Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Brian J. Paul

Faegre Baker Daniels LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Sean P. Burke

Weston E. Overturf

Mattingly Burke Cohen &

Biederman LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Subway Real Estate 

Corporation,

Appellant-Defendant,

v.

GIV Green Tree Mall

Investor, LLC,

Appellee-Plaintiff

April 12, 2019

Court of Appeals Case No.

18A-CC-1671

Appeal from the Clark Circuit 

Court

The Honorable Andrew Adams, 

Judge

Trial Court Cause No.

10C01-1707-CC-891

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CC-1671 | April 12, 2019 Page 2 of 14

[1] GIV Green Tree Mall Investor, LLC (Green Tree Mall), and Subway Real 

Estate Corporation (Subway) had a lease (the Lease) pursuant to which Subway 

rented retail space from Green Tree Mall to operate a restaurant. Subway 

cancelled the Lease, and Green Tree Mall sued for rent money due under the 

Lease. On summary judgment, the trial court ruled in favor of Green Tree 

Mall, concluding that the mall was entitled to rent under an acceleration 

provision and that it had attempted to mitigate its damages. Subway now 

appeals, arguing that the trial court erred by making such conclusions. Finding 

no error, we affirm.

Facts

[2] Green Tree Mall owns a mall in Clarksville. On July 8, 2004, Green Tree 

Mall’s predecessor in interest, Macerich SCG Limited Partnership, entered into 

the Lease with Subway. Under the Lease, Subway rented space for a Subway 

sandwich restaurant. The Lease had an “Expiry Date” of June 30, 2014. 

Appellant’s App. Vol. II p. 29.

[3] The Lease contains the following relevant provisions:

10.3. Days and Hours of Operation. . . . If Tenant fails to 

comply with the provisions of this Section 10.3, then in addition 

to Landlord’s other remedies under this Lease, Landlord shall 

have the right to collect from Tenant, in addition to the Fixed 

Minimum Rent and other Rent, a sum equal to fifty percent 

(50%) of the Fixed Minimum Rent (prorated on a daily basis) for 

each such full or partial day Tenant fails to comply with the 

provisions of this Section 10.3. Tenant acknowledges that its 

failure to comply with this Section 10.3 will cause Landlord to 
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suffer damages which will be difficult to ascertain and that the 

sum payable by Tenant under this Section 10.3 represents a fair 

estimate of such damages.

***

20.2. No Offsets. All covenants and agreements to be performed 

by Tenant under this Lease shall be performed by Tenant at 

Tenant’s sole cost and expense and without any offset to or 

abatement of Rent, except as otherwise expressly provided in this 

Lease. Tenant hereby waives any right to plead all compulsory 

counterclaims or offsets in any action or proceeding brought by 

Landlord against Tenant for any default. This waiver shall not 

be construed, however, as a waiver of any right of Tenant to 

assert any non-compulsory counterclaims or offsets in any

separate action brought by Tenant. Notwithstanding anything in 

this lease to the contrary, Tenant’s liability for rental defaults 

only (i.e., the failure to pay any Fixed Minimum Rent or 

Percentage Rent due hereunder) shall be limited to an amount 

which shall not exceed the lesser of: (i) twelve (12) months Fixed 

Minimum Rent, or (ii) $40,000.00.

Id. at 42, 58.

[4] Exhibit E, which is an addendum to the Lease, includes the following relevant 

provisions:

1.2. Prevailing Provisions. If there are any inconsistencies 

between the Lease and the provisions of this Exhibit E, the 

provisions of this Exhibit E shall prevail.

***
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2.1.1. Article 20 (Landlord’s Remedies). Notwithstanding 

anything to the contrary set forth in Article 20, upon the occasion 

and in connection with the exercise by Landlord of any of its 

remedies specified in Article 20, including but not limited to 

terminating this Lease, if Landlord shall elect to terminate the 

Lease, all Rent reserved in this Lease for the remainder of the Term 

(through the Expiry Date) shall automatically accelerate and become 

immediately due and payable, subject, however, to Landlord’s 

obligations to mitigate damages by re-letting the Premises. In addition, 

all rights and remedies provided to Landlord in Article 20 or 

elsewhere in the Lease shall be without benefit of valuation and 

appraisement laws, which valuation and appraisement laws 

Tenant hereby waives.

Id. at 93 (emphasis added). 

[5] On December 6, 2013, the parties amended the Lease (the 2013 Amendments). 

The amendments include the following provisions:

1. TERM. Effective as of the date hereof (the “Effective Date”), 

the Term of the Lease is hereby extended for a period of 10 years 

(the “Extension Term”) commencing on July 1, 2014, the date 

immediately succeeding the present expiration date, and ending 

on June 30, 2024, unless the Lease is sooner terminated pursuant 

to the provisions thereof. During the Extension Term, except as 

expressly provided for herein, all of the terms, conditions and 

provisions of the Lease shall be applicable and shall continue in 

full force and effect . . . .

***

10. CONFLICT OF PROVISIONS. In the event of any conflict 

between the Lease and this Amendment, the terms, conditions 

and provisions of the latter shall govern. However, except as 
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herein expressly amended, all of the terms, covenants, conditions 

and provisions of the Lease shall continue in full force and effect.

Id. at 99, 102.

[6] On February 21, 2017, Subway notified Green Tree Mall that on February 28, 

2017, it would close and vacate the leased space. Green Tree Mall notified 

Subway of Subway’s defaults of the Lease; Subway did not cure its defaults. 

On June 30, 2017, Green Tree Mall invoked Exhibit E’s acceleration provision 

and demanded $779,568.09 in damages, plus attorney fees and costs.

[7] On July 18, 2017, Green Tree Mall filed a complaint against Subway, alleging 

breach of contract. On November 1, 2017, Green Tree Mall filed a motion for 

summary judgment, arguing that it is entitled to $779,568.09 in damages, plus 

interest, attorney fees, and costs. Its evidence included a Declaration of 

Christine Cullen, Green Tree Mall’s manager, in which Cullen stated, “[t]o 

date, notwithstanding its efforts to do so, Green Tree has not been able to relet 

the Premises.” Id. at 125.

[8] On November 30, 2017, Subway filed a motion opposing summary judgment, 

arguing that genuine issues of material fact exist to preclude summary 

judgment, including the amount of damages owed and whether Green Tree 

Mall mitigated its damages as required by the Lease. On December 19, 2017, 

Green Tree Mall filed a reply in support of its motion for summary judgment, 

arguing in part that it has attempted to re-let the space. It submitted a 
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Supplemental Declaration of Christine Cullen, in which Cullen stated the 

following:

3. We employ two people to assist us with leasing open facilities

in Green Tree Mall, including the premises Subway leased (the 

“Premises”) that is the subject of this litigation.

4. Sherry Rawson, Green Tree Mall’s Director of Leasing, . . . 

focuses on trying to find permanent lessees for Green Tree Mall. 

In the normal course of her responsibilities she contacts and 

communicates with national and regional food chains and 

attempts to get them interested in spaces within the Green Tree 

Mall, including the Subway Premises.

5. Ms. Rawson attempted to interest several national chains in 

the Premises. Specifically, she engaged in serious discussions 

about the Premises with Charley’s Subs and Las Maria’s and 

showed the Premises to these companies. I have personally been 

involved in these efforts. Despite these efforts, Green Tree has 

not yet found a national or regional food tenant to relet the 

Premises.

6. Hillary Habermel, Green Tree’s Specialty Leasing Manager, 

generally attempts to find temporary lessees for Green Tree Mall. 

In the normal course of her responsibilities she contacts and 

communicates with local merchants and attempts to get them 

interested in spaces within the Green Tree Mall.

7. Ms. Habermel discussed the Premises with several potential 

tenants, but specifically remembers discussing the space with the 

following five businesses: Go! Calendars, Beda Yves MartinBarber Shop, Wayne Gullion; 0 Degrees, Eunice Marie Cronin, 

and Meyle’s Bakery. I have personally been involved with these 
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efforts. Despite these efforts, Green Tree has not yet found any 

local business to relet the Premises.

8. Green Tree has and continues to attempt to interest national, 

regional, and local tenants in the Subway Premises either on a 

permanent or temporary basis.

9. To date, notwithstanding its efforts to do so, Green Tree has 

not been able to relet the Premises.

Id. at 164-65. Green Tree Mall also submitted a Declaration of Hillary 

Habermel, its specialty leasing manager, in which Habermel stated the 

following:

3. I generally attempt to find temporary lessees for Green Tree 

Mall. In the normal course of my responsibilities I contact and 

communicate with local merchants and attempt to get them 

interested in spaces within the Green Tree Mall.

4. I have discussed Subway’s premises that is the subject of this 

litigation (the “Premises”) with several potential tenants, but 

specifically remember discussing the Premises with the following 

five businesses: Go! Calendars, Beda Yves Martin- Barber Shop, 

Wayne Gullion; 0 Degrees, and Eunice Marie Cronin.

5. Despite these efforts, I have not yet found anyone to relet the 

Premises.

Id. at 167-68. 
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[9] On January 11, 2018, a hearing took place on Green Tree Mall’s motion for 

summary judgment. During the hearing, Green Tree Mall’s counsel stated that 

it had submitted affidavits from two employees who had personal knowledge 

about the mall’s efforts to mitigate damages. At the end of the hearing, the trial 

court advised the parties that they could submit supplemental briefing regarding 

the acceleration provision and mitigation of damages. On June 21, 2018, the 

trial court issued its order, making the following findings of fact:

19. The Affidavit of Hillary Habermel, Green Tree’s Specialty 

Leasing Manager, states that she discussed the Premises with at 

least five potential tenants.

20. Subway owes Green Tree $363,615.77 in Fixed Minimum 

Rent; $98,308.83 in Tenant’s Share of Costs; $71,033.57 in 

Tenant’s Share of Real Estate Taxes; $66,237.86 in Promotion 

Fund Charges, and $180,372 in Damages . . . .

***

22. Green Tree’s total damages recoverable totals $812,002.64 

plus interest thereon at the rate set forth in the Lease.

Appealed Order p. 6 (citation omitted). The trial court then made the following 

conclusions of law:

The parties’ principal agreement provides the remedy for 

Subway’s default. Green Tree argues that Exhibit E to the Lease 

controls, which allows Green Tree to accelerate and recover all 

its contractual damages. Subway, on the other hand, argues that 

Article 20.2’s contractual limitation of $40,000 prevails.
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The Court agrees with Green Tree that Exhibit E prevails for 

several reasons. The language of Exhibit E contemplates 

potential inconsistencies between the Lease and Exhibit E and 

specifically states, “If there are any inconsistencies between the 

Lease and the provisions of this Exhibit E, the provisions of this

Exhibit E shall prevail.” Because courts are required to enforce 

unambiguous contractual language, the Court will do so here.

This conclusion is bolstered by the fact that Exhibit E specifically 

amends and supplements Article 20.2 on which Subway relies. 

Exhibit E plainly states as such: “The following Sections of the 

Lease are amended and supplement . . . Article 20 (Landlord’s 

Remedies).”

Id. at 8 (citations omitted). The trial court found that Green Tree Mall was

entitled to recover $812,002.64 plus pre-judgment interest from Subway. The 

trial court noted “that Exhibit E places on Green Tree an ongoing duty to 

mitigate its damages by making a good faith attempt to reasonably re-let the 

premises.” Id. at 10. Subway now appeals.

Discussion and Decision

I. Standard of Review

[10] Our standard of review on summary judgment is well settled:

The party moving for summary judgment has the burden of 

making a prima facie showing that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as 

a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012). 

Once these two requirements are met by the moving party, the 

burden then shifts to the non-moving party to show the existence 

of a genuine issue by setting forth specifically designated facts. 
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Id. Any doubt as to any facts or inferences to be drawn 

therefrom must be resolved in favor of the non-moving party. Id. 

Summary judgment should be granted only if the evidence 

sanctioned by Indiana Trial Rule 56(C) shows there is no genuine 

issue of material fact and that the moving party deserves 

judgment as a matter of law. Freidline v. Shelby Ins. Co., 774 

N.E.2d 37, 39 (Ind. 2002).

Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

II. Lease Interpretation

[11] Subway first argues that the trial court incorrectly found that the Lease’s term 

ended on June 30, 2024, and as a result, incorrectly applied the acceleration 

provision when calculating Green Tree Mall’s damages. The construction of a 

written contract is generally a question of law. The Winterton, LLC v. Winterton 

Investors, LLC, 900 N.E.2d 754, 759 (Ind. Ct. App. 2009). When interpreting a 

contract, we attempt to determine the intent of the parties at the time the 

contract was made. Id. When the language of the contract is unambiguous, the 

parties’ intent is determined from the four corners of the document. Id. “The 

unambiguous language of a contract is conclusive upon the parties to the 

contract as well as upon the court.” Id. A contract is ambiguous when a 

reasonable person could find its terms susceptible to more than one 

interpretation. Id. If a contract is ambiguous, the court may consider extrinsic 

evidence, and the construction of the contract becomes a matter for the trier of 

fact. Id.
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[12] Specifically, Subway asserts that the trial court misinterpreted the 2013 

Amendments to extend the lifespan of the Lease’s rent-acceleration provision. 

Subway points out that the 2013 Amendments created a new defined term—the 

Extension Term—to describe the ten-year renewal period of the Lease, yet did 

not alter the Expiry Date. Therefore, Subway argues, the 2013 Amendments

did not extend the acceleration provision beyond the Lease’s original end date 

of June 30, 2014.

[13] Exhibit E contains the acceleration provision, which becomes effective in the 

event of a default. Exhibit E clearly states that the acceleration provision 

applies “for the remainder of the Term (through the Expiry Date)[.]” 

Appellant’s App. Vol. II p. 93. The 2013 Amendments provide that “the Term 

of the Lease is hereby extended for a period of 10 years (the ‘Extension 

Term’)[.]” Id. at 99. By extending the Lease’s “Term” for ten years, the 2013 

Amendments extended the Lease’s provisions—including the obligations of 

Exhibit E. To interpret the amendments as Subway requests would lead to an 

impractical result in which only the amendments, rather than the Lease itself 

along with Exhibit E and the amendments, would govern the parties’ 

agreement. Because the 2013 Amendments extended the terms of the Lease for 

an additional ten years, Exhibit E’s acceleration provision remained in effect 

through the extended term, which ended on June 30, 2024.

[14] The trial court did not err by interpreting the language in the Lease, Exhibit E, 

and the 2013 Amendments, to find that Subway’s rent and fees were 
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accelerated and became due in the event of a default and termination of the 

Lease. Consequently, the trial court did not err in its calculation of damages.

III. Mitigation of Damages

[15] Subway next contends that the trial court erred by concluding that Green Tree 

Mall met its prima facie summary judgment burden of showing that there was 

no genuine issue of material fact with respect to whether Green Tree Mall 

mitigated its damages pursuant to the Lease.

[16] First, however, we must address Subway’s argument that the trial court erred by 

allowing Green Tree Mall to file a reply and supplemental designation of 

evidence regarding the issue of mitigation. Subway contends that the trial court 

should not have allowed the mall to submit supplemental declarations to 

compensate for what Subway considers the mall’s deficient initial designation

of evidence.

[17] We disagree. Subway neither moved to strike Green Tree Mall’s reply or 

supplemental evidence, nor did Subway object to the reply or supplemental 

evidence at the hearing below or in supplemental briefing. Regardless, our 

Court has previously addressed this issue:

Trial Rule 56 neither expressly permits nor precludes such a reply 

brief. The supreme court has, in other instances, either expressly 

permitted or expressly prohibited reply briefs. Compare T.R. 56 

with App. R. 54(D) (“Reply briefs on Rehearing are prohibited.”) 

and App. R. 46(C) (“The appellant may file a reply brief 

responding to the appellee’s argument.”) In Trial Rule 56, 

however, the supreme court has remained silent on the specific 
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subject of a reply brief. The Rule does, however, provide for 

affidavits submitted in support or in opposition to summary 

judgment to be supplemented or opposed by depositions, answers 

to interrogatories, and further affidavits. T.R. 56(E). Clearly, 

additional evidence after the initial filings is contemplated by the 

Trial Rule, . . .

Spudich v. N. Ind. Pub. Serv. Co., 745 N.E.2d 281, 287 (Ind. Ct. App. 2001). See 

also Auto-Owners Ins. Co. v. Benko, 964 N.E.2d 886, 889-90 (Ind. Ct. App. 2012)

(trial court did not err by denying motion to strike supplemental designation of 

evidence); Reed v. City of Evansville, 956 N.E.2d 684, 690 (Ind. Ct. App. 2011) 

(trial court may permit affidavits accompanying motion for summary judgment 

to be supplemented by additional affidavits accompanying the movant’s reply). 

Accordingly, the trial court did not err by allowing Green Tree Mall to file a 

reply and supplemental designation of evidence.

[18] Subway next contends that the evidence Green Tree Mall designated with its 

motion for summary judgment regarding its mitigation of damages—

specifically, Cullen’s statement that, “[t]o date, notwithstanding its efforts to do 

so, Green Tree has not been able to relet the Premises,” appellant’s app. vol. II 

p. 125—was insufficient to foreclose a genuine issue of material fact about 

whether Green Tree Mall reasonably tried to mitigate its damages. Yet, as 

discussed above, Green Tree Mall’s evidence included more than this 

statement: the mall’s supplemental evidence included affidavits by both Cullen 

and Habermel in which each person stated that the mall had attempted to lease 

the space to at least five different businesses. The trial court cited Habermel’s 
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affidavit in its order to support its conclusion that Green Tree Mall was meeting 

its ongoing duty to mitigate its damages.

[19] According to Subway, Green Tree Mall should have provided more evidence of

its mitigation of damages, such as information about its efforts to re-let the 

space or about the rent that it offered to possible new tenants. And it contends 

that it did not respond with its own designated evidence because Green Tree 

Mall’s designated evidence did not negate any factual issue regarding its duty to 

mitigate damages. We see the matter differently. Green Tree Mall satisfied its 

prima facie burden by designating two affidavits as evidence, each of which 

established that it had attempted to mitigate its damages, thereby satisfying its 

prima facie burden. Subway had an opportunity to address this issue during the 

hearing on Green Tree Mall’s motion for summary judgment and in the 

supplemental briefing that the trial court requested. It did not do so. As a 

result, based on the evidence in the record, there was no genuine issue of 

material fact before the trial court. The trial court did not err by finding that 

Green Tree Mall was meeting its ongoing duty to mitigate its damages. 

[20] The judgment of the trial court is affirmed.

May, J., and Tavitas, J., concur.