      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                            FILED
      Memorandum Decision shall not be regarded as                     May 10 2017, 9:49 am
      precedent or cited before any court except for the
                                                                            CLERK
      purpose of establishing the defense of res judicata,              Indiana Supreme Court
                                                                           Court of Appeals
      collateral estoppel, or the law of the case.                           and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jeffrey J. Hanneken                                      R.C. Richmond, III
      Nathan H. Blaske                                         Richard A. Kempf
      Graydon Head & Ritchey LLP                               Paul T. Deignan
      Cincinnati, Ohio                                         Taft Stettinius & Hollister LLP
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      First Financial Bank, N.A.,                             May 10, 2017

      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              49A02-1605-MF-1097
              v.                                              Appeal from the Marion Superior
                                                              Court.
                                                              The Honorable David J. Dreyer,
      Craig W. Johnson,                                       Judge.
      Appellee-Cross Defendant.                               Trial Court Cause No.
                                                              49D10-1506-MF-21307




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   First Financial Bank, N.A., appeals from a summary judgment for Craig W.

      Johnson. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017        Page 1 of 8
                                                   Issues
[2]   First Financial presents four issues which we state as:

              I.      Whether First Financial was required to make a demand
                      for payment to Johnson to trigger his obligation under the
                      Guaranty.
              II.     Whether Johnson waived any right to a demand by First
                      Financial.
              III.    Whether First Financial’s filing of a lawsuit met the
                      demand requirement.
              IV.     Whether the trial court could properly enter summary
                      judgment in favor of Johnson.

                               Facts and Procedural History
[3]   Raceway Market Land, LLC and Meridian Marketplace, LLC are parties to a

      promissory note securing a loan from Irwin Bank and Trust Company. Craig

      Johnson was the guarantor for payment by Raceway and Meridian. In June

      2015, Beal Bank, USA, as successor in interest to Irwin Bank and Trust

      Company, filed a foreclosure action against Raceway, Meridian, Johnson, and

      First Financial.


[4]   First Financial, who is a second lienholder on the real and personal property

      that is the subject of Beal Bank’s foreclosure action, filed its answer, cross

      claims, and counterclaim. First Financial subsequently filed a motion for

      summary judgment on its cross claims and counterclaim. Following a hearing,

      the trial court granted in part First Financial’s motion as to Meridian

      Marketplace and Raceway Market Land but denied its motion as to Johnson.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017   Page 2 of 8
      The trial court also determined that there was no just reason for delay and

      directed entry of judgment for Johnson, and this appeal followed.


                                   Discussion and Decision
[5]   On appeal from a summary judgment, we apply the same standard of review as

      the trial court: summary judgment is appropriate only where the designated

      evidentiary matter shows there is no genuine issue as to any material fact and

      that the moving party is entitled to judgment as a matter of law. Young v. Hood’s

      Gardens, Inc., 24 N.E.3d 421, 423-24 (Ind. 2015); see also Ind. Trial Rule 56(C).

      Appellate review of a summary judgment is limited to those materials

      designated to the trial court. Sheehan Const. Co, Inc. v. Cont’l Cas. Co., 938

      N.E.2d 685, 688 (Ind. 2010). All facts and reasonable inferences drawn from

      those facts are construed in favor of the nonmovant. Id. The moving party

      bears the burden of making a prima facie showing that there are no genuine

      issues of material fact and that it is entitled to judgment as a matter of law; once

      the movant has satisfied this burden, the burden shifts to the nonmoving party

      to set forth specific facts showing the existence of a genuine issue of material

      fact. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.

      2009).


                              I. Guarantor’s Right to Demand
[6]   In the order on summary judgment, as adopted by the trial court, it was

      determined that “[First Financial] failed to demand payment from Johnson as

      required by the terms of the Commercial Guaranty.” Appellant’s App. p. 203.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017   Page 3 of 8
      First Financial contends that the trial court erred by determining that it was

      required to make a demand to Johnson for payment in order to trigger his

      obligation as the Guarantor.


[7]   The interpretation of a guaranty is governed by the same rules applicable to

      other contracts. Paul v. Home Bank SB, 953 N.E.2d 497, 503 (Ind. Ct. App.

      2011). If a contract provision is unambiguous, it is conclusive upon the parties

      and the courts, and its terms will be given their plain and ordinary meaning.

      State Farm Fire & Cas. Co. v. Riddell Nat’l Bank, 984 N.E.2d 655, 657 (Ind. Ct.

      App. 2013), trans. denied. More specifically, the terms of a guaranty should

      neither be so narrowly interpreted as to frustrate the obvious intent of the

      parties, nor so loosely interpreted as to relieve the guarantor of a liability fairly

      within their meaning. Paul, 953 N.E.2d at 503. Nonetheless, a guarantor is a

      favorite in the law and is not bound beyond the strict terms of the guaranty. Id.


[8]   The first paragraph of the Guaranty signed by Johnson provides, “Guarantor

      will make any payments to Lender or its order, on demand, in legal tender of

      the United States of America . . . .” Appellant’s App. at 43 (emphasis added).

      Thus, the terms of the Guaranty plainly dictate that Johnson will make

      payment once payment is demanded. In addition, Johnson stated in his

      affidavit that at no time did he receive a demand for payment from First

      Financial. Id. at 193. First Financial does not refute this evidence.

      Accordingly, the trial court did not err in determining that First Financial was

      required to make a demand for payment to Johnson in order to trigger his

      obligations under the Guaranty and that it failed to do so.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017   Page 4 of 8
                                       II. Waiver of Demand
[9]    First Financial next argues that even if Johnson was entitled to a demand for

       payment to trigger his guarantor responsibilities, he had waived that right. In

       making this argument, First Financial points to the section of the Guaranty

       entitled “Guarantor’s Waivers” that provides:

               Except as prohibited by applicable law, Guarantor waives any
               right to require Lender (A) to continue lending money or to
               extend other credit to Borrower; (B) to make any presentment,
               protest, demand, or notice of any kind, including notice of any
               nonpayment of the Indebtedness or of any nonpayment related to
               any collateral, or notice of any action or nonaction on the part of
               Borrower, Lender, any surety, endorser, or other guarantor in
               connection with the Indebtedness or in connection with the
               creation of new or additional loans or obligations; (C) to resort
               for payment or to proceed directly or at once against any person,
               including Borrower or any other guarantor; (D) to proceed
               directly against or exhaust any collateral held by Lender from
               Borrower, any other guarantor, or any other person; (E) to give
               notice of the terms, time, and place of any public or private sale
               of personal property security held by Lender from Borrower or to
               comply with any other applicable provisions of the Uniform
               Commercial Code; (F) to pursue any other remedy within
               Lender’s power; or (G) to commit any act or omission of any
               kind, or at any time, with respect to any matter whatsoever.
       Id. at 44.


[10]   We are mindful that contracts are to be read as a whole, and courts should

       construe the language in a contract so as not to render any words, phrases, or

       terms ineffective or meaningless. State Farm Fire & Cas. Co., 984 N.E.2d at 658.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017   Page 5 of 8
       Further, courts should attempt to harmonize the provisions of a contract rather

       than interpret the provisions as conflicting. Id.


[11]   Accordingly, we endeavor to harmonize these two provisions. The language of

       the waiver provision clearly concerns the Guarantor’s (Johnson) waiver of

       certain actions taken by the Lender (First Financial) against the Borrower

       (Meridian Marketplace and Raceway Market Land) and others. For example,

       in subsection (A) Johnson waives the right to require First Financial to lend

       more money to Meridian Marketplace and Raceway Market Land. In

       subsections (C) and (D), Johnson waives the right to require First Financial to

       proceed against Meridian Marketplace and Raceway Market Land or another

       guarantor, or to exhaust any collateral held by First Financial before Johnson

       would be obligated to perform as Guarantor. Similarly, subsection (B), the

       section upon which First Financial focuses its argument, can reasonably be read

       to waive Johnson’s right to require First Financial to make a demand upon or

       provide notice of nonpayment or notice of any action to Meridian Marketplace

       and Raceway Market Land or other guarantor prior to requiring Johnson to

       fulfill his obligations under the Guaranty.


[12]   Indeed, when the waiver provision is read in conjunction with the demand

       provision, it is clear that Johnson is waiving First Financial’s demand upon

       Meridian Marketplace and Raceway Market Land as a condition to an action

       against Johnson. This is a common practice and is a reasonable waiver by

       Johnson as Guarantor. To determine otherwise would be contradictory

       because the Guaranty would require First Financial to demand payment from

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017   Page 6 of 8
       Johnson yet have Johnson waiving demand for payment in the same

       instrument. Therefore, the trial court did not err in finding that Johnson had

       not waived his right to demand for payment.


                                      III. Lawsuit as Demand
[13]   In the alternative, First Financial asserts that its cross claim, wherein Johnson

       was named as a party defendant, is a demand for payment. In making this

       argument, First Financial presumes that Johnson waived his right to demand;

       however, as discussed in the previous issue, Johnson did not waive his right to

       demand for payment.


[14]   Pursuant to the terms of the first paragraph of the Guaranty, and as discussed

       supra, Johnson’s obligation to pay as Guarantor does not arise unless and until

       First Financial demands payment. First Financial failed to make a demand for

       payment from Johnson under the Guaranty prior to filing suit. Therefore, First

       Financial’s lawsuit alleging nonpayment is premature because Johnson has

       neither been asked to pay nor has failed to pay. First Financial’s lawsuit cannot

       serve as a demand because demand for payment is a condition that must be met

       prior to filing suit. We find no error.


                               IV. Entry of Summary Judgment
[15]   As its final assertion of error, First Financial claims that the trial court erred by

       entering summary judgment for Johnson instead of denying First Financial’s

       motion or dismissing the case without prejudice.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017   Page 7 of 8
[16]   Indiana Trial Rule 56(B) provides that “[w]hen any party has moved for

       summary judgment, the court may grant summary judgment for any other party

       upon the issues raised by the motion although no motion for summary

       judgment is filed by such party.” Thus, the trial court acted appropriately under

       the trial rules.


[17]   In addition, under these facts, it was proper for the trial court to enter summary

       judgment for Johnson because First Financial failed to make a demand for

       payment under the Guaranty.


[18]   Lastly, to the extent that First Financial is seeking an advisory opinion, we

       must decline the request. This Court does not issue advisory opinions. INS

       Investigations Bureau, Inc. v. Lee, 709 N.E.2d 736, 742 (Ind. Ct. App. 1999), trans.

       denied.


                                                Conclusion
[19]   For the reasons stated, we conclude the trial court properly entered summary

       judgment for Johnson.


[20]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-MF-1097 | May 10, 2017   Page 8 of 8
