                                                                                 FILED
                                                                             Aug 31 2016, 8:49 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Paul T. Deignan                                               Jay Jaffe
R.C. Richmond, III                                            Brian J. Paul
Taft Stettinius & Hollister LLP                               Faegre Baker Daniels LLP
Indianapolis, Indiana                                         Indianapolis, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

George P. Broadbent, and                                      August 31, 2016
Plainfield Village, LP,1                                      Court of Appeals Case No.
Appellants-Defendants,                                        32A01-1602-MF-345
                                                              Appeal from the
         v.                                                   Hendricks Superior Court
                                                              The Honorable
Fifth Third Bank,                                             Rhett M. Stuard, Judge
Appellee-Plaintiff.                                           Trial Court Cause No.
                                                              32D02-1408-MF-307



Kirsch, Judge.




1
 Plainfield Village, LP has not appeared or participated in this appeal, but we include it in the caption
because all parties of record in the trial court are parties on appeal. Ind. Appellate Rule 17(A).

Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016                            Page 1 of 18
[1]   George P. Broadbent (“Broadbent” or “Guarantor”) appeals the trial court’s

      entry of summary judgment in favor of Fifth Third Bank (“the Bank” or

      “Lender”). He raises two issues on appeal, which we restate as:


              I. Whether the trial court erred when it determined that the two
              payment guaranties that Broadbent signed were not ambiguous;
              and


              II. Whether the trial court properly calculated Broadbent’s
              liability under the guaranties.


[2]   We affirm.


                                  Facts and Procedural History
[3]   This case stems from two loans that the Bank issued to Plainfield Village, LP

      (“Plainfield Village” or “Borrower”) for purposes of real estate development,

      namely the construction of a shopping center. On June 30, 2006, the Bank

      loaned Plainfield Village the following amounts: (1) $7,450,000.00

      (“Construction Loan”) and (2) $1,307,000.00 (“Additional Loan”) (together,

      “the Loans” or “the Notes”). Both Loans were backed by collateral, including

      a mortgage on real estate, which Plainfield Village gave to the Bank.

      Broadbent, who was president of Plainfield Village, executed a Payment

      Guaranty2 (“Guaranty” or together, “Guaranties”) for each of the Loans. The




      2
       The Guaranties were a guarantee of payment, and upon default by borrower Plainfield Village, the Bank
      was permitted to proceed directly against Broadbent.

      Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016                    Page 2 of 18
      original maturity date of the Loans was June 30, 2009, but in June 2009, the

      maturity date of the Loans was extended to June 30, 2014 (“Extended Maturity

      Date”). Broadbent reaffirmed his Guaranties in writing in 2011 and 2013.


[4]   Section 1 of the Guaranties provides that Broadbent guarantees the prompt

      payment and performance when due, whether by acceleration or otherwise, of

      “Liabilities,” which term refers to the principal amounts of the two Loans,

      accrued interest on the Loans, and obligations under the related documents

      (“Loan Documents”), including the Loan Agreements, Mortgages and Security

      Agreements, Notes, and Assignment of Rents and Leases. Section 2 of the

      Guaranties identifies what happens in the event of default on the Liabilities. It

      states, in part:


              2. LIABILITIES GUARANTEED. Subject to Section 7 below,
              in the event the Borrower fails at any time to pay any part or all
              of the Liabilities guaranteed when due, whether by acceleration
              or otherwise, the Guarantor, upon written demand of Lender,
              will pay or perform the Liabilities guaranteed in the same
              manner as if they constituted a direct and primary obligation of
              the Guarantor, and such obligation of the Guarantor shall be due
              with costs of collection, reasonable attorneys’ fees and without
              relief from valuation or appraisement laws.


      Appellant’s App. at 209, 217. Section 7 of the Guaranties, which is referenced in

      Section 2, conditionally limits Broadbent’s liability and provides:


              7. LIMITATION. Notwithstanding anything to the contrary
              herein contained, upon the extension of the Loan[s] to the
              [Construction Loan and Additional Loan] Extended Maturity
              Date[s] in accordance with the terms of the Loan Agreement, the

      Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 3 of 18
               obligations of Guarantor herein shall be limited to fifty percent
               (50%) of the outstanding balance of principal and accrued
               interest under the Note; provided, however, Guarantor agrees
               that any reduction of the Liabilities whether prior to or after the
               occurrence of an Event of Default3 (as defined in the Loan
               Agreement) shall be applied first to that portion of the Liabilities
               not guaranteed by Guarantor hereunder.


      Id. at 213, 221.


[5]   Plainfield Village failed to repay the entire outstanding balance of principal and

      interest by July 10, 2014 (ten days after the Extended Maturity Dates), and on

      August 15, 2014, the Bank sent written notice of default (“the Default Letter”)

      to Plainfield Village and Broadbent. Id. at 229. In the Default Letter, the Bank

      demanded payment in full of all of Plainfield Village’s Liabilities. On August

      27, 2014, the Bank brought a lawsuit against both Plainfield Village and

      Broadbent. The Bank asserted four claims: one for breach of the loan

      documents, two for foreclosure on a mortgage and certain security interests,

      and one for breach of the Guaranties. Id. at 32-37.


[6]   In November 2014, the Bank moved for summary judgment on all claims

      against Plainfield Village and Broadbent. In support of its motion, the Bank

      designated the affidavit of Matthew Kirchner (“Kirchner Affidavit”), a vice




      3
       The term “Event of Default” is defined in Section 9 of the Loan Agreement and includes any failure of
      Plainfield Village to pay any installment of principal or interest pursuant to the Loan Agreement or the Loans
      within ten days after it becomes due. Appellant’s App. at 72.



      Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016                        Page 4 of 18
president of the Bank who had “primary responsibility for the collection of

amounts owed by Plainfield Village and Broadbent.” Appellee’s Supp. App. at 1.

Attached to the Kirchner Affidavit were various documents, including the Loan

Agreements, Construction Note, Additional Note, Mortgage, Assignment of

Rents, Contract Assignment, Financing Statements, Broadbent’s Guaranties,

and the Default Letter. The Kirchner Affidavit stated that, as of August 21,

2014, Plainfield Village owed the Bank the following amounts:




Id. at 6. Thus, the total amount due under the Loan Documents was

$7,380,115.99, plus daily-accruing interest on both the Construction Loan and

Additional Loan. In March 2015, Broadbent filed a brief in opposition to the

Bank’s motion for summary judgment, along with an affidavit of Broadbent

(“Broadbent Affidavit”).4 Appellant’s App. at 5-6, 231. In May 2015, the trial

court held a hearing and took the matter under advisement.




4
  Although the Broadbent Affidavit is included in the record before us, Broadbent’s motion in opposition to
the Bank’s motion for summary judgment is not.

Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016                        Page 5 of 18
[7]   In or around June 2015, a buyer was found for the subject real estate, and all

      parties agreed that the property would be sold for not less than $3.55 million

      and further agreed that the trial court should approve the sale. Therefore, on

      June 30, 2015, the court-appointed receiver over the Plainfield Village property

      filed an agreed motion (“Sale Motion”) to sell the shopping center. The Sale

      Motion set forth an agreement (“Consent Agreement”) between Broadbent and

      the Bank that provided:


              (e) . . . notwithstanding the actual dollar recoveries [the Bank]
              receives from the proceeds of the Sale of the Property, [the Bank]
              will credit the outstanding indebtedness owed to [the Bank] from
              Plainfield Village, LP and more specifically described in the
              Complaint as if [the Bank] received the sum of $4,400,000.00 (the
              “Credit”).


      Id. at 237. The Consent Agreement further provided that the Bank and

      Broadbent “each reserve all rights as to the impact that the Credit [of $4.4

      million] will have on the calculation of the liability of Broadbent to [the Bank]

      under his Guarant[ies.]” Id. On July 1, 2015, the trial court approved the Sale

      Motion, and the sale closed on September 28, 2015. After closing costs and the

      broker’s commission were deducted, the net proceeds from the sale were

      approximately $3.35 million.


[8]   After the approval of the Sale Motion, the trial court granted the Bank’s request

      for enlargement of time to (1) file a motion to dismiss its foreclosure claims, (2)

      submit a supplemental affidavit of indebtedness, and (3) file a revised proposed

      summary judgment order. Broadbent and Plainfield Village were given an

      Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 6 of 18
      opportunity to respond, within thirty days, to the Bank’s revised summary

      judgment order. Thereafter, the trial court dismissed the Bank’s foreclosure

      claims pursuant to the parties’ joint motion.


[9]   On October 9, 2015, the Bank submitted a revised proposed summary judgment

      order, and it also filed, in support of summary judgment, a Supplemental

      Affidavit of Jonathan Nadybal (“Nadybal Affidavit”), a vice president of the

      Bank, who had primary responsibility at the Bank for collection of amounts

      owed by Plainfield Village and Broadbent. The Nadybal Affidavit reflected

      that, as of September 27, 2015, the day before the September 28 sale, the

      amounts owed under the Loan Documents were:




      Id. at 283. Thus, the total amount due under the Loan Documents was

      $7,534,169.03, plus daily-accruing interest on both the Construction Loan and

      Additional Loan.




      Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 7 of 18
[10]   On October 13, the trial court entered summary judgment in favor of the Bank

       and against Plainfield Village.5 Id. at 9-10. However, in November 2015, the

       parties filed an agreed motion for a status conference, and because the trial

       court’s summary judgment ruling was issued before the thirty days had run for

       Broadbent and Plainfield Village to respond to the Bank’s revised summary

       judgment order, the trial court set aside its October 13, 2015 summary

       judgment order in December 2015 and gave Broadbent and Plainfield Village

       thirty days to respond to the Bank’s proposed summary judgment order. In

       January 2016, Broadbent and Plainfield Village submitted a proposed order that

       denied the Bank’s request for summary judgment.


[11]   On January 22, 2016, the trial court issued Findings of Fact, Conclusions of

       Law and Order Granting Summary Judgment, finding for the Bank and against

       Broadbent and Plainfield Village. The trial court found that the indebtedness

       owed to the Bank by Plainfield Village as of September 27, 2015, the day before

       the sale, was $7,534,169.03, in addition to accruing per diem interest on the

       Notes. Id. at 20 (citing Nadybal Affidavit). It also found that, pursuant to

       Guaranties,

               Broadbent is liable for fifty percent of the principal and accrued
               interest owed by Borrower under the Notes prior to any
               reduction by virtue of the Credit, with such reduction applied




       5
        A copy of the October 13, 2015 summary judgment order is not included in the record before us, but the
       chronological case summary indicates that judgment was entered against Plainfield Village only. Appellant’s
       App. at 10.

       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016                       Page 8 of 18
               first to that portion of the principal and accrued interest not
               guaranteed by Broadbent.


       Id. (emphasis in original).


[12]   The trial court concluded that the Notes and other Loan Documents, including

       the Guaranties, “are unambiguous contracts,” and it calculated Broadbent’s

       obligation to the Bank as follows:


               12. Prior to the application of the Credit, pursuant to the terms
               of Guaranty, Broadbent owed [the Bank] fifty-percent (50%) of
               the $7,534,169.03 of principal and accrued interest as of
               September 27, 2015, which was the amount of $3,767,084.52.
               Pursuant to the terms of the Guaranty, the Credit is applied first to
               the fifty-percent (50%) of the $7,534,169.03 principal and accrued
               interest not guaranteed by Broadbent, which eliminates that other
               fifty-percent (50%) and leaves $632,915.49 of Credit remaining to
               reduce the [G]uaranty obligation of Broadbent. The Broadbent
               Guaranty obligation of $3,767,084.52 is therefore reduced by the
               remaining credit of $632,915.49 to leave a net amount owed by
               Broadbent to [the Bank] of $3,134,169.03 plus interest accruing
               after September 27, 2015.


       Id. at 23-24 (emphasis added). The trial court entered judgment in favor of the

       Bank in the amount of $3,134,169.03, along with interest accruing from

       September 27, 2015 to the date of the entry of the trial court’s judgment, for a




       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 9 of 18
       total of $3,179,700.75, plus post-judgment interest accruing at the statutory rate

       of 8% per annum. Id. at 25. Broadbent now appeals.6


                                       Discussion and Decision
[13]   We review the grant or denial of summary judgment de novo. SPCP Grp.,

       L.L.C. v. Dolson, Inc., 934 N.E.2d 771, 775 (Ind. Ct. App. 2010). In so doing,

       we stand in the same position as the trial court and must determine whether the

       designated evidence shows there is no genuine issue as to any material fact and

       the moving party is entitled to judgment as a matter of law. Ind. Trial Rule

       56(C). In making this determination, we construe the evidence in a light most

       favorable to the non-moving party and resolve all doubts as to the existence of a

       genuine factual issue against the moving party. SPCP Grp., L.L.C., 934 N.E.2d

       at 775.


[14]   A party seeking summary judgment bears the burden to make a prima facie

       showing that there are no genuine issues of material fact and that the party is

       entitled to judgment as a matter of law. Riviera Plaza Invs., LLC v. Wells Fargo

       Bank, N.A., 10 N.E.3d 541, 545 (Ind. Ct. App. 2014). Once the moving party

       satisfies this burden through evidence designated to the trial court, the non-

       moving party may not rest on its pleadings, but must designate specific facts

       demonstrating the existence of a genuine issue for trial. Id. A trial court’s grant




       6
        Neither Broadbent nor Plainfield Village sought a stay, and according to the Bank, “[p]roceedings
       supplemental are ongoing.” Appellee’s Br. at 4.

       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016                     Page 10 of 18
       of summary judgment is “clothed with a presumption of validity,” and the

       appellant bears the burden of demonstrating that the trial court erred. Id.


[15]   Interpretation of the language in a contract is a question of law especially suited

       for summary judgment proceedings. Hepburn v. Tri-County Bank, 842 N.E.2d

       378, 384 (Ind. Ct. App. 2006), trans. denied. We review questions of law de

       novo, and therefore we give no deference to the trial court’s interpretation. Id.

       Our goal is to give effect to the intent of the parties as expressed within the four

       corners of the document. Id. We may not construe unambiguous language to

       give it anything other than its clear, obvious meaning, and we may not add

       provisions to a contract that were not placed there by the parties. Id. Rather,

       we determine the meaning of a contract from an examination of all of its

       provisions, without giving special emphasis to any word, phrase or paragraph.

       Id. We must read a contract as a whole and may not interpret individual

       sections in a manner that would cause them to conflict. Id.


[16]   In this case, the Bank and Broadbent do not disagree about the material facts.

       They agreed that Broadbent executed the Guaranties, the Guaranties are valid

       and enforceable, and Broadbent did not perform his contractual obligations

       under them and is in default. The inquiry is not whether Broadbent owes the

       Bank money, but, rather, how much he owes pursuant to the terms of the

       Guaranties.


[17]   A guaranty is a conditional promise to answer for a debt or default of another

       person, such that the guarantor promises to pay only if the debtor/borrower


       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 11 of 18
fails to pay. TW Gen. Contracting Servs., Inc. v. First Farmers Bank & Trust, 904

N.E.2d 1285, 1288 (Ind. Ct. App. 2009). The interpretation of a guaranty is

governed by the same rules applicable to other contracts. Id. We must give

effect to the intentions of the parties, which are to be ascertained from the

language of the contract in light of the surrounding circumstances. Id.; Noble

Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1138 (Ind. Ct. App. 2002).


        Generally, the nature and extent of a guarantor’s liability
        depends upon the terms of the contract, and a guarantor cannot
        be made liable beyond the terms of the guaranty. Nevertheless,
        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 terms.


TW Gen. Contracting Servs., Inc., 904 N.E.2d at 1288 (quoting Bruno v. Wells

Fargo Bank, N.A., 850 N.E.2d 940, 945-46 (Ind. Ct. App. 2006)). If the court

finds that any term is ambiguous, then the parties may introduce extrinsic

evidence of its meaning, and the interpretation of that term becomes a question

of fact. Beradi v. Hardware Wholesalers, Inc., 625 N.E.2d 1259, 1261 (Ind. Ct.

App. 1993), trans. denied. A word or a phrase is ambiguous if reasonable people

could differ as to its meaning. Id. However, a contract term is not ambiguous

merely because the parties disagree about the term’s meaning. Simon Prop. Grp.,

L.P. v. Mich. Sporting Goods Distribs., Inc., 837 N.E.2d 1058, 1070 (Ind. Ct. App.

2005), trans. denied.




Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 12 of 18
                                           I. Ambiguity Issue
[18]   In its findings of fact and conclusions thereon, the trial court determined that

       the Guaranties are unambiguous contracts. Appellant’s App. at 23 (Conclusion

       No. 9). Broadbent claims that this was error and that the Guaranties are

       ambiguous. More specifically, he asserts that Section 7 is ambiguous. It reads:


               7. LIMITATION. Notwithstanding anything to the contrary
               herein contained, upon the extension of the Loan[s] to the
               [Construction Loan and Additional Loan] Extended Maturity
               Date[s] in accordance with the terms of the Loan Agreement, the
               obligations of Guarantor herein shall be limited to fifty percent
               (50%) of the outstanding balance of principal and accrued interest
               under the Note; provided, however, Guarantor agrees that any
               reduction of the Liabilities whether prior to or after the
               occurrence of an Event of Default (as defined in the Loan
               Agreement) shall be applied first to that portion of the Liabilities
               not guaranteed by Guarantor hereunder.


       Appellant’s App. at 213, 221 (emphasis added). Broadbent asserts that Section 7

       is ambiguous because although the Guaranties limit his liability to fifty percent

       of the outstanding balance, “they do not state when that ‘outstanding balance’ is

       to be determined.” Appellant’s Br. at 9. He suggests that there are a number of

       possibilities for when that balance is to be determined, including: (1) the initial

       2009 maturity date for the Loans; (2) the June 2014 Extended Maturity Date;

       (3) ten days after that, when Plainfield Village failed to pay and Default

       occurred; (4) when suit was filed; or (5) after the real property was sold.

       Broadbent maintains that, therefore, a question of fact exists, and summary

       judgment was improper.

       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 13 of 18
[19]   In support, Broadbent refers us to his Affidavit, which he attached to his

       opposition to the Bank’s motion for summary judgment. In it, he stated:


               6. It was my understanding when I signed the Guaranties, and
               it is my understanding now, that once the maturity date of the
               Loans was extended to the Extended Maturity Date, my liability
               under the Guaranties would be limited to an amount equal to
               fifty percent (50%) of the outstanding balance of principal and
               accrued but unpaid interest due under the Notes, determined after
               the Mortgaged Property had been sold in order to know what the
               actual unpaid balances are, if any.


       Appellant’s App. at 232 (emphasis added). On appeal, Broadbent argues that his

       intent when signing the Guaranties was that his liability as a guarantor would

       be limited to fifty percent of the outstanding balance of principal and interest

       “determined after all payments on the debt . . . had been applied[.]” Appellant’s

       Br. at 10.


[20]   The Bank maintains that the trial court correctly determined that the

       Guaranties are unambiguous, and that, therefore, extrinsic evidence of

       Broadbent’s understanding of the Guaranties – here, his Affidavit – is not to be

       considered. Appellee’s Br. at 12 (citing Skrypek v. St. Joseph Valley Bank, 469

       N.E.2d 774, 777 (Ind. Ct. App. 1984) (extrinsic evidence is inadmissible where

       there is no ambiguity in contract language)). We agree.


[21]   Here, as the Bank states, “The [G]uaranties do provide when the outstanding

       balance is to be determined: upon [the Bank]’s written demand.” Id. at 9.

       Section 2, identifying Broadbent’s Liabilities, provides:


       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 14 of 18
               2. LIABILITIES GUARANTEED. Subject to Section 7 below,
               in the event the Borrower fails at any time to pay any part or all
               of the Liabilities guaranteed when due, whether by acceleration
               or otherwise, the Guarantor, upon written demand of Lender, will pay
               or perform the Liabilities guaranteed in the same manner as if they
               constituted a direct and primary obligation of the Guarantor, and
               such obligation of the Guarantor shall be due with costs of collection,
               reasonable attorneys’ fees and without relief from valuation or
               appraisement laws.


       Appellant’s App. at 209, 217 (emphasis added). Under that Section, when

       Broadbent failed to pay his Liabilities, ten days after the Extended Maturity

       Date, Section 2 obligated Broadbent to pay Liabilities upon the Bank’s written

       demand, which initially was in August 2014, and “such obligation shall be

       due,” along with accruing interest, costs of collection, and reasonable attorneys’

       fees. Id.


[22]   It is well-settled that courts must read contracts, including guaranties, as a

       whole and give effect to all provisions. Hepburn, 842 N.E.2d at 384. Therefore,

       we reject Broadbent’s position that effectively asks us to read Section 7 in

       isolation. Section 2 is “[s]ubject to” Section 7, and, indeed, the two Sections

       are interrelated. Appellant’s App. at 209, 217. Section 2 identifies Broadbent’s

       obligation to pay the Bank upon the Bank’s demand, and Section 7 limits the

       amount that Broadbent must pay, namely it reduces his obligation on the

       unpaid debts from one-hundred percent to an amount not to exceed fifty

       percent of the outstanding balance of principal and accruing interest. We find




       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016    Page 15 of 18
       no error in the trial court’s determination that the Guaranties were

       unambiguous contracts.


                       II. Calculation of Broadbent’s Obligations
[23]   Broadbent claims that the trial court’s calculation of the amount he owed on the

       Loans was erroneous, as it “ignored the language of Section 7[,]” and,

       therefore, the judgment should be reversed. Appellant’s Br. at 13. At its core,

       Broadbent’s dispute is how and when the $4.4 million Credit was applied to

       outstanding Liabilities.


[24]   In calculating what Broadbent owed, the trial court determined that Section 7

       unambiguously limited Broadbent’s liability, as Guarantor, to fifty percent of

       the outstanding balance of principal and accrued interest, and, further, it

       required that any credit (here, the agreed $4.4 million for the sale of the

       property) be applied, first, to the non-guaranteed fifty percent portion of the

       Loans, and to the extent that that credit exceeded the non-guaranteed portion,

       then to Broadbent’s guaranteed fifty percent portion. Applying those

       determinations to the figures, the trial court initially divided $7,534,169.03

       (amount owed as of September 27, 2015) in half because, pursuant to Section 7,

       Broadbent was responsible for only fifty percent, or $3,767,084.52. Next,

       pursuant to the language of Section 7, the trial court applied the agreed-upon

       $4.4 million Credit to the non-guaranteed half. Because the Credit exceeded

       the non-guaranteed portion by $632,915.49, that excess Credit then was applied

       to reduce Broadbent’s fifty-percent portion ($3,767,804.52), such that he was


       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 16 of 18
       left owing the Bank $3,134,169.03, in addition to per diem interest, as well as

       post-judgment interest.


[25]   Broadbent suggests that on January 22, 2015, when the trial court entered

       summary judgment for the Bank and against Broadbent, the outstanding

       balance of principal and interest was $3,179,700.757 and that his fifty percent of

       that was $1,589,850.38. He maintains that Section 7 “contemplates the

       application of payments . . . from the sale of the property to establish the

       outstanding balance of principal and interest” and, thereafter, that figure should

       be divided in half to arrive at his fifty percent. Id. at 15. That is, Broadbent

       asserts that the $4.4 million Credit should be applied before the $7,534,169.03 is

       divided in half, rather than applying it after the $7,534,169.03 is divided 50/50

       between guaranteed and non-guaranteed portions. We cannot agree.


[26]   Broadbent’s proposal that the $4.4 million Credit be applied to the total amount

       owed on the Loans is contrary to the language of Section 7, which expressly

       limits Broadbent’s liability to fifty percent “provided, however,” that “any

       reduction of the Liabilities . . . shall be applied first to that portion of the

       Liabilities not guaranteed by Guarantor hereunder.” Appellant’s App. at 213, 221

       (emphasis added). Indeed, Broadbent’s reading would apply the Credit to both

       the non-guaranteed and guaranteed portions, and it would leave the Bank with

       $1,589,850.38 in non-guaranteed loans, which is not consistent with Section 7’s




       7
           $7,534,169.03 - $4,400,000 credit = $3,134,169.03 + per diem interest on Loans = $3,179,700.75.


       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016                       Page 17 of 18
       provision that all reductions in Liabilities – here, the $4.4 million – would first

       be applied to the portion not guaranteed by Broadbent.


[27]   Finding that the trial court properly interpreted the Guaranties and applied the

       Guaranties’ terms to calculate Broadbent’s liability and that no genuine issue of

       material fact exists, we affirm the trial court’s grant of summary judgment in

       favor of the Bank.


[28]   Affirmed.


[29]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016   Page 18 of 18
