Court of Appeals of Indiana | Opinion 19A-PL-2560 | June 25, 2020 Page 1 of 18

ATTORNEY FOR APPELLANT

Jeffrey M. Heinzmann

Heinzmann Law Office LLC

Fishers, Indiana 

ATTORNEY FOR APPELLEE

Curtis E. Shirley, Esq. 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

Brian K. Southard,

Appellant,

v.

Keltner Property Group, LLC,

Appellee. 

June 25, 2020

Court of Appeals Case No.

19A-PL-2560

Appeal from the Hamilton 

Superior Court 

The Honorable Gail Bardach, 

Judge

Trial Court Cause No.

29D06-1809-PL-9198

Brown, Judge.
Court of Appeals of Indiana | Opinion 19A-PL-2560 | June 25, 2020 Page 2 of 18

[1] Brian K. Southard appeals from the trial court’s judgment in favor of Keltner 

Property Group, LLC (“Keltner Property” or “Plaintiff”). We affirm. 

Facts

[2] In March 2013, “K & E KELTNER PROPERTY GROUP, LLC,” as the 

landlord and “ABELARD LLC” (“Abelard”) and Southard as the tenants

entered into a lease related to real property on Main Street in Carmel, Indiana. 

Plaintiff’s Exhibit 1-A at 1. The opening paragraph of the agreement states: 

“THIS LEASE, entered into by the K & E KELTNER PROPERTY GROUP, 

LLC, an Indiana limited liability company (‘Landlord’) and ABELARD LLC 

& Brian Southard – Social Security No. [Redacted] (‘Tenant’).”1

 Id. The term 

of the lease was for three years beginning on May 1, 2013, and the lease 

provided for rent increases in May 2014 and May 2015. At the end of the lease

document and below the word “Tenant,” Southard’s signature appears and, on

a line below his signature for his “Title,” the word “Tenant” appears. Id. at 16. 

Kenneth Keltner (“Kenneth”) signed the lease on behalf of K & E Keltner 

Property Group, LLC. 

[3] A lease dated January 29, 2015, was executed related to real property on 

Carmel Drive in Carmel, Indiana, and the opening paragraph of the agreement 

states: 

1 Brackets in exhibit. 
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THIS LEASE, entered into by the KELTNER PROPERTY 

GROUP, LLC, an Indiana limited liability company (“Landlord”) 

and Restor Company an Indiana [corporation], & Brian Southard –

Social Security No. [Redacted] Tenant. 

Plaintiff’s Exhibit 1-B at 1.2 Kenneth and his son Eric Keltner (“Eric”) were the 

owners of Keltner Property. The lease form was similar to that used for the 

2013 lease. The term of the lease was for five years and began on February 1, 

2015. The lease provided that Tenant agreed to pay Landlord base annual rent 

payable in monthly installments as follows: 

Term Annual Rent Monthly Rent

. . . Months 1-12[] $45,104.46 $3,758.71

Months 13-24 $60,104.12 $5,008.68

Months 25-36 $61,684.26 $5,140.36

Months 37-48 $63,306.94 $5,275.58

Months 49-60 $64,971.28 $5,414.27 

Id. at 3. In addition to base annual rent, the lease provided Tenant agreed to 

pay its proportionate share of certain other expenses including real estate taxes 

and operating expenses for the building and common area (“CAM”). It 

provided “[t]he current monthly CAM is $725.17.” Id. The lease also provided 

that, upon the expiration or earlier termination of the lease, “Tenant shall 

surrender to Landlord the Leased Premises . . . broom clean and in the same 

order and condition in which Tenant received them.” Id. at 5. The lease 

indicated that “[a]ny notices to be given hereunder shall be deemed sufficiently 

2 Brackets in exhibit. 
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given when . . . directed to the party to be notified at the following addresses . . . 

: If to Landlord at: Keltner Property Group, LLC . . . If to Tenant at: Brian 

Southard [personal address] . . . .” Id. at 14. The lease also provided: “If there 

is more than one Tenant, their obligation shall be joint and several.” Id. At the 

end of the lease document, the parties’ signatures appear as follows: 

Plaintiff’s Exhibit 1-B at 17.

[4] Keltner Property received rent payments under the 2015 lease from February 

2015 through August 2018.3 However, following the first year of the lease 

term, Keltner Property continued to receive base rent payments equal to the 

amounts due during the first year of the term and which did not reflect the 

scheduled annual rent increases.4

 

3 Kenneth indicated rent payments were received from Restor or one of Southard’s other companies. 

4 Keltner Property presented an exhibit indicating the total amounts paid and shortages for each year of the 

lease term which indicated $53,800.08 was paid during the first three years of the lease. 
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[5] On September 26, 2018, Keltner Property filed a Complaint for Breach of Lease 

Agreement against Southard and Restor Company (“Restor,” and together with 

Southard, “Defendants”) alleging they failed to pay installments of rent when 

due. 

[6] On August 22, 2019, the court held a bench trial at which it heard testimony 

from Kenneth, Eric, and Southard. The court also admitted twenty-three 

exhibits including the 2013 and 2015 lease agreements, photographs of the

leased premises, invoices for services to clean and repair the premises, and

attorney fee invoices. It also admitted an email message from Kenneth to 

Southard in January 2016 stating that February 1st was the anniversary of the 

lease and that, on that day, the lease would adjust such that base rent would be 

$5,008.68 and CAM would be $725.17. A reply from Southard to Kenneth

Keltner stated: “Is there anyway we can keep my lease at its current level? 

There is no way I can afford this under the current circumstances . . . we are 

barely hanging on as it is. Please, lets [sic] discuss.” Plaintiff’s Exhibit 2. 

[7] Kenneth testified regarding meeting Southard in 2013, approaching him 

regarding renting the premises on Main Street, and the 2013 lease. He testified 

regarding his further discussions and negotiations with Southard regarding 

leasing the premises on Carmel Drive in 2015. In particular, he testified that 

Southard had concerns “about if things went south with his company” and that, 

as a result, he offered Southard an option which was incorporated into the 

agreement. Transcript Volume II at 13. He testified that, under the option, 

Southard “would have . . . 10 months in the new location to get adjusted to the 
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rent and also to see if business continued to grow, and also if it didn’t, we 

would take a haircut, reduce the rent, and extend the months from 60 to 72.”5

 

Id. He indicated the option was required to be exercised by November 15, 

2015, and Southard did not exercise the option. He testified that, after the 2015 

lease was signed, he exchanged numerous emails with Southard concerning the 

lease and had a phone conversation regarding the scheduled rent increases. 

Kenneth testified that Southard had started a new company, “said he was 

running short,” and “was writing checks from two different companies.” Id. at 

19. He testified regarding the amounts of unpaid rent, when the premises were 

vacated, the condition of and damage to the premises, the unauthorized 

alterations made to the premises, and the amounts expended to clean and repair 

the premises. Kenneth further testified as follows: 

Q. Did there come a time when this [2015] lease agreement . . . was 

listed on a bankruptcy petition by Restor where you had to show up in 

federal bankruptcy court?

A. [Kenneth] I received a notice for bankruptcy court when Restor 

went into bankruptcy. I called Brian [Southard], and I said, “Brian, I’m 

not part of this bankruptcy because this is a lease with you as an 

individual. It’s got nothing to do with Restor.”

Q. All right. Well, Restor and Mr. Southard were on the lease. Is that 

right?

A. Correct.

5 The lease agreement provided Tenant had the option to extend the term of the lease by one year, the option 

was required to be exercised by November 1, 2015, and in that event, the base annual rent for Months 13-24 

would have been $46,644.12 and for Months 61-72 would have been $66,679.37. (Ex at 32-33) 
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Q. All right. And fair to say that you showed up in bankruptcy court, 

right?

A. Yes, sir.

Q. All right.

A. To protect my interest.

Q. I understand. And also fair to say that the lease agreement and your

relationship with Mr. Southard was taken out of the bankruptcy 

process, specifically by the judge there?

A. Yes.

Q. Okay. All right.

A. At my request.

Q. I understand. And Mr. Southard was there?

A. Correct.

Id. at 38-39. On cross-examination, when asked “[i]s it fair to say that you’re 

here seeking judgment today against Mr. Southard and not really actually 

Restor because Restor wouldn’t be able to pay a judgment against it,” Kenneth

answered “[t]hat is correct.” Id. at 39. When asked if he knew who “Becky 

Hintz” was, Kenneth replied “[a]n employee of Brian’s,” and when asked “[a]n 

employee of Brian’s or an employee of Restor’s,” he answered “[s]ame 

difference. Brian is Restor.” Id. at 44. 

[8] Eric testified he signed the 2015 lease and delivered it to “Becky Heinz” at 

Restor’s location, she indicated that Southard was not present but would sign 

the lease when he returned, he left the lease document with her, and it was later 
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delivered to his office. Id. at 46. He testified he later saw Southard in the 

parking lot and asked him if he had received the keys, Southard replied “[y]es. 

Did you get the lease,” and he replied affirmatively. Id. at 48. 

[9] Southard testified he lived in Carmel, was in the construction business, worked 

with Restor Group, LLC, and previously was the owner of Restor Property 

Restoration, LLC. He testified his signature was on the 2013 lease. When 

asked “you understood under that lease that you were personally liable for the 

obligations under that lease,” he replied “[n]o, I didn’t, but I’ve realized that 

since then.” Id. at 52. He testified he and his business partner shut down 

Abelard, LLC, and he opened Restor Property Restoration, LLC. He indicated 

Kenneth “kept approaching us” about moving to the Carmel Drive location, 

they had discussions periodically through the fall of 2014, he was working from

his Chicago office for almost all of 2014, he never told Kenneth he was ready to 

move to a new location, he was in Phoenix for the Super Bowl on the day Eric 

signed the 2015 lease, and he “hadn’t even read it yet.” Id. at 53, 55. When 

asked if his signature was on the lease, he replied: “No. It’s my signature stamp 

that we use for checks.” Id. at 55. He indicated no one in his office was 

authorized to use his signature stamp for anything other than checks. When 

asked, “[b]y the time you were done with Abelard, had your attitude about 

personal guarantees changed,” he replied: “Absolutely. I never signed leases or 

supplier agreements with personal guarantees. Absolutely not.” Id. at 56-57. 

He indicated Restor moved to the Carmel Drive premises while he was out of 

town and no one told him the move was happening at the time. He stated “the 
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first time I found out that we had an escalation of almost a thousand dollars 

from year to year was when Kenny and I talked about the first increase” and 

“that was shocking to me.” Id. at 59. When asked if he signed the contract, he 

answered “I did not.” Id. at 64. When asked “[w]hy did you keep paying 4883 

[sic] per month, year after year on this,” Southard testified: “Well, we had 

moved into the office. You don’t want to end up moving twice in the same 

year. . . . We paid on time. I just didn’t agree with the lease that was executed 

when I wasn’t there. I didn’t agree with the escalation. I didn’t agree with the 

personal guarantee.” Id. at 65-66. When asked if he ever agreed to the lease, he 

answered “I did not.” Id. at 66. 

[10] On October 2, 2019, the trial court issued findings of fact and conclusions 

which provided in part:

FINDINGS OF FACT

* * * * *

3. Brian Southard signed, or authorized the signature stamping of, the 

2015 Restor lease agreement just as he had signed the 2013 Abelard 

lease agreement. 

* * * * *

5. The defendant, Brian Southard, negotiated the terms of the 2015 

lease agreement with Kenneth Keltner.

* * * * *

7. The 2015 lease was executed as acknowledged by Eric Keltner and 

Brian Southard, Brian Southard having asked Eric Keltner if he had 

gotten the lease. The Defendants occupied the business property 
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located at the Carmel Drive premises beginning January, 2015, and 

continuing through September 28, 2018.

8. The 2015 lease agreement identified both Restor and Brian Southard 

as the “Tennant” [sic] at the beginning of the agreement, and provided 

two signature blocks for the tenant to sign at the end. Only one 

signature block carried a signature, or signature stamp; the other was 

left blank. The block that was signed, or signature stamped, carried the 

apparent signature and name of Brian Southard. Notably, the signature 

(or stamp) of Brian Southard appeared exactly as did his signature on 

the 2013 lease agreement.

9. The Defendant Brian Southard denied signing the 2015 lease 

agreement and claimed that an employee of Restor, Becky Hintz / 

Heinz placed his signature stamp upon it without his authorization. 

* * * * *

13. Brian Southard testified that he did not read the 2015 lease 

agreement.

l4. Brian Southard also testified that he would never sign a lease 

agreement which contained a provision for annual rent increases.

15. Brian Southard testified that he did sign the 2013 lease agreement, 

which the Court finds did contain a provision for annual rent 

agreements.

16. In that respect, the Court finds the 2013 and 2015 lease agreements 

to be similar, if not identical, except as to the amounts of the increases. 

There was no explanation given at trial for the presence of the second 

signature box in the 2015 lease agreement.

17. The Defendants moved into the Carmel Drive premises in January, 

2015.

18. The Defendant Brian Southard claimed that he did not know that 

his business had moved, that he had not agreed to move, and that the 

move was done, hurriedly, while he was “away”. Nevertheless, he 

occupied the leased Carmel Drive premises.
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* * * * *

20. Kenneth Kellner and Brian Southard discussed the lease agreement 

and its rent increase provision in January, 2016. Brian Southard 

attempted to negotiate with Kenneth Keltner to forego increasing the 

rent. That attempted negotiation was not, the Court finds, successful.

21. Evidence was presented, and the Court finds, that there was 

$199,838.63 in unpaid rent . . . , and $3,200.00 in unpaid utilities . . . 

due and owing under the terms of the 2015 lease agreement. 

* * * * *

23. The Defendants did not leave the Carmel Drive premises “broom 

clean or in the same order and condition” in which they received them. 

* * * * *

26. The Defendants substantially changed the walls without the prior 

consent of the Plaintiff. 

* * * * *

28. The Defendants removed an outdoor sign, and did not repair 

damages resulting from that removal. . . . 

* * * * *

30. It stretches, if not is beyond, belief that a person of Brian Southard’s 

business acumen did not either sign himself, authorize, or ratify and 

intend to be bound by the lease agreement at issue in this cause, when 

the Defendants occupied the leased premises for over a two and a half

year period of time.

31. It stretches, if is not beyond, belief that any business tenant of any 

business acumen would ask a landlord if he had gotten a lease if he did 

not intend to be bound by it.

32. It stretches, if is not beyond, belief that any business owner would 

not know of the relocation of his business office from one place to 

another, or that such a move was done without his knowledge and/or 

consent, hurriedly, while he was “away”.
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33. The Court cannot find truth and/or veracity in much of the 

Defendant Brian Southard’s testimony.

34. As to whether Brian Southard actually executed and/or authorized, 

or only ratified the lease agreement at issue, the Court finds [it] to be 

immaterial. Either actual execution and/or authorization, or 

ratification and acceptance of the lease agreement’s benefits, binds the 

Defendants.

CONCLUSIONS OF LAW

The Court wishes to make clear that at issue in this cause is one lease 

agreement and one lease agreement only: that entered into evidence . . . 

between the Keltner Property Group, LLC and Brian K. Southard and 

the Restor Company. Not at issue in this cause are seven or any other 

number of other cases in which the Defendant Brian Southard and/or 

any of his companies have been named as defendants. . . . 

35. The Court finds Exhibit l-B [2015 lease] to be a valid and binding 

contract between Plaintiff and the Defendants. 

36. The Court must ascertain and give effect to the intent of the parties 

to the contract in this case: the 2015 lease agreement. 

37. The intent of the parties can be determined from the course of 

conduct of the parties, and/or their principals, over the course of time 

that the Carmel Drive premises were occupied by the Defendants, and 

by the comparison of the two lease agreements entered into evidence as 

Exhibits 1-A [2013 lease] and 1-B [2015 lease]. 

38. The Court concludes that Brian Southard, on behalf of, and as 

owner of, Restor, and personally himself, either signed the lease 

agreement, or authorized it to have been signature stamped. Southard 

acknowledged to Eric Keltner that it had been executed. Southard and 

Restor certainly ratified the lease agreement by accepting its benefits 

and occupying the Carmel Drive premises for the more than two and a 

half years that they occupied it. 

39. The Court concludes that Southard did not limit his authorization 

and ratification of the lease agreement to Restor. Whether he signed the 
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agreement once or twice, he signed as himself, just as he had the Exhibit 

l-A prior lease agreement.

40. The Court concludes that under the valid lease between the Keltner 

Property Group, LLC and Brian Southard and Restor, the Plaintiff was 

damaged in the amount of $199,838.63 in unpaid rent, $3,200.00 in 

unpaid utilities, and $14,632.07 in restoring the Carmel Drive premises 

to the condition that the lease agreement required it to be at the

conclusion of the lease.

Id. at 10-17. The court also ordered Defendants to pay attorney fees. 

Discussion 

[11] When a trial court enters findings of fact and conclusions thereon, findings 

control only as to the issues they cover and a general judgment will control as to 

the issues upon which there are no findings. Jernas v. Gumz, 53 N.E.3d 434, 443 

(Ind. Ct. App. 2016) (citing Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 

1997)), trans. denied. When a court has made findings of fact, an appellate court 

reviews sufficiency of the evidence using a two-step process. Id. First, it must 

determine whether the evidence supports the findings of fact, and second it 

must determine whether those findings support the conclusions. Id. Findings 

are clearly erroneous only when the record contains no facts to support them 

either directly or by inference. Id. A judgment is clearly erroneous if it applies 

the wrong legal standard to properly found facts. Id. In order to determine that 

a finding or conclusion is clearly erroneous, an appellate court’s review of the 

evidence must leave it with the firm conviction that a mistake has been made. 

Id. We review questions of law de novo. Id. Interpretation of a contract 
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presents a question of law. Id. (citing Stewart v. TT Commercial One, LLC, 911 

N.E.2d 51, 55 (Ind. Ct. App. 2009), trans. denied). 

[12] Southard contends the unambiguous terms of the 2015 lease prove that he was 

not a tenant and the two parties to the agreement were Keltner Property and 

Restor. He argues that, while the lease “identified both Restor and Southard as 

Tenants,” the “execution of the lease identifies a signature only for Restor, the 

corporate tenant, through the signature (or stamp) of Southard as ‘Owner.’” 

Appellant’s Brief at 13. He argues “[t]his, coupled with the presence of the 

blank signature block,” proves as a matter of law that Keltner Property 

“expected the document to be executed by both tenants.” Id. He further asserts

“[t]he addition of a comma to separate the two tenants in the 2015 lease, when

none separated the two tenants in the 2013 lease, coupled with the insertion of a 

second signature space in the 2015 lease when the 2013 lease had only one, 

indicate a change from the first to the second lease” and that the first lease 

“identified the two tenant parties as one tenant” whereas the second “identified 

them as two separate entities.” Id. at 19. Southard also asserts that he, as an 

individual, did not ratify the lease. 

[13] Keltner Property maintains the trial court’s findings are not clearly erroneous,

the 2015 lease named Southard as a tenant in the opening paragraph and 

included his social security number, and “[b]y naming both Southard and his 

company as a singular Tenant, the intention of the parties is to obligate both.” 

Appellee’s Brief at 14. It argues there was not a hurried negotiation and the 

lease was delivered to Southard months before it was signed. It argues there 
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was no need for Southard to sign twice, he signed only once to obligate himself 

and his company with respect to the 2013 lease, and the same applies with 

respect to the 2015 lease. It also asserts Southard ratified the 2015 lease, it

would occasionally receive rent checks from another of Southard’s companies, 

and “Restor Company” may have never existed. Id. at 22. 

[14] Indiana courts have recognized the contractual nature of leases and the 

applicability of the law of contracts to leases. Stewart, 911 N.E.2d at 55

(citations omitted). If a contract’s terms are clear and unambiguous, courts 

must give those terms their clear and ordinary meaning. Jernas, 53 N.E.3d at 

444. 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. Id. A contract will be found to be ambiguous only if 

reasonable persons would differ as to the meaning of its terms. Id. (citing 

McDivitt v. McDivitt, 42 N.E.3d 115, 117 (Ind. Ct. App. 2015) (a contract may 

be ambiguous if its terms are susceptible to more than one interpretation and 

reasonably intelligent persons would honestly differ as to its meaning), trans. 

denied; Stewart, 911 N.E.2d at 56). When interpreting an agreement, our 

paramount goal is to ascertain and effectuate the intent of the parties. Id. Rules

of contract construction and extrinsic evidence may be employed in giving 

effect to the parties’ reasonable expectations. Id. at 444-445 (citing Lily, Inc. v. 

Silco, LLC, 997 N.E.2d 1055, 1064 (Ind. Ct. App. 2013) (citing Johnson v. 

Johnson, 920 N.E.2d 253, 256 (Ind. 2010)), reh’g denied, trans. denied). When a 
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contract’s terms are ambiguous or uncertain and its interpretation requires 

extrinsic evidence, its construction is a matter for the finder of fact. Id. at 445 

(citing Lily, 997 N.E.2d at 1064; McDivitt, 42 N.E.3d at 117). 

[15] Contracts are formed when parties exchange an offer and acceptance. Id. A 

meeting of the minds of the contracting parties, having the same intent, is 

essential to the formation of a contract. Id. The basic requirements for a 

contract are offer, acceptance, consideration, and a meeting of the minds 

between the contracting parties on all essential terms of the transaction. Id. 

There must be mutual assent or a meeting of the minds on all essential terms in 

order to form a binding contract. Id. 

[16] In general, a principal will be bound by a contract entered into by the 

principal’s agent on his behalf if the agent had authority to bind him. Heritage 

Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 889-890 (Ind. Ct.

App. 2002) (citation omitted), reh’g denied, trans. dismissed. The agent’s 

authority to enter into an agreement on the principal’s behalf may be actual or 

apparent. Id. The question of whether an agency relationship exists and of the 

agent’s authority is generally a question of fact. Id. “Ratification means the 

adoption of that which was done for and in the name of another without 

authority. It is in the nature of a cure for lack of authorization. When 

ratification takes place, the act stands as an authorized one, and makes the 

whole act, transaction, or contract good from the beginning.” Id. at 889-890

(citation and brackets omitted). 
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[17] The record reveals the 2015 lease identified the tenants in its opening paragraph 

and stated: “THIS LEASE, entered into by the KELTNER PROPERTY 

GROUP, LLC, an Indiana limited liability company (‘Landlord’) and Restor 

Company an Indiana [corporation], & Brian Southard – Social Security No. 

[Redacted] Tenant.” Plaintiff’s Exhibit 1-B at 1. This language supports the 

conclusion that it was the parties’ intent for Southard to be a tenant under the 

lease. Further, the trial court heard testimony regarding the relocation to the 

Carmel Drive premises, the preparation, delivery, and return of the written 

2015 agreement, the extent of discussions or negotiations related to the lease, 

the extent payments were made under the lease, and the extent to which the 

premises were occupied and altered. The court found Southard’s testimony to 

be largely not credible. Southard did not indicate that he requested a revision to 

the opening paragraph naming him as a tenant. The word “Owner” below 

Southard’s signature and the placement of a comma between the two tenants’

names in the opening paragraph, in light of the other language and evidence, do 

not require a finding that it was the parties’ intent that Southard not be a tenant. 

While there were lines for an additional signature, the parties agree that 

Southard and his company Abelard were tenants with respect to the 2013 lease, 

Southard signed the 2013 lease once, and both the 2013 and 2015 leases identify 

Southard by his social security number and include Southard in the definition 

of “Tenant” in their opening paragraphs. Plaintiff’s Exhibit 1-A at 1; Plaintiff’s 

Exhibit 1-B at 1. Kenneth indicated Southard was writing checks from two 

different companies. Based on the evidence and the 2015 lease, we cannot say

the record contains no facts to support the finding that there was an 
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understanding by the parties at the time of the agreement that Southard was a 

tenant under the 2015 lease or that we are left with the firm conviction that a 

mistake has been made. We conclude the trial court’s findings and conclusions 

are not clearly erroneous. 

[18] For the foregoing reasons, we affirm the judgment of the trial court. 

[19] Affirmed. 

Najam, J., and Kirsch, J., concur.