenance costs, attorney and paralegal fees, and all other
       advances and any additional costs of collection, expenses and
       disbursements incurred including, but not limited to, attorney fees and
       costs, Sheriff’s Sale costs, environmental studies on the property,
       disbursements for real estate taxes, appraisals, bankruptcy fees and costs,
                                            28
       court costs, and disbursement for hazard insurance premiums which SILCO
       must pay to preserve the subject property and SILCO’s interest and rights
       therein, all without relief from valuation or appraisement laws.

Id. at 13-14 (emphases added).

       Based upon the trial court’s order, we cannot determine the amount of the attorney

fees or whether the fee award complied with the applicable provisions of the Lease and

Mortgage. Accordingly, we remand to the trial court to apply the provisions in the Lease

and the Mortgage and specify the amount of the attorney fees awarded to Silco.

F.     Duty to Mitigate

       In the Appellants’ response to Silco’s motion for summary judgment, the

Appellants argued that Silco “designated no evidence that it made any effort to re-let the

premises, instead relying upon the penalty provision in the lease and Plaintiff has allowed

no credit for the benefits it received from taking over and operation of the restaurant for

several months.” Appellants’ Appendix at 182. On appeal, the Appellants argue that

“[e]ven if a breach is found by tenant, the Landlord has a duty to mitigate his damages by

reletting.” Appellants’ Brief at 30. The Appellants argue that Silco “never designated

any evidence that it made any effort to re-let the premises nor allowed any credit for its

own business use of the premises during the time it operated the Cafeteria, instead relying

solely upon the penalty provision in the lease to impose strict liability for all rents

accruing during the entire time.” Id. at 31. Silco argues that Tudela’s deposition was

improperly designated and that the Appellants’ “evidence of SILCO failing to use

reasonable diligence to mitigate damages is non-existent.” Appellee’s Brief at 23.



                                            29
       Generally, a nonbreaching party must mitigate damages. Bruno v. Wells Fargo

Bank, N.A., 850 N.E.2d 940, 948 (Ind. Ct. App. 2006); Four Seasons Mfg., Inc. v. 1001

Coliseum, LLC, 870 N.E.2d 494, 507 (Ind. Ct. App. 2007). The breaching party has the

burden of proving that the nonbreaching party has failed to use reasonable diligence to

mitigate damages. Bruno, 850 N.E.2d at 948; Four Seasons, 870 N.E.2d at 507.

       Tudela’s affidavit states that “[d]uring the 2008 – 2009 time period, David Nelson

owned and operated a restaurant.” Appellants’ Appendix at 188. The Appellants alleged

in their response that Silco “changed the locks, dispossessed defendants of the premises

and continued operation of the Weinbach Cafeteria as a going concern.” Id. at 174.

       To the extent that Silco argues that Tudela’s deposition was not properly

designated, we observe that the Appellants designated Tudela’s deposition and affidavit

and pointed to specific portions of them in their response to Silco’s motion for summary

judgment which was filed on August 13, 2012, the date the court granted the Appellants’

motion for additional extension of time to respond to Silco’s motion for summary

judgment. Moreover, Silco designated portions of Tudela’s deposition, and in Silco’s

brief in support of its motion for summary judgment and to foreclose the Mortgage, Silco

cited Tudela’s deposition and later stated, without citation to the record, that “pursuant to

the clear terms of the Lease, SILCO had the right to take possession of the premises,

attempt to operate the restaurant in order to mitigate its damages, and seize the

equipment.” Id. at 72.

       While the Appellants have the burden of proving that Silco failed to use

reasonable diligence to mitigate damages, we conclude based upon the designated

                                             30
evidence that there is a genuine issue of fact as to whether Silco failed to use reasonable

diligence to mitigate damages. Accordingly, we reverse and remand on this issue.

G.       Accounting

         In Count III of their counterclaim, the Appellants requested Silco to provide a full

accounting and inventory itemization and valuation for the Weinbach Cafeteria as of

August 16, 2008.       The Appellants also alleged that Silco failed to account for its

operation of the Weinbach Cafeteria since its assumption of management of the Cafeteria

on September 16, 2008, and failed to provide an accounting for all of the equipment,

furniture, personal property, food, accounts payable, and other assets of the Cafeteria. On

appeal, the Appellants argue that Silco did not provide an adequate accounting. The

Appellants argue without citation to the record that “the Trial Court ignored designated

evidence . . . of the $18,716.84 food inventory, $1,705.18 in cash on hand, $750.00 liquor

inventory and the equipment either used in Nelson’s other restaurant or that he sold on

the side outside the auction, all of which were converted by Landlord.” Appellants’ Brief

at 34.

         Silco argues that the court did not err in fashioning a remedy without an

accounting because Silco put forth evidence regarding financial information and the

Appellants did not mention the accounting issue in their response. Without citation to the

record, Silco argues that “[t]he first time [the food, cash, and liquor] make an appearance

in the case is Tudela’s sureply brief (filed without permission of the trial court) which

mentions the food relying on Exhibit 7 to Tudela’s deposition (which was not filed within

Tudela’s filing requirements).” Appellee’s Brief at 25. Silco also argues that Exhibit 7

                                              31
attached to Tudela’s affidavit lists food inventory, liquor inventory, and cash deposits but

that the exhibit and affidavit constitute mere speculation based on a self serving

document prepared by Tudela.

       In their reply brief, the Appellants state that Silco argues for the first time on

appeal that Tudela’s filing of his deposition was untimely and that Silco has waived this

issue. The Appellants also contend that “[w]hat Landlord fails to mention is that, in

filing his Motion to Publish Deposition, Tudela sought to have the Court order Landlord,

as the entity taking the deposition tender the original.” Appellants’ Reply Brief at 11.

       With respect to Silco’s argument that Tudela’s deposition may not even be

considered, we again observe that Silco designated portions of Tudela’s deposition. The

Appellants designated the deposition and then specified portions of the deposition as well

as Exhibit 7 attached to the deposition in the portion of the document titled

“STATEMENTS/ISSUES            OF     FACT        WHICH      PRECLUDES          SUMMARY

JUDGMENT.” Appellants’ Appendix at 172. We cannot say that Tudela’s deposition

and Exhibit 7 were improperly designated.

       Generally, an action for an accounting is a proceeding in equity and is addressed

to the sound discretion of the trial court. Atwood v. Prairie Vill., Inc., 401 N.E.2d 97,

100 (Ind. Ct. App. 1980); 1 I.L.E. Accounts and Accounting § 1. An action for an

accounting has the purpose of adjusting the account of the litigants and of rendering

complete justice in a single action. Anacomp, Inc. v. Wright, 449 N.E.2d 610, 616 (Ind.

Ct. App. 1983).



                                            32
      Silco designated the affidavit of Karen Woolston, the corporate secretary and

treasurer of Sohn, which detailed the items sold from the Weinbach Cafeteria in nineteen

pages. However, as mentioned earlier, there is at least a question of fact with respect to

whether Silco failed to use reasonable diligence to mitigate damages which bears on the

issue of the accounting. Further, the designated evidence reveals that the Weinbach

Cafeteria had food and liquor inventory, and Silco does not point to designated evidence

that such inventory was properly accounted. Specifically, during his deposition, Tudela

indicated that the food inventory totaled $18,716.84. Tudela also indicated that he took

inventory of the food, the equipment, and the furnishings, and Exhibit 7 to the deposition

is titled “Weinback [sic] Cafeteria Balance Sheet” and includes food inventory, liquor

inventory, and cash deposits. Appellants’ Appendix at 479. Under the circumstances, we

conclude that there is a question of fact with respect to the accounting and that the trial

court erred when it granted Silco summary judgment on the Appellants’ third

counterclaim.

      For the foregoing reasons, we affirm in part the trial court’s order granting

summary judgment to Silco, and reverse and remand for consideration of the issues

related to attorney fees, mitigation of damages, and accounting.

      Affirmed in part, reversed in part, and remanded.

BRADFORD, J., concurs.

RILEY, J., concurs and dissents with separate opinion.




                                            33
                              IN THE
                    COURT OF APPEALS OF INDIANA

LILY, INC. d/b/a WEINBACH                       )
CAFETERIA and FERNANDO                          )
TUDELA,                                         )
                                                )
      Appellants-Defendants,                    )
                                                )
              vs.                               )    No. 82A05-1209-PL-459
                                                )
SILCO, LLC,                                     )
                                                )
      Appellee-Plaintiff.                       )


RILEY, Judge, concurring and dissenting


      I concur in part and dissent in part. I would affirm completely the granting of the

summary judgment by the trial court to Silco. I find no material issues of fact remaining

based on the designated evidence as to attorney fees and mitigation of damages.




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