MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 18 2018, 10:49 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT James M. Hinshaw Bingham Greenebaum Doll LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Speedway Corp., April 18, 2018 Appellant-Defendant, Court of Appeals Case No. 67A01-1709-SC-2089 v. Appeal from the Putnam Superior Court Wilson Real Estate II, LLC, The Honorable T. Edward Page, Appellee-Plaintiff Senior Judge Trial Court Cause No. 67D01-1704-SC-202
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 1 of 7 Case Summary [1] Speedway Corporation1 appeals the small claims judgment ordering it to paint
one of the parking lines in a parking lot owned by Wilson Real Estate II, LLC.
Speedway argues that the trial court erred in interpreting the parties’ easement
agreement (“the Easement Agreement”). We agree, and therefore reverse.
Facts and Procedural History [2] Speedway and Wilson are commercial neighbors in Greencastle. Speedway
owns a square parcel of real estate at the northeast corner of Indianapolis and
Judson Roads, on which it operates a gas station and small convenience store.
In 2011, Wilson, a real estate developer, purchased a real estate parcel with a
strip center and a parking lot that forms an L shape around Speedway’s
property. Pursuant to a 1962 agreement, Speedway had easement rights to a
portion of Wilson’s parking lot that lies north and east of Speedway’s parcel,
and Speedway’s delivery trucks and customers use Wilson’s parking lot.
[3] Wilson and Speedway had disagreements about Speedway’s use of Wilson’s
parking lot. Speedway filed a lawsuit against Wilson related to their dispute
regarding Speedway’s easement. In August 2013, while that case was pending
appeal, Wilson and Speedway entered into a settlement agreement (“the
Settlement Agreement”), in which Speedway agreed to pay Wilson $25,000 and
“repave, once, the area enclosed by the hashed outline in the attached Exhibit
1 Speedway states that it has been incorrectly identified in these proceedings and that its correct name is Speedway LLC.
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 2 of 7 A by placing asphalt blacktop over and filing any material potholes.”
Appellant’s App. Vol. 2 at 11. Wilson agreed to grant “Speedway a permanent
easement (‘the Easement’), indicated and explained by the attached Easement
Agreement labeled as Exhibit B, which has been executed simultaneously with
this [Settlement] Agreement. Speedway will be responsible for maintaining the
Easement only as indicated and explained in the [Easement Agreement].” Id.
(italicized emphasis added). In addition, the parties agreed to release all claims
against each other relating to the 1962 agreement, their dispute relating to the
scope of their rights under that agreement, and the matters addressed in the
pending lawsuit, which was dismissed.
[4] The Easement Agreement provides as follows:
1. EASEMENT. Wilson hereby grants to Speedway, … a perpetual, non-exclusive easement in, through, over and across those portions of the Wilson Parcel as illustrated on Exhibit “B- 1” (the “Easement”). Said Easement shall be used for vehicular and pedestrian ingress and egress, and Wilson shall not permit such area to be used for parking or in any other manner block such access between the Wilson Parcel and the Speedway Parcel.
2. MAINTENANCE. Speedway shall be responsible for the periodic repair of damages to said Easement area caused by vehicular traffic (i.e., potholes).
Id. at 14 (emphasis added).
[5] In April 2017, Wilson filed a small claims action against Speedway for
maintenance of the parking lot. The trial court held a hearing, at which Wilson
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 3 of 7 argued that all the parking lines within Speedway’s easement needed to be
repainted, and that pursuant to the Easement Agreement, Speedway was
obligated to repaint the lines. Speedway contended that pursuant to the plain
and ordinary meaning of “i.e.” in paragraph 2 of the Easement Agreement, the
“damages” it was obligated to repair meant “potholes.” The trial court
concluded that the “damages” in paragraph 2 were not limited to potholes, but
that potholes were only one example of damages. Tr. at 19, 21. The trial court
interpreted the Easement Agreement such that if parking lines were worn down
by vehicular traffic, then Speedway was obligated to repaint them. Id. at 19.
However, the trial court concluded that only one line needed to be repainted at
that time, ordered the parties to split the cost equally, and issued a judgment
awarding no damages. Id. at 22-23. This appeal ensued.
Discussion and Decision [6] We begin by noting that Wilson did not file an appellee’s brief. When an
appellee does not submit a brief on appeal, we need not undertake the burden of
developing an argument on his behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d
1065, 1068 (Ind. 2006). Rather, we will reverse if the appellant’s brief
establishes a case of prima facie error. Id. Prima facie error in this context is
error “at first sight, on first appearance, or on the face of it.” Id. If the
appellant is unable to meet this burden, we will affirm. Id.
[7] Speedway argues that the trial court erred in interpreting the Easement
Agreement. Interpretation of a written contract is a pure question of law, which
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 4 of 7 we review de novo. Tr. No. 6011, Lake Cty. Tr. Co. v. Heil’s Haven Condos.
Homeowners Ass’n, 967 N.E.2d 6, 15 (Ind. Ct. App. 2012), trans. denied. The goal
of contract interpretation is to determine the intent of the parties when they
made the agreement. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind.
2012). If an instrument’s language is unambiguous, the parties’ intent is
determined from the four corners of the instrument. Niezer v. Todd Realty, Inc.,
913 N.E.2d 211, 215 (Ind. Ct. App. 2009), trans. denied (2010). Also, if the
instrument’s “terms are clear and unambiguous, courts must give those terms
their clear and ordinary meaning.” Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d
249, 252 (Ind. 2005). “‘The unambiguous language of a contract is conclusive
upon the parties to the contract and upon the courts.’” Trustcorp Mortg. Co. v.
Metro Mortg. Co., 867 N.E.2d 203, 212 (Ind. Ct. App. 2007) (quoting Whitaker v.
Brunner, 814 N.E.2d 288, 293 (Ind. Ct. App. 2004), trans. denied (2005)). “We
will make all attempts to construe the language of a contract so as not to render
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 18 2018, 10:49 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT James M. Hinshaw Bingham Greenebaum Doll LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Speedway Corp., April 18, 2018 Appellant-Defendant, Court of Appeals Case No. 67A01-1709-SC-2089 v. Appeal from the Putnam Superior Court Wilson Real Estate II, LLC, The Honorable T. Edward Page, Appellee-Plaintiff Senior Judge Trial Court Cause No. 67D01-1704-SC-202
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 1 of 7 Case Summary [1] Speedway Corporation1 appeals the small claims judgment ordering it to paint
one of the parking lines in a parking lot owned by Wilson Real Estate II, LLC.
Speedway argues that the trial court erred in interpreting the parties’ easement
agreement (“the Easement Agreement”). We agree, and therefore reverse.
Facts and Procedural History [2] Speedway and Wilson are commercial neighbors in Greencastle. Speedway
owns a square parcel of real estate at the northeast corner of Indianapolis and
Judson Roads, on which it operates a gas station and small convenience store.
In 2011, Wilson, a real estate developer, purchased a real estate parcel with a
strip center and a parking lot that forms an L shape around Speedway’s
property. Pursuant to a 1962 agreement, Speedway had easement rights to a
portion of Wilson’s parking lot that lies north and east of Speedway’s parcel,
and Speedway’s delivery trucks and customers use Wilson’s parking lot.
[3] Wilson and Speedway had disagreements about Speedway’s use of Wilson’s
parking lot. Speedway filed a lawsuit against Wilson related to their dispute
regarding Speedway’s easement. In August 2013, while that case was pending
appeal, Wilson and Speedway entered into a settlement agreement (“the
Settlement Agreement”), in which Speedway agreed to pay Wilson $25,000 and
“repave, once, the area enclosed by the hashed outline in the attached Exhibit
1 Speedway states that it has been incorrectly identified in these proceedings and that its correct name is Speedway LLC.
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 2 of 7 A by placing asphalt blacktop over and filing any material potholes.”
Appellant’s App. Vol. 2 at 11. Wilson agreed to grant “Speedway a permanent
easement (‘the Easement’), indicated and explained by the attached Easement
Agreement labeled as Exhibit B, which has been executed simultaneously with
this [Settlement] Agreement. Speedway will be responsible for maintaining the
Easement only as indicated and explained in the [Easement Agreement].” Id.
(italicized emphasis added). In addition, the parties agreed to release all claims
against each other relating to the 1962 agreement, their dispute relating to the
scope of their rights under that agreement, and the matters addressed in the
pending lawsuit, which was dismissed.
[4] The Easement Agreement provides as follows:
1. EASEMENT. Wilson hereby grants to Speedway, … a perpetual, non-exclusive easement in, through, over and across those portions of the Wilson Parcel as illustrated on Exhibit “B- 1” (the “Easement”). Said Easement shall be used for vehicular and pedestrian ingress and egress, and Wilson shall not permit such area to be used for parking or in any other manner block such access between the Wilson Parcel and the Speedway Parcel.
2. MAINTENANCE. Speedway shall be responsible for the periodic repair of damages to said Easement area caused by vehicular traffic (i.e., potholes).
Id. at 14 (emphasis added).
[5] In April 2017, Wilson filed a small claims action against Speedway for
maintenance of the parking lot. The trial court held a hearing, at which Wilson
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 3 of 7 argued that all the parking lines within Speedway’s easement needed to be
repainted, and that pursuant to the Easement Agreement, Speedway was
obligated to repaint the lines. Speedway contended that pursuant to the plain
and ordinary meaning of “i.e.” in paragraph 2 of the Easement Agreement, the
“damages” it was obligated to repair meant “potholes.” The trial court
concluded that the “damages” in paragraph 2 were not limited to potholes, but
that potholes were only one example of damages. Tr. at 19, 21. The trial court
interpreted the Easement Agreement such that if parking lines were worn down
by vehicular traffic, then Speedway was obligated to repaint them. Id. at 19.
However, the trial court concluded that only one line needed to be repainted at
that time, ordered the parties to split the cost equally, and issued a judgment
awarding no damages. Id. at 22-23. This appeal ensued.
Discussion and Decision [6] We begin by noting that Wilson did not file an appellee’s brief. When an
appellee does not submit a brief on appeal, we need not undertake the burden of
developing an argument on his behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d
1065, 1068 (Ind. 2006). Rather, we will reverse if the appellant’s brief
establishes a case of prima facie error. Id. Prima facie error in this context is
error “at first sight, on first appearance, or on the face of it.” Id. If the
appellant is unable to meet this burden, we will affirm. Id.
[7] Speedway argues that the trial court erred in interpreting the Easement
Agreement. Interpretation of a written contract is a pure question of law, which
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 4 of 7 we review de novo. Tr. No. 6011, Lake Cty. Tr. Co. v. Heil’s Haven Condos.
Homeowners Ass’n, 967 N.E.2d 6, 15 (Ind. Ct. App. 2012), trans. denied. The goal
of contract interpretation is to determine the intent of the parties when they
made the agreement. Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind.
2012). If an instrument’s language is unambiguous, the parties’ intent is
determined from the four corners of the instrument. Niezer v. Todd Realty, Inc.,
913 N.E.2d 211, 215 (Ind. Ct. App. 2009), trans. denied (2010). Also, if the
instrument’s “terms are clear and unambiguous, courts must give those terms
their clear and ordinary meaning.” Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d
249, 252 (Ind. 2005). “‘The unambiguous language of a contract is conclusive
upon the parties to the contract and upon the courts.’” Trustcorp Mortg. Co. v.
Metro Mortg. Co., 867 N.E.2d 203, 212 (Ind. Ct. App. 2007) (quoting Whitaker v.
Brunner, 814 N.E.2d 288, 293 (Ind. Ct. App. 2004), trans. denied (2005)). “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). “A contract is not ambiguous merely
because the parties disagree as to its proper construction.” Bd. of Comm’rs of
Delaware Cty. v. Evans, 979 N.E.2d 1042, 1046 (Ind. Ct. App. 2012).
[8] Here, the crux of Speedway’s appeal is the meaning of “i.e.” in paragraph 2,
which provides that “Speedway shall be responsible for the periodic repair of
damages to said Easement area caused by vehicular traffic (i.e., potholes).”
Specifically, Speedway asserts that in concluding that potholes were merely one
example of damages caused by vehicular traffic that it was required to repair,
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 5 of 7 the trial court failed to apply the clear and ordinary meaning of “i.e.” We
agree.
[9] The term “i.e.” is an abbreviation for the Latin “id est”, which means “that is”;
“It introduces a rewording or a clarification of a statement that has just been
made or of a word that has just been used.” MERRIAM-WEBSTER DICTIONARY
(editor’s note), https://www.merriam-webster.com/dictionary/i.e. (last visited
Mar. 22, 2018). It is often confused with “e.g.,” which stands for “exempli
gratia” in Latin and means “for example”; “It introduces one or more examples
that illustrate something stated.” Id. To demonstrate the difference, we observe
that “i.e.” is used in the following manner: “the federal government’s highest
judicial body, i.e., the Supreme Court.” BLACK’S LAW DICTIONARY (10th ed.
2014). Whereas, “e.g.” is used as follows: “an intentional tort, e.g., battery or
false imprisonment.” Id.
[10] To understand the plain and ordinary meaning of “i.e.,” it may be helpful to
substitute “that is” for “i.e.” in paragraph 2, which would then read,
“Speedway shall be responsible for the periodic repair of damages to said
Easement area caused by vehicular traffic (that is, potholes).” We conclude
that the accepted definition of “i.e.” indicates unambiguously that “potholes” is
a clarification of “damages caused by vehicular traffic,” and that paragraph 2
obligates Speedway to repair potholes. Accordingly, the trial court erred in
interpreting the Easement Agreement by finding that potholes was merely one
example of damages that Speedway was obligated to repair. Therefore, we
reverse the trial court’s order.
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 6 of 7 [11] Reversed.
Vaidik, C.J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 67A01-1709-SC-2089 | April 18, 2018 Page 7 of 7