MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Sep 30 2019, 8:51 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


APPELLANTS, PRO SE                                       ATTORNEYS FOR APPELLEE
Melvin Brett Randall                                     Joshua W. Casselman
Matthew Jacob Randall                                    Cassandra A. Nielsen
Mesa, Arizona                                            Rubin & Levin, P.C.
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melvin Brett Randall and                                 September 30, 2019
Matthew Jacob Randall,                                   Court of Appeals Case No.
Individually and d/b/a Randall                           19A-CC-100
Jeep and Auto Sales,                                     Appeal from the Marion Superior
Appellants-Defendants,                                   Court
                                                         The Honorable John F. Hanley,
        v.                                               Judge
                                                         Trial Court Cause No.
Automotive Finance                                       49D11-1610-CC-37223
Corporation,
Appellee-Plaintiff.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019                Page 1 of 16
                                       Statement of the Case
[1]   Appellants-Defendants, Melvin Brett Randall (“Melvin”) and Matthew Jacob

      Randall (“Matthew”) (collectively, “the Randalls”), individually and d/b/a

      Randall Jeep and Auto Sales (“the Auto Dealership”), appeal, pro se, the trial

      court’s grant of summary judgment to Appellee-Plaintiff, Automotive Finance

      Corporation (“AFC”). Concluding there is no error in the trial court’s entry of

      summary judgment, we affirm the trial court’s judgment.


[2]   We affirm.


                                                     Issue
                  Whether the trial court erred by granting summary judgment to
                  AFC.



                                                     Facts
[3]   AFC is an Indiana corporation that provides financing to automobile dealers.

      The Randalls operate the Auto Dealership, which is located in Mesa, Arizona.

      On October 23, 2015, the Randalls, on behalf of the Auto Dealership, executed

      a Demand Promissory Note and Security Agreement (“the Note”) along with a

      power of attorney and term sheets for the Note. Pursuant to the Note, AFC

      provided “floorplan financing” to the Auto Dealership to purchase vehicles for

      its inventory (“Purchase Money Inventory), and the Auto Dealership agreed to

      pay AFC $25,000.00. (App. Vol. 4 at 101). To secure its “prompt payment” of

      obligations under the Note, the Auto Dealership granted AFC “a lien and a
      Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019   Page 2 of 16
      security interest in the Purchase Money Inventory and the Titles thereto” as

      well as in “all of the [Auto Dealership’s] Collateral.” (App. Vol. 4 at 11).


[4]   The Note also provided that the Auto Dealership, upon the sale of any item of

      Purchase Money Inventory, would hold the proceeds in trust for AFC. The

      repayment of the Auto Dealership’s obligations under the Note were set forth,

      in relevant part, as follows:


               2.6 Repayment of Obligations. [The Auto Dealership] shall pay
               to [AFC] . . . the Obligations, on demand and without notice,
               and in any event, with respect to an item of Purchase Money
               Inventory on the earliest of: (a) [AFC’s] demand[;] (b) forty-eight
               (48) hours after the disposition by sale or otherwise of an item of
               Purchase Money Inventory; or (c) the Curtailment Date. All
               proceeds of any such disposition shall be received by [the Auto
               Dealership] in trust for [AFC] and forwarded promptly to [AFC].
               ...

      (App. Vol. 4 at 10). The Note provided that “[u]ntil demand by [AFC] or until

      an Event of Default[1] (at which time the Obligations shall at [AFC’s] option

      and without notice become immediately due and payable in full), [the Auto

      Dealership] shall pay the Obligations as provided under Section 2.6.” (App.

      Vol. 4 at 8). The Note also provided that the Auto Dealership’s “obligation to




      1
        An Event of Default included, among others, the following: (1) “the default in any payment or repayment
      when due of any of the Purchase Money Inventory Obligations or Obligations, as provided in the Note;” (2)
      “[AFC’s] deeming itself insecure regarding the Collateral or the possibility of [the Auto Dealership’s] default
      in any payment or repayment of any of the Obligations;” (3) “the default in payment or performance of any
      debt or obligation of [the Auto Dealership] . . . whether to [AFC] or to a third party[.]” (App. Vol. 4 at 13,
      14).

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019                  Page 3 of 16
      make full payment” under the Note was “unconditional” and would “not be

      affected by claims or disputes [the Auto Dealership] may have against any other

      person, including but not limited to claims or disputes [the Auto Dealership]

      may have against [AFC] . . . .” (App. Vol. 4 at 11). Additionally, the Note

      provided that “[w]henever an Event of Default shall exist, . . . [AFC], at its

      option and without demand or notice of any kind, may declare the Obligations

      to be immediately due and payable.” (App. Vol. 4 at 14).


[5]   Under the Note, the Randalls agreed to “waive[] demand and presentment for

      payment, protest, notice of protest and notice of non-payment for dishonor of

      this Note[.]” (App. Vol. 4 at 8). They also agreed to “waive[] any defenses”

      that they might assert for obligations under the Note “including but not limited

      to failure of consideration, breach of warranty, fraud, payment, statute of

      frauds, bankruptcy, lack of legal capacity, statute of limitations, lender liability,

      accord and satisfaction, and usury.” (App. Vol. 4 at 8). 2 Additionally, the

      Randalls agreed to “waive[] all defenses based on suretyship or impairment of

      collateral[.]” (App. Vol. 4 at 8).


[6]   The same day that the Randalls executed the Note, they also executed an

      Unconditional and Continuing Guaranty (“the Guaranty”). Under the

      Guaranty, the Randalls agreed to “absolutely and unconditionally guaranty the




      2
       Under both the Note and the Guaranty, the Randalls agreed to submit to the personal jurisdiction of
      Indiana courts and agreed to venue in either Marion County or Hamilton County.

      Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019              Page 4 of 16
      full and prompt payment, when due, whether by acceleration or otherwise,

      together with interest and all costs, expenses and attorneys’ fees, of any and all

      obligations, indebtedness and liabilities of [the Auto Dealership] to [AFC]”

      under the Note. (App. Vol. 4 at 22). The Randalls also agreed that, if the Auto

      Dealership failed to pay its liabilities under the Note, they would “immediately

      pay the amount due and unpaid by [the Auto Dealership] in like manner as if

      such amount constituted the direct and primary obligation of the [Randalls].”

      (App. Vol. 4 at 22). As they had done under the Note, the Randalls also agreed

      to waive presentment, notice of non-payment, and defenses.


[7]   On October 19, 2016, AFC filed a three-count complaint against the Randalls

      and the Auto Dealership. In Count 1, AFC raised a breach of contract claim

      against the Auto Dealership, alleging that the Auto Dealership had failed to

      make payments according to the terms of the Note and that there was an

      unpaid balance of $23,645.00 plus interest, fees, costs, and attorney fees. In

      Count 2, AFC sought recovery under the Guaranty from the Randalls as

      guarantors of the Auto Dealership’s indebtedness under the Note. In Count 3,

      AFC alleged that the Randalls and the Auto Dealership had committed fraud

      by failing to hold the proceeds from the sale of Purchase Money Inventory in

      trust for the benefit of AFC. AFC attached the following documents to its

      complaint: Exhibit A, which included the Note, the Guaranty, a power of

      attorney, a term sheet for the Note, and a term sheet for salvage vehicles; and




      Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019   Page 5 of 16
       Exhibit B, which contained an Account Balance or demand for payment,

       showing that the Randalls unpaid principal due was $23,645.00.


[8]    When the Randalls did not file an answer within the required time period, AFC

       filed a motion for default judgment, which the trial court granted. A few

       months later, the Randalls filed a motion to set aside the default judgment. The

       trial court held a hearing and granted the Randalls’ motion.


[9]    In August 2017, AFC filed a motion for summary judgment, and the Randalls

       filed a cross-motion for summary judgment. In November 2017, the trial court

       denied both parties’ summary judgment motions.


[10]   Thereafter, AFC continued with discovery and served the Randalls with

       requests for admission (“RFA”) on December 6, 2017. The RFA included,

       among others, the following statements:


               2. That [the Randalls ] signed [the Note] . . . to obtain financing
               for the purchase of vehicles.

                                                    *****

               4. That vehicles financed by [AFC] are considered purchase
               money inventory.

               5. That [the Note] . . . grants a security interest in and a lien on
               the titles to all Purchase Money Inventory in favor of [AFC].

               6. [AFC] has no contractual duty or obligation to release titles to
               Purchase Money Inventory.



       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019   Page 6 of 16
         7. That [AFC] has no contractual duty or obligation to release
         titles to Purchase Money Inventory if any outstanding obligations
         remain unpaid.

         8. [The Randalls] have an obligation to make full payment
         regardless of claims against or disputes with [AFC].

         9. [The Randalls] sold Purchase Money Inventory and failed to
         remit proceeds of said sales to [AFC].[3]

                                                *****

         25. [The Randalls] sold Purchase Money Inventory out of trust.

         26. [The Randalls] have no legitimate reason, including
         affirmative defenses or other matters of abatement, for its refusal
         to pay [AFC] $23,645.00 principal, $10,997.62 interest through
         December 6, 2017, with additional interest after December 6,
         2017 at 15% per annum.

         27. [The Randalls] have waived the defense of impairment of
         collateral.

                                                *****

         29. [The Randalls] are indebted to [AFC] in the sum of
         $23,645.00 principal, $10,997.62 interest through December 6,
         2017, with additional interest after December 6, 2017 at 15% per
         annum.

         30. [AFC] has performed all conditions incumbent upon it to be
         performed under the terms of the original of the contract.




3
  AFC included specific requests regarding the Randalls’ sale of stock numbers 2, 12, 13, 14, 15, and 16 and
their failure to remit the proceeds from these sales.

Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019                Page 7 of 16
       (Appellee’s App. Vol. 2 at 59-60). The Randalls did not respond to the RFA

       within the required time period. As a result, the matters contained in the RFA

       were admitted and conclusively established pursuant to Indiana Trial Rule 36.


[11]   On February 13, 2018, AFC filed a second motion for summary judgment.4

       AFC argued that it was entitled to judgment on Counts 1 and 2 in its

       complaint, which sought payment for the amount due under the Note, based on

       a breach of contract by the Auto Dealership and the Guaranty executed by the

       Randalls. AFC included the following designated evidence: (1) the complaint

       along with Exhibits A and B attached to the complaint; (2) the RFA sent to the

       Randalls; (3) the Odyssey File & Serve receipt showing that AFC had served

       the Randalls with the RFA on December 6, 2017; (4) the affidavit of Angela G.

       McGraw (“McGraw affidavit”) and all exhibits attached thereto;5 (5) the

       affidavit of Anthony Middleton (“Middleton affidavit”) and all exhibits

       attached thereto;6 (6) the affidavit of attorney Cassandra Nielson (“Nielson

       affidavit”) and the attorney fee exhibit attached thereto.




       4
         AFC electronically served its summary judgment motion to the Randalls at their email addresses listed as
       their e-file service contact and also to other email addresses that the Randalls had previously used when
       corresponding with AFC’s counsel. Additionally, AFC served the Randalls via United States mail.
       5
        McGraw, who was employed at the law firm of AFC’s counsel, attested that she had served the RFA via
       United States mail and confirmed that the mailing had never been returned to the law firm.
       6
         Middleton, who was a senior collections manager for AFC, attested that AFC’s books and records showed
       that AFC had provided floorplan financing to the Randalls pursuant to the Note but that the Randalls were
       in default by failing to pay AFC according to the terms of the Note. More specifically, Middleton attested
       that the Randalls had sold stock numbers 2, 12, 13, 14, 15, and 16 and had not remitted payment to AFC as
       required under the Note. Additionally, Middleton attested that, under the terms of the Note, AFC had “no

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019               Page 8 of 16
[12]   On March 16, 2018,7 the Randalls filed a summary judgment response/cross-

       motion for summary judgment and a “separate statement of facts” in support of

       their response/cross-motion. (App. Vol. 4 at 126). The Randalls, however, did

       not include any affidavits or specifically designate any evidence. 8 In their

       response and separate statement of facts, the Randalls did not dispute the

       elements of AFC’s breach of contract claims in regard to the Note and the

       Guaranty. Indeed, they acknowledged the validity of the Note and Guaranty

       and that they had not paid the balance due. Nor did they challenge the amount

       due under the Note. Instead, they argued that they had been “unable to pay the

       balance owed for inventory purchases because [AFC] had refused to turn over

       the titles to vehicles[,]” and they generally argued that AFC’s withholding of

       titles was a breach of its duty under the Note.9 (App. Vol. 4 at 127).


[13]   Additionally, in their separate statement of facts and response, the Randalls

       argued that they had not known about the RFA until AFC had filed it summary




       obligation to release titles to financed vehicles in which AFC maintain[ed] a contractual security interest . . .
       unless and until AFC [wa]s paid in full for the specific vehicle.” (AFC’s App. Vol. 2 at 68-69). Finally,
       Middleton attested that AFC’s record and books showed that the Randalls owed $23,645.00 plus fees and
       interest.
       7
        The electronic file stamp reveals that the Randalls filed their summary judgment response at 1:22 a.m. on
       March 16, 2018.
       8
         In their separate statement of facts, the Randalls referenced an affidavit from Matthew “Jake” Randall and
       also referenced AFC’s first summary judgment motion and an affidavit that was apparently part of the
       designated evidence in that first summary judgment. The Randalls, however, did not include any of these
       documents as designated evidence when filing their summary judgment response.
       9
           The Randalls did not specify the vehicles for which they contended that AFC had withheld the titles.


       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019                    Page 9 of 16
       judgment motion on February 13, 2018. The Randalls attached an exhibit to

       their separate statement of facts, and this exhibit contained copies of email

       correspondence between the Randalls and AFC’s counsel.10 The Randalls

       argued that AFC should have contacted them to confirm that they had received

       the RFA. They also suggested that the trial court could withdraw the

       admissions made under the RFA.


[14]   Thereafter, on March 26, 2018, AFC filed a motion to strike the Randalls’

       summary judgment response, arguing that the response was untimely filed

       under Trial Rule 56(C).11 AFC also argued that even if the trial court did not

       strike the Randalls’ summary judgment response, the Randalls had failed to

       show the existence of any genuine issue of material fact. AFC pointed out that

       the Randalls had failed to designate any evidence and that their response relied

       merely upon their summary denials.


[15]   The Randalls filed a response to AFC’s motion to strike. They acknowledged

       that they had filed their response one day after it was due. Specifically, they




       10
         One of these emails, dated February 14, 2018, was sent from the Randalls to AFC’s counsel. In this email,
       the Randalls informed AFC’s counsel that they had received AFC’s summary judgment motion and asserted
       that they had not previously received the RFA. Another email in this exhibit reveals that AFC’s counsel
       notified the Randalls that they had both “e-served” and mailed the RFA, and AFC attached a copy of the
       RFA to that email. (App. Vol. 4 at 131). An additional email, dated February 27, 2018, indicates that the
       Randalls emailed RFA responses to AFC that same day; however, the Randalls did not include or designate
       those RFA responses as evidence with its summary judgment response.
       11
         AFC asserted that the Randalls had failed to file their summary judgment response within thirty days of
       the date that AFC had electronically served them with its summary judgment motion.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019              Page 10 of 16
       acknowledged that they had filed their response on March 16, 2018 when it was

       due on March 15.


[16]   On May 10, 2018, the trial court held a hearing on the pending motions.12 A

       few days later, on May 15, 2018, the trial court entered an order, in which it:

       (1) granted AFC’s motion to strike, noting that the Randalls’ summary

       judgment response was untimely under Indiana Trial Rules 56 and 86(J); and

       (2) granted AFC’s summary judgment motion and denied the Randalls’ cross-

       motion for summary judgment.13 The Randalls then filed a motion to correct

       error, which the trial court denied. The Randalls now appeal.


                                                       Decision
[17]   The Randalls argue that the trial court erred by granting summary judgment to

       AFC.14




       12
            The transcript of the summary judgment hearing is not included in the record on appeal.
       13
          The trial court’s May 15, 2018 order was not entered into the chronological case summary until February
       1, 2019. The judgment was entered as a final judgment under Trial Rule 54(B). The total amount of
       judgment entered was $44,891.33, which included $23,645.00 principal; $11,969.33 contract fees and interest;
       $8,985.00 attorney fees; and $292.00 costs.
       14
         The Randalls also argue that the trial court erred by granting AFC’s motion to strike their summary
       judgment response as untimely, and they attempt to make an argument not raised below to the trial court.
       Specifically, they now assert that their summary judgment was not untimely, claiming that the response was
       due on March 19, 2018 if the calculation were based on service by U.S. mail instead of basing it on electronic
       service. The Randalls, however, already admitted to the trial court that their response had been filed in
       Indiana on March 16, 2018 at 1:22 a.m., making it one day late. Thus, they invited any error of which they
       now complain. “A party may not take advantage of an error that he commits, invites, or which is the natural
       consequence of his own neglect or misconduct.” Shipley v. KeyBank Nat’l Ass’n, 821 N.E.2d 868, 879 (Ind. Ct.
       App. 2005). Moreover, “[i]ssues not raised before the trial court on summary judgment cannot be argued for
       the first time on appeal and are waived.” Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019               Page 11 of 16
[18]   Before addressing this appellate argument, we note that the Randalls proceed

       pro se in this appeal. “It is well settled that pro se litigants are held to the same

       legal standards as licensed attorneys.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind.

       Ct. App. 2016), reh’g denied. “This means that pro se litigants are bound to

       follow the established rules of procedure and must be prepared to accept the

       consequences of their failure to do so.” Id. at 983-84. “We will not become an

       advocate for a party, or address arguments that are inappropriate or too poorly

       developed or expressed to be understood.” Id. at 984. When a party elects to

       proceed pro se on appeal, “there is no reason for us to indulge in any

       benevolent presumption on his behalf[] or [to] waive any rule for the orderly

       and proper conduct of his appeal.” Foley v. Mannor, 844 N.E.2d 494, 502 n.1

       (Ind. Ct. App. 2006).


[19]   Our standard of review for summary judgment cases is well settled. When we

       review a trial court’s grant of a motion for summary judgment, our standard of

       review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45

       N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the

       moving party has shown that there is no genuine issue of material fact and it is




       2004). Accordingly, the Randalls have waived their argument regarding the motion to strike. Shipley, 821
       N.E.2d at 879 (explaining that based on invited error, the appellant had waived appellate argument);
       Dunaway, 813 N.E.2d at 387 (holding that appellant had waived appellate argument by failing to raise it
       below on summary judgment). Waiver notwithstanding, even if we found error as alleged and were to
       consider the Randalls’ summary judgment response, we would still affirm the trial court’s grant of AFC’s
       summary judgment motion.



       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019             Page 12 of 16
       entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003

       (Ind. 2014). If the moving party meets this burden, then the non-moving party

       must designate evidence demonstrating a genuine issue of material fact. Gill v.

       Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). “The review

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

       trial court.” Midwest Sec. Life Ins. Co. v. Stroup, 730 N.E.2d 163, 165 (Ind. 2000).

       “[A]n adverse party may not rest upon the mere allegations or denials of his

       pleading, but his response, by affidavits or as otherwise provided in this rule,

       must set forth specific facts showing that there is a genuine issue for trial.” T.R.

       56(E). “We construe all factual inferences in favor of the non-moving party and

       resolve all doubts regarding the existence of a material issue against the moving

       party.” Knighten, 45 N.E.3d at 791.


[20]   In this appeal, we are called upon to determine whether the trial court properly

       granted summary judgment in this contract dispute between AFC and the

       Randalls. “Summary judgment is especially appropriate in the context of

       contract interpretation because the construction of a written contract is a

       question of law.” TW Gen. Contracting Servs., Inc. v. First Farmers Bank & Trust,

       904 N.E.2d 1285, 1287-88 (Ind. Ct. App. 2009) (citing Colonial Penn Ins. Co v.

       Guzorek, 690 N.E.2d 664, 667 (Ind. 1997)), reh’g denied. “The ultimate goal of

       any contract interpretation is to determine the intent of the parties when they

       made the agreement.” Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind.

       2012), reh’g denied. To do so, “we begin with the plain language of the contract,


       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019   Page 13 of 16
       reading it in context and, whenever possible, construing it so as to render each

       word, phrase, and term meaningful, unambiguous, and harmonious with the

       whole.” Id. A court should construe the language of a contract so as not to

       render any words, phrases, or terms ineffective or meaningless. Hammerstone v.

       Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013).


[21]   Here, AFC moved for summary judgment on its breach of contract claims in

       relation to the Note and the Guaranty. “To prevail on a claim for breach of

       contract, the plaintiff must prove the existence of a contract, the defendant’s

       breach of that contract, and damages resulting from the breach.” Haegert v.

       Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). To prove its claims, AFC

       designated evidence showing that the Randalls, after having executed the Note

       and the Guaranty, had failed to pay AFC as required under the Note and the

       Guaranty and that AFC had resulting damages, which included $23,645.00 due

       from the Note and additional amounts for interest and attorney fees. Based on

       this designated evidence, the trial court concluded that the Randalls had

       breached the Note and the Guaranty and then granted summary judgment to

       AFC.15


[22]   On appeal, the Randalls do not dispute the validity of the Note or the

       Guaranty, their failure to pay under the Note or the Guaranty, or the amount




       15
         The trial court also denied the Randalls’ cross-motion for summary judgment. They do not challenge that
       ruling on appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019            Page 14 of 16
       due as a result of their breach. Nor do they specifically challenge any of AFC’s

       designated evidence. Instead, the Randalls argue, as they did below, that their

       failure to pay was caused by AFC’s act of withholding titles to unspecified

       vehicles. 16


[23]   Here, the Randalls filed a summary judgment response with no designated

       evidence. The response was untimely filed and was ultimately stricken by the

       trial court. AFC’s designated evidence included the RFA that it had sent to the

       Randalls, and the RFA included an admission that AFC was not required to

       release titles to the Randalls when they had unpaid obligations. Moreover, the

       plain language of the Note reveals that the Randalls had an “unconditional”

       “obligation to make full payment” under the Note and that this obligation

       would “not be affected by claims or disputes . . . against [AFC] . . . .” (App.

       Vol. 4 at 11). Additionally, the Randalls agreed to waive various defenses

       against AFC. Because the Randalls have failed to prove that there are genuine

       issues of fact regarding AFC’s breach of contract claims against them, we affirm

       the trial court’s entry of summary judgment in favor of AFC.




       16
         The Randalls also argue that summary judgment was improper because they have an affirmative defense
       that AFC failed to mitigate its damages. They did not raise this argument below in the summary judgment
       proceeding and did not designate any evidence regarding such an argument. Thus, they have waived any
       such argument, and we will not consider this argument. See Dunaway, 813 N.E.2d at 387 (holding that
       appellant had waived appellate argument by failing to raise it below on summary judgment).

       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019           Page 15 of 16
[24]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CC-100 | September 30, 2019   Page 16 of 16
