FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

ROBERT R. FAULKNER JAMES D. JOHNSON

Evansville, Indiana JOSEPH H. LANGERAK, IV

Rudolph, Fine, Porter & Johnson, LLP

Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

LILY, INC. d/b/a WEINBACH )

CAFETERIA and FERNANDO )

TUDELA, )

)

Appellants-Defendants, )

)

vs. ) No. 82A05-1209-PL-459

)

SILCO, LLC, )

)

Appellee-Plaintiff. )

APPEAL FROM THE VANDERBURGH CIRCUIT COURT

The Honorable Carl A. Heldt, Judge

Cause No. 82C01-0904-PL-151

September 19, 2013

OPINION - FOR PUBLICATION

BROWN, Judge
2

Lily, Inc., d/b/a Weinbach Cafeteria and Fernando Tudela (collectively, the 

“Appellants”) appeal the trial court’s September 6, 2012 order granting summary 

judgment to Silco, LLC (“Silco”). The Appellants raise seven issues which we 

consolidate and restate as whether the court erred in granting Silco’s motion for summary 

judgment. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In 2003, Four O Three, Inc., and David Nelson, the “owner, member and sole unit 

holder” of Silco, signed a lease agreement (the “Lease”) dated March 25, 2003, in which 

Four O Three, Inc. became the tenant of certain property in the Weinbach Shopping 

Center in Evansville.1 Appellants’ Appendix at 121. In August 2004, Tudela purchased 

the Weinbach Cafeteria for an amount between $90,000 and $100,000. 

On August 13, 2004, Four O Three, Inc. and Tudela signed an “Assignment and 

Assumption of Building Lease” (the “Assignment”) related to “a certain Lease 

Agreement with Silco, LLC, dated March, 25, 2003, for the lease of property commonly 

described as 1 N. Weinbach, Evansville, Indiana.” Id. at 78. The Assignment stated in 

part that Four O Three, Inc. assigned to Tudela all of its right, title, and interest in the 

Lease. That same day, Silco and Tudela entered into a “Consent to Assignment of Lease 

Agreement and Release” (the “Consent”) in which Silco consented to the assignment of 

the Lease, and Tudela agreed to be responsible for the upkeep, maintenance, and repairs 

of the area inside the building on the leased premises from the top of the stairs to the 

cafeteria, the area from the freight elevator to the entrance of the main service corridor, 

 

1 Under the heading “PREMISES,” the Lease states “As shown on Exhibits A and A-1,” but the 

record does not contain a copy of Exhibits A and A-1. Appellants’ Appendix at 80.
3

and the 700 square foot common area outside of the building in front of the drive-through 

counter. Id. at 79. That same day, Tudela and Silco signed a Mortgage in which Tudela 

granted a security interest in certain properties to Silco, and the Mortgage stated: “THIS 

MORTGAGE IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS 

AND (2) PERFORMANCE OF ALL OBLIGATIONS OF GRANTOR UNDER THIS 

MORTGAGE AND THE LEASE.” Id. at 108. 

Under the Lease, monthly rent was due and payable in advance, and by the end of 

July 2006, Tudela owed Silco $5,892.75 and was in default of the Lease from that date 

forward. In September 2006, Tudela and Nelson had a conversation in which Tudela 

described his business activities as struggling and agreed to perform some work around 

the complex in order to reduce his rent. The agreement included picking up trash from 

the parking lot, emptying the trash on a daily basis, and cleaning the common areas inside 

the building containing the cafeteria. This agreement continued through June 2007. 

In October 2006, Silco leased other space in the Weinbach Shopping Center to a 

blood plasma center. In a fax dated August 2007, Tudela informed Nelson of problems 

with respect to the patrons of the blood plasma center. Tudela indicated that the blood 

plasma center had a negative effect on the cafeteria business. Specifically, Tudela wrote:

We have customers that have call [sic] us and tell us they are not coming 

because of the Blood Plasma Center. They do not feel safe and that [e]ven 

when they try to come in there are no spaces to park other than spaces near 

Wesselmans which are very unrealistic for Senior Citizens to park that far 

away. I have documentation of no parking available, I have a video of 

people in the parking lot waiting with their trunk open and there [sic] stereo 

playing loud while waiting their turn to go into the Blood Bank. People not 

only congregate outside the door but also in their cars taking up parking 

spaces. I have called the police many times because they park their cars in 

the handicapped parking spaces. . . . My business decreased substantially 
4

after the opening of this facility. . . . I will enclose the Cafeteria sales the 

year prior Blood Plasma Center and the sales after. You will see a 

significant difference.

Id. at 434-435.

In a letter dated March 6, 2008, and addressed to Tudela, Nelson stated that the 

letter would serve as default notice for failure to pay rent and charges totaling 

$63,323.82. The letter stated that the “charges must be paid within 5 business days of 

receipt of this letter to avoid termination and possibly eviction as provided in the lease.” 

Id. at 104. A document attached to the letter contained a “Recap of Account” and listed 

the balance due from Tudela beginning on May 1, 2007. Id. at 29. Later that month, 

Tudela met with Nelson and discussed reducing the rent, and Nelson agreed to reduce the 

rent by half. 

In September 2008, Silco locked Tudela out of the premises for nonpayment of 

rent. Nelson spoke to Tudela and said: “[Y]ou owe me a lot of money. . . . [W]e’re 

taking over. . . . [W]hat we’re going to do . . . we’re going to have your equipment 

appraised, and if you owe me any money, you know, you’re going to settle up with me. 

If I owe you any money, we’re going to get settled up.” Id. at 406. Tudela worked at the 

cafeteria for three days and helped with the transition to “make sure that everything went 

smoothly.” Id. at 389. During 2008 and 2009, Nelson “owned and operated a 

restaurant.” Id. at 188. 

In a letter addressed to Nelson and dated October 8, 2008, Tudela’s attorney wrote 

that Tudela had informed him that Silco had taken possession of the Weinbach Cafeteria. 

The letter stated: “Mr. Tudela also advised me that you have reached an agreement to 
5

resolve this matter by applying the value of the assets in the Weinbach Cafeteria to the 

rental arrearage. If the value of the assets exceeds the rental arrearage, you will pay the 

excess value to Mr. Tudela.” Id. at 193. The letter also mentioned receiving appraisals 

for the equipment and concluded: “Mr. Tudela needs to obtain from you as soon as 

possible your calculation as to the amount of rental arrearage. As soon as you can 

provide this number, a meeting could be scheduled to determine the final calculation of 

what is owed for the assets of the Weinbach Cafeteria.” Id. at 194.

In a letter dated December 12, 2008, Tudela’s attorney wrote Nelson again 

indicating that he had not received a response to his October 8, 2008 letter. Tudela’s 

attorney again requested an accounting “of the back rent and any other expenses which 

you claim to be owed to you by Fernando Tudela.” Id. at 195. At one point during 

January and February 2009, Tudela drove by the Weinbach Cafeteria and witnessed 

Nelson and his employees removing restaurant equipment. Silco hired Sohn & 

Associates (“Sohn”) to consign and auction property of Tudela found in the Weinbach 

Cafeteria. On March 23, 2009, Sohn sold the equipment, and the total sales revenue less 

expenses and Sohn’s commission amounted to $43,173.59. 

On April 20, 2009, Silco filed a complaint for breach of lease agreement, 

ejectment, foreclosure of Mortgage, and conversion. On July 8, 2009, Appellants filed 

their Answer and Affirmative Defenses.2 The Appellants also filed a counterclaim 

 

2 The Appellants set forth the following defenses:

1. The Plaintiff failed to mitigate damages which completely or partially bar any 

recovery by Plaintiff herein.

2. Defendants are entitled to offsetting amounts which constitute a complete or 

partial bar to recovery by Plaintiff of its claim.
6

alleging breach of contract and conversion and requesting an accounting. On August 31, 

2009, Silco filed an answer to Appellants’ counterclaim. 

On June 6, 2012, Silco filed a motion for summary judgment and to foreclose the 

Mortgage. Silco alleged that the Appellants “failed to make payments required by 

promissory notes, the indebtedness under the Assignment and Assumption of Lease 

which is secured by the Mortgage” and that Silco was entitled to judgment of foreclosure 

on the Mortgage and judgment on the amount owed pursuant to the Assignment. Id. at 

60. 

On August 13, 2012, the Appellants filed a response to Silco’s motion for 

summary judgment. Under the heading “STATEMENTS/ISSUES OF FACT WHICH 

PRECLUDE SUMMARY JUDGMENT,” the Appellants listed twenty-six items and 

designated the deposition of Tudela referring to specific portions of the deposition in its 

issues of fact. Id. at 172-176. That same day, the Appellants filed a motion to publish

the deposition of Tudela and argued that Silco “took said deposition, has designated same 

in its motion for summary judgment, would be in possession of the original and should be 

 

3. The Plaintiff is barred from recovery of its claim by its election of remedies to 

assume control of the Weinbach Cafeteria on September 16, 2008.

4. Plaintiff and Defendants had agreed on procedures to divide the assets of the 

business which bars Plaintiff’s recovery completely or partially.

5. Defendants plead the doctrines of estoppel and waiver as a complete or partial 

bar to any recovery by Plaintiff.

6. Defendants plead discharge by performance as a complete or partial bar to any 

recovery by Plaintiff herein.

7. Defendants plead that Plaintiff has been fully compensated for its losses.

8. Defendants affirmatively plead that Plaintiff is discharged completely or partially 

by its own breach of the lease agreement.

Appellants’ Appendix at 49-50.
7

directed to tender same to the Court for use in its consideration of [Silco’s] Motion for 

Summary Judgment.” Appellants’ Supplemental Appendix at 1.

On August 28, 2012, Silco filed a reply to Appellants’ response and a 

supplemental designation of evidence. On August 29, 2012, the Appellants filed a notice 

of filing deposition. On September 4, 2012, the court held a hearing on Silco’s motion 

for summary judgment.3 

On September 6, 2012, the court granted summary judgment to Silco and against 

the Appellants on their counterclaim. The court’s order states, in part:

IT IS FURTHER ORDERED Defendants breached the Lease.

IT IS FURTHER ORDERED by the Court that SILCO is given a 

personal judgment against the Defendants, jointly and severally, in the 

amount of $183,605.52, comprised of $236,661.86[4] minus the amount in 

Sohn & Associates’ escrow for sale of Weinbach Cafeteria property in the 

amount of $43,171.59 and minus the credit SILCO has allowed Defendants 

based on items it has been unable to locate amounting to $3,992.00, and 

minus payment made by Defendants in the amount of $5,892.75 dated July 

13, 2006 which has now been proven as received by SILCO, plus post 

judgment interest, plus advances by SILCO for real estate taxes, insurance 

premiums, maintenance costs, attorney and paralegal fees, and all other 

advances and any additional costs of collection, expenses and 

disbursements incurred including, but not limited to, attorney fees and 

costs, Sheriff’s Sale costs, environmental studies on the property, 

disbursements for real estate taxes, appraisals, bankruptcy fees and costs, 

court costs, and disbursement for hazard insurance premiums which SILCO 

must pay to preserve the subject property and SILCO’s interest and rights 

therein, all without relief from valuation of appraisement laws.

IT IS FURTHER ORDERED that Sohn & Associates release monies 

they are holding in their escrow account from the sale of Weinbach 

 

3 The record does not contain a transcript of the hearing.

4 We observe that Nelson’s affidavit states: “From the beginning of the default under the lease, 

until May 4, 2012, SILCO has incurred damages in the amount of $236,671.86. The amount due will 

continue to increase due to interest and attorney fees and monthly late charges.” Appellants’ Appendix at 

123. The amount mentioned in the order is ten dollars less than the amount stated in Nelson’s affidavit.
8

Cafeteria properties in the amount of $43,171.59 to SILCO as of the date of 

this Order.

* * * * *

IT IS FURTHER ORDERED by the Court that the mortgage of 

SILCO, recorded on August 19, 2004, as Document No. 2004R00029044 in 

the Office of the Recorder of Vanderburgh County, Indiana, be and hereby 

is, foreclosed as first and prior liens subject to any county real estate tax 

liens and that equity of redemption of all of the parties herein and all 

persons claiming under and through them hereby are foreclosed; and that 

the property specifically described below and all right, title and interest in 

the claim of the parties hereto and all persons claiming under and through 

them shall be sold by the Sheriff of Vanderburgh County, Indiana, without 

relief from valuation and appraisement laws, subject to and in accordance 

with the applicable laws of the State of Indiana and subject to the 

provisions hereinafter set forth.

IT IS FURTHER ORDERED by the Court that the Sheriff of 

Vanderburgh County shall sell the [Defendants’] real estate . . . . 

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by 

the Court that in connection with the sale of the Collateral that said 

property shall be sold as a single unit; the Sheriff of Vanderburgh County 

shall require the highest bidder to immediately deposit with him cash or a 

certified or cashier’s check, for the full amount of the bid, and, if said 

deposit is not made, the Collateral shall again be offered for sale at one or 

more times until said Sheriff has received from the highest bidder the 

deposit as aforesaid in the full amount of the bid; provided, however, if the 

highest bidder for the Collateral is SILCO, SILCO, in lieu of making a 

deposit as aforesaid, will provide for payment of the purchase price by 

delivering to the Sheriff a receipt in the amount of said bid to be credited 

against SILCO’s judgment herein and by depositing any amount of the bid 

greater than SILCO’s judgment with the Sheriff as aforesaid; and that the 

Sheriff shall complete the sale of the Collateral by executing and delivering 

a deed or bill of sale, as the case may be, to the person, firm or corporation 

making the bid and deposit, if any, on the Collateral and make his return on 

the order of sale to the Clerk in accordance with statute.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by 

the Court that upon execution by the Sheriff of a deed of conveyance of the 

Collateral sold by the Sheriff and any bill of sales related to the Collateral, 

pursuant to this order, and said Collateral not having been previously 

redeemed by any person entitled thereto, any person who may be in 
9

possession of the Collateral or any party thereof upon demand and 

exhibition of said Sheriff’s deed or bill of sale shall forthwith surrender the 

Collateral to the holder of such deed or bill of sale, and in the event such 

persons so in possession of the Collateral shall refuse to fully and 

peacefully surrender possession, the Sheriff shall vacate and/or otherwise 

take possession of the Collateral and give full and peaceful possession to 

the purchaser.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by 

the Court that the proceeds derived from the aforementioned sale be applied 

as follows: (i) to the payment of costs and accruing costs herein existing as 

of the date of said sale; (ii) payment of any outstanding property taxes on 

the Collateral that are due and owing and for which the due date has passed 

as of the date of such sale; (iii) payment to SILCO in the amount of its 

judgment; and, (iv) the surplus, if any, shall be paid by the Sheriff to the 

Clerk of this Court for the use of the parties and remaining defendants 

lawfully entitled thereto.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by 

the Court that a duly certified copy of this judgment and associated decrees 

under the hand and seal of the Clerk of this Court shall be sufficient to the 

Sheriff to execute any and all portions of this judgment.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by 

the Court that pursuant to Trial Rule 56(C) there is no just reason for delay 

and directs entry of judgment in favor of SILCO and this is a final 

appealable order.

Appellants’ Appendix at 13-17.

DISCUSSION

The issue is whether the court erred in granting Silco’s motion for summary 

judgment. Our standard of review for a trial court’s grant of a motion for summary 

judgment is well settled. Summary judgment is appropriate only where there is no 

genuine issue of material fact and the moving party is entitled to judgment as a matter of 

law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 

N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts 
10

are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a 

summary judgment motion is limited to those materials designated to the trial court. Id. 

We must carefully review a decision on summary judgment to ensure that a party was not 

improperly denied its day in court. Id. at 974. 

Where a trial court enters findings of fact and conclusions thereon in granting a 

motion for summary judgment, the entry of specific findings and conclusions does not 

alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the 

summary judgment context, we are not bound by the trial court’s specific findings of fact 

and conclusions thereon. Id. They merely aid our review by providing us with a 

statement of reasons for the trial court’s actions. Id.

To the extent that the issue requires us to interpret the contracts, we observe that 

“[i]nterpretation of a contract is a pure question of law and is reviewed de novo.” Dunn 

v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind. 2005); see also Fresh Cut, Inc. v. 

Fazli, 650 N.E.2d 1126, 1129 (Ind. 1995) (noting that a real estate lease is subject to 

principles of contract law); Coleman v. Witherspoon, 76 Ind. 285, 287 (1881) (“A 

mortgage is a contract . . . .”). If a contract’s terms are clear and unambiguous, courts 

must give those terms their clear and ordinary meaning. Id. Courts should interpret a 

contract so as to harmonize its provisions, rather than place them in conflict. Id. “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). “Rules of contract construction and extrinsic evidence 

may be employed in giving effect to the parties’ reasonable expectations.” Johnson v. 
11

Johnson, 920 N.E.2d 253, 256 (Ind. 2010). “When a contract’s terms are ambiguous or 

uncertain and its interpretation requires extrinsic evidence, its construction is a matter for 

the fact-finder.” Id. When a summary judgment ruling is based upon the construction of 

a written contract, the trial court has either determined as a matter of law that the contract 

is not ambiguous or uncertain, or that the contract ambiguity, if one exists, can be 

resolved without the aid of a factual determination. Pinkowski v. Calument Twp. of Lake 

Cnty., 852 N.E.2d 971, 981 (Ind. Ct. App. 2006), trans. denied.

A. Breach of Contract

The Appellants argue that Silco committed “[c]ontractual [s]abotage,” that Silco 

contracted to control and police the common areas, and thus that Silco is responsible for 

any nuisance it allowed to occur in other tenants’ use of the common areas. Appellants’ 

Brief at 15. The Appellants state that “[b]y leasing to a business, the operation of which 

created a nuisance within the common area parking lot, [Silco] breached the duties it 

undertook to operate, manage, equip, light and maintain the common areas in a first class 

attractive condition throughout the lease term.” Id. at 17-18. They contend that Silco 

“breached the lease by allowing the nuisance and was so notified at least seven (7) 

months prior to its March 2008 notice to Tudela.” Id. at 18. The Appellants argue that 

“[o]ne party may not successfully accuse the other party of failure to perform a contract 

when the former party has in some manner prevented such performance.” Id. (citing 

Stephenson v. Frazier, 399 N.E.2d 794, 798 (Ind. Ct. App. 1980), trans. denied). The 

Appellants state further that “[i]t was unrefuted that . . . the Landlord leasing nearby 

property to a business, the operation of which constituted a nuisance, was the major 
12

factor in the inability of the Weinbach Cafeteria to pay rent and Landlord should bear the 

inevitable foreseeable consequences of its actions in leasing to an entity the operation of 

which constituted a nuisance.” Id.

Silco argues that while the Appellants use the phrase “contractual sabotage,” they

do not elaborate or cite any cases as to its meaning. Appellee’s Brief at 13. Silco 

contends that “Tudela seems to argue that SILCO had an affirmative obligation to ensure 

the tenant mix at the center maximized Tudela’s revenue; such an obligation is not found 

in the Lease and does not exist.” Id. Silco’s position is that the nuisance claim is waived 

because Tudela never pled a nuisance claim or asserted it as an affirmative defense, and 

further, that Tudela did not have a right under the Lease to quiet enjoyment because his 

rent payments were not current prior to Silco renting to the blood plasma center. 

The Appellants did not specifically mention nuisance in their answer, affirmative 

defenses, or counterclaims. Accordingly, we cannot say that the Appellants properly pled 

nuisance and conclude that they have waived the issue. See Briggs v. Finley, 631 N.E.2d 

959, 964 (Ind. Ct. App. 1994) (“A memorandum opposing summary judgment is not a 

proper place to assert a claim against a defendant.”), trans. denied.

Waiver notwithstanding, we observe that the Appellants do not cite to any 

provision of the Lease or Consent which prohibits Silco from renting to a blood plasma 

center or place any specific restrictions on parking.

5

 The Consent provides that “In 

consideration of this Assignment, [Tudela] hereby agrees to be responsible for the 

 

5 We note that a rider to the Lease provides that Silco was “prohibited from permitting any other 

restaurant or retail food service (other than those existing tenants at the Commencement Date of this 

Lease) from operating within the Shopping Center.” Appellants’ Appendix at 103.
13

upkeep, maintenance and repairs of the following: a) the area inside the building from the 

top of the stairs to the cafeteria; b) the area from the freight elevator to the entrance of the 

main service corridor; and (c) the 700 square foot common area outside of the building, 

in front of the drive through counter.” Appellants’ Appendix at 79. Paragraph 32 of the 

Lease provides that “[a]ll common areas and other common facilities . . . made available 

by Landlord in or about the Shopping Center shall be subject to the exclusive control and 

management of Landlord,” and defines common areas to include, among other areas,

sidewalks and parking areas. Id. at 90. Paragraph 32 of the Lease also states that 

“Landlord shall operate, manage, equip, light and maintain the common areas in a first 

class attractive condition throughout the lease term . . . .” Id. The Lease does not define 

what constitutes a “first class attractive condition,” and there is no claim that prior to 

Tudela’s failure to pay rent, Silco was not in compliance with this provision. Further, 

Paragraph 48 of the Lease provides:

QUIET ENJOYMENT: If Tenant timely pays the rents reserved and 

performs all of the other terms, covenants and conditions of this Lease on 

the Tenant’s part to be performed, then Tenant shall peaceably and quietly 

have, hold and enjoy the Premises during the Lease Term, subject to the

terms of this Lease, and to any mortgages, ground or underlying leases, 

agreements and encumbrances to which this Lease is or may be 

subordinated.

Id. at 98. 

The designated evidence reveals that the Tudela owed Silco $5,892.75 as of July 

31, 2006, and that thereafter and until Tudela was locked out of the premises there was 

always a balance of rents and other obligations due Silco by Tudela. Thus, at the time 

that the blood plasma center opened in October 2006 and thereafter, Tudela was not in 
14

compliance with the rent provisions of the Lease. There is no claim that any breach by 

Silco occurred prior to this date. Based upon the language in the Lease and the 

designated evidence, Tudela was not entitled to quiet enjoyment of the premises after he

failed to timely pay the rent and did not cure such failure as provided in the Lease. Under 

the circumstances, we cannot say that there is a genuine issue of material fact on this 

issue. 

B. Mortgage

The Appellants argue that the Mortgage was void for lack of consideration and 

that the trial court “apparently based its ruling upon the argument that the mortgage it 

seeks to foreclose was given as security for the lease on which it is also suing.” 

Appellants’ Brief at 14. The Appellants argue that the Lease, riders, and Assignment did 

not mention a mortgage and that “[a]s the mortgage was not required by Landlord’s 

transaction documents on which Landlord has based its lawsuit, it would have been 

superfluous and unsupported by consideration and thus it is void.” Id. at 15. The 

Appellants argue “[w]hen executing the ‘mortgage’ being sued upon by Landlord Tudela 

mistakenly believed himself to be owner of the properties through the will of his 

deceased mother believing its provisions to be self effectuating upon her death.” Id. at 

36. The Appellants contend that “[a]s the ownership of the properties seems to have been 

in a state of limbo at the time the mortgage was executed, there was arguably no owner to 

consent to the mortgage and . . . there would likely have been a genuine issue of material 

fact as to whether it would be enforceable on that basis.” Id. The Appellants also assert 
15

that even if the Mortgage was not void then Silco’s inequitable conduct bars it from being 

awarded the equitable remedy of foreclosure. 

Silco argues that there are multiple reasons why there is adequate consideration for 

the Mortgage. Silco points out that Count III of its complaint was titled “Foreclosure of 

Mortgage” and that the Appellants admitted to the relevant portions of its complaint. 

Appellants’ Appendix at 21. Silco also asserts that the Appellants’ lack of consideration 

argument was made for the first time in opposition to the summary judgment action, and 

Ind. Trial Rule 8(C) requires that failure of consideration be pled as an affirmative 

defense. Silco further contends that the Appellants’ arguments that Tudela lacked 

standing to execute the Mortgage fail because the Appellants waived that argument, are

estopped from asserting it, and Tudela had a valid interest in the properties that were 

mortgaged. Finally, Silco asserts that the Appellants waived the defense of unclean 

hands and that such a defense does not apply because Silco did not engage in intentional 

misconduct and the Appellants’ argument is based on a premise that Tudela executed a 

fraudulent document and then used that fraudulent document to induce Silco to allow him 

to assume the Lease. 

Initially, we observe that the Appellants admitted that Tudela executed and 

delivered the Mortgage as security for the Lease. Specifically, Silco’s complaint alleged:

25. As security for the Lease Agreement, Tudela executed and delivered 

unto SILCO a Mortgage dated August 13, 2004 and recorded August 

19, 2004, as Instrument Number 2004R00029044, in the office of 

the Vanderburgh County Recorder (“Mortgage”)[.]

26. A true, correct and complete copy of the Mortgage is attached 

hereto, and made a part hereof, as Exhibit E.
16

27. The Mortgage granted SILCO a real estate mortgage interest in the 

real estate located in the County of Vanderburgh . . . .

Id. at 21-22. In their answer, the Appellants admitted the allegations contained in 

Paragraphs 25, 26, and 27 of Silco’s complaint. 

Even assuming that the Appellants did not waive the argument that the Mortgage 

lacked consideration and did not admit the existence of the Mortgage, we cannot say that 

the Appellants’ arguments are persuasive. With respect to their argument that the 

ownership of the properties “seems to have been in a state of limbo,” we observe that the 

legal descriptions of the properties bequeathed to Tudela from his mother match the legal 

descriptions of the properties in the Mortgage. Tudela’s mother died on April 21, 2002, 

and the docket information from the estate of Tudela’s mother indicates that her will was 

offered and admitted to probate on January 24, 2003. Id. at 221. Both of these events 

occurred before Tudela signed the Mortgage on August 13, 2004. Under the 

circumstances, we cannot say that the Appellants’ argument that the Mortgage is void is 

persuasive. See Burkam v. Burk, 96 Ind. 270, 273 (1884) (holding that while a party was 

not invested with the legal title, she was with an equitable estate and that was the subject 

of the mortgage).

To the extent Silco contends that the Appellants are estopped from claiming that 

Silco was not entitled to foreclose Tudela’s interest in the mortgaged properties, we 

observe that the Mortgage provided:

WARRANTY: DEFENSE OF TITLE: The following provisions relating 

to ownership of the Real Property are a part of this Mortgage:

Title: [Tudela] warrants that: (a) [Tudela] holds good and marketable title 

of record to the Real Property in fee simple, free and clear of all liens and 
17

encumbrances, and (b) [Tudela] has the full right, power, and authority to 

execute and deliver this Mortgage to [Silco].

Appellants’ Appendix at 112-113. Under the circumstances, we conclude that the 

Appellants are estopped from claiming that the Mortgage is void. See Boone v. 

Armstrong, 87 Ind. 168, 169 (1882) (holding that the appellant was estopped by the 

covenants of her mortgage from asserting that she did not own the estate which the 

mortgage purports to encumber); Plowman v. Shidler, 36 Ind. 484, 488 (1871) (“The fifth 

paragraph alleges that at the date of the mortgage, the defendants had not, nor have they 

at any time since had, any title to the mortgaged property. This answer is merely trifling, 

and deserves no further notice than to say that it was bad, and the demurrer was properly 

sustained to it.”).

Even assuming that the Appellants are not estopped, we do not find their 

arguments persuasive. A mortgage must be supported by consideration to be enforceable. 

Huntingburg Prod. Credit Ass’n v. Griese, 456 N.E.2d 448, 451 (Ind. Ct. App. 1983). 

Any consideration which will sustain a promise to pay will suffice. Id. It is not 

necessary that the obligee actually give anything of value to the obligor, and sufficient

consideration will be found if it is shown that the mortgagee suffered any damage, 

inconvenience, detriment or loss, or that he extended any forbearance in reliance upon the 

mortgage. Id. Consideration exists if it is shown that any right, profit, or benefit accrued 

to the mortgagor, or that responsibility was suffered or undertaken by another. Id. 

Where the thing agreed upon as the consideration has no determined value, the judgment 

of the parties as to its sufficiency will not be disturbed by the court; and where a party 

without fraud or deception enters into a contract for consideration and receives all he 
18

contracts for, he cannot be relieved on the ground of want of consideration. Id. at 452. 

Whether consideration is given is a question of fact for the jury. Ind. Dep’t of State 

Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174, 179 (Ind. 2010), reh’g granted on

other grounds, 942 N.E.2d 796 (Ind. 2011). However, whether consideration exists is 

generally a question of law for the court. Id. 

The contemporaneous document doctrine provides that “[i]n the absence of 

anything to indicate a contrary intention, writings executed at the same time and relating 

to the same transaction will be construed together in determining the contract.” Gold v. 

Cedarview Mgmt. Corp., 950 N.E.2d 739, 743 (Ind. Ct. App. 2011) (citing Salcedo v. 

Toepp, 696 N.E.2d 426, 435 (Ind. Ct. App. 1998)). Even if documents are executed at 

different times, they may still be construed together as long as they relate to the same 

transaction. Id. Application of the contemporaneous document doctrine is determined on 

a case-by-case basis, and the doctrine should be applied cautiously when the documents 

involve different parties. Murat v. South Bend Lodge No. 235 of Benev. & Protective 

Order of Elks of U.S., 893 N.E.2d 753, 757 (Ind. Ct. App. 2008), reaff’d on reh’g, trans.

denied. The designated evidence reveals that the Assignment, the Consent, and the 

Mortgage were all signed by Tudela on the same day, and the Mortgage specifically 

refers to the Lease. The Mortgage states: “THIS MORTGAGE IS GIVEN TO SECURE 

(1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE OF ALL 

OBLIGATIONS OF GRANTOR UNDER THIS MORTGAGE AND THE LEASE,” and 

the Mortgage defined the “Lease” as “that certain Lease Agreement entered into on 

March 25, 2003, by and between Landlord and Four O Three, Inc., an Indiana 
19

corporation relating to the property commonly described as 1 N. Weinbach, Evansville, 

Indiana and which Lease has been assigned to [Tudela] pursuant to that certain Consent 

to Assignment of Lease Agreement and Release dated August 13, 2004.” Appellants’ 

Appendix at 108. The Mortgage also states: “For valuable consideration, [Tudela] 

mortgages, warrants, and conveys to [Silco] all of [Tudela’s] right, title, and interest in 

and to the following described property . . . .” Id. at 107. Based upon the 

contemporaneous document doctrine and construing the documents together, we cannot 

say that the Mortgage lacked consideration or that there is a genuine issue of material fact 

on this issue.

C. Surrender of Tenancy

The Appellants argue that there was at least a genuine issue of material fact as to 

whether there had been a “surrender of tenancy.” Appellants’ Brief at 19. The 

Appellants contend that Silco’s “representations to Tudela and actions manifest 

agreement to accept a surrender of the tenancy which was reasonably relied upon by 

Tudela.” Id. at 20. The Appellants point to the letters from Tudela’s attorney to Nelson 

which were dated October 8, 2008, and December 12, 2008, and argue that “the first time 

Landlord ever denied and disputed that a surrender of tenancy had taken place is more 

than three (3) years later, in June of 2012, when Nelson made his first affidavit.” Id. at 

21. The Appellants contend that Silco made an agreement, initially acted in conformity 

with the agreement, remained silent when presented with letters from Appellants’ 

counsel, and now is attempting to “hide behind provisions in the lease after he later 

changes his mind.” Id. The Appellants also contend that “[t]he fact that Landlord failed 
20

to respond when sent the correspondence . . . also gives rise to a genuine issue of material 

fact as to equitable estoppel.” Id. at 22. The Appellants argue that “Landlord’s positive 

actions in taking over and operating the cafeteria as his own also constituted such a 

representation through an act of the Landlord.” Id. at 23. The Appellants further contend

that “[i]t cannot be questioned that Landlord intended that Tudela act in reliance on those 

representations, which Tudela did, in willingly turning over operation of the Cafeteria to 

Landlord and even assisting with the transition.” Id. The Appellants finally allege that 

they designated evidence sufficient to support a prima facie case of conversion and theft 

sufficient to sustain a civil claim under Ind. Code § 34-24-3-1 and the common law of 

conversion. 

Silco argues that Tudela never pled surrender of tenancy, that there was no 

surrender of tenancy, that it had a specific right to lock out Tudela pursuant to the Lease, 

that Tudela testified that he understood that Silco’s re-entry onto the premises did not 

constitute a termination of the Lease, and that there was no written authorization by Silco 

of the surrender as required by the Lease. Generally, termination of a lease agreement 

occurs when the tenant surrenders the tenancy and the landlord accepts the tenant’s 

surrender. Floyd v. Rolling Ridge Apartments, 768 N.E.2d 951, 955 (Ind. Ct. App. 

2002). “A surrender of tenancy is a yielding of the tenancy to the owner of the reversion 

or remainder, wherein the tenancy is submerged and extinguished by agreement.” Id. A 

surrender may be express or by operation of law. Id. By examining the actions of the 

respective parties, surrender and acceptance is determined on a case-by-case basis. Id. It 

is a general rule that a tenant will be relieved of any obligation to pay further rent if the 
21

landlord deprives the tenant of possession and beneficial use and enjoyment of any part 

of the premises by an actual eviction. Nylen v. Park Doral Apartments, 535 N.E.2d 178, 

181 (Ind. Ct. App. 1989), trans. denied. An exception to the general rule exists when the 

lease includes a savings clause expressly providing that termination shall not affect the 

accrual of liability for rent. Id. If a lessee abandons the leased estate and the lessor 

resumes possession, this conduct is generally held to have worked a surrender by 

operation of law because possession by the lessor for its own purpose is inconsistent with 

the continuance of the lease, unless the lease contains a provision preserving the lessee’s 

liability for future rent under such circumstances. Grueninger Travel Serv. of Ft. Wayne, 

Ind., Inc. v. Lake Cnty. Trust Co., 413 N.E.2d 1034, 1045 (Ind. Ct. App. 1980).

Paragraph 41 of the Lease governs default and provides: 

(c) No such re-entry or taking possession of the Premises by Landlord 

shall be construed as an election on its part to terminate this Lease 

and Tenant hereby specifically waives any law, statute, rule, decree 

or judgment of any court to the contrary. Notwithstanding any such 

re-entry without termination, Landlord reserves the right to elect to 

terminate this Lease for such previous breach.

(d) If an Event of Default shall occur and shall not be cured in the 

manner as herein provided (unless Tenant is not entitled to an 

opportunity to cure such default), Landlord and Tenant covenant and 

agree that Landlord shall immediately have the following rights and 

remedies: (i) to immediately re-enter the Premises by summary 

proceedings, if necessary, and to dispossess Tenant and all other 

occupants thereof and to remove and dispose of all property therein 

or to store such property in a public warehouse or elsewhere at the 

cost and for the account of Tenant without Landlord being deemed 

guilty of trespass or becoming liable for any loss or damage which 

may arise out of such action; (ii) to cancel and terminate this Lease 

upon three (3) days notice to Tenant stating that this Lease and the 

term hereof shall expire and terminate on the date specified in such 

notice, and upon such specified notice, this Lease and all rights of 

the Tenant under this Lease shall expire and terminate as if that date 
22

were the date definitely fixed in this Lease for the termination of the 

term; (iii) to cancel and terminate Tenant’s right to possession of the 

Premises only, and in the event of such election, Tenant shall 

immediately quit and surrender possession of the Premises only but 

Tenant shall remain liable for damages as hereinafter provided. 

Landlord shall have the right, at its election, to pursue any and/or all 

of such rights together with any other right or remedy which may be 

available to Landlord under any statute or rule of law then in effect.

* * * * *

(j) The rights and remedies herein reserved by or granted to Landlord 

and Tenant are distinct, separate and cumulative, and the exercise of 

any one of them shall not be deemed to preclude, waive or prejudice 

their right to exercise any or all others.

Id. at 95-96 (emphasis added). Paragraph 42 of the Lease is titled “Landlord’s Lien” and 

provides:

Tenant hereby expressly grants to Landlord a security interest in and an 

express contractual lien upon Tenant’s or any other party’s goods, wares, 

equipment, signs, fixtures, furniture and other personal property situated in 

or on the Premises, including all after-acquired property, replacements and 

proceeds (“secured property”) to secure the performance by Tenant of its 

obligations under this Lease, and such property shall not be removed from 

the Premises without the written consent of Landlord until all rents and 

other sums of money then due to Landlord shall have first been paid except 

for the sale of inventory in the ordinary course of Tenant’s business so long 

as such inventory is replaced by Tenant. Tenant hereby appoints Landlord 

as Tenant’s attorney-in-fact, and authorizes Landlord to execute and to file 

financing statements signed only by Landlord (as attorney-in-fact) covering 

such security or to otherwise take such action as may be necessary to 

perfect such security interest and/or contractual lien. Upon an occurrence 

of an Event of Default by Tenant, Landlord may, in addition to any other 

remedies, enter upon the Premises and take possession of such secured 

property situated on the Premises without liability for trespass or 

conversion, and sell the same with notice at public or private sale, with or 

without having such property at the sale, at which Landlord or its assigns 

may purchase, and may apply the proceeds thereof less any and all 

expenses connected with the taking of possession and sale of the property, 

as a credit against any sums due by Tenant to Landlord. Any surplus shall 

be paid to Tenant, and Tenant agrees to pay any deficiency forthwith, after 

demand. Landlord, at its option may foreclose said security interest and/or 
23

contractual lien in the manner provided by law. The security interest and 

contractual lien herein granted to Landlord shall be in addition to any 

Landlord’s lien that may now or at any time hereafter be provided by law.

Id. (emphases added).

Paragraph 59(c) of the Lease provides: “This Lease shall not be modified except in 

writing, nor may this Lease be canceled by Tenant or the Premises surrendered except 

with the express written authorization of Landlord, unless otherwise specifically provided 

herein.” Id. at 99. The designated evidence indicates that Tudela acknowledged that he 

did not receive any letter from Silco in which it agreed to terminate the Lease. 

Specifically, a deposition of Tudela contains the following exchange:

Q . . . Are you going to contend at the trial of this case that there was 

ever an agreement between you and Mr. Nelson to terminate the 

lease?

A Yes. As of September 15th when he took over, that was what I’m 

going to say that that was the end of my obligations to the lease.

Q And are you going to have any evidence that Mr. Nelson agreed to 

that conclusion?

A Other than him taking over the business and running it as his 

business.

Q So you didn’t – you didn’t have a conversation with him in which he 

agreed to terminate the lease. Is that a true fact?

A Not exactly about the lease, correct.

Q Okay. And you didn’t have any letter from him in which he agreed 

to terminate the lease?

A Correct.

* * * * *
24

Q Did Mr. Nelson ever tell you that SILCO would not enforce the 

provisions of the lease upon your default?

A No, he did not.

Q Do you claim that SILCO waived any of its rights under the lease?

A When they took possession, yes.

Q And it’s your contention that him taking possession of the premises, 

what, waived his rights under the lease?

A Right. Whenever he decided to take over the business and run it as 

his business, yes.

Q Yes what?

A Yes, he took – that my lease stopped and he took over the –

Q Did he ever tell you that?

A He didn’t tell me that, per se.

Q Do you have any letter that records that agreement between you and 

he?

A No, other than he saying we’re taking over the business, that’s all.

* * * * *

Q I’m wanting to know, do you have any evidence from Mr. Nelson 

that he agreed to terminate your lease?

A No, I do not.

Q Do you have any record or document or letter from Mr. Nelson in 

which he agreed to waive any of his rights under the lease?

A I do not.

Id. at 169-171.
25

Based upon the designated evidence, we conclude that there is no genuine issue of 

material fact and that the trial court did not err in granting Silco summary judgment on 

this basis. See Nylen, 535 N.E.2d at 182 (holding that the savings clause in a rental 

agreement was valid and enforceable and that “[i]t is entirely consistent with existing 

Indiana case law to uphold a lease provision which states that the lessee’s liability for 

rent for the balance of the lease term will continue, notwithstanding an order of eviction,”

and concluding that the award of future rents based upon the rental agreement was not 

contrary to law); Grueninger, 413 N.E.2d at 1043 (upholding a lease provision which 

authorized the landlord to re-enter and re-let the leased premises without terminating the 

original tenant’s liability).

D. Late Fees and Interest

Without citation to authority other than the Lease, the Appellants argue that the 

court erred when it awarded late fees and interest. The Appellants argue that Paragraph 

13 of the Lease imposes a one-time late fee for each month or part of a month in which 

rent is paid more than ten days late and that the Lease does not impose an ongoing

compounding “$50.00 per month fee that accumulates ad infinitum as charged by 

Landlord and awarded by the Trial Court.” Appellants’ Brief at 29. The Appellants

contend that even though the Lease expired on March 31, 2009, that the court “awarded a 

compounded ongoing, per month, compounding late fee of $50.00 per month for more 

than two years after March 31, 2009.” Id. The Appellants also argue that the court 

awarded Silco compound interest and that the Lease does not provide for compounding 

of interest. Silco argues that the Lease provides for interest charged on past due rents and 
26

also provides for a late fee of $50.00 per month and that Indiana law allows fees for late 

payment to be added to the rental amount past due and for interest to be chargeable upon 

all unpaid rental balances. 

Paragraph 13 of the Lease governs past due rents and provides:

(a) If Tenant shall fail to pay any rents, Additional Rents or other 

charges after the same become due and payable, such unpaid 

amounts shall bear interest from the due date thereof to the date of 

payment at the maximum legal rate of interest allowed to be charged 

to Tenant under any applicable law of the state of Indiana.

(b) In addition thereto, if Tenant shall fail to pay any rents, Additional 

Rents, or other charges within ten (10) days after the same become 

due and payable, then Tenant shall also pay to Landlord a late 

payment service charge covering administrative and overhead 

expense . . . equal to Fifty Dollars ($50.00) for each calendar month 

or part thereof after the due date of such payment until received by 

Landlord. The provisions herein for late payment service charges 

shall not be construed to extend the date for payment of any sums 

required to be paid by Tenant hereunder or to relieve Tenant of its 

obligation to pay all such sums when due. Notwithstanding the 

imposition of such service charges, Tenant shall be in default under 

this Lease if any or all payments required to be made by Tenant are 

not made within five (5) business days of Landlord’s notice to 

Tenant that any such payment has not been received when due. The 

notice for demand by Landlord for payment of such late payment 

service charges shall not be construed as a cure of such default on 

the part of the Tenant.

Appellants’ Appendix at 83 (emphases added).

We observe that the trial court’s order did not explicitly mention a late payment 

service charge as detailed in the Lease or compound interest. However, as noted earlier, 

the total amount awarded by the trial court is within ten dollars of the amount mentioned 

by Nelson in his affidavit, and a spreadsheet attached to that affidavit appears to indicate 
27

late charges of $50 as well as interest. Based upon the emphasized language in the Lease, 

we cannot say that the trial court erred on this basis.

E. Attorney Fees

The Appellants contend that the court erred when it awarded Silco its request for 

$38,000 in attorney fees without reduction, and argues that Paragraph 41(o) of the Lease 

entitles the successful party in litigation to the lesser of its actual attorney fees, costs and 

expenses or $2,000. Without citation to the record, Silco argues that the trial court 

awarded attorney fees for both breach of the Lease and foreclosure of the Mortgage. 

Silco contends that the fees related to the foreclosure are not limited by the Lease. 

Paragraph 41 of the Lease governs default and states in part:

(e) If an Event of Default shall occur and shall not be cured in the 

manner as herein provided (unless Tenant is not entitled to an 

opportunity to cure such default) and if Landlord has not elected to 

cancel and terminate this Lease as provided in subsection (d)(ii) 

hereof, then Landlord and Tenant covenant and agree that Landlord 

shall have the right to recover all damages that Landlord may sustain 

by reason of such default, including, without limitation, the cost of 

recovering the Premises, reasonable attorney’s fees and court costs.

* * * * *

(o) In the event of any litigation or formal legal proceeding between the 

parties to this Lease, Landlord and Tenant specifically covenant and 

agree that the prevailing party in such litigation, including appellate 

proceedings, shall be entitled to recover, in addition to other 

damages, as full and complete compensation for all court costs, 

expenses and reasonable attorneys’ fees that it may incur in 

connection with such litigation or proceeding, the lesser of (i) the 

total amount of such costs, expenses, and attorneys’ fees actually 

incurred by it, or (ii) the sum of Two Thousand Dollars ($2,000.00), 

and the parties expressly waive any statute, rule of law or public 

policy to the contrary and further covenant and agree that they shall 

confirm such waiver in writing at the time of commencement of any 

such action, proceeding or counterclaim.
28

Appellants’ Appendix at 97. 

The Mortgage contains the following:

Attorneys’ Fees: Expenses. If Lessor institutes any suit or action to enforce 

any of the terms of this Mortgage, Lessor shall be entitled to recover such 

sum as the court may adjudge reasonable as attorneys’ fees at trial and on 

any appeal. Whether or not any court action is involved, all reasonable 

expenses incurred by Lessor that in Lessor’s opinion are necessary at any 

time for the protection of its interest or the enforcement of its rights shall 

become a part of the indebtedness payable on demand and shall bear 

interest from the date of expenditure until repaid at the rate of eighteen 

percent (18%) per annum. Expenses covered by this paragraph include, 

without limitation, however subject to any limits under applicable law, 

Lessor’s attorneys’ fees and Lessor’s legal expenses whether or not there is 

a lawsuit, including attorneys’ fees for bankruptcy proceedings (including 

efforts to modify or vacate any automatic stay or injunction), appeals and 

any anticipated post-judgment collection services, the cost of searching 

records, obtaining title reports (including foreclosure reports), surveyors’ 

reports, and appraisal fees, and title insurance, to the extent permitted by 

applicable law, Grantor also will pay any court costs, in addition to all other 

sums provided by law.

Id. at 117.

The trial court’s order mentioned attorney fees but did not mention a specific 

amount. Specifically, the order states:

IT IS FURTHER ORDERED by the Court that SILCO is given a 

personal judgment against the Defendants, jointly and severally, in the 

amount of $183,605.52, comprised of $236,661.86 minus the amount in 

Sohn & Associates’ escrow for sale of Weinbach Cafeteria property in the 

amount of $43,171.59 and minus the credit SILCO has allowed Defendants 

based on items it has been unable to locate amounting to $3,992.00, and 

minus payment made by Defendants in the amount of $5,892.75 dated July 

13, 2006 which has now been proven as received by SILCO, plus post 

judgment interest, plus advances by SILCO for real estate taxes, insurance 

premiums, maintenance costs, attorney and paralegal fees, and all other 

advances and any additional costs of collection, expenses and 

disbursements incurred including, but not limited to, attorney fees and 

costs, Sheriff’s Sale costs, environmental studies on the property, 

disbursements for real estate taxes, appraisals, bankruptcy fees and costs, 
29

court costs, and disbursement for hazard insurance premiums which SILCO 

must pay to preserve the subject property and SILCO’s interest and rights 

therein, all without relief from valuation or appraisement laws.

Id. at 13-14 (emphases added).

Based upon the trial court’s order, we cannot determine the amount of the attorney 

fees or whether the fee award complied with the applicable provisions of the Lease and 

Mortgage. Accordingly, we remand to the trial court to apply the provisions in the Lease 

and the Mortgage and specify the amount of the attorney fees awarded to Silco.

F. Duty to Mitigate

In the Appellants’ response to Silco’s motion for summary judgment, the 

Appellants argued that Silco “designated no evidence that it made any effort to re-let the 

premises, instead relying upon the penalty provision in the lease and Plaintiff has allowed 

no credit for the benefits it received from taking over and operation of the restaurant for 

several months.” Appellants’ Appendix at 182. On appeal, the Appellants argue that 

“[e]ven if a breach is found by tenant, the Landlord has a duty to mitigate his damages by 

reletting.” Appellants’ Brief at 30. The Appellants argue that Silco “never designated 

any evidence that it made any effort to re-let the premises nor allowed any credit for its 

own business use of the premises during the time it operated the Cafeteria, instead relying 

solely upon the penalty provision in the lease to impose strict liability for all rents 

accruing during the entire time.” Id. at 31. Silco argues that Tudela’s deposition was 

improperly designated and that the Appellants’ “evidence of SILCO failing to use 

reasonable diligence to mitigate damages is non-existent.” Appellee’s Brief at 23. 
30

Generally, a nonbreaching party must mitigate damages. Bruno v. Wells Fargo 

Bank, N.A., 850 N.E.2d 940, 948 (Ind. Ct. App. 2006); Four Seasons Mfg., Inc. v. 1001 

Coliseum, LLC, 870 N.E.2d 494, 507 (Ind. Ct. App. 2007). The breaching party has the 

burden of proving that the nonbreaching party has failed to use reasonable diligence to 

mitigate damages. Bruno, 850 N.E.2d at 948; Four Seasons, 870 N.E.2d at 507.

Tudela’s affidavit states that “[d]uring the 2008 – 2009 time period, David Nelson 

owned and operated a restaurant.” Appellants’ Appendix at 188. The Appellants alleged 

in their response that Silco “changed the locks, dispossessed defendants of the premises 

and continued operation of the Weinbach Cafeteria as a going concern.” Id. at 174.

To the extent that Silco argues that Tudela’s deposition was not properly 

designated, we observe that the Appellants designated Tudela’s deposition and affidavit

and pointed to specific portions of them in their response to Silco’s motion for summary 

judgment which was filed on August 13, 2012, the date the court granted the Appellants’ 

motion for additional extension of time to respond to Silco’s motion for summary 

judgment. Moreover, Silco designated portions of Tudela’s deposition, and in Silco’s 

brief in support of its motion for summary judgment and to foreclose the Mortgage, Silco 

cited Tudela’s deposition and later stated, without citation to the record, that “pursuant to 

the clear terms of the Lease, SILCO had the right to take possession of the premises, 

attempt to operate the restaurant in order to mitigate its damages, and seize the 

equipment.” Id. at 72. 

While the Appellants have the burden of proving that Silco failed to use 

reasonable diligence to mitigate damages, we conclude based upon the designated 
31

evidence that there is a genuine issue of fact as to whether Silco failed to use reasonable 

diligence to mitigate damages. Accordingly, we reverse and remand on this issue.

G. Accounting

In Count III of their counterclaim, the Appellants requested Silco to provide a full 

accounting and inventory itemization and valuation for the Weinbach Cafeteria as of 

August 16, 2008. The Appellants also alleged that Silco failed to account for its 

operation of the Weinbach Cafeteria since its assumption of management of the Cafeteria 

on September 16, 2008, and failed to provide an accounting for all of the equipment, 

furniture, personal property, food, accounts payable, and other assets of the Cafeteria. On 

appeal, the Appellants argue that Silco did not provide an adequate accounting. The 

Appellants argue without citation to the record that “the Trial Court ignored designated 

evidence . . . of the $18,716.84 food inventory, $1,705.18 in cash on hand, $750.00 liquor 

inventory and the equipment either used in Nelson’s other restaurant or that he sold on 

the side outside the auction, all of which were converted by Landlord.” Appellants’ Brief

at 34. 

Silco argues that the court did not err in fashioning a remedy without an 

accounting because Silco put forth evidence regarding financial information and the 

Appellants did not mention the accounting issue in their response. Without citation to the 

record, Silco argues that “[t]he first time [the food, cash, and liquor] make an appearance 

in the case is Tudela’s sureply brief (filed without permission of the trial court) which 

mentions the food relying on Exhibit 7 to Tudela’s deposition (which was not filed within 

Tudela’s filing requirements).” Appellee’s Brief at 25. Silco also argues that Exhibit 7
32

attached to Tudela’s affidavit lists food inventory, liquor inventory, and cash deposits but 

that the exhibit and affidavit constitute mere speculation based on a self serving 

document prepared by Tudela. 

In their reply brief, the Appellants state that Silco argues for the first time on 

appeal that Tudela’s filing of his deposition was untimely and that Silco has waived this 

issue. The Appellants also contend that “[w]hat Landlord fails to mention is that, in 

filing his Motion to Publish Deposition, Tudela sought to have the Court order Landlord, 

as the entity taking the deposition tender the original.” Appellants’ Reply Brief at 11. 

With respect to Silco’s argument that Tudela’s deposition may not even be 

considered, we again observe that Silco designated portions of Tudela’s deposition. The 

Appellants designated the deposition and then specified portions of the deposition as well 

as Exhibit 7 attached to the deposition in the portion of the document titled 

“STATEMENTS/ISSUES OF FACT WHICH PRECLUDES SUMMARY 

JUDGMENT.” Appellants’ Appendix at 172. We cannot say that Tudela’s deposition 

and Exhibit 7 were improperly designated.

Generally, an action for an accounting is a proceeding in equity and is addressed 

to the sound discretion of the trial court. Atwood v. Prairie Vill., Inc., 401 N.E.2d 97, 

100 (Ind. Ct. App. 1980); 1 I.L.E. Accounts and Accounting § 1. An action for an 

accounting has the purpose of adjusting the account of the litigants and of rendering 

complete justice in a single action. Anacomp, Inc. v. Wright, 449 N.E.2d 610, 616 (Ind. 

Ct. App. 1983).
33

Silco designated the affidavit of Karen Woolston, the corporate secretary and 

treasurer of Sohn, which detailed the items sold from the Weinbach Cafeteria in nineteen 

pages. However, as mentioned earlier, there is at least a question of fact with respect to 

whether Silco failed to use reasonable diligence to mitigate damages which bears on the 

issue of the accounting. Further, the designated evidence reveals that the Weinbach 

Cafeteria had food and liquor inventory, and Silco does not point to designated evidence 

that such inventory was properly accounted. Specifically, during his deposition, Tudela 

indicated that the food inventory totaled $18,716.84. Tudela also indicated that he took 

inventory of the food, the equipment, and the furnishings, and Exhibit 7 to the deposition 

is titled “Weinback [sic] Cafeteria Balance Sheet” and includes food inventory, liquor 

inventory, and cash deposits. Appellants’ Appendix at 479. Under the circumstances, we 

conclude that there is a question of fact with respect to the accounting and that the trial 

court erred when it granted Silco summary judgment on the Appellants’ third 

counterclaim.

For the foregoing reasons, we affirm in part the trial court’s order granting 

summary judgment to Silco, and reverse and remand for consideration of the issues 

related to attorney fees, mitigation of damages, and accounting.

Affirmed in part, reversed in part, and remanded.

BRADFORD, J., concurs.

RILEY, J., concurs and dissents with separate opinion.
34

IN THE

COURT OF APPEALS OF INDIANA

LILY, INC. d/b/a WEINBACH )

CAFETERIA and FERNANDO )

TUDELA, )

)

Appellants-Defendants, )

)

vs. ) No. 82A05-1209-PL-459

)

SILCO, LLC, )

)

Appellee-Plaintiff. )

RILEY, Judge, concurring and dissenting

I concur in part and dissent in part. I would affirm completely the granting of the 

summary judgment by the trial court to Silco. I find no material issues of fact remaining 

based on the designated evidence as to attorney fees and mitigation of damages.