Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 1 of 16

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 APPELLANTS

John A. Kraft

Young, Lind, Endres & Kraft

New Albany, Indiana

ATTORNEY FOR APPELLEES

James F. Guilfoyle

Guilfoyle Law Office

Jeffersonville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mary Angela Bowser, Randall 

Bowser, Cathleen C. Perry, and 

Anthony P. Perry, 

Appellants (Third-Party Defendants),

v.

Paulette Oakes and Garland 

Oakes,

Appellees (Third-Party Plaintiffs).

PNC Bank, N.A.,

Plaintiff,

v. 

Click Portrait Studio, LLC, Paulette 

Oakes, and Garland Oakes, 

Defendants.

December 6, 2017

Court of Appeals Case No.

10A01-1702-CC-327

Appeal from the Clark Circuit Court 

The Honorable Bradley Jacobs, 

Judge

The Honorable Kenneth Abbott, 

Magistrate

Trial Court Cause No.

10C02-1307-CC-1077
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 2 of 16

Brown, Judge.

[1] Cathleen C. Perry and Anthony P. Perry appeal the trial court’s entry of 

summary judgment in favor of Paulette Oakes and Garland Oakes.

1

 The Perrys 

raise three issues which we consolidate and restate as whether the court erred in 

entering summary judgment in favor of the Oakeses. We affirm. 

Facts and Procedural History

[2] On or about May 25, 2011, Angela and Randall Bowser and Garland Oakes,

three members of the Indiana limited liability company, Click Portrait Studios, 

LLC, (the “LLC”), adopted and signed a resolution that states:

WHEREAS, the members of the LLC deem it advisable and in 

the best interest of the Company that [Garland] Oakes withdraw 

from the LLC; thereby relinquishing his interest in the LLC; and

WHEREAS, the members of the LLC deem it advisable and in 

the best interest of the Company that the members memorialize 

their agreement in writing;

NOW, THEREFORE, BE IT:

RESOLVED, that the members hereby approve and authorize 

the withdrawal of [Garland] Oakes as a member of the LLC; and

RESOLVED FURTHER, that any interest [Garland] Oakes may 

have in the LLC shall terminate; and 

RESOLVED FURTHER, that the members have entered into a 

DEBT SERVICING AGREEMENT and a GUARANTY 

 

1 Third-party plaintiff Garland Oakes signed documents as “Grant Oakes.” See Appellants’ Appendix 

Volume 2 at 75-76; Appellants’ Brief at 6 n.1. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 3 of 16

AGREEMENT memorializing the conditions under which 

[Garland] Oakes is agreeing to withdraw as a member of the 

LLC; and

RESOLVED FURTHER, that Angela Bowser and Randall 

Bowser shall continue as members of the LLC, and Cathleen C. 

Perry and Anthony P. Perry shall become members of the LLC; 

and

RESOLVED FURTHER, that Angela Bowser and Randall 

Bowser shall amend the Operating Agreement of the LLC, 

subject to the terms and conditions of the DEBT SERVICING 

AGREEMENT and the GUARANTY AGREEMENT; and

RESOLVED FURTHER, that all acts and deeds heretofore 

performed by the members of the LLC in carrying out the terms 

and intentions of these resolutions, are hereby ratified, approved 

and confirmed. 

Appellants’ Appendix Volume 2 at 75.

[3] On or about the same day, Garland Oakes, the Bowsers, and the Perrys signed 

an instrument prepared by Rachele L. Cummins, titled “Guaranty Agreement,” 

which provides:

THIS AGREEMENT . . . by Angela Bowser, Randall Bowser, 

Cathleen C. Perry, and Anthony P. Perry, (hereinafter 

collectively referred to as “Guarantors”) in favor of [Garland]

Oakes (and/or Paulette Oakes, his spouse, as her name may 

appear) (hereinafter referred to as “Oakes”), 

WHEREAS, Guarantors are the current Members of the Indiana 

limited liability company known as Click Portrait Studio, LLC 

(hereinafter referred to as “LLC”); and 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 4 of 16

WHEREAS, Oakes was a former member of the LLC but has 

resigned; and

WHEREAS, contemporaneously with the execution of this 

Guaranty Agreement, the parties are entering and executing a 

“Debt Servicing Agreement” which is attached hereto and made 

a part hereof, as if totally set out; and

WHEREAS, the parties desire to memorialize their Guaranty 

Agreement, 

THEREFORE, for and in consideration of the mutual promises 

and covenants existing herein, the parties acknowledge and agree 

as follows:

The Guarantors do hereby jointly and severally, guaranty 

absolutely, irrevocably, personally, and unconditionally Oakes 

the due and punctual payment of all installments of principal and 

interest now or in the future due on the debts until the debts are 

paid in full. 

Id. at 77. 

[4] On or about the same day, the same parties entered into a second instrument 

prepared by Cummins, titled “Debt Servicing Agreement,” which provides: 

THIS AGREEMENT . . . by and between Click Portrait Studio, 

LLC (hereinafter referred to as the “LLC”) and [Garland] Oakes 

(hereinafter referred to as “Oakes”).

WHEREAS, Oakes has elected to withdraw his membership 

interest in the LLC; and

WHEREAS there are certain debts owed by the LLC that may be 

in Oakes [sic] name individually or jointly with his spouse 

and/or Oakes may have personally guaranteed; and 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 5 of 16

WHEREAS the LLC and its remaining members are not able to 

refinance the debt to remove Oakes [sic] name; and 

WHEREAS OAKES agrees to allow his name to remain on the 

debt and his property pledged as collateral provided that the LLC 

and its individual members, jointly and severally, pay, indemnify 

and hold him harmless from said debt and, in addition thereto, 

pay $45,000 for debt servicing; and

WHEREAS, the parties desire to memorialize their Agreement, 

THEREFORE, for and in consideration of the mutual promises 

and covenants existing herein, the parties acknowledge and agree 

as follows:

1. The Parties agree that the following debts of the LLC 

may be in the name of Oakes individually or jointly 

with his spouse or guaranteed by Oakes but shall 

remain the sole and separate obligation of the LLC and 

its individual members, jointly and severally:

i. PNC credit card with an approximate balance of 

$18,340

ii. US Bank credit card with an approximate balance of 

$11,105

iii. First Savings Bank with an approximate balance of 

$73,823

iv. PNC bank loan with an approximate balance of 

$178,475

2. The LLC and its individual members, jointly and 

severally, shall pay, indemnify and hold [Garland]

Oakes and his spouse harmless on the indebtedness 

listed in paragraph 1 above from and against any and 

all losses, liabilities, damages, costs and expenses, 

including all legal fees and expenses that he may incur 

as a result of failure to pay said indebtedness. In 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 6 of 16

addition, should any regular and scheduled payment on 

any of the debts listed in paragraph 1 above be paid late 

or paid untimely for any reason whatsoever, Oaks [sic] 

shall be entitled to additional liquidated damages in the 

amount of Thirty Dollars ($30.00) for each day said 

payment is lae [sic] or untimely. Oakes’ remedies for 

late or non-payment shall be cumulative and may be 

enforced at law or in equity.

3. The LLC and/or its individual members, jointly and 

severally shall pay to Oakes the total sum of $45,000, 

payable in 3 installments of $15,000 each due and 

payable on the following dates: immediately upon 

execution of this agreement; June 1, 2012; and June 1, 

2013. 

Id. at 79-80. 

[5] The Perrys and the Bowsers signed a Purchase Agreement of Membership 

Interest on December 13, 2012, providing: 

1. Angela Bowser and Randall Bowser shall transfer their 

respective membership interest in the [LLC] to Cathleen C. 

Perry. 

* * * * * 

5. That Cathleen C. Perry, on behalf of the [LLC], assumes the 

current outstanding obligations of the [LLC], including, but not 

limited to the indebtedness thereunder. 

6. The Parties agree to indemnify and hold harmless each other 

with respect to any and all issues resulting from their ownership 

of their respective membership interest in the [LLC]. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 7 of 16

Id. at 111-112. 

[6] On July 23, 2013, PNC Bank, N.A. (“PNC”) filed a complaint against the LLC

and the Oakeses, which states in part that, on or about May 15, 2007, the LLC, 

as the borrower, “executed and delivered a Promissory Note in favor of PNC in 

the amount of Three hundred Thousand Six Hundred and 00/100 Dollars 

($317,600.00),”

2 which was due and payable in full by its terms, that the 

Oakeses as guarantors “absolutely and unconditionally guaranteed the 

obligations of [the LLC] to PNC by virtue of their Commercial Guaranties,”

and that the LLC “executed and delivered a Commercial Security Agreement.”

Id. at 34. The complaint also states that, as of January 8, 2013, the “principal 

sum of $121,660.97, accrued interest of $4,249.45, late charges in the amount of 

$2,328.60, plus per diem interest that continues to accrue, costs and attorney 

fees to be determined at judgment” is due on the note. Id.

[7] On September 19, 2013, the Oakeses filed an answer and a third-party 

complaint against the Bowsers and the Perrys which alleging in part: 

11. On or about May 25, 2011, [the Bowsers and the Perrys] 

became the members of [the LLC]. Defendant [Garland] Oakes 

withdrew from the LLC. See Exhibit 2.

12. On or about May 25, 2011, third party defendants, [agreed]

jointly and severally, to pay, indemnify and hold the [Oakeses]

 

2 The original PNC complaint included an attached exhibit containing the original promissory note and the 

pair of unconditional guarantee agreements, which state in part that the note is “dated 5-15-07 in the 

principal amount of Three Hundred Seventeen Thousand Six Hundred & 00/100 Dollars.” Appellants’ 

Appendix Volume 2 at 40. (Appellants’ App. Vol. 2 at 33-51) 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 8 of 16

harmless on the debt which forms the basis of the complaint. See 

Exhibits 3 (“Guaranty Agreement”) and 4 (“Debt Servicing 

Agreement”).

13. Additionally, third party defendants, jointly and severally, 

agreed to pay any losses, liabilities, damages, costs, expenses, 

and legal fees for the failure to pay said debt. See Exhibit 4. 

* * * * * 

15. In the event PNC recovers judgment against the [Oakeses]

on its complaint, third party defendants are liable to the 

[Oakeses] in a like amount, and are also liable for costs, 

expenses, fees and liquidated damages.

Id. at 53-54. On October 10, 2013, PNC subsequently amended its complaint to 

reflect the new third-party claim. Summary judgment was granted on the 

amended complaint in favor of PNC against the Oakeses and the LLC on 

December 26, 2014. 

[8] On November 24, 2015, the Oakeses filed a motion for summary judgment

against the Perrys as third-party defendants. In their supporting memorandum,

the Oakeses argued that on or about May 25, 2011, the Perrys “assumed the 

obligations of [the LLC], as well as the obligations associated with the 

[Oakeses] involvement in the business. The Perrys promised and pledged their 

willingness to hold the [Oakeses] harmless on these debts,” and that the Perrys 

assented to the terms of an indemnification agreement wherein 

they promised due and punctual payments would be made on 

behalf of the [Oakeses]. The payments were not made, and these 

documents, taken together, remove all doubt as to whether a 

factual dispute can exist regarding indemnity liability. The 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 9 of 16

Perrys signed the agreements, signatures which they do not deny, 

and now must be held to the terms of those agreements.

Id. at 122. 

[9] In their response to the motion for summary judgment, the Perrys designated as 

evidence the Purchase Agreement of Membership Interest, the Affidavit of 

Cathleen C. Perry, and the opinion of the Indiana Supreme Court case, In re 

Indiana State Fair Litig., 49 N.E.3d 545 (Ind. 2016), as well as the May 25, 2011, 

Resolutions of the Members, and Guaranty and Debt Servicing Agreements. 

The Affidavit of Cathleen C. Perry, signed and dated January 28, 2016, states:

1. . . . I am an owner of [the LLC].

2. I, along with Anthony P. Perry, purchased a membership 

interest in [the LLC] on December 13, 2012.

3. Before purchasing the membership interest, I communicated 

with PNC regarding the debt of [the LLC]. 

4. During these conversations, PNC knew that some of [the 

LLC’s] assets had been misappropriated at a time before I 

purchased my membership interest.

5. During these conversations, PNC knew that unauthorized 

distributions of [the LLC’s] capital had been made at a time 

before I purchased my membership interest. 

6. PNC never disclosed to me nor Anthony that any 

misappropriation or unauthorized distribution had occurred. 

7. I asked PNC about [the LLC’s] financial background. PNC 

would not disclose financial details because to do so would 

violate their confidentiality rules. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 10 of 16

8. I executed the Purchase Agreement to become owner of [the 

LLC].

9. Solely, in my capacity as owner of [the LLC], I assumed 

financial responsibility for outstanding obligations of [the LLC]. 

10. Garland Oakes had entered into a debt servicing agreement 

with [the LLC] on May 25, 2011.

11. Upon his departure, Garland Oakes wanted to be released 

from certain debt he had taken on as a member, but could not 

have his name removed. 

12. Garland Oakes agreed to stay on the debt servicing 

agreement only if all of the four (4) members of Click assumed 

this specific debt. 

* * * * * 

15. The Purchase Agreement did not cover the familial debt and 

any personal obligation to pay.

* * * * * 

17. Any notes and/or other debts executed prior to my tenure as 

an owner were executed by [the LLC] in its business capacity, 

not by any individual members in their personal capacities. 

18. I have never changed limited liability status of [the LLC].

19. [The LLC] was dissolved in 2013 and has not been 

reinstated.

Id. at 143-144.

[10] In their response, the Perrys also argued that “misappropriations and 

unauthorized distributions had occurred, unbeknownst to [the Perrys] upon 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 11 of 16

execution,” and that the LLC “should only be deemed responsible for any debts 

related to the photography business. It should not be held accountable for nonbusiness debts to which its members, [the Perrys], were not aware.” Id. at 139. 

[11] An entry in the chronological case summary dated April 25, 2016, states in part, 

“[a]fter having taken this matter under advisement, the Court finds as follows: . 

. . The Court grants Third Party Plaintiff’s (Oakes) Motion for Summary 

judgment against Third Party Defendant (Perry).” Id. at 18. The trial court 

entered a first amended order granting summary judgment on August 30, 2016, 

and a second amended order on January 20, 2017, which granted the Perrys’ 

motion for certification for interlocutory appeal. 

Discussion

[12] The issue is whether the trial court erred in entering summary judgment in 

favor of the Oakeses. We review an order for summary judgment de novo, 

applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 

1003 (Ind. 2014). Our review of a summary judgment motion is limited to 

those materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t 

of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). In reviewing a trial court’s 

ruling on a motion for summary judgment, we may affirm on any grounds 

supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox 

Cnty., 779 N.E.2d 1, 3 (Ind. 2002). The moving party bears the initial burden of 

making a prima facie showing that there are no genuine issues of material fact 

and that it is entitled to judgment as a matter of law. Manley v. Sherer, 992 

N.E.2d 670, 673 (Ind. 2013). Summary judgment is improper if the moving 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 12 of 16

party fails to carry its burden, but if it succeeds, then the nonmoving party must 

come forward with evidence establishing the existence of a genuine issue of 

material fact. Id. We construe all factual inferences in favor of the nonmoving 

party and resolve all doubts as to the existence of a material issue against the 

moving party. Id. 

[13] The Perrys contend on appeal that the Oakeses did not demonstrate that there 

were no genuine issues of material fact, that “contracts for indemnification are 

construed strictly and, in this case, as it was for past wrongdoings, the Perrys 

cannot be held to have assumed those damages unless they knowingly and 

willingly did so,” and that “there was no agreement between the [Oakeses] and 

the Perrys that the Perrys would assume non-[LLC] debt or any debts that 

occurred due to embezzlement, conversion, deceit, or other wrongdoing.” 

Appellants’ Brief at 9. They also argue that the Oakeses “failed to disclose 

certain loan defaults to the Perrys,” that this failure of the meeting of the minds 

necessitates a finding of failure to form a binding contract, and that the Debt 

Servicing Agreement and the Guaranty Agreement were “vague and unspecific 

and did not illustrate the previously incurred debt of which the [Oakeses] were 

attempting to transfer their liability.” Appellants’ Reply Brief at 12-13. 

[14] The Oakeses contend that summary judgment entered on the “attempt to 

recover under the indemnity agreement related to the sale of their small 

business was proper,” that the dispute “involves whether a fraud occurred as 

alleged by the Perrys, and if it did, whether the Perrys should have plead those 

facts with specificity,” and that, because the Indiana Rules of Trial Procedure 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 13 of 16

“require specificity when dealing with averments of fraud,” the “failure to 

comply therewith” should control in this case.3 Appellees’ Brief at 11-12. 

[15] The construction of a contract is particularly well-suited for de novo appellate 

review because it generally presents questions purely of law. Holiday Hospitality 

Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind. 2013) (citing 

Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997)). A contract 

may be construed on summary judgment “if it ‘is not ambiguous or uncertain,’ 

or if ‘the contract ambiguity, if one exists, can be resolved without the aid of a 

factual determination.’” In re Indiana State Fair Litig., 49 N.E.3d 545, 548 (Ind. 

2016) (quoting Warrick County ex rel. Conner v. Hill, 973 N.E.2d 1138, 1144 (Ind. 

Ct. App. 2012), trans. denied). The meaning of a contract is a question for the 

factfinder, precluding summary judgment, only where interpreting an ambiguity 

requires extrinsic evidence. Id. (citing Tate v. Secura Ins., 587 N.E.2d 665, 668 

(Ind. 1992)). 

[16] A contract is not ambiguous merely because the parties disagree as to its proper 

construction. Ethyl Corp. v. Forcum-Lannom Assocs., Inc., 433 N.E.2d 1214, 1218

(Ind. Ct. App. 1982). When this court interprets an unambiguous contract, we 

must give effect to the intentions of the parties as expressed in the four corners 

of the instrument. Id.; Collins v. McKinney, 871 N.E.2d 363, 372 (Ind. Ct. App.

2007). Clear, plain, and unambiguous terms are conclusive of that intent. Fetz 

 

3

In response to the Oakeses’ brief, the Perrys filed a motion to strike on May 19, 2017. By separate order we 

deny the motion.
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 14 of 16

v. Phillips, 591 N.E.2d 644, 647 (Ind. Ct. App. 1992). We will not construe 

clear and unambiguous provisions, nor will we add provisions not agreed upon 

by the parties. Id. (citing Wilson v. Elliott, 589 N.E.2d 259, 264 (Ind. Ct. App.

1992)). In interpreting an agreement, we are under an obligation to read the

agreement in a manner which harmonizes its provisions as a whole and to give 

effect to the parties’ expressed intent. Kelly v. Smith, 611 N.E.2d 118, 121 (Ind.

1993); see also Trustees of Ind. Univ. v. Cohen, 910 N.E.2d 251, 257-260 (Ind. Ct. 

App. 2009).

[17] The designated evidence reveals that the Perrys became members of the LLC 

on or about May 25, 2011, by way of a resolution signed by three of its thencurrent members. The Perrys signed a document on or about the same day, 

titled “Guaranty Agreement,” which references the “Debt Servicing 

Agreement” and states that Garland Oakes was a former member of the LLC 

and that the Perrys and the Bowsers “jointly and severally, guaranty absolutely, 

irrevocably, personally, and unconditionally . . . the due and punctual payment 

of all installments of principal and interest now or in the future due on the debts 

until the debts are paid in full.” Appellants’ Appendix Volume 2 at 77. The 

Perrys also signed the Debt Servicing Agreement, which states that “certain 

debts owed by the LLC” may have been “personally guaranteed” by the 

Oakeses, that Garland Oakes allowed his name to remain on the debt 

“provided that the LLC and its individual members, jointly and severally, pay, 

indemnify and hold him harmless from said debt,” and that the debts, including 

the “PNC bank loan with an approximate balance of $178,475,” which may 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 15 of 16

have been “in the names of [Garland] Oakes individually or jointly with his 

spouse or guaranteed by Oakes,” shall remain “the sole and separate obligation 

of the LLC and its individual members, jointly and severally.” Id. at 79. The 

agreement also contains a second paragraph that states the LLC and its 

individual members, “jointly and severally,” shall “pay, indemnify and hold 

[Garland] Oakes and his spouse harmless on the indebtedness listed [above] 

from and against any and all losses, liabilities, damages, costs and expenses, 

including all legal fees and expenses that he may incur as a result of failure to 

pay said indebtedness.” Id. at 79-80. Given the clear, plain, and unambiguous 

recitation of the rights and responsibilities of the parties, we will not read the 

agreements in a manner inconsistent with the intent as unambiguously 

expressed by the language in the agreements. See Ethyl Corp., 433 N.E.2d at 

1218. We cannot say that the trial court erred in granting summary judgment

in favor of the Oakeses based on the agreements as set forth above and in the 

record. 

[18] To the extent that the Perrys assert that a material issue of fact exists regarding 

their defense of fraud and that they did not agree to guarantee non-LLC debt, 

we observe that Cathleen Perry’s affidavit relates primarily to PNC’s knowledge 

and failure to disclose that any misappropriation or unauthorized distribution

had occurred. Construing the agreements together, we conclude there is not a 

genuine issue of material fact as to the debt guaranteed by the Perrys or their 

fraud defense. See Kruse v. Nat’l Bank of Indianapolis, 815 N.E.2d 137, 144 (Ind. 

Ct. App. 2004) (observing that the appellant argued that ambiguities existed as 
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CC-327 | December 6, 2017 Page 16 of 16

to what debt he had guaranteed, that in construing the guarantee the court 

would give effect to the intentions of the parties as ascertained from the 

language of the contract in light of the surrounding circumstances, and that it 

was clear from the face of a loan agreement and a guaranty signed by the 

appellant that he had agreed to act as a guarantor of certain indebtedness, and 

rejecting the claim by the appellant that there was a genuine issue of material 

fact as to what debt he guaranteed). 

Conclusion

[19] For the foregoing reasons, we affirm the entry of summary judgment in favor of 

the Oakeses and against the Perrys. 

[20] Affirmed.

May, J., and Pyle, J., concur.