Opinion
Court of Appeals Case No. 20A-CC-1537
03-31-2021
I-65 PLAZA, LLC, and Bassam A. Abdulla, Appellants-Defendants, v. INDIANA GROCERY GROUP, LLC, Appellee-Plaintiff
Attorneys for Appellants: Marc A. Menkveld, Stoll Keenon Ogden PLLC, Indianapolis, Indiana, Douglas R. Kvachkoff, Kvachkoff Law Offices, Crown Point, Indiana Attorneys for Appellee: Megan L. Craig, John R. Craig, Craig & Craig, LLC, Merrillville, Indiana
Attorneys for Appellants: Marc A. Menkveld, Stoll Keenon Ogden PLLC, Indianapolis, Indiana, Douglas R. Kvachkoff, Kvachkoff Law Offices, Crown Point, Indiana
Attorneys for Appellee: Megan L. Craig, John R. Craig, Craig & Craig, LLC, Merrillville, Indiana
Crone, Judge. Case Summary
[1] Indiana Grocery Group, LLC (IGG), filed a complaint for ejectment against its sublessees I-65 Plaza, LLC, and its sole member, Bassam A. Abdulla (collectively Abdulla), based on Abdulla's alleged failure to exercise his option to extend the sublease. IGG filed a motion for immediate possession and requested a show-cause hearing. The trial court scheduled a hearing, and Abdulla filed a response to IGG's motion. Less than an hour before the hearing, IGG filed a reply to Abdulla's response in which it submitted new evidence, made new arguments, and asserted a new claim. The day after the hearing, Abdulla filed a motion for leave to file a surreply. Without ruling on Abdulla's motion, the trial court issued an order granting IGG's motion for immediate possession. IGG then filed a motion to strike Abdulla's motion for leave to file a surreply and requested attorney's fees. The trial court issued an order granting IGG's motion to strike and ordering Abdulla to pay IGG $750 in attorney's fees.
[2] On appeal, Abdulla argues that the trial court erred in granting IGG's motion for immediate possession, granting IGG's motion to strike, and awarding IGG attorney's fees. We agree, and therefore we reverse and remand.
Facts and Procedural History
[3] The relevant facts are undisputed. In November 2015, SVT, LLC, and Abdulla executed a sublease for Abdulla to operate a Boost Mobile kiosk inside SVT's supermarket in East Chicago. The parties made handwritten and initialed changes to the dates of the initial lease term and two optional extended terms. As modified, the sublease provided that the initial term would be from January 1, 2016, through December 31, 2017; the first extended term would be from January 1, 2018, through December 31, 2019; and the second extended term would be from January 1, 2020, through December 31, 2021. Appellants’ App. Vol. 2 at 15.
Abdulla's citations to the appendix do not correspond to the correct page numbers.
[4] On January 1, 2016, SVT and Abdulla executed a "First Amended and Restated Sublease" that reads in pertinent part as follows:
SECTION 2.01. TERM. The term of this Sublease shall commence on January 1, 2016 (the "Commencement Date") and shall end on December 31, 2017 (the "Term").
SECTION 2.02. LEASE YEAR. The phrase "Lease Year" means a period of twelve (12) consecutive months of the Term or any Extended Term. Each Lease Year shall commence on the first (1st) day of January.
SECTION 2.03. HOLDING OVER. In the event Tenant remains in possession of the Premises after the expiration of the Term without the execution of a new sublease, and without exercising an allowable option for an Extended Term under Section 2.04., or after the expiration of the Extended Term under Section 2.04., Tenant shall be deemed to be subject to all conditions, provisions and obligations of this Sublease insofar as the same are applicable to a month-to-month tenancy.
SECTION 2.04. OPTIONS TO EXTEND. Subject to Section 1.02, Landlord grants to Tenant two (2) options to extend this Sublease, the first one for
the period commencing January 1, 2017 , and ending December 31, 2018, and the second one for the period commencing January 1, 2019 and ending December 31, 2020 (each, an "Extended Term") upon Tenant giving to Landlord notice of its exercise of said options at least ninety (90) days prior to the expiration of the initial Term or the first Extended Term, as applicable. Notice of the exercise of each option shall be given to Landlord in writing by certified mail, return receipt requested, at the place provided for notice to Landlord. Tenant's rights shall be conditioned upon there being no default in the obligations of Tenant to be performed pursuant to the terms of this Sublease, as of the time of notice of exercise of an option. Notwithstanding the foregoing, in the event that Tenant does not comply with the foregoing notice requirements, but nevertheless pays and Landlord accepts the Basic Rent (as defined below in Section 3.01) due for the first month of any Extended Term, then Tenant will be deemed to have exercised its option for such Extended Term for all purposes under this Lease.
SECTION 2.05. TERMINATION OF SUBLEASE. Upon termination of this Sublease by reason of the expiration of its Term, or the expiration of an Extended Term, or by default, as hereinafter set forth, Tenant shall surrender the Premises in substantially the same condition as when leased ....
....
SECTION 3.01. BASIC RENT. Commencing on March 1, 2016, Tenant shall pay to Landlord for the remainder of the first Lease Year of the initial Term (March 1, 2016 through December 31, 2016) rent in the amount of $10,000.00, in ten (10) equal consecutive monthly payments of $1,000.00, in advance on the first day of each month, and for the second Lease Year of the initial Term (January 1, 2017 through December 31, 2017), annual rent in the amount of $12,000.00, which annual sum shall be paid to Landlord in twelve (12) equal consecutive monthly payments of $1,000.00, in advance on the first day of each month (the "Basic Rent").
SECTION 3.02. BASIC RENT DURING EXTENDED TERMS. Tenant shall pay to Landlord for each Lease Year of the first Extended Term, annual Basic Rent in the amount of $12,240.00, which annual Basic Rent shall be payable to Landlord in twelve (12) equal consecutive monthly installments of $1,020.00 in advance on the first day of each month. Tenant shall pay to Landlord for each Lease Year of the second Extended Term, annual Basic Rent in the amount of $12,485.00, which annual Basic Rent shall be payable to Landlord in twelve (12) equal consecutive monthly installments of $1,040.42 in advance on the first day of each month.
....
SECTION 15.01. RIGHTS ON TENANT'S DEFAULT. In the event of (a) any default by Tenant in the payment when due of any rent provided in Article III of this Sublease, which shall continue after ten (10) days written notice by Landlord to Tenant, or (b) any other default by Tenant in its obligations under this Sublease which is not cured within thirty (30) days after written notice by Landlord to [T]enant, or (c) in the case of a default which cannot be reasonably cured within said thirty (30) days, Tenant has failed to begin to cure said default within said thirty (30) days, then, in addition to any other rights or remedies Landlord may have by law or otherwise, Landlord shall have the immediate right of re-entry and may remove all persons and property from the Premises....
....
SECTION 17.12. COMPLETE AGREEMENT. This Sublease, (a) contains a complete expression of the agreement between the parties and there are no promises, representations or inducements except such as are herein provided, and (b) supersedes in its entirety that certain Sublease respecting the Premises dated effective as of November 16, 2015, which is hereby agreed to be null and void and of no force or effect, without qualification, limitation or exception.
SECTION 17.13. SUCCESSORS OF INTEREST. The covenants, agreements, terms, conditions and warranties of this Sublease shall be binding upon and inure to the benefit of Landlord and Tenant and their respective heirs, executors, administrators, successors and assigns, but shall create no rights in any other person except as may be specifically provided for herein.
Id. at 39-53 (italicized emphases added) (underlining omitted). As indicated by the italicized dates in Sections 2.01 and 2.04, the second year of the initial Term overlaps with the first year of the first Extended Term.
[5] In August 2017, SVT assigned the sublease to IGG. On March 11, 2020, IGG filed a complaint for ejectment against Abdulla that includes the following allegations:
14. The First Amended Sublease, commenced on January 1, 2016 and ended on December 31, 2016, although there is a scrivener's error that states that the term ended on December 31, 2017.
15. Under the terms of the First Amended Sublease, the one-year term ("Lease Year") was defined as "a period of twelve (12) consecutive months of the Term or any extended Term. Each Lease year shall commence on the first, (1st) day of January."
16. Pursuant to the First Amended Sublease, the Tenant was granted two (2) options to extend the Sublease, the first period stated as "January 1, 2017, ending December 31, 2018 and the second period stated as January 1, 2019 and ending December 31, 2020.["]
17. In order for Defendants to exercise the option to extend, the Defendants were required to give the Landlord notice of its exercise of said options ... in writing ... at least ninety (90) days prior to the expiration of the initial Term of the first Extended Term, as applicable.
18. Defendants failed to provide notice of intent to exercise the second option and extend the lease the [sic] expiration of the last extended Term prior to the deadline as stated in The Sublease.
19. Due to the failure of the Defendants to timely provide notice of exercise of the option, The Sublease Term ended on December 31, 2018 and the Defendants became month-to-month tenants.
20. On January 9, 2020, notice was sent to Defendants of the lease expiration due to the failure to provide written notice of their option to renew and allowed Defendants until February 8, 2020 to vacate the premises.
21. Defendants are wrongfully holding over in breach of The Sublease and Landlord is entitled to possession of The Premises, but Defendants have willfully remained in possession of and occupied Landlord's property and still refuse to quit said premises.
22. Defendants have failed to pay the full amount of the rent due and payable for February and March, 2020.
Id. at 9-12.
[6] IGG attached both the original sublease and the amended sublease to its complaint. Pursuant to Indiana Code Section 32-30-3-1, IGG also filed an affidavit for immediate possession, alleging that Abdulla had "failed to fully pay the rent due for January and February 2020 [sic ][,]" was occupying the leased premises "wholly without right[,]" and had been issued a notice to vacate. Id. at 56. In May 2020, Abdulla filed an answer to IGG's complaint, along with affirmative defenses and a counterclaim.
Indiana Code Section 32-30-3-1(b) provides,
At the time of filing a complaint [for ejectment] or at any time before judgment, a plaintiff may file with the clerk of the court in which the action is filed or pending an affidavit stating the following:
(1) The plaintiff is entitled to possession of the property described in the complaint.
(2) The defendant has unlawfully retained possession of the property described in the complaint.
(3) The estimated value of the property described in the complaint.
(4) The estimated rental value of the property described in the complaint.
The complaint alleges that Abdulla failed to fully pay the rent due for February and March 2020.
[7] On July 22, 2020, IGG filed a motion for immediate possession, requesting "an Order to Show Cause on IGG's request for Prejudgment Possession" of the leased premises. Id. at 58. The motion states, "IGG relies upon its Complaint for Ejectment and its Affidavit for Immediate Possession in requesting the Court set the matter for a Rule to Show Cause hearing." Id. at 59. On July 24, the trial court issued an order to show cause and set a hearing for July 30 at 9:30 a.m.
[8] On July 28, Abdulla filed a response to IGG's motion, asserting that he had "exercised [his] right to extend the lease term(s) under the Lease by sending written notice of [his] intent to extend the lease term and by making payment during the first month of the extended lease term – both of which are proper methods of effectuating the extension under the Lease." Id. at 62. Abdulla further asserted,
If, as IGG alleges, the lease term ended on December 31, 2018, then the payment of rent for January of 2019 would effectively extend the lease term. Attached are bank statements showing I-65's payment of rent in January of 2019. These bank statements conclusively show that I-65 made payment of rent sufficient to extend the lease term (assuming arguendo that the lease term expired on December 31, 2018). So, even if IGG's theory that the lease expired on December 31, 2018 is correct (which it is not as explained below), the lease term was properly extended under the Lease by the payment and acceptance of rent in January of 2019. This evidence alone requires a denial of IGG's motion for immediate possession.
And there is more. The predicate of IGG's ejectment action is flawed. The lease term did not expire on December 31, 2018; it expired on December 31, 2019 and was properly extended by written notice in July of 2019.
IGG alleges that the First Amended and Restated Sublease contains a scrivener's error. I-65 agrees that a scrivener's error exits [sic], but disagrees with IGG as to the nature of the error. IGG alleges that an error exists in the date range of the initial lease term shown in paragraph 2.01 of the First Amended and Restated Sublease. The error is not contained in paragraph 2.01 as IGG alleges; it is contained in paragraph 2.04, which states the date range of the extended lease terms. The only evidence before the court that identifies the scrivener's error was attached to IGG's complaint [i.e., the original sublease]. The Court can see that the handwritten portions of
the Sublease show the parties’ intent as to the dates of the initial lease term and the two extended lease terms.
Id. at 63-64. Abdulla argued that there was "no basis for granting possession of the premises to IGG" and indicated that he would "follow up with a motion for summary judgment on the merits of this case." Id. at 65.
[9] Abdulla attached several exhibits to his response, including bank statements showing that he had paid $1020 to IGG each month during 2019, the original and the amended subleases, and a July 2019 letter notifying IGG of Abdulla's intent to continue the "lease agreement, after [the] current agreement expires, in accordance with the 2 year agreement extension." Id. at 96. Also attached was an affidavit from Abdulla in which he averred,
I have never received any sort of written notice from IGG or any landlord that any payment of rent was not paid or was short paid. The only time that rent was paid short was in January and February of 2020 when rent was paid short by about $20.42. This was due to the fact that I pay rent automatically out of a business account and needed to contact the bank to have the amount paid automatically each month revised by $20.42 to reflect the new payment under the extended lease term. I made that adjustment in March of 2020 by making the scheduled March payment plus an extra $61.26 to account for the increase of $20.42 for the months of January, February, and March. Since then, payments have been made for the full amount each month.
Id. at 122.
[10] On July 30 at 9:09 a.m., twenty-one minutes before the scheduled start of the show-cause hearing, IGG filed a reply in support of its motion for immediate possession and a motion to strike Abdulla's affidavit. The reply reads in pertinent part,
5. Defendants ... base their unfounded argument around the fact that the parties "intended" to incorporate certain terms from the original Sublease into the Amended Sublease. [T]he execution of the Amended Sublease, by its clear and unambiguous language rendered the original Sublease null and void in its entirety and is of no force and effect.
6. The "four corners" rule makes clear that where the language of a written instrument is unambiguous, as it is here, the parties’ intent is to be determined by reviewing the language contained within the "four corners" of that written instrument. Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos , 895 N.E.2d 1191, 1197 (Ind. 2008) [.]
7. Further and directly related to Mr. Abdulla's Affidavit's flaws and necessity for striking same, is that "[E]xtrinsic evidence is not admissible to add to, vary or explain the terms of a written instrument if the terms of the instrument are susceptible of a clear and unambiguous construction." Univ. of S. Indiana Found. v. Baker , 843 N.E.2d 528, 532 (Ind. 2006).
8. Defendant's rent checks failed to account for the full amount due beginning January 1, 2019 and were not reflective of the increased amount owed according to the terms of the First Amendment and Restated Sublease Article II, Section 2.04 began on January 1, 2019.
9. Defendant did not provide notice 90 days before January 1, 2019 of its intent to extend the lease and did not pay the correct base rent on January 1, 2019 to engage the option to pay full increased rent to stay until December 2020....
10. A written notice of Termination was sent by Plaintiff to Defendants on January 25, 2019 and a renewed Notice of
Sublease Termination Date [was sent] to Defendants on February 4, 2019....
11. Defendant's rent check was deficient each month beginning January 1, 2019 (the "second lease term") until March 2020. Defendant admits in his Affidavit attached to his Response ... that the rent checks payable to Plaintiff were deficient and did not account for the full amount of rent due....
12. No correct rent checks have been accepted from by [sic] Plaintiff from January 2019 to present.
13. Defendant has been a hold over tenant since he chose not to send the 90 day notice in [sic] October 3, 2018, nor pay the second extended term annual basic rent in January of 2019, showing only one conclusion that he was a holdover and NOT extending his lease to December of 2020.
14. Defendant did not properly exercise its lease renewal option and does not agree that there is a scrivener's error.
15. It is noteworthy that it was only after this litigation was filed that Defendants first alleged they "intended" to include revisions into the Amended Sublease.
....
17. Plaintiff alleges that Defendant has been in full use of Plaintiff's facility and gaining income from its use and occupancy of same to present.
18. Defendant has also been unjustly enriched from said occupancy and use of the premises, to the detriment of Plaintiff.
Id. at 125-28 (underlined emphasis replaced with bold type). IGG attached the termination notices mentioned in paragraph 10 to its reply.
[11] At the start of the show-cause hearing, which began at 10:06 a.m., the trial court mentioned that it had not yet seen IGG's reply. See Tr. Vol. 2 at 4 ("I was in the process of getting stuff off my computer, and haven't got to that one."). The parties presented only legal arguments and relied on evidence already submitted to the court. In responding to IGG's argument, Abdulla stated,
The first law that we've seen from the plaintiff [regarding the alleged lack of ambiguity concerning the relevant dates in the amended sublease] was in the reply that they filed and I received approximately three minutes before this hearing started, Your Honor, which I believe I have a right to respond to. I have the law in my head, but I'd rather put it on paper for the Court's review.
Id. at 10. IGG objected, and Abdulla responded, "I can file a sur-reply, Your Honor, if new arguments are made in a reply." Id. The court stated, "Just go ahead and continue your argument." Id. At the conclusion of the hearing, the court asked the parties to submit proposed findings by the next day and stated that it would issue an order "no later than August 4[.]" Id. at 19.
[12] On July 31, Abdulla filed a motion for leave to file a surreply to respond to arguments that IGG "made for the first time" during the show-cause hearing and "to rebut evidence that IGG submitted to counsel just minutes before the hearing began." Appellants’ App. Vol. 2 at 137. Abdulla attached the surreply to his motion, as well as a November 2017 letter from IGG stating that the rent "is due to increase to $12,240.00 per year on January 1, 2018, with a monthly payment of $1,020.00, if first renewal option is exercised." Id. at 145. This statement is inconsistent with the allegation in paragraph 16 of IGG's complaint that the first Extended Term began January 1, 2017, as well as with several allegations in IGG's reply.
In his surreply, and again on appeal, Abdulla has asserted that IGG moved to strike the original sublease, which it had attached to its complaint. IGG asserted that the original sublease is null and void, but it specifically requested only that Abdulla's affidavit be stricken.
[13] On August 3, without ruling on Abdulla's motion for leave, the trial court issued an order summarily granting IGG's motion for immediate possession, directing Abdulla to vacate the premises by August 29, and certifying the order for interlocutory appeal. On August 13, Abdulla filed a motion to reconsider, asserting that the trial court could not issue an order for immediate possession without the filing of a written undertaking by IGG and that "[d]ue process requires that" Abdulla be permitted to file a surreply before the order could be issued. Id. at 148. The trial court did not rule on Abdulla's motion to reconsider, so it was deemed denied pursuant to Indiana Trial Rule 53.4.
Abdulla raises several due process arguments on appeal, which we need not address because we decide the issues on other grounds.
[14] On August 14, pursuant to Indiana Trial Rule 12(F), IGG filed a motion to strike Abdulla's motion for leave to file a surreply, claiming that the surreply was merely a "rehashing" of the arguments made at the hearing, "mischaracterize[ed]" IGG's reply as seeking different relief than what was alleged in its complaint, and was "not permitted by Indiana Rules of Trial Procedure or Lake County Local Rules." Id. at 152-53. IGG stated that it had incurred $750 in attorney's fees in responding to Abdulla's motion and requested an award of fees. Later that day, the trial court issued two orders: the first order denied IGG's motion to strike, and the second granted the motion to strike and directed Abdulla to pay IGG $750 in attorney's fees. The court later clarified that the first order was issued in error.
Trial Rule 12(F) provides,
Upon motion made by a party before responding to a pleading, or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty [20] days after the service of the pleading upon him or at any time upon the court's own initiative, the court may order stricken from any pleading any insufficient claim or defense or any redundant, immaterial, impertinent, or scandalous matter.
[15] Abdulla now appeals the trial court's orders granting IGG's motion for immediate possession and motion to strike. Additional facts will be provided below.
Discussion and Decision
Section 1 – The trial court erred in granting IGG's motion for immediate possession.
[16] Abdulla argues that the trial court erred in several respects in granting IGG's motion for immediate possession. His argument is based on questions of statutory and contract interpretation, which we review de novo. Graphic Packaging Int'l, Inc. v. City of Indianapolis , 51 N.E.3d 423, 427 (Ind. Ct. App. 2016). Our review is also de novo because the trial court ruled solely upon a paper record. Baker v. Baker , 50 N.E.3d 401, 404 (Ind. Ct. App. 2016).
[17] This Court has explained that "Indiana's ejectment statute provides for a prejudgment possession hearing to allow the defendant to controvert plaintiff's affidavit [for immediate possession] ‘or to show cause why the judge should not remove the tenant from the property and put the plaintiff in possession.’ " Bishop v. Housing Auth. of S. Bend , 920 N.E.2d 772, 779 (Ind. Ct. App. 2010) (quoting Ind. Code § 32-30-3-2 ), trans. denied , cert. denied (2011). "The statutory hearing manifests the inherent power of trial courts to intercede at an early stage—to make a preliminary decision before what could thereafter be a lengthy judicial process." Id. "Before issuance of a preliminary decision, the defendant/tenant is given the express opportunity to dispute the landlord's claim for immediate possession." Id. ; see Ind. Code § 32-30-3-2(b) (providing that order to show cause must state that "[t]he defendant may file supporting affidavits with the court" and "may appear and present supporting testimony at the hearing on the order to show cause.").
[18] Indiana Code Section 32-30-3-5(a) provides,
After the hearing on the order to show cause, the court shall:
(1) consider the pleadings, evidence, and testimony presented at the hearing; and
(2) determine with reasonable probability which party is entitled to possession, use, and enjoyment of the property.
The court's determination is preliminary pending final adjudication of the claims of the parties. If the court determines that the action is an action in which a prejudgment order of possession in plaintiff favor should issue, the court shall issue the order.
"[T]his preliminary possession decision triggers the requirement that the plaintiff/landlord file ‘a surety ... in an amount sufficient to assure the payment of any damages the defendant may suffer if the court wrongfully ordered’ preliminary possession to the landlord." Bishop , 920 N.E.2d at 779 (quoting Ind. Code § 32-30-3-6 ). "The preliminary possession decision is also subject to further proceedings to reach an ultimate determination—the ‘final judgment’ that ‘supersedes’ the ‘prejudgment order for possession.’ " Id. (quoting Ind. Code § 32-30-3-12 ).
[19] Abdulla first contends that the trial court's order granting IGG's motion for immediate possession should be reversed because IGG has not filed the written undertaking required by Indiana Code Section 32-30-3-6. That statute reads in its entirety,
A court may not issue an order of possession in favor of a plaintiff other than an order of final judgment until the plaintiff has filed with the court a written undertaking in an amount fixed by the court and executed by a surety to be approved by the court binding the plaintiff to the defendant in an amount sufficient to assure the payment of any damages the defendant may suffer if the court wrongfully ordered possession of the property to the plaintiff.
Ind. Code § 32-30-3-6 (emphases added). Stated differently, a plaintiff must file a written undertaking before a court may issue an order of preliminary possession. That did not happen in this case, and therefore we reverse and remand on this procedural basis.
IGG asserts that no written undertaking is required in this case because the trial court's immediate possession order is a final judgment. This assertion is contradicted by the order itself, which includes a certification for interlocutory appeal and does not include an "express direction for the entry of [final] judgment" pursuant to Indiana Trial Rule 54(B). IGG's assertion that the show-cause hearing was a final hearing is equally meritless.
[20] Abdulla also challenges the merits of the trial court's order, asserting that the one-year overlap between the initial Term and the first Extended Term in the amended sublease is an obvious ambiguity that must be resolved by consideration of extrinsic evidence to determine with reasonable probability which party is entitled to possession of the leased premises pursuant to Indiana Code Section 32-30-3-5. We agree. See Cummins v. McIntosh , 845 N.E.2d 1097, 1104 (Ind. Ct. App. 2006) ("A contract is ambiguous only where a reasonable person could find its terms susceptible to more than one interpretation.").
[21] "The goal of contract interpretation is to determine the intent of the parties when they made the agreement." Celadon Trucking Servs., Inc. v. Wilmoth , 70 N.E.3d 833, 839 (Ind. Ct. App. 2017) (quoting Tender Loving Care Mgmt., Inc. v. Sherls , 14 N.E.3d 67, 72 (Ind. Ct. App. 2014) ), trans. denied. "If contract language is unambiguous, [a] court may not look to extrinsic evidence to expand, vary, or explain the instrument but must determine the parties’ intent from the four corners of the instrument." Id. Generally, construction of the terms of a written contract is a pure question of law, but if "a contract is ambiguous, the parties may introduce extrinsic evidence of its meaning, and the interpretation becomes a question of fact." Id. "If the language is deemed ambiguous, the contract terms must be construed to determine and give effect to the intent of the parties when they entered into the contract." Id. "Courts may properly consider all relevant evidence to resolve an ambiguity." Id. (quoting Tender Loving Care Mgmt. , 14 N.E.3d at 72 ). "An ambiguous contract should be construed against the party who furnished and drafted the agreement." Id.
Here, IGG was not an original party to the sublease.
[22] Obviously, Abdulla and IGG have conflicting interpretations of the ambiguous amended sublease, and IGG's interpretations have shifted over time. As we discuss below, the trial court improperly struck IGG's November 2017 letter to Abdulla, which is relevant extrinsic evidence of IGG's understanding about when the initial Term expired and the first Extended Term began. On remand, the trial court should consider this letter, as well as all other relevant evidence (including the original sublease, if appropriate), to determine the parties’ intent regarding the starting and ending dates of the initial and extended terms of the lease and whether Abdulla breached and/or failed to exercise his option to extend the lease. In doing so, the court should be mindful of the sublease provisions that require written notice of and an opportunity to cure defaults and that allow the lease to be extended without prior notice via the payment and acceptance of rent. The court should also consider the applicability of the mutual mistake doctrine. See RMJ Enters., Inc. v. Scottsdale Ins. Co. , 808 N.E.2d 159, 164 n.2 (Ind. Ct. App. 2004) (noting that document may be reformed "where there is a mutual mistake, i.e., where there has been a meeting of the minds, an agreement actually entered into, but the document in its written form does not express what the parties actually intended" and that "[a] mistake by a scrivener will permit reformation of an instrument if it is logically indicated that both parties were mistaken as to the actual contents of the instrument.").
Section 2 – The trial court erred in granting IGG's motion to strike and awarding IGG attorney's fees.
[23] Abdulla also contends that the trial court erred in granting IGG's motion to strike his motion for leave to file a surreply and in awarding IGG attorney's fees. IGG essentially concedes that the fee award is appealable as of right pursuant to Indiana Appellate Rule 14(A)(1) because it is an order for the payment of money, but IGG argues that the ruling on the motion to strike is unreviewable because the trial court did not certify it for discretionary interlocutory appeal pursuant to Appellate Rule 14(B). IGG cites no pertinent authority for splitting the proverbial baby in this manner, and because IGG's fee request is premised on the alleged necessity of filing the motion to strike, we elect to review the order in its entirety. [24] "We review motions to strike for an abuse of discretion, which occurs when the court's decision is contrary to the facts and circumstances before it." H.M. v. State , 65 N.E.3d 1054, 1057 (Ind. Ct. App. 2016), trans. denied (2017). Contrary to IGG's assertion in its motion to strike, Abdulla's surreply is not simply a "rehashing" of arguments already made to the trial court; it is a detailed response, supported with relevant case citations and the November 2017 letter from IGG, to new evidence and arguments that IGG submitted mere minutes before the show-cause hearing. Indiana courts have "consistently rejected a ‘gaming view’ of the litigation process" such as that demonstrated by IGG in this case. Outback Steakhouse of Florida, Inc. v. Markley , 856 N.E.2d 65, 76 (Ind. 2006). As for IGG's contention that a surreply is not permitted by the Indiana Trial Rules or the Lake County Local Rules, we note that those rules do not prohibit a surreply to be filed with leave of court; in any event, Trial Rule 81(H) allows a court to "suspend or modify compliance" with any local rule "if the interests of justice so require." We believe that the interests of justice were not served by the trial court's granting of IGG's motion to strike (and corresponding request for fees) in this case. In other words, the trial court abused its discretion, and therefore we reverse.
IGG cites an 1886 case involving an outmoded pre-appeal procedure to support its assertion that Abdulla's motion for leave and its exhibits are not part of the record on appeal because they were stricken by the trial court. If that were truly the case, such rulings would always be unreviewable.
[25] Moreover, apart from the propriety of the ruling on the motion to strike, "Indiana adheres to the American rule that in general, a party must pay his own attorneys’ fees absent an agreement between the parties, a statute, or other rule to the contrary." R.L. Turner Corp. v. Town of Brownsburg , 963 N.E.2d 453, 458 (Ind. 2012). IGG cited no authority for its fee request in its motion, and the trial court cited none for its fee award in its order. Consequently, we reverse the fee award on this ground as well.
IGG cites Indiana Code Section 34-52-1-1 as a basis for fees for the first time on appeal. Consequently, this argument is waived. Webb v. City of Carmel , 101 N.E.3d 850, 859 (Ind. Ct. App. 2018). Waiver notwithstanding, the statute allows an award of fees only for frivolous, unreasonable, groundless, or bad faith litigation, which Abdulla's filing is not.
[26] Reversed and remanded.
Najam, J., and Riley, J., concur.