Lily, Inc. d/b/a Weinbach Cafeteria and Fernando Tudela v. Silco, LLC. , 997 N.E.2d 1055 ( 2013 )


Menu:
  •                                                                            Sep 19 2013, 5:44 am
    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
    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.
    2
    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
    3
    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
    4
    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.
    5
    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.
    6
    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.
    7
    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
    8
    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
    9
    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.
    
    10 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
    11
    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.
    12
    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
    13
    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
    14
    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.
    15
    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
    16
    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
    17
    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
    18
    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
    19
    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
    20
    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
    21
    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
    22
    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.
    *****
    23
    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.
    24
    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
    25
    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
    26
    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.
    27
    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,
    28
    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.
    29
    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
    30
    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
    31
    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).
    32
    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.
    33
    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.
    34