MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Apr 18 2018, 10:49 am

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


ATTORNEY FOR APPELLANT
James M. Hinshaw
Bingham Greenebaum Doll LLP
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Speedway Corp.,                                           April 18, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          67A01-1709-SC-2089
        v.                                                Appeal from the Putnam Superior
                                                          Court
Wilson Real Estate II, LLC,                               The Honorable T. Edward Page,
Appellee-Plaintiff                                        Senior Judge
                                                          Trial Court Cause No.
                                                          67D01-1704-SC-202



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018              Page 1 of 7
                                                Case Summary
[1]   Speedway Corporation1 appeals the small claims judgment ordering it to paint

      one of the parking lines in a parking lot owned by Wilson Real Estate II, LLC.

      Speedway argues that the trial court erred in interpreting the parties’ easement

      agreement (“the Easement Agreement”). We agree, and therefore reverse.


                                    Facts and Procedural History
[2]   Speedway and Wilson are commercial neighbors in Greencastle. Speedway

      owns a square parcel of real estate at the northeast corner of Indianapolis and

      Judson Roads, on which it operates a gas station and small convenience store.

      In 2011, Wilson, a real estate developer, purchased a real estate parcel with a

      strip center and a parking lot that forms an L shape around Speedway’s

      property. Pursuant to a 1962 agreement, Speedway had easement rights to a

      portion of Wilson’s parking lot that lies north and east of Speedway’s parcel,

      and Speedway’s delivery trucks and customers use Wilson’s parking lot.


[3]   Wilson and Speedway had disagreements about Speedway’s use of Wilson’s

      parking lot. Speedway filed a lawsuit against Wilson related to their dispute

      regarding Speedway’s easement. In August 2013, while that case was pending

      appeal, Wilson and Speedway entered into a settlement agreement (“the

      Settlement Agreement”), in which Speedway agreed to pay Wilson $25,000 and

      “repave, once, the area enclosed by the hashed outline in the attached Exhibit


      1
       Speedway states that it has been incorrectly identified in these proceedings and that its correct name is
      Speedway LLC.

      Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018               Page 2 of 7
      A by placing asphalt blacktop over and filing any material potholes.”

      Appellant’s App. Vol. 2 at 11. Wilson agreed to grant “Speedway a permanent

      easement (‘the Easement’), indicated and explained by the attached Easement

      Agreement labeled as Exhibit B, which has been executed simultaneously with

      this [Settlement] Agreement. Speedway will be responsible for maintaining the

      Easement only as indicated and explained in the [Easement Agreement].” Id.

      (italicized emphasis added). In addition, the parties agreed to release all claims

      against each other relating to the 1962 agreement, their dispute relating to the

      scope of their rights under that agreement, and the matters addressed in the

      pending lawsuit, which was dismissed.


[4]   The Easement Agreement provides as follows:


              1. EASEMENT. Wilson hereby grants to Speedway, … a
              perpetual, non-exclusive easement in, through, over and across
              those portions of the Wilson Parcel as illustrated on Exhibit “B-
              1” (the “Easement”). Said Easement shall be used for vehicular
              and pedestrian ingress and egress, and Wilson shall not permit
              such area to be used for parking or in any other manner block
              such access between the Wilson Parcel and the Speedway Parcel.


              2. MAINTENANCE. Speedway shall be responsible for the
              periodic repair of damages to said Easement area caused by vehicular
              traffic (i.e., potholes).


       Id. at 14 (emphasis added).


[5]   In April 2017, Wilson filed a small claims action against Speedway for

      maintenance of the parking lot. The trial court held a hearing, at which Wilson

      Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018   Page 3 of 7
      argued that all the parking lines within Speedway’s easement needed to be

      repainted, and that pursuant to the Easement Agreement, Speedway was

      obligated to repaint the lines. Speedway contended that pursuant to the plain

      and ordinary meaning of “i.e.” in paragraph 2 of the Easement Agreement, the

      “damages” it was obligated to repair meant “potholes.” The trial court

      concluded that the “damages” in paragraph 2 were not limited to potholes, but

      that potholes were only one example of damages. Tr. at 19, 21. The trial court

      interpreted the Easement Agreement such that if parking lines were worn down

      by vehicular traffic, then Speedway was obligated to repaint them. Id. at 19.

      However, the trial court concluded that only one line needed to be repainted at

      that time, ordered the parties to split the cost equally, and issued a judgment

      awarding no damages. Id. at 22-23. This appeal ensued.


                                     Discussion and Decision
[6]   We begin by noting that Wilson did not file an appellee’s brief. When an

      appellee does not submit a brief on appeal, we need not undertake the burden of

      developing an argument on his behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d

      1065, 1068 (Ind. 2006). Rather, we will reverse if the appellant’s brief

      establishes a case of prima facie error. Id. Prima facie error in this context is

      error “at first sight, on first appearance, or on the face of it.” Id. If the

      appellant is unable to meet this burden, we will affirm. Id.


[7]   Speedway argues that the trial court erred in interpreting the Easement

      Agreement. Interpretation of a written contract is a pure question of law, which


      Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018   Page 4 of 7
      we review de novo. Tr. No. 6011, Lake Cty. Tr. Co. v. Heil’s Haven Condos.

      Homeowners Ass’n, 967 N.E.2d 6, 15 (Ind. Ct. App. 2012), trans. denied. The goal

      of 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). If an instrument’s language is unambiguous, the parties’ intent is

      determined from the four corners of the instrument. Niezer v. Todd Realty, Inc.,

      913 N.E.2d 211, 215 (Ind. Ct. App. 2009), trans. denied (2010). Also, if the

      instrument’s “terms are clear and unambiguous, courts must give those terms

      their clear and ordinary meaning.” Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d

      249, 252 (Ind. 2005). “‘The unambiguous language of a contract is conclusive

      upon the parties to the contract and upon the courts.’” Trustcorp Mortg. Co. v.

      Metro Mortg. Co., 867 N.E.2d 203, 212 (Ind. Ct. App. 2007) (quoting Whitaker v.

      Brunner, 814 N.E.2d 288, 293 (Ind. Ct. App. 2004), trans. denied (2005)). “We

      will make all attempts to construe the language of a contract so as not to render

      any words, phrases, or terms ineffective or meaningless.” Rogers v. Lockard, 767

      N.E.2d 982, 992 (Ind. Ct. App. 2002). “A contract is not ambiguous merely

      because the parties disagree as to its proper construction.” Bd. of Comm’rs of

      Delaware Cty. v. Evans, 979 N.E.2d 1042, 1046 (Ind. Ct. App. 2012).


[8]   Here, the crux of Speedway’s appeal is the meaning of “i.e.” in paragraph 2,

      which provides that “Speedway shall be responsible for the periodic repair of

      damages to said Easement area caused by vehicular traffic (i.e., potholes).”

      Specifically, Speedway asserts that in concluding that potholes were merely one

      example of damages caused by vehicular traffic that it was required to repair,

      Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018   Page 5 of 7
       the trial court failed to apply the clear and ordinary meaning of “i.e.” We

       agree.


[9]    The term “i.e.” is an abbreviation for the Latin “id est”, which means “that is”;

       “It introduces a rewording or a clarification of a statement that has just been

       made or of a word that has just been used.” MERRIAM-WEBSTER DICTIONARY

       (editor’s note), https://www.merriam-webster.com/dictionary/i.e. (last visited

       Mar. 22, 2018). It is often confused with “e.g.,” which stands for “exempli

       gratia” in Latin and means “for example”; “It introduces one or more examples

       that illustrate something stated.” Id. To demonstrate the difference, we observe

       that “i.e.” is used in the following manner: “the federal government’s highest

       judicial body, i.e., the Supreme Court.” BLACK’S LAW DICTIONARY (10th ed.

       2014). Whereas, “e.g.” is used as follows: “an intentional tort, e.g., battery or

       false imprisonment.” Id.


[10]   To understand the plain and ordinary meaning of “i.e.,” it may be helpful to

       substitute “that is” for “i.e.” in paragraph 2, which would then read,

       “Speedway shall be responsible for the periodic repair of damages to said

       Easement area caused by vehicular traffic (that is, potholes).” We conclude

       that the accepted definition of “i.e.” indicates unambiguously that “potholes” is

       a clarification of “damages caused by vehicular traffic,” and that paragraph 2

       obligates Speedway to repair potholes. Accordingly, the trial court erred in

       interpreting the Easement Agreement by finding that potholes was merely one

       example of damages that Speedway was obligated to repair. Therefore, we

       reverse the trial court’s order.

       Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018   Page 6 of 7
[11]   Reversed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018   Page 7 of 7
