      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                        Dec 21 2016, 7:03 am

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


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Delmar P. Kuchaes                                        Jeffrey J. Mortier
      Whiteland, Indiana                                       Maggie L. Smith
                                                               Blake N. Shelby
                                                               Frost Brown Todd LLC
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Delmar P. Kuchaes,                                       December 21, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               49A02-1603-PL-546
              v.                                               Appeal from the
                                                               Marion Superior Court
      Public Storage, Inc.,                                    The Honorable
      Appellee-Defendant.                                      James A. Joven, Judge
                                                               Trial Court Cause No.
                                                               49D13-1203-PL-12284



      Kirsch, Judge.


[1]   Delmar P. Kuchaes (“Kuchaes”) appeals the trial court’s order granting

      summary judgment in favor of Public Storage, Inc. (“Public Storage”) and


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 1 of 17
      denying his motion for partial summary judgment. This case arose when

      Kuchaes failed to pay rent on his storage unit that he rented from Public

      Storage. Pursuant to statute and the agreement signed by the parties, Public

      Storage sent Kuchaes notice that, unless he paid the full amount due within

      thirty days, the contents of the storage unit would be sold at a public auction.

      Kuchaes never paid the amount owed on his account, and Public Storage sold

      the property. Kuchaes raises the following issues for our review:


              I. Whether the trial court properly granted Public Storage’s
              motion for summary judgment because Public Storage complied
              with the requirements contained in Indiana Code section 26-3-8-
              12(c);


              II. Whether Indiana Code section 26-3-8-14 is applicable in the
              present case;


              III. Whether Kuchaes waived any argument based on
              commercial reasonableness and good faith by failing to raise
              those issues during the summary judgment proceedings; and


              IV. Whether Public Storage assumed a duty by creating an
              internal checklist for employees concerning lien procedures and
              committed negligence when selling Kuchaes’s property because
              the internal checklist was not followed.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On June 10, 2009, Kuchaes and Public Storage entered into a rental agreement

      (“the Agreement”) for the rental of a storage unit at Public Storage’s facility in

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 2 of 17
      Marion County, Indiana for the storage of Kuchaes’s personal property. The

      Agreement provided, “Renter shall pay Owner as a monthly rent, without

      deduction, prior notice, demand or billing statement, the sum noted above (plus

      any applicable tax imposed by any taxing authority) in advance on the first day

      of each month.” Appellant’s App. at 26. The Agreement also included language,

      contained in paragraph 6, and appearing in bold and all capital letters, that

      granted Public Storage a contractual lien on all personal property stored in the

      unit and stated that, upon a renter’s default, Public Storage “shall have all of the

      remedies of a lien holder available under Indiana law, including without

      limitation, the right to take possession of said personal property.” Id. at 27.

      This paragraph also granted Public Storage “the right to sell that personal

      property at a private sale or public auction and apply the proceeds thereof to the

      debt of the renter.” Id. This paragraph ends with a space for the renter to initial

      and affirmatively acknowledge that “he understands and agrees to the

      provisions of the paragraph.” Id. Kuchaes initialed the paragraph, and he

      likewise initialized the end of the Agreement, acknowledging that he had read,

      was familiar with, and agreed to all of the provisions of the Agreement. Id. at

      28.


[4]   After entering into the Agreement, Kuchaes paid his rent for the first few

      months, but failed to pay his rent on October 1 and then again on November 1,

      2009. Public Storage attempted to contact Kuchaes by letter and phone on five

      different occasions about his failure to pay rent. The letters were sent to the

      address listed on the Agreement and were returned as “unable to forward.” Id.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 3 of 17
      at 76-77. The phone calls resulted in messages that were not returned, and an

      alternate number that Kuchaes had given was disconnected. On November 17,

      2009, Kuchaes paid his rental arrearage for October and November, but failed

      to pay the late fees associated with the unpaid rent. He also provided Public

      Storage with written notice of a new mailing address and new email address,

      but no new phone number. Public Storage tried to contact Kuchaes three times

      between November 17 and December 1, 2009 regarding the unpaid late fees,

      but Kuchaes did not respond to messages left.


[5]   On December 1, 2009, Kuchaes again failed to pay his rent. Public Storage

      attempted to contact him eight times in December about the arrearages. On

      January 1, 2010, Kuchaes again failed to pay his rent, and Public Storage tried

      to contact him seven different times in January regarding his arrearages for

      January and December rents and the late fees from October and November.

      On January 15, 2010, a “Notice of Lien” was mailed to Kuchaes, and the

      contents of his storage unit were set to go to auction on March 2, 2010 if the

      arrearages were not paid. Id. at 73, 76. Kuchaes contacted Public Storage on

      January 28, 2010 and told Public Storage that he had paid his rent in December

      and January and that he would come in the next day with the receipt to prove

      it. Kuchaes never went to Public Storage or provided proof that he had paid his

      rent as claimed. Kuchaes later admitted that he never made any rent payments

      after November 13, 2009. Suppl. App. at 19.


[6]   Kuchaes again failed to pay his rent on February 1, 2010. Public Storage tried

      to contact Kuchaes at the beginning of February, but was unable to reach him

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 4 of 17
      until February 15. At that time, Kuchaes told Public Storage that he had

      mailed his rent check the previous Friday and that, if it was not received by the

      next day, Public Storage should call him back. Public Storage never received a

      check.


[7]   On February 22, 2010, Public Storage sent Kuchaes another “Notice of

      Enforcement of Owner’s Lien – Notice of Sale” (“the Notice”). Appellant’s App.

      at 143. The Notice informed Kuchaes that, unless he paid the full amount due

      within thirty days, the lien would be enforced and his property would be sold at

      public auction on March 26, 2010. Id. The Notice was sent to Kuchaes via

      regular mail and certified mail, and Kuchaes received the Notice via regular

      mail. Suppl. App. at 19. The post office eventually returned the certified mail

      copy on March 22, 2010 as unclaimed. Id. at 75. Kuchaes never responded to

      the Notice, never paid his outstanding balance, and then failed to pay his rent

      on March 1, 2010, which meant that, at that time, Kuchaes owed late fees from

      October and November, 2009 and rent from December, January, February, and

      March, resulting in a default that exceeded 150 days.


[8]   Public Storage continued to try to reach Kuchaes by phone eleven different

      times between February 22, 2010 and March 26, 2010, but did not succeed in

      reaching him. Id. On March 15, 2010, Public Storage advertised the sale of

      Kuchaes’s property in the newspaper. Kuchaes failed to pay his outstanding

      balance by March 24, 2010, which was thirty days after the Notice was sent,

      and the contents of Kuchaes’s storage unit were sold at a public auction on

      March 26, 2010. After paying the outstanding balance owed by Kuchaes,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 5 of 17
      $64.32 remained from the proceeds of the sale, and that amount was forwarded

      to Kuchaes after the auction. Kuchaes made contact with Public Storage a

      week after the auction. On April 8, 2010, Public Storage, on behalf of Kuchaes,

      made contact with the person who bid on Kuchaes’s property, and the bidder

      indicated that he still had some of the boxes from the storage unit and agreed to

      drop them off at Public Storage for Kuchaes to pick up.


[9]   On March 26, 2012, Kuchaes filed a complaint against Public Storage for

      breach of contract, negligence, and intentional tort and asking for punitive

      damages. On July 31, 2014, Public Storage filed a motion for summary

      judgment on all of Kuchaes’s claims. Kuchaes filed a cross-motion for partial

      summary judgment. Thirty-four days after Public Storage filed its motion for

      summary judgment, on September 3, 2014, the trial court granted Public

      Storage’s motion in its entirety. The next day, the trial court received several

      filings from Kuchaes, including a brief in opposition to Public Storage’s

      summary judgment, a designation of evidence, and a request for a hearing on

      all pending motions. Although these filings were considered filed as of

      September 2, 1014, they were not actually received until September 4, the day

      after the trial court ruled on the motions. Kuchaes filed an appeal, and a panel

      of this court reversed, finding that the trial court acted prematurely. The case

      was remanded with instructions for the trial court to conduct a hearing on the

      summary judgment motions and to consider all of the parties’ timely-filed

      materials. On remand, a hearing was held, and the trial court entered summary




      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 6 of 17
       judgment in favor of Public Storage. Kuchaes filed a motion to correct error,

       which the trial court denied. Kuchaes now appeals.


                                      Discussion and Decision
[10]   When reviewing the grant of summary judgment, our standard of review is the

       same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

       1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

       Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

       the shoes of the trial court and apply a de novo standard of review. Id. (citing

       Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

       review of a summary judgment motion is limited to those materials designated

       to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d

       461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate

       only where the designated evidence shows there are no genuine issues of

       material fact and the moving party is entitled to judgment as a matter of law.

       T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on

       the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view

       the pleadings and designated materials in the light most favorable to the non-

       moving party. Id. Additionally, all facts and reasonable inferences from those

       facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.

       Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.

       denied).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 7 of 17
[11]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. FLM, 973

       N.E.2d at 1173. Where a trial court enters specific findings and conclusions,

       they offer insight into the rationale for the trial court’s judgment and facilitate

       appellate review, but are not binding upon this court. Id. We will affirm upon

       any theory or basis supported by the designated materials. Id. When a trial

       court grants summary judgment, we carefully scrutinize that determination to

       ensure that a party was not improperly prevented from having his or her day in

       court. Id.


                   I. Proper Effectuation and Enforcement of Lien
[12]   Kuchaes argues that the trial court erroneously granted summary judgment in

       favor of Public Storage. He contends that Public Storage did not properly

       effectuate and enforce the lien on his property because the notice sent to him on

       February 22, 2010 did not comply with Indiana Code section 26-3-8-12.

       Specifically, Kuchaes alleges that the notice was not sent by registered or

       certified mail, the language used in the notice is different from that in the

       statute, and the notice of public sale was advertised prematurely.


[13]   Indiana Code chapter 26-3-8 deals with Self-Service Storage Facilities, and

       section 26-3-8-11 states that the owner of a self-service storage facility has a lien

       on the personal property in the storage facility for rent and other charges

       accrued under the rental agreement and that the lien attaches on the date the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 8 of 17
       property is placed in the storage facility. Ind. Code § 26-3-8-11(a), (c). The

       section also provides that every rental agreement must contain language, in

       bold type, notifying the renter “of the existence of the lien and of the method by

       which the owner may enforce the lien under this chapter.” Ind.Code § 26-3-8-

       11(c).


[14]   Here, paragraph 6 of the Agreement contained this pertinent information in

       bold and all capital letters and notified Kuchaes that Public Storage had a lien

       on all of the personal property he stored in the unit he rented and that, in the

       event of his default, Public Storage had “all of the remedies of a lienholder

       available under Indiana law, including without limitation, the right to take

       possession of said personal property” and “the right to sell that personal

       property at a private sale or public auction and apply the proceeds thereof to the

       debt of the renter.” Appellant’s App. at 27. Kuchaes, who is an attorney who

       practiced law for almost forty years, initialed paragraph 6, acknowledging that

       he understood and agreed to the provisions in the paragraph. Id. He also

       initialed a later paragraph in the Agreement acknowledging that he was familiar

       with, and agreed to, all of the provisions in the Agreement. Id. at 28. “Under

       Indiana law, a person is presumed to understand the documents which he or

       she signs and cannot be released from the terms of a contract due to his or her

       failure to read the documents.” Robert’s Hair Designers, Inc. v. Pearson, 780

       N.E.2d 858, 869 (Ind. Ct. App. 2002). We, therefore, conclude that the lien

       was properly effectuated.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 9 of 17
[15]   Pursuant to the Agreement, Kuchaes was required to pay rent for his storage

       unit monthly, on the first of every month. He did so for several months, but

       failed to pay his rent in both October and November, 2009. Kuchaes later paid

       the balance of his missed rent for October and November but never paid the late

       fees that had accrued. He again failed to pay his rent for the months of

       December, January, February, and March. As of February 2010, Kuchaes

       owed late fees from October and November 2009 and rent for December 2009

       and January and February 2010, which was a default of over 150 days.


[16]   Indiana Code section 26-3-8-12 provides, in pertinent part, the proper procedure

       to enforce a lien effectuated under section 26-3-8-11:

               (a) After a renter has been in default continuously for thirty (30)
               days, an owner may begin enforcement of the owner’s lien under
               this chapter.


               ....


               (c) An owner enforcing the owner’s lien shall send the renter, by
               registered or certified mail (return receipt requested) addressed to
               the last known address of the renter, a written notice that
               includes:


               (1) an itemized statement of the owner’s claim showing the
               amount due at the time of the notice and the date when the
               amount became due;


               (2) a demand for payment of the amount due before a specified
               time at least thirty (30) days after the date of the mailing of the
               notice;

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 10 of 17
               (3) a statement that the contents of the renter’s rented space are
               subject to the owner’s lien;


               ....


               (6) the name, street address, and telephone number of the owner
               or of any other person the renter may contact to respond to the
               notice; and


               (7) a conspicuous statement that unless the owner’s claim is paid
               within the time stated under subdivision (2), the personal
               property will be advertised for sale, or will be otherwise disposed
               of, at a specified place and time, which must be at least ninety
               (90) days after the renter’s default.


               (d) Any sale or other disposition of the personal property to
               enforce the owner’s lien must conform to the notice given under
               subsection (c)(7).


[17]   On February 22, 2010, Public Storage sent Kuchaes, via regular mail and

       certified mail, the Notice, which informed him of the lien that Public Storage

       had on his personal property. Appellant’s App. at 143. At that time, Kuchaes

       had been in default of the Agreement for at least thirty days pursuant to the

       statute; he had actually been in default for his failure to pay late fees for almost

       150 days and in default for failure to pay rent for almost ninety days. The

       Notice stated that, unless Kuchaes paid the balance due on his account within

       thirty days, or by March 24, 2010, the lien would be enforced through the sale

       of his personal property at a public auction on March 26, 2010. Id. The date of




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 11 of 17
       the auction was well past the ninety days after the renter’s default that was

       required under Indiana Code section 26-3-8-12(c)(7).


[18]   The Notice contained all of the information required under subsection (c), and

       any slight variance of language from the statutory language did not change the

       fact that the required pertinent language was included in the Notice. Public

       Storage sent the Notice to Kuchaes via both regular mail and certified mail, and

       Kuchaes admitted that he received the Notice through regular mail. Appellant’s

       App. at 61-62; Suppl. App. at 19. The copy sent by certified mail was returned to

       Public Storage by the post office as unclaimed on March 22, 2010. Appellant’s

       App. at 75. Despite receiving the Notice, Kuchaes never responded and never

       paid his outstanding balance before March 24, 2010. Public Storage, pursuant

       to statute, sold the contents of Kuchaes’s storage unit at a public auction on

       March 26, 2010. We conclude that Public Storage complied with the

       requirements of Indiana Code section 26-3-8-12, and the trial court properly

       granted summary judgment to Public Storage.


                             II. Indiana Code section 26-3-8-14
[19]   Kuchaes next contends that the trial court erred when it granted summary

       judgment because the manner in which Public Storage advertised the public

       auction of Kuchaes’s property did not meet the requirements of Indiana Code

       section 26-3-8-14. He claims that Public Storage’s March 15, 2010

       advertisement violated section 26-3-8-14 because the sale was advertised prior

       to the March 24, 2010 deadline. Kuchaes asserts that, pursuant to the statute,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 12 of 17
       Public Storage could not advertise the public sale of his property until thirty

       days after the Notice was sent on February 22, 2010, which would have been

       March 24, and therefore, the sale could not have occurred until ten days after

       that date of publication pursuant to the statute.


[20]   Although Kuchaes argues that Public Storage’s advertisement of the public sale

       violated Indiana Code section 26-3-8-14, that statutory section did not apply to

       the present case. That section only applies when the storage facility does not

       dispose of the renter’s property pursuant to the procedures in section 26-3-8-

       12(c)(7). Section 26-3-8-14 states, in pertinent part:

               (a) After the expiration of the time stated in the owner’s notice
               under section 12(c)(2) of this chapter, if the personal property has not
               been otherwise disposed of in a manner described in section 12(c)(7)(A)(ii)
               or 12(c)(7)(B) of this chapter, an owner enforcing the owner’s lien
               shall prepare for a sale of the personal property under this
               section.


       Ind. Code § 26-3-8-14 (emphasis added). In the present case, Public Storage

       disposed of Kuchaes’s property in accordance with section 26-3-8-12(c)(7);

       accordingly, section 26-3-8-14 was not applicable. Therefore, the requirements

       set forth in section 26-3-8-14 had no bearing on this case, and Kuchaes’s

       arguments concerning that section have no merit.


                 III. Commercial Reasonableness and Good Faith
[21]   Kuchaes argues that the trial court erred in granting summary judgment in

       favor of Public Storage because the sale of his property was not conducted in a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 13 of 17
       commercially reasonable manner or in good faith. He claims that Public

       Storage was required to hold the sale of his property in a commercially

       reasonable manner pursuant to Indiana Code section 26-1-7-210(a) and that

       whether the sale was conducted in such a manner depended on the

       circumstances of the case and, therefore, raised a question of fact. Kuchaes also

       contends that Public Storage was required to act in good faith in its dealings

       with him pursuant to Indiana Code section 26-1-7-203 and that whether that

       was done was a question of fact. He, thus, asserts that summary judgment was

       not proper as to these two issues.


[22]   Initially, we note that Kuchaes did not raise his arguments as to whether the

       sale of his property was conducted in a commercially reasonable manner or

       done in good faith to the trial court in the summary judgment proceedings.

       “Issues not raised before the trial court on summary judgment cannot be argued

       for the first time on appeal and are therefore waived.” Yoost v. Zalcberg, 925

       N.E.2d 763, 770 (Ind. Ct. App. 2010), trans. denied. Kuchaes has, therefore,

       waived any argument that the sale was not performed in a commercially

       reasonable manner or that Public Storage did not act in good faith.1




       1
         Kuchaes, in his reply brief, contends that he did not have the burden to raise his commercially reasonable
       argument during the summary judgment proceedings because he was not the party moving for summary
       judgment. Kuchaes is correct that “[t]he initial burden is on the summary-judgment movant to demonstrate
       the absence of any genuine issue of fact as to a determinative issue,” and that at that “point the burden shifts
       to the non-movant to come forward with contrary evidence showing an issue for the trier of fact.” Gaff v.
       Ind.-Purdue Univ. Fort Wayne, 51 N.E.3d 1163, 1165 (Ind. 2016). However, in the present case, Public Storage
       moved for summary judgment and argued there was no genuine issue of material fact that it properly
       effectuated and enforced its lien on Kuchaes’s property pursuant to Indiana Code section 26-3-8-12, which it
       supported with designated evidence. Appellant’s App. at 35-44. Even if Kuchaes did not have the initial

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016           Page 14 of 17
[23]   Waiver notwithstanding, Kuchaes’s contention is without merit. He asserts

       that Public Storage was required to conduct the sale of his personal property in

       a commercially reasonable manner pursuant to Indiana Code section 26-1-7-

       210(a). “This Article is a consolidation and revision of the Uniform Warehouse

       Receipts Act and the Uniform Bills of Lading Act.” Ind. Code § 26-1-7-101,

       UCC cmt. However, Kuchaes is not covered by this more general statutory

       scheme, but instead by the more specific statutory scheme covering “Self-

       Service Storage Facilities” located in chapter 26-3-8. This statutory chapter

       applies to “any real property designed and used for the renting of space under a

       rental agreement that provides a renter access to rented space for the storage

       and retrieval of personal property.” Ind. Code § 26-3-8-9. Although section 26-

       1-7-210 contained a requirement of commercially reasonable sale, the Self-

       Service Storage Facilities statutory scheme does not. When language is used in

       one section of a statute but omitted from others, courts indulge a general

       presumption that the legislature acted intentionally and purposely in so doing.

       Andrianova v. Ind. Family & Soc. Servs. Admin., 799 N.E.2d 5, 16 (Ind. Ct. App.

       2003). We, therefore, conclude that the trial court correctly found that the

       commercially reasonable standard did not apply to Public Storage.


[24]   Likewise, the same is true with Kuchaes’s assertion that Indiana Code section

       26-1-1-203 applied to the relationship between he and Public Storage. Section




       burden to raise the commercially reasonable issue, he later filed a motion for partial summary judgment, in
       which he had the burden to demonstrate the absence of any genuine issue of fact as to a determinative issue;
       however, he did not raise the issue at that point either.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016         Page 15 of 17
       26-1-1-203 states, “Every contract or duty within I.C. 26-1 imposes an

       obligation of good faith in its performance or enforcement.” Again, we note

       that Kuchaes is not covered by this more general statutory scheme, but instead

       by the more specific statutory scheme covering “Self-Service Storage Facilities”

       located in chapter 26-3-8. The language in section 26-1-1-203 does not appear

       in chapter 26-3-8. Therefore, because such language was used in one section of

       a statute but omitted from others, we presume that the legislature acted

       intentionally and purposely in so doing. Andrianova, 799 N.E.2d at 16. The

       trial court properly entered summary judgment in favor of Public Storage.


                                        IV. Internal Checklist
[25]   Kuchaes claims that the trial court erred in granting summary judgment in

       favor of Public Storage because Public Storage promulgated an internal

       checklist that detailed procedures its employees were to follow in enforcing a

       lien against renters. He asserts that, by creating this checklist, Public Storage

       assumed a duty to its renters to make sure that its employees complied with the

       procedures contained in the checklist when foreclosing a lien. Kuchaes,

       therefore, argues that whether Public Storage assumed this duty and the extent

       of that duty were questions of fact, and summary judgement should not have

       been granted.


[26]   “Whether a duty exists and the extent of the duty owed is a matter of contract

       interpretation, and we determine the intent of the parties as determined by the

       language of the contract.” Hale v. R.R. Donnelley & Sons, 729 N.E.2d 1025, 1028

       (Ind. Ct. App. 2000), trans. denied. “If a contract affirmatively evinces an intent
       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016   Page 16 of 17
       to assume a duty of care, actionable negligence may be predicated upon the

       contractual duty.” Id. In the present case, there is nothing in the Agreement

       that referenced or incorporated the internal checklist into the contractual

       agreement between Public Storage and Kuchaes. Therefore, as shown in the

       language of the Agreement, the internal checklist was not evidence of a duty

       assumed by Public Storage because it was not included in the Agreement. The

       Agreement set out Public Storage’s obligations to Kuchaes, which included

       compliance with “all applicable law in force at the time the agreement.” Geller

       v. Kinney, 980 N.E.2d 390, 397 (Ind. Ct. App. 2012). Therefore, Public Storage

       was obligated to comply with the applicable law in its Agreement with

       Kuchaes, but was not obligated under the Agreement to comply with its

       internal checklist. The trial court did not err in granting summary judgment in

       favor of Public Storage and in denying Kuchaes’s motion for partial summary

       judgment.2


[27]   Affirmed.


       May, J., and Crone, J., concur.




       2
         Kuchaes also argues that his damages should not be limited to $5,000 per the limitations of liability
       provision in the Agreement. Because we conclude today that the trial court did not err in granting summary
       judgment in favor of Public Storage, we find this argument to be moot.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-546 | December 21, 2016       Page 17 of 17
