Opinion
23A-PL-2080
06-12-2024
Widduck, LLC, Appellant-Plaintiff/Counterclaim Defendant v. ROA Indianapolis, LLC, d/b/a, Reagan Outdoor Advertising of Indianapolis, and Reagan Management Indianapolis, LLC, Appellees-Defendants/Counterclaimants/Third-Party Plaintiffs v. Tortas El Guero, LLC, Appellant - Third-Party Defendant
ATTORNEYS FOR APPELLANT - WIDDUCK, LLC J. Murray Clark Matthew C. Olsen Cassidy Segura Clouse Emily A. Kile-Maxwell Faegre Drinker Biddle & Reath, LLP ATTORNEYS FOR APPELLEES Yasmin L. Stump Christopher A. Ferguson Yasmin L. Stump Law Group, PC Carmel, Indiana ATTORNEYS FOR APPELLANT - TORTAS EL GUERO Katherine A. Piscione Matthew R. Land Waldron Tate Bowen Land LLC Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Gary L. Miller, Special Judge Trial Court Cause No. 49D03-2203-PL-010495
ATTORNEYS FOR APPELLANT - WIDDUCK, LLC J. Murray Clark Matthew C. Olsen Cassidy Segura Clouse Emily A. Kile-Maxwell Faegre Drinker Biddle & Reath, LLP
ATTORNEYS FOR APPELLEES Yasmin L. Stump Christopher A. Ferguson Yasmin L. Stump Law Group, PC Carmel, Indiana
ATTORNEYS FOR APPELLANT - TORTAS EL GUERO Katherine A. Piscione Matthew R. Land Waldron Tate Bowen Land LLC Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE.
Statement of the Case
[¶1] Widduck, LLC ("Widduck") is the lessor of property used for billboard advertisements at 2402 East Raymond Street in Indianapolis, Indiana. ROA Indianapolis, LLC d/b/a Reagan Outdoor Advertising of Indianapolis, and Reagan Management Indianapolis LLC (collectively "ROA") is the ultimate successor in interest to the original lessee. Tortas El Guero, LLC ("Tortas") entered into a land sale contract to purchase the real estate from Widduck. When ROA failed to vacate the real estate on or after the date Widduck believed the lease to have terminated, Widduck filed a complaint for possession of the subject real estate and damages. ROA counterclaimed, alleging breach of contract and seeking declaratory judgment, and it filed a third-party complaint against Tortas, alleging tortious interference with a business relationship. Widduck and Tortas filed a motion for partial summary judgment on the counterclaim, and ROA filed a cross-motion for partial summary judgment. The trial court granted ROA's motion and denied Widduck and Tortas's joint motion. Widduck and Tortas now appeal, raising the following issues:
1. Whether the trial court erred in granting partial summary judgment in favor of ROA on the right of first refusal lease provision; and
2. Whether the trial court erred when it denied Widduck and Tortas's joint motion for partial summary judgment on all other issues.
[¶2] We affirm in part, reverse in part, and remand. Facts and Procedural History
[¶3] In 2001, Ralph and Linda Robinson (the "Robinsons") and Eller Media Company ("Eller") entered into a real estate lease (the "Lease Agreement") with an effective date of July 18, 2001. The Lease Agreement includes the following relevant provisions:
1. The [Robinsons] ("Landlord") leases to ELLER MEDIA COMPANY, a Delaware corporation ("Eller"), the following described property ("Property"), for the purpose of erecting and maintaining outdoor advertising structures . . . (collectively, the "Structures") .... The Property is located at 2402 E. Raymond St[.] in the City/Township of Indianapolis[,] County of Marion, State of Indiana.
2. This Lease shall be in effect for a base term of ten (10) years, commencing on 7/18/01.
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4. The Lease shall continue in full force and effect for its initial term and thereafter for subsequent like terms, unless not less than ninety (90) days before the end of any such term Landlord or Eller gives Notice of termination.... During any term of this Lease and for a period of ninety (90) days following any termination of this Lease, Landlord grants Eller the right of first refusal to match any offer acceptable to [the
Landlord] for the use or purchase of the Property. A copy of any such third-party offer received by Landlord shall be delivered to Eller. Eller shall then have ten (10) business days in which to match such offer by giving Notice of acceptance to Landlord. If ownership of the Property changes, Landlord shall promptly notify Eller of such change and furnish the new owner with a copy of the Lease.
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13. This Lease is binding upon the heirs, assigns and successors of both Landlord and Eller. Landlord agrees not to assign this Lease to any competitor of Eller without Eller's written permission. Eller shall have the absolute right to assign or sublet.
14. Any notice ("Notice") to any party under this Agreement shall be in writing by certified or registered mail, and shall be effective on the earlier of (a) the date when delivered and receipted for by the a person at the address specified within this Agreement, or (b) the date which is three (3) days after mailing (postage prepaid) by certified or registered mail, return receipt requested, to such address; provided that in either case Notices shall be delivered to such other address as shall have previously been specified in writing by such party to all parties hereto at their respective addresses then in effect.
15. In the event suit is brought (or arbitration instituted) or any attorney is retained by any party to this Agreement because the other party breached this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys' fees and all related costs and expenses.
16. Neither Landlord nor Eller shall be bound by any terms, conditions or oral representations that are not set forth in this Lease. This Lease represents the entire agreement of Eller and Landlord with respect to the Structures and the Property....
Appellants's App. Vol. II at 32-33 (emphases added). Jeffrey S. McKinley executed the Lease Agreement on behalf of Eller as lessee.
[¶4] On July 18, 2011, the Lease Agreement automatically renewed for another ten-year term, extending the term of the Lease Agreement to July 18, 2021. Sometime before August 2014, Widduck acquired the Property from a successor in interest to the Robinsons. The lessee also changed: "Eller conveyed its leasehold interest in the subject property under the Lease Agreement to Clear Channel. Clear Channel subsequently conveyed its leasehold interest under the Lease Agreement to FMO Real Estate, LLC, and FMO Real Estate, LLC subsequently conveyed its leasehold interest under the Lease Agreement to ROA." Appellants's App. Vol. III at 35. None of the designated evidence provides dates for when the prior assignments occurred. ROA became the successor lessee in June 2019.
Neither Widduck nor ROA points to documentation showing whether the successor in-interest lessee is a single ROA entity or both defendant ROA entities.
[¶5] The designated evidence shows that, on August 8, 2014, five years before ROA was assigned the Lease Agreement, Widduck sent the following correspondence (the "Termination Notice") to Clear Channel Outdoor, which Widduck believed to be the lessee: "Widduck, LLC, the owner of 2402 Raymond Street, Indianapolis, Indiana hereby gives notice of the termination of the [Lease Agreement]. This termination of Lease shall be effective at the end of the current renewal period of the [Lease Agreement] that commenced on July 18, 2001." Appellant's App. Vol. II at 131. Widduck designated a signed United States Postal Service ("USPS") return receipt, which indicates Widduck sent the Termination Notice to Clear Channel Outdoor, attention Jeffrey S. McKinley, at 511 Madison Avenue, Indianapolis; the corresponding receipt is USPS-stamped to show successful delivery. However, neither party identified who signed the return-receipt. Widduck apparently did nothing further to confirm receipt of the Termination Notice until more than six years later in 2021.
In all correspondence to the lessee, Widduck used the mailing address of 511 Madison Avenue, Indianapolis, Indiana, and directed the correspondence to Jeffrey S. McKinley. This address and individual are the same as those listed for Eller on the Lease Agreement. According to ROA's counterclaim, ""Eller previously assigned and transferred its leasehold interest established in the Lease Agreement to Clear Channel Outdoor, which assigned and transferred the same leasehold interest to Reagan Outdoor Advertising in 2019." Appellants' App. Vol. II at 50 para 2.
[¶6] On February 11, 2021, Widduck sent via USPS (return receipt requested) the following correspondence to Clear Channel Outdoor (which Widduck mistakenly believed to be the lessee), attention Jeffrey S. McKinley, at 511 Madison Avenue in Indianapolis, to give notice that Widduck had received an offer to purchase the leased property at 2402 East Raymond Street in Indianapolis:
Widduck, LLC has received an offer to purchase the property at 2402 East Raymond Street, Marion County, Indianapolis, Indiana through a Land Sale Contract. The terms of the Contract are that the purchase price is Two Hundred Thirty Thousand Dollars ($230,000) payable with a Seventy Thousand Dollars ($70,000) down payment with the balance payable over four (4) years at six percent (6%) interest.
Per [the Lease Agreement], paragraph 4, Widduck, LLC is notifying and offering Clear Channel Outdoor the opportunity to match the Land Sale Contract offer. Clear Channel has ten (10) days from the certified mail/return receipt date to accept this offer.
Appellants's App. Vol. II at 36, 133. Widduck intended this correspondence (the "ROFR Notice") to satisfy the right of first refusal (the "ROFR") provision in paragraph 4 of the Lease Agreement. The ROFR Notice did not include a copy of a purchase offer or land sale contract. Widduck received no response to the ROFR Notice. On February 26, 2021, Widduck entered into a land sale contract (the "Land Sale Contract") to convey the property at 2402 East Raymond Street to Tortas. Barry Widduck executed the Land Sale Contract as the managing member of the seller, Widduck, LLC, and Jorge Soto Lopez executed as the buyer, Tortas El Guero, LLC, and individually as the guarantor.
The Land Sale Contract lists the buyer's name as "Tortas El Guergo, LLC," but the parties refer to the buyer as "Tortas el Guero, LLC."
[¶7] At some point, Widduck learned that ROA was the lessee because, on May 13, 2021, Barry Widduck ("Barry") emailed Michelle Noppenberger (at michelle.noppenberger@reaganusa.com) a reminder of the Termination Notice, attaching the USPS certified mail return receipt to show delivery of the Termination Notice and asking her to contact him. On May 17, 2021, Barry received a voicemail from Noppenberger at "Reagan Outdoor," which email was transcribed as follows: "Hi Barry, it's Michelle at Reagan Outdoor, uh, just wanted to let you know that I did receive your email, um, with the termination letter, and everything looks proper...." Appellants's App. Vol. II at 224.
The email string included in the Appellants' App. Vol. II at 201-03 does not include the attachment.
[¶8] On August 6, 2021, Widduck emailed Noppenberger with a notice that the Lease Agreement had been terminated effective July 18, 2021, requesting the immediate removal of the billboard sign the lessee had on the property.Widduck's email included a Microsoft Word file of the Termination Notice dated August 8, 2014, and a copy of the USPS return receipt purporting to show successful delivery of the same to Clear Channel Outdoor at 511 Madison Avenue, Indianapolis, Indiana. On August 10, 2021, Daniel C. McClendon, Corporate Counsel and Corporate Development Manager for Reagan Outdoor Advertising, on behalf of Reagan Outdoor Advertising of Indianapolis, sent a letter to Widduck, LLC that provides in relevant part:
According to Widduck and Tortas's brief in support of the Joint MPSJ, July 1, 2020, was the date the last rent payment was due for the lease term through July 1, 2021. A handwritten, initialed notation on the Lease Agreement provides for rent to be paid annually.
Neither Widduck nor Tortas accepted rent since July 1, 2020, which was apparently when the last rent payment was due.
With respect to the [ROFR] notice you provided, it was ineffective. Reagan Outdoor Advertising of Indianapolis ("ROA") never received such letter until you emailed a copy to Michelle Noppenberger on August 6, 2021. Pursuant to the notice language in [the Lease Agreement], you were required to
address the notice to ROA and not Clear Channel Outdoor. While the physical address may be the same, clearly addressing the notice to the incorrect party resulted in its failed delivery. We know this because on the date, according to the USPS, that the letter was allegedly delivered, our office was completely closed for the entire week due to a COVID outbreak, and no one was at the office to be able to accept delivery. Additionally, the signature on the return receipt card you have provided odes no [sic] correspond to anyone that works for Reagan Outdoor Advertising. While the notice provision of [the Lease Agreement] does not require proof of receipt of delivery pursuant to Paragraph 14, [the Lease Agreement] does require notice be properly addressed to make use of such provision. Consequently, the notice you allege to have provided to ROA was ineffective and void.
More importantly, regardless of the failed delivery of the notice itself, the offer you provided is also ineffective in triggering the ROFR. Pursuant to Paragraph 4, you were required to provide ROA with "a copy of any such third-party offer" to trigger the ROFR election period. The letter you allege was the notice of the offer to purchase, states that the land would be sold via a Land Sale Contract in the amount of $230,000.00 with a $70,000.00 down payment and the balance payable over 4 years at 6% interest. The Land Sale Contract, by your own admission, has never been provided to ROA. In a recent conversation with Ms. Noppenberger, you specifically stated that you provided the alleged notice by mail back in February, 2021, and after waiting ten days, you then prepared and executed the Land Sale Contract with the buyer. Clearly, even if the addressing of the notice were not an issue, you failed to provide a copy of the Land Sale Contract with the letter, as it did not exist at that time. [The Lease Agreement] specifically requires a copy of the third-party offer, not a summary of what you deem to be the relevant offer information in a letter. Consequently, you failed to provide proper notice to ROA to trigger the ROFR.
At this point in time, you have executed a Land Sale Contract to sell the property without providing ROA with its ROFR pursuant to the terms of the Lease, and ROA hereby declares you in breach of the Lease and subject to damages for said breach, including, but not limited to, ROA's attorneys' fees which may be incurred in enforcing its rights under the Lease. In an effort of settlement and compromised, ROA is willing to waive its rights under the right of first refusal in exchange for the execution, by both seller and buyer of the subject property under the Land Sale Contract, of the enclosed easement in favor of ROA Land IND, LLC free and clear of any and all liens on the subject property. Alternatively, if we do not receive an executed easement within ten (10) business days of receipt of this letter, we will initial [sic] legal action against both Widduck, LLC and the buyer under the Land Sale Contract. While we would typically be open to other settlement options, given your alleged termination of the Lease and unwillingness to execute a new lease with ROA, we will only entertain the two above options.
Appellants's App. Vol. III at 47-48 (emphases added). On behalf of ROA, McClendon further asserted that the Lease Agreement was still in effect, "Widduck never having properly terminated it," and that the Lease Agreement had again automatically renewed, extending the same for another ten years. Appellees's Br. at 10.
[¶9] On March 30, 2022, Widduck filed a complaint against ROA, alleging trespass, unjust enrichment, and breach of the Lease Agreement and seeking immediate possession of the real property and punitive damages. On June 23, 2022, ROA filed its answer and affirmative defenses, a counterclaim against Widduck alleging breach of contract and seeking declaratory judgment (the "Counterclaim"), and a third-party complaint against Tortas alleging tortious interference with a business relationship (the "Third-Party Complaint"). In particular, the Counterclaim alleged breach of contract based on Widduck's alleged failure to comply with the ROFR provision and sought declaratory judgment that the Lease Agreement had been extended to July 18, 2031, via the autorenewal provision and that Widduck had violated the ROFR provision in the Lease Agreement. On July 22, 2022, Widduck filed its answer to the Counterclaim, and, on October 5, 2022, Tortas filed its Answer and Affirmative Defenses to the Third-Party Complaint.
[¶10] On January 12, 2023, Widduck and Tortas filed their joint motion for partial summary judgment ("Joint MPSJ"), along with a supporting brief and designation of evidence, on the Counterclaim's request for declaratory judgment and breach of lease claims. On February 10, 2023, ROA filed its cross motion for partial summary judgment ("ROA's Cross-MPSJ"), along with its supporting brief and designation of evidence, on the allegation that Widduck violated the ROFR provision in the Lease Agreement. ROA also filed its response to the Joint MPSJ. On May 8, 2023, the trial court entered its order granting partial summary judgment in favor of ROA on the counterclaim for breach of the ROFR provision in the Lease Agreement and denied "all other issues in Widduck and Tortas's Motion for Partial Summary Judgment" ("Partial SJ Order"). Appellants's App. Vol. II at 21-22.
[¶11] On June 7, 2023, Widduck and Tortas filed a joint motion to certify the Partial SJ Order, which the trial court ultimately granted. On September 6, 2023, Widduck and Tortas filed their joint motion asking this court to accept jurisdiction of the interlocutory appeal which was ultimately granted.
Discussion and Decision
1. Standard of Review
[¶12] In this interlocutory appeal, Widduck argues the trial court erred by granting ROA's Cross-MPSJ and denying the Joint MPSJ. As the Indiana Supreme Court has explained, we review summary judgment decisions de novo, which means we apply the same standard as the trial court. Miller v. Patel, 212 N.E.3d 639, 644 (Ind. 2023) (quoting 624 Broadway, LLC v. Gary Hous. Auth., 193 N.E.3d 381, 384 (Ind. 2022)). Summary judgment is proper only "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C) (emphasis added). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." City of Marion v. London Witte Grp., LLC, 169 N.E.3d 382, 390 (Ind. 2021) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).
[¶13] We resolve "all factual inferences and all doubts as to the existence of a material issue" in favor of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)). In so doing, "we give careful scrutiny to make sure the non-movant's day in court is not improperly denied." Id. (internal quotation marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1187 (Ind. 2016)).
[¶14] The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Wireman v. LaPorte Hosp. Co., 205 N.E.3d 1041, 1045 (Ind.Ct.App. 2023) (citing Serbon v. City of E. Chicago, 194 N.E.3d 84, 91 (Ind.Ct.App. 2022)), reh'g denied, trans. denied, 211 N.E.3d 1007 (Ind. 2023). Only if the moving party meets this prima facie burden does the burden then shift to the nonmoving party to show the existence of a genuine issue of material fact. Id. (citing Serbon, 194 N.E.3d at 91). "The fact that the parties made cross-motions for summary judgment does not alter our standard of review. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law." Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind.Ct.App. 2007).
[¶15] ROA's Cross-MPSJ addresses whether Widduck complied with particular terms of the Lease Agreement. To resolve those questions, we must interpret that contract. We construe a lease in the same manner as any other contract. Sisters of St. Francis Hosp. Servs., Inc. v. EON Props., LLC, 968 N.E.2d 305, 311 (Ind.Ct.App. 2012). "Cases involving contract interpretation are particularly appropriate for summary judgment, and because the interpretation of a contract presents a question of law, it is reviewed de novo by this court." Steak N Shake Operations, Inc. v. Nat'l Waste Assocs., LLC, 177 N.E.3d 816, 830 (Ind.Ct.App. 2021). "The goal of contract interpretation is to ascertain and give effect to the parties' intent as reasonably manifested by the language of the agreement. If the language is clear and unambiguous, it must be given its plain and ordinary meaning." Decker v. Star Fin. Grp., Inc., 204 N.E.3d 918, 920-21 (Ind. 2023) (internal citations omitted). When this court interprets a contract,
we ascertain the intent of the parties at the time the contract was made, as disclosed by the language used to express the parties' rights and duties. We look at the contract as a whole . . . and we accept an interpretation of the contract that harmonizes all its provisions. A contract's clear and unambiguous language is given its ordinary meaning. A contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless.Ryan v. TCI Architects/Eng'rs/Cont'rs, Inc., 72 N.E.3d 908, 914 (Ind. 2017) (internal citations omitted).
[¶16] Here, we must determine whether the trial court erred when it granted ROA's Cross-MPSJ on ROA's counterclaim that alleged the ROFR Notice did not comply with the terms of the Lease Agreement and, therefore, the land sale contract is invalid. We must further determine whether the trial court erred when it denied Widduck and Tortas's joint motion for partial summary judgment on the following of ROA's counterclaims:
1. Declaratory judgment that Widduck had failed to properly notify ROA or its predecessors in interest regarding termination of the lease; and
2. Breach of contract by Widduck for failing to comply with the manner of exercising the ROFR.
First, we combine the issues regarding the ROFR and consider both (1) the grant of partial summary judgment in favor of ROA on the Counterclaim alleging breach of the ROFR provision in the Lease Agreement and (2) the denial of Widduck's claim that the ROFR provision was proper together as a single issue. Afterward, we consider whether the court erred in denying the Joint MPSJ on the allegation that termination of the Lease Agreement was proven by Widduck and Tortas in their designated evidence.
2. Designated Evidence Demonstrates a Breach of the ROFR Provision in the Lease Agreement
[¶17] Widduck and Tortas contend that the trial court erred when it granted ROA's Cross-MPSJ on the breach of contract Counterclaim and denied the Joint MPSJ on the declaratory judgment ROFR Counterclaim. Again, the ROFR provision in the Lease Agreement states:
During any term of this Lease and for a period of ninety (90) days following any termination of this Lease, Landlord grants Eller the right of first refusal to match any offer acceptable to [the Robinsons] for the use or purchase of the Property. A copy of any such third-party offer received by Landlord shall be delivered to Eller. Eller shall then have ten (10) business days in which to match such offer by giving Notice of acceptance to Landlord.Appellants's App. Vol. II at 32. Widduck contends that it had "received the material terms of Tortas El Guero, LLC's offer to purchase the Property" and "summarized those oral terms in a written notice to the known Tenant at the address" it had for such tenant. Appellants's App. Vol. II at 191. However, the ROFR provision in the Lease Agreement required Widduck to send a "copy of any such third-party offer" to the lessee. Id. (emphasis added). Even if we were to consider a summary of material terms sufficient to constitute a "copy of any such third-party offer," we disagree with Widduck that the summary included in its purported ROFR Notice set out the material terms here.
[¶18] Widduck's purported ROFR Notice provides:
Widduck, LLC has received an offer to purchase the property at 2402 East Raymond Street, Marion County, Indianapolis, Indiana through a Land Sale Contract. The terms of the Contract are that the purchase price is Two Hundred Thirty Thousand Dollars ($230,000) payable with a Seventy Thousand Dollars ($70,000) down payment with the balance payable over four (4) years at six percent (6%) interest.
Per [the Lease Agreement], paragraph 4, Widduck, LLC is notifying and offering Clear Channel Outdoor the opportunity to match the Land Sale Contract offer. Clear Channel has ten (10) days from the certified mail/return receipt date to accept this offer.Appellants's App. Vol. II at 36, 133. The law on the formation of a contract is well-settled:
To be valid and enforceable, a contract must be reasonably definite and certain. All that is required to render a contract enforceable is reasonable certainty in the terms and conditions of the promises made, including by whom and to whom; absolute certainty
in all terms is not required. Only essential terms need be included to render a contract enforceable.Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 813 (Ind. 2009) (emphasis added). Here, Widduck's summary of the purchase offer did not include all material terms because, at a minimum, it did not include the identity of the offeror. See id. Further, a separate provision in the Lease Agreement prohibits Widduck from assigning the Lease Agreement to a competitor of the lessee without the lessee's written permission. The identity of the purchase offeror is a material term, especially in light of the provision requiring the lessee's permission for such a transaction. As such, the trial court did not err when it entered summary judgment in favor of ROA on the breach of ROFR allegation in the Counterclaim and denied the Joint MPSJ as to ROA's ROFR declaratory action claim.
3. Designated Evidence Shows That Widduck's Termination Notice Complied with the Lease Agreement
[¶19] We next consider Widduck and Tortas's contention that there are no genuine issues of material fact and that the facts as alleged support the entry of summary judgment in their favor on ROA's Counterclaim seeking declaratory judgment regarding the Termination Notice. The Declaratory Judgment Act, Indiana Code sections 34-14-1-1 through -15, provides "an expeditious and economical way to decide controversies while there is still time for "peaceable judicial settlement.'" Holcomb v. Bray, 187 N.E.3d 1268, 1284 (Ind. 2022) (quoting Volkswagenwerk, A.G. v. Watson, 390 N.E.2d 1082,1084-5 (Ind.Ct.App. 1979), trans. denied). "They allow courts to declare the rights of parties and to express an opinion on a question of law without necessarily ordering the parties to take any specific action." Id. (citing Ind. Code §§ 34-14-1-1, -12).
[¶20] Here, in relevant part, ROA's Counterclaim sought declaratory judgment that "a new 10-year term automatically commenced on July 18, 2021 because Widduck failed to properly notify [ROA] or its predecessors-in-interest about the termination of the Lease Agreement." Appellants's App. Vol. II at 53. In the Joint MPSJ, Widduck and Tortas sought summary judgment denying this Counterclaim, arguing that Widduck had "properly sent a notice of termination" to the tenant in compliance with the terms of the Lease Agreement. Appellants's App. Vol. II at 108. We agree.
[¶21] Again, the Lease Agreement provides the following with regard to notice of termination:
4. The Lease shall continue in full force and effect for its initial term and thereafter for subsequent like terms, unless not less than ninety (90) days before the end of any such term Landlord or [the tenant] gives Notice of Termination....
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14. Any notice ("Notice") to any party under this Agreement shall be in writing by certified or registered mail, and shall be effective on the earlier of (a) the date when delivered and receipted for by a person at the address specified within this Agreement, or (b) the date which is three (3) days after mailing (postage prepaid) by certified or registered mail, return receipt requested, to such address ....Appellants's App. Vol. II at 32-33. In support of the Joint MPSJ, Widduck and Tortas designated Widduck's affidavit, in which Barry affirmed under oath that the documents attached to that affidavit were true and accurate copies of the Termination Notice sent to 511 Madison Avenue, Indianapolis, Indiana on August 8, 2014, via certified mail, return receipt requested. This designated evidence shows that Widduck had sent the Termination Notice, "in writing by certified or registered mail," and the same was "delivered and receipted for by a person at the address specified within the [Lease] Agreement," namely, 511 Madison Avenue, Indianapolis, Indiana. Appellants's App. Vol. II at 33. As such, the designated evidence shows without contradiction that Widduck satisfied the Lease Agreement's termination requirements.
[¶22] ROA asserts three reasons that the Joint MPSJ on this issue should fail: (1) Widduck and Tortas failed to designate an original signed copy of the Termination Notice correspondence; (2) the Termination Notice was not sent to the correct lessee at the time the Termination Notice was sent; and (3) Clear Channel, the addressee of the Termination Notice, never passed the Termination Notice on to ROA. None of these arguments demonstrate a genuine issue of material fact. Any failure to correctly address the Termination Notice to the lessee is irrelevant because the Lease Agreement did not require the lessee to be named, only that a written notice be "delivered and receipted for by a person at the address specified within the [Lease] Agreement," as was done here. Appellants's App. Vol. II at 33. Moreover, the purported failure of Clear Channel to provide the Termination Notice to a subsequent assignee- lessee does not constitute a failure by Widduck. In any event, the designated evidence shows the Termination Notice was directed to the attention of Jeffrey S. McKinley, the same individual the Record shows to be affiliated with both Clear Channel and ROA, further undermining ROA's argument on this point. As such, we conclude that the trial court erred when it denied the Joint MPSJ on the counterclaim pertaining to the Termination Notice. Finally, there is no requirement in the Lease Agreement for Widduck to have designated an original signed copy of the Termination Notice, nor do we conclude that one was necessary.
Conclusion
[¶23] The trial court did not err when it determined there was a breach of the ROFR provision in the Lease Agreement, so we affirm the trial court's entry of partial summary judgment in favor of ROA on its breach of contract claim and the denial of the Joint MPSJ on the counterclaim regarding the ROFR. However, the trial court erred when it denied partial summary judgment to Widduck and Tortas with respect to the Counterclaim seeking a declaration that the Lease had been renewed through July 18, 2031. On that issue, we reverse the trial court. We remand this case for the entry partial summary judgment in favor of Widduck and Tortas on the Termination Notice declaratory judgment Counterclaim; for the determination of relief to be granted, if any, on the claims for which partial summary judgment is determined in this decision to be appropriate; and for the trial court to determine the remaining issues not addressed in the Joint MPSJ or ROA's Cross-MPSJ.
[¶24] Affirmed in part, reversed in part, and remanded.
Altice, C.J., and Bradford, J., concur.