Court of Appeals of Indiana | Opinion 32A01-1602-MF-345 | August 31, 2016 Page 1 of 18

ATTORNEYS FOR APPELLANT

Paul T. Deignan

R.C. Richmond, III

Taft Stettinius & Hollister LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jay Jaffe

Brian J. Paul

Faegre Baker Daniels LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

George P. Broadbent, and 

Plainfield Village, LP,1

Appellants-Defendants,

v.

Fifth Third Bank,

Appellee-Plaintiff.

August 31, 2016

Court of Appeals Case No.

32A01-1602-MF-345

Appeal from the

Hendricks Superior Court

The Honorable

Rhett M. Stuard, Judge

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).
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[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.
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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 
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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.
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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.
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[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 
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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. 
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[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.
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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 
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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 nonmoving 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. 
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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 
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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.
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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. 
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[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: 
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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 
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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 
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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.
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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.