      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                               FILED
      regarded as precedent or cited before any                                       Jun 10 2020, 9:08 am
      court except for the purpose of establishing                                        CLERK
      the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                         Court of Appeals
      estoppel, or the law of the case.                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Douglas K. Walker                                        Robert B. Golding, Jr.
      Law Office of David Gladish, P.C.                        Dyer, Indiana
      Highland, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Super Petroleum, Inc.,                                   June 10, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-MF-2843
              v.                                               Appeal from the Lake Superior
      5th Avenue Mobil, LLC,                                   Court

      Appellee-Plaintiff.                                      The Honorable Kristina Kantar,
                                                               Judge
                                                               Trial Court Cause No.
                                                               45D04-1505-MF-122



      Mathias, Judge.


[1]   Super Petroleum, Inc., (“Super Petroleum”) appeals the Lake Superior Court’s

      entry of summary judgment to 5th Avenue Mobile, LLC (“5th Avenue”) on 5th

      Avenue’s complaint to foreclose the mortgage on a property 5th Avenue sold to

      Super Petroleum. On appeal, Super Petroleum argues that genuine issues of


      Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020                      Page 1 of 11
      material fact exist in this case and the trial court erred when it granted 5th

      Avenue’s motion for summary judgment.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 19, 2011, Super Petroleum purchased real estate located in Gary,

      Indiana, from 5th Avenue for $450,000. Super Petroleum made a down

      payment on the property, and 5th Avenue agreed to finance the $370,000

      balance owed. Then, the parties entered into a promissory note and mortgage

      for the real estate. The principal amount owed was subject to an annual interest

      rate of 5% for a period of ten years beginning on January 1, 2012. Super

      Petroleum agreed to make 120 equal payments of $3924.42.


[4]   At issue in this appeal is the promissory note drafted by Super Petroleum’s

      attorney, which contained the following provision:


              With interest at the rate of Five (5.00%) percent per annum
              computed on the unpaid balance during such period when there
              shall be no delinquency or default in the payment of any monies
              to be paid on this obligation but with interest at the rate of Ten
              (10%) percent per annum computed annually during such period
              when there shall be any delinquency or default in the payment of
              any monies to be paid on this obligation and to be computed to
              the next interest period following such delinquency or default,
              and said rate shall continue to be paid until all delinquencies and
              defaults are removed by the beginning of a succeeding interest
              period, all without relief from Valuation and Appraisement Laws
              and with attorney’s fees.




      Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 2 of 11
      Appellant’s App. p. 103. The mortgage, which was also prepared by Super

      Petroleum’s attorney, contained similar language concerning interest rates and

      delinquency terms. The mortgage also obligated Super Petroleum to pay “the

      real estate taxes, insurance and assessments against said real estate.” Id. at 100.


[5]   In July 2012, Super Petroleum tendered a payment to 5th Avenue in the amount

      of $1124.42, which is $2800.00 less than the amount owed. Subsequent to the

      July 2012 payment, Super Petroleum tendered several non-sufficient funds

      (“NSF”) check payments to 5th Avenue. Under the terms of the promissory note

      and the mortgage, the deficient July 2012 payment and the subsequent NSF

      payments triggered the increased interest rate, from 5% to 10%.


[6]   On May 19, 2015, 5th Avenue filed a complaint for mortgage foreclosure and

      money judgment. Approximately four years later, 5th Avenue filed a motion for

      summary judgment. Super Petroleum filed its response on August 14, 2019.


[7]   On October 29, 2019, the trial court held a hearing on 5th Avenue’s motion for

      summary judgment and its motion to strike certain evidence designated by

      Super Petroleum in its response. Super Petroleum argued that all payments due

      under the promissory note had been paid in full. In regard to the July 2012

      payment, Super Petroleum argued that the parties had orally agreed that Super

      Petroleum would be responsible for paying the 2011 property taxes payable in

      2012, and in return would receive a $2800 credit on the July 2012 payment due

      under the promissory note. It is undisputed that Super Petroleum paid the 2011

      real estate taxes. But 5th Avenue disputed Super Petroleum’s claim concerning




      Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 3 of 11
       the existence of an oral agreement with regard to the 2011 tax liability and did

       not agree that it had received all payments due under the promissory note.


[8]    On November 7, 2019, the trial court issued an order granting 5th Avenue’s

       motion for summary judgment but denying its motion to strike. The trial court

       ordered the parties to agree to a hearing date for damages. Super Petroleum

       now appeals.


                                          Standard of Review
[9]    On appeal from a grant of summary judgment, we stand in the shoes of the trial

       court and apply a de novo standard of review. Poiry v. City of New Haven, 113

       N.E.3d 1236, 1239 (Ind. Ct. App. 2018). Summary judgment is appropriate

       where the designated evidence establishes that there are no genuine issues of

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

       v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007). We consider only those materials

       properly designated pursuant to Ind. Trial Rule 56 and construe all factual

       inferences and resolve all doubts in favor of the non-moving party. Young v.

       Hood’s Gardens, Inc., 24 N.E.3d 421, 424 (Ind. 2015). We may affirm an entry of

       summary judgment “if it can be sustained on any theory or basis in the record.”

       DiMaggio v. Rosario, 52 N.E.3d 896, 904 (Ind. Ct. App. 2016), trans. denied.


[10]   Moreover, the interpretation and construction of contract provisions are

       questions of law. Barker v. Price, 48 N.E.3d 367, 370 (Ind. Ct. App. 2015).

       Therefore, “cases involving contract interpretation are particularly appropriate

       for summary judgment.” Id.



       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 4 of 11
                                      Discussion and Decision
[11]   Super Petroleum argues that genuine issues of material fact preclude the entry

       of summary judgment in 5th Avenue’s favor. 5th Avenue responds that the four

       corners of the contract drafted by Super Petroleum’s attorney control, and that

       the unambiguous terms of the promissory note and mortgage establish that

       Super Petroleum was in default.


[12]   Initially, we observe that the elements of a prima facie case for the foreclosure

       of a mortgage are: (1) the existence of a demand note and the mortgage, and (2)

       the mortgagor’s default. McEntee v. Wells Fargo Bank, N.A., 970 N.E.2d 178, 182

       (Ind. Ct. App. 2012). Indiana Code section 32-30-10-3(a) provides that “if a

       mortgagor defaults in the performance of any condition contained in a

       mortgage, the mortgagee or the mortgagee’s assigns may proceed . . . to

       foreclose the equity of redemption contained in the mortgage.”


[13]   We also review the promissory note and mortgage as a whole, attempting to

       ascertain the parties’ intent and making every attempt to construe the language

       of the contract “so as not to render any words, phrases, or terms ineffective or

       meaningless.” Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501

       (Ind. Ct. App. 2007). We assign a contract’s clear and unambiguous terms their

       plain and ordinary meaning, Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249,

       251 (Ind. 2005), and we determine the parties’ intent from the four corners of

       the document. The Winterton, LLC v. Winterton Inv’rs, LLC, 900 N.E.2d 754, 759

       (Ind. Ct. App. 2009), trans, denied. The unambiguous language of a contract is




       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 5 of 11
       conclusive upon the parties to the contract as well as upon the court. Id. We

       will neither construe unambiguous provisions nor add provisions not agreed

       upon by the parties. Id.


[14]   However, when the terms of a contract are ambiguous or uncertain, and its

       interpretation requires extrinsic evidence, its construction is left to the

       factfinder. Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010). A contract is

       ambiguous if reasonable people would disagree as to the meaning of its terms,

       Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002), and we construe any

       ambiguity against the drafter. MPACT Constr. Grp., LLC v. Superior Concrete

       Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004).


[15]   Super Petroleum argues that it has designated evidence sufficient to establish

       the existence of a genuine issue of material fact concerning its claim that 5th

       Avenue agreed to credit $2800 against the July 2012 payment owed in

       exchange for Super Petroleum’s agreement to pay the 2011 property taxes

       payable in 2012.


[16]   It is undisputed that neither the mortgage nor the promissory note contained a

       specific reference to the 2011 property taxes due to be paid in 2012. But the

       mortgage drafted by Super Petroleum obligated Super Petroleum to pay “the

       real estate taxes, insurance and assessments against said real estate.”

       Appellant’s App. p. 100. In addition, the HUD-1 settlement statement did not

       provide credit to Super Petroleum for taxes that accrued on the real estate prior

       to the October 2011 closing. See id. at 79–80.




       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 6 of 11
[17]   Super Petroleum argues that the provision in the mortgage concerning payment

       of taxes applies only to taxes accruing after the parties entered into the

       mortgage agreement. Appellant’s Br. at 9. But the plain language of the

       mortgage does not support Super Petroleum’s claim. The mortgage obligates

       Super Petroleum to pay “real estate taxes . . . against said real estate” without

       any reference to when the taxes accrued. See Appellant’s App. p. 100. And even

       if we concluded that the mortgage is ambiguous because it does not address

       payment of taxes that accrued prior to closing, such ambiguity must be

       construed against the mortgage’s drafter, Super Petroleum.


[18]   Next, Super Petroleum argues that the parties had a verbal agreement

       concerning payment of the 2011 real estate taxes. The designated evidence does

       not establish whether this alleged verbal agreement occurred before the parties

       entered into the contracts surrounding the sale of the real estate or after the

       closing.


[19]   Generally, where parties have reduced an agreement to writing and the writing

       embodies the final and complete agreement between the parties, the parol

       evidence rule prohibits courts from considering extrinsic evidence for the

       purpose of varying or adding to the terms of the written contract. I.C.C.

       Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030, 1035 (Ind. Ct.

       App. 1998), trans. denied. “‘Extrinsic evidence’ is evidence relating to a contract

       but not appearing on the face of the contract because it comes from other

       sources, such as statements between the parties or the circumstances

       surrounding the agreement.” Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d



       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 7 of 11
       833, 839 (Ind. Ct. App. 2017), trans. denied. See also Amici Resources, L.L.C. v.

       Alan D. Nelson Living Trust, 49 N.E.3d 1046, 1050 (Ind. Ct. App. 2016)

       (explaining that the parol evidence rule bars admission of such evidence, that is,

       “extrinsic evidence ... to add to, vary, or explain the terms of a written

       instrument [where] the terms of the instrument are clear and unambiguous.”).


[20]   The mortgage unambiguously requires Super Petroleum to pay real estate taxes

       assessed against the property. If the alleged oral agreement occurred prior to the

       real estate closing, Super Petroleum cannot rely on extrinsic evidence thereof to

       alter the terms of the written agreement between the parties.


[21]   If the alleged agreement concerning the real estate taxes was made after the

       parties executed the promissory note and mortgage, Super Petroleum has not

       designated evidence establishing that the parties agreed to modify the contract.

       The law allows mutual modification of a contract to be implied from the

       conduct of the parties, but the modification “requires all of the requisite

       elements of a contract.” See City of Indianapolis v. Twin Lakes Enterprises, Inc., 568

       N.E.2d 1073, 1084–85 (Ind. Ct. App. 1991), trans. denied.


[22]   Super Petroleum ultimately paid the property taxes it was obligated to pay

       under the terms of the mortgage but did not pay the July 2012 mortgage

       payment in full, triggering an increased interest rate.1 Therefore, Super

       Petroleum was required to designate evidence establishing that the parties



       1
        For this reason, we do not address Super Petroleum’s reliance on Indiana Code chapter 6-1.1-2 in
       addressing liability for the 2011 real estate taxes.



       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020                  Page 8 of 11
       mutually agreed to modify the terms of the mortgage concerning the 2011 tax

       liability payable in July 2012. Super Petroleum has not designated any evidence

       that would establish the element of consideration, which is a required element

       in the formation of a contract or subsequent modification of a contract. See

       Jernas v. Gumz, 53 N.E.3d 434, 445 (Ind. Ct. App. 2016), trans. denied; City of

       Indianapolis, 568 N.E.2d at 1085.


[23]   The designated evidence establishes that Super Petroleum was in default under

       the terms of the promissory note and mortgage. We therefore conclude that the

       trial court properly granted summary judgment to 5th Avenue on its complaint

       for mortgage foreclosure.


                                             Motion to Strike
[24]   We also briefly address 5th Avenue’s argument that the trial court abused its

       discretion when it denied 5th Avenue’s motion to strike paragraphs seven and

       ten from the affidavit of Super Petroleum’s President Yadvinder Khatra, which

       Super Petroleum designated to the trial court with its summary judgment

       response. We review a trial court’s decision on a motion to strike for an abuse

       of discretion. Halterman v. Adams Cty. Bd. of Comm'rs, 991 N.E.2d 987, 989 (Ind.

       Ct. App. 2013). We will reverse only when the decision is clearly against the

       logic and effect of the facts and circumstances. Id. Generally, “[i]n order to be

       used in a summary judgment proceeding, an affidavit must set forth such facts

       as would be admissible in evidence.” Ind. Trial Rule 56(E); Merrill v. Knauf Fiber

       Glass GmbH, 771 N.E.2d 1258, 1264 (Ind. Ct. App. 2002), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 9 of 11
[25]   5th Avenue argues that paragraphs seven and ten of the affidavit contain legal

       conclusions and inadmissible hearsay. Paragraph seven states, “Super Petroleum

       Inc., has made all monthly payments or has otherwise compensated 5th Avenue

       Mobil LLC as required by the Note and is not in default.” Appellant’s App. p.

       59. The challenged statement in paragraph ten provides in relevant part, “[i]t had

       been agreed between Plaintiff and Defendant that the remaining $2,800.00 of the

       July 2012 monthly installment of $3,924.42 would not be paid and instead Super

       Petroleum Inc., would receive a credit for that amount to offset the tax proration

       that was due from Plaintiff to Defendant.” Id. at 60.


[26]   Indiana Trial Rule 56(E) provides in part that affidavits “shall be made on

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

       evidence, and shall show affirmatively that the affiant is competent to testify to

       the matters stated therein.” Because the court may consider only admissible

       evidence when ruling on a motion for summary judgment, inadmissible hearsay

       statements cannot create a genuine issue of material fact. Hays v. Harmon, 809

       N.E.2d 460, 465–66 (Ind. Ct. App. 2004), trans. denied. Moreover, mere

       assertions of conclusions of law or opinions will not suffice in an affidavit.

       Kader v. Dep’t of Corr., 1 N.E.3d 717, 724 (Ind. Ct. App. 2013) (citation omitted).


[27]   Paragraph seven’s conclusory statement that Super Petroleum was not in

       default is a legal conclusion that should have been stricken by the trial court.

       Similarly, to the extent that paragraph ten suggests that the parties reached an

       agreement concerning the real estate taxes payable in 2012, the statement is a

       legal conclusion and should have been stricken. Given our determination that



       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 10 of 11
       the trial court properly granted 5th Avenue’s motion for summary judgment,

       however, the trial court’s error in denying the motion to strike is harmless. See

       Ind. Appellate Rule 66(A) (“No error or defect in any ruling or order or in

       anything done or omitted by the trial court or by any of the parties is ground for

       granting relief or reversal on appeal where its probable impact, in light of all the

       evidence in the case, is sufficiently minor so as not to affect the substantial

       rights of the parties.”).


                                                 Conclusion
[28]   Super Petroleum drafted a contract making itself responsible for taxes that

       accrued on property it did not yet own. It cannot now complain that 5th

       Avenue is acting unconscionably in seeking to enforce the terms of the

       mortgage. 5th Avenue designated evidence establishing that Super Petroleum

       was in default under the terms of the promissory note and mortgage contract

       executed between the parties. We therefore affirm the trial court’s entry of

       summary judgment in favor of 5th Avenue. The trial court erred by denying 5th

       Avenue’s motion to strike, but the error is harmless.


[29]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MF-2843 | June 10, 2020   Page 11 of 11
