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`STATE OF INDIA'NA
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`COUNTY 0F TIPPECANQE )
`Tco ASSETS LAND LLC?
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`Plaintiff,
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`VS. -
`THOMAS B. MILLS, er alg,
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`IN THE TIPPECANOE SUPERIOR COURT 2
`CAUSE N0.: 79D02F1E2L :‘- 03E?
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`JAN 3 u 22-32%
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`Wbfi
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`mark 01 Tippecanoe County
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`Defendants.
`BRIEF IN SUPPORT 9F MOTION FOR SUMMARY JUDGMENT AGAINST MILLS
`Cross-claim Plaintiiff T6 Unison Site Management (“T6 Unison”), by counsel, pursuant to
`Rulef56, Indiana Rules of Trial Procedure, respectfiilly moves the Court for the entry of summary
`judgment against Defendan%£s, David J. Mills, Thomas B. Mills, and Donna J. Mills (collectively, fhe
`“Mills”). In support, T6 Unison states as follows:
`INTRODUCTION
`On or about: April 13, 2009, T5 Unison Site Management, LLC (“T5 Unison”) paid the Mills
`Fifty Thousand and 00/100 Dollars ($50,000.00) in exchange for an easement right. T5 Unison
`subsequently assigned the easement right to T6 Unison. The Mills defaulted on a Mortgage held by
`Plaintiff TCO Assezts LandjLLC (“TCO”), and as a direct and proximate result of the Mills’ default
`TCO foreclosed upon its niiortgage. TCO’s foreclosure of the mortgage has extinguished the rights
`that T6 Unison held pursuant to the assignment of the T5 Unison easement. The Mills benefited
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`from the $50,000.C0 they r;eceived in exchange for the easement and in failing to maintain title to
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`the Real Estate, have materially breached the terms of the easement. There are no genuine issues of
`material fact in dispute and T6 is entitled to the entry of summary judgment in its favor on both
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`counts of its Cross-claim agiainst the Mills.
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`II.
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`DESIGNATION OF EVIDENCE
`IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
`Verified Affidavit of Raymond W. Goodwin. (“Goodwin Affidavit”).
`A trlue and accurate copy of the Warranty Deed to Donna J. Mills and Thomas B.
`Mills, and David J. Mills dated April 22, 1993, and recorded of even date, in the
`Offi :e of the;Tippecanoe County Recorder as Instrument No.2 93 -07936. (“Deed”).
`A trlue and $ccurate copy of the Term Note in the original principal amount of
`$1,300,000.00, executed by Donna J. Mills and Thomas B. Mills in Favor of
`Lafayette Community Bank dated January 23, 2005. (“TCO Note”).
`A true and a‘fccurate copy of the Mortgage executed by Donna J. Mills, Thomas B.
`Mill's, and David J. Mills, dated January 23, 2004, and recorded November 5, 2004,
`as Illistrumeni Number 2004-04030674 in the Office of the Recorder of Tippecanoe
`Courllty, Indiéna. (“TCO Mortgage”).
`A true and accurate copy of April 14, 2009 Wireless Communications Easement and
`Assilgnment Agreement recorded June 3, 2009 in the Office of the Recorder of
`Tipp'ecanoe 5County, Indiana as Instrument No. 200909001 1881.
`(“Wireless
`Easement Agreemen ”).
`A true and apcurate copy of the July 18, 2009 Assignment of Easement recorded
`August 10, 2009 in the Office 0f the Recorder of Tippecanoe County, Indiana as
`Instrument No. 200909017587 (“Easement Assignment”).
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`TCO‘ ~Comp1:aint and Exhibits designated therein filed December 20, 2010.
`(“Complaint”). The Court is asked to take judicial notice of the Complaint as it
`appears withi'n the court’s file.
`TCO Motion for Summary Judgment and Documents Designated therein filed
`August 4, 2011. (“TCO Motion”). The Court is asked to take judicial notice of the
`TCO Motion hs it appears within the court’s file.
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`Aprill 18, 2012 Order on Summary Judgment and Decree of Foreclosure. (“TCO
`Decree of Foreclosure”). The Court is asked to take judicial notice of the TCO
`Decree of Foreclosure as it appears within the court’s file.
`A trllie and accurate copy of Defendants Thomas B. Mills and Donna J. Mills
`Responses to Plaintiff” s First Set of Requests for Admissions (“Mills’ Admissions”).
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`Exhibit A.
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`Exhibit B.
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`Exhibit C.
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`Exhibit D.
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`Exhibit E.
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`Exhibit F.
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`Exhibit G.
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`Exhibit H.
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`Exhibit I.
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`Exhibit J.
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`STATEMENT OF UNDISPUTED MATERIAL FACTS
`Hi.
`On ‘iOctober 29, 2004, the Mills owned fee simple title to real estate commonly
`known as 3180 W.% County: Road 250 N., ‘West Lafayette, Indiana 46750 and as more particularly
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`described as follow;s:
`A EPART OF THE NORTHEAST QUARTER OF SECTION 10,
`TOWNSHIP 23 NORTH, RANGE 5 WEST, WABASH TOWNSHIP,
`MORE
`COMPLETELY
`COUNTY,
`TIPPECANOE
`INDIANA,
`DESCRIBED AS FOLLOWS.
`BEGINNING AT A POINT 0N THE SOUTH LINE 0F THE SAID
`NORTHEAST QUARTER, SAID POINT 0F BEGINNING BEING 1178
`FEEIT WEST 0F THE SOUTHEAST CORNER 0F THE NORTHEAST
`QUARTER 'AFORESAID; THENCE SOUTH 88 DEGREES AND 45
`MINUTES WEST 0N THE SAID SOUTH LINE FOR A DISTANCE 0F
`528 '7 FEET; THENCE NORTH o DEGREES AND 49 MINUTES WEST
`FOR' A DISTANCE 0F 436 FEET, THENCE SOUTH 88 DEGREES AND
`45 MINUTES WEST FOR A DISTANCE 0F 200 FEET; THENCE NORTH
`0 DEGREES AND 49 MINUTES WEST FOR A DISTANCE 0F 888 3
`FEEjT T0 THE NORTH LINE 0F THE SOUTH HALF 0F THE SAID
`NORTHEAST QUARTER; THENCE EASTERLY 0N THE SAID NORTH
`LINE FOR A DISTANCE 0F 335 FEET T0 THE WESTERN RIGHT 0F
`WAY LINE 0F THE NICKEL PLATE RAILROAD; THENCE
`SOUTHEASTERLY 0N THE SAID RIGHT 0F WAY LINE FOR A
`DISTANCE 0F 654 FEET; THENCE SOUTH 1 DEGREE AND 15
`MINIpTEs EAST FOR A DISTANCE 0F 788.7 FEET, To THE PLACE 0F
`BEQINNING.
`SAID TRACI 0F LAND CONTAINS 17.5 +/— ACRES, MORE 0R LESS.
`TAX! PARCEL NO. 132-01500-0084
`ALSQ
`A PART 0F THE SOUTHEAST QUARTER (1/4) 0F THE NORTHEAST
`QUARTER (1/4) 0F SECTION 10 TOWNSHIP 23 NORTH, RANGE 5
`WEST WABASH TOWNSHIP, TIPPECANOE COUNTY, INDIANA
`MORE COMPLETELY DESCRIBED As FOLLOWS:
`BEGINNING AT A POINT AT THE INTERSECTION OF THE
`WESETERLY RIGHT-OF-WAY LINE OF THE NICKLE PLATE
`RAILROAD AND THE SOUTH LINE OF THE NORTHEAST QUARTER
`(1/4)’ OF SECTION 10, AS HERETOFORE DESCRIBED SAID POINT
`BEING 625.7 FEET WEST OF THE SOUTHEAST CORNER OF THE
`NORITHEAST QUARTER (1/4) OF THE SAID SECTION 10, THENCE
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`1WIEST ON THE SOUTH LINE OF THE NORTHEAST QUARTER (1/4)
`F(PR A DISTANCE OF 552.3 FEET, THENCE NORTH 1 DEGREE AND
`15" MINUTES WEST FOR A DISTANCE OF 788.7 FEET TO THE
`WlESTERLY RIGHT-OF-WAY LINE OF THE NICKLE PLATE
`MILROAD, THENCE SOUTH 36 DEGREES AND 15 MINUTES EAST
`OIi\I THE WESTERLY LINE OF THE NICKLE PLATE RAILROAD FOR
`A DISTANCE OF 962.8 FEET TO THE PLACE OF BEGINNING.
`SA!1D TRACT OF LAND CONTAINS 5 +/- ACRES, MORE OR LESS.
`lEXECEPT A PART 0F THE NORTHEAST QUARTER 0F SECTION TEN
`(IQ), TOWNSHIP TWENTY—THREE (23) NORTH, RANGE FIVE (5)
`WEST, WABASH TOWNSHIP, TIPPECANOE COUNTY, INDIANA,
`BEilNG MORE COMPLETELY DESCRIBED As FOLLOWS, To—WIT:
`COMMENCING AT THE SOUTHEAST CORNER 0F THE NORTHEAST
`QUIARTER 0F SECTION 10—23-5, SAID CORNER BEING MARKED BY
`A RAILROAD SPIKE; THENCE SOUTH 88°-45’—00” WEST ALONG THE
`sopTH LINE
`QUARTER SECTION AND THE
`0F
`SAID
`APPROXIMATE CENTERLINE 0F COUNTY ROAD 250 NORTH A
`DISTANCE 0F 1573.02 FEET To THE POINT 0F BEGINNING 0F THE
`HEIREIN DESCRIBED TRACT, SAID POINT BEING MARKED BY A PK
`NA11L; THENCE CONTINUING SOUTH 88°—45’-00” WEST ALONG
`SAIID SOUTH LINE AND SAID APPROXIMATE CENTER LINE A
`DISTANCE 0F 83.28 FEET To A PK NAIL; THENCE NORTH 00—49’00”
`WEST A DISTANCE 0F 523.04 FEET To A RE-BAR; THENCE NORTH
`88°J45’—00” ‘EAST PARALLEL WITH SAID SOUTH LINE A DISTANCE
`0F !83.28 FEET To A RE-BAR; THENCE SOUTH 0°-49’—00” EAST A
`DIS‘TANCE 0F 523.04 FEET To THE POINT 0F BEGINNING,
`CONTAINING 1.000 +/_ ACRE.
`ALS:O EXCEPT PART OF THE EAST HALF OF THE WEST HALF OF
`THE NORTHEAST QUARTER OF SECTION TEN (10), TOWNSHIP
`TWENTY—THREE (23) NORTH, RANGE FIVE (5) WEST IN WABASH
`TOWNSHIP,
`TIPPECANOE
`MORE
`COUNTY,
`INDIANA,
`COMPLETELY DESCRIBED AS FOLLOWS, TO-WIT:
`BEGINNING AT AN IRON PIPE ON THE SOUTH LINE OF THE
`NORTHEAST QUARTER OF
`10-23—5 AND THE
`SECTION
`CENITERLINE OF COUNTY ROAD #250 N, SAID POINT BEING 1656.3
`FEET WEST OF THE SOUTHEAST CORNER OF SAID QUARTER
`SECTI‘ION AND 50 FEET EAST OF THE WEST LINE OF GRANTOR’S
`TRApT OF LAND; THENCE NORTH 0°49’ WEST A DISTANCE OF
`523.04 FEET TO AN IRON PIPE; THENCE SOUTH 88°45’ WEST AND
`PARALLEL ITO THE SOUTH LINE OF SAID QUARTER SECTION A
`DIST[ANCE OF 250.0 FEET TO AN IRON PIPE; THENCE SOUTH 0°49’
`EAST A DISTANCE OF 87.04 FEET TO AN IRON PIPE; THENCE
`NOR1TH 88°45’ EAST AND PARALLEL TO THE SOUTH LINE OF SAID
`QUAiRTER SECTION A DISTANCE OF 200.0 FEET TO AN IRON PIPE;
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`THENCE SOUTH 0°49’ EAST A DISTANCE OF 436.0 FEET TO A
`RAILROAD SPIKE ON THE SOUTH LINE OF SAID QUARTER
`SECTION; ‘ITHENCE NORTH 88°45’ EAST ALONG SAID SOUTH LINE
`A ’DISTANCE OF 50.0 FEET TO THE PLACE OF BEGINNING,
`CO‘NTAINING 1.0 +/- ACRES, MORE OR LESS.
`AND BEING THE SAME PROPERTY CONVEYED TO THOMAS B.
`MILLS AND DONNA J. MILLS, AN UNDIVIDED 85/100 INTEREST,
`AND DAV'ID J. MILLS, AN UNDIVIDED 15/100 INTEREST FROM
`PRODUCERS MARKETING ASSOCIATION, INC, AN INDIANA
`CORPORATION BY CORPORATE WARRANTY DEED DATED APRIL
`22, !1993 AND RECORDED APRIL 22, 1993 IN INSTRUMENT NO 93-
`07936.
`TA%( PARCEL NO. 132-01-500-0117
`(the “Real Estate”)
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`ExhibitA.‘ Goodwin Aflidav‘it, 1H} 4—5; Exhibit B, Deed.
`The
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`2.
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`Mills executed a Wireless Communication Easement and Assignment
`April '214, 2009 to T5, recorded June 3, 2009 as Instrument Number
`the Offiice of the Tippecanoe County Recorder. Exhibit A: Goodwin Afidavit,
`Wirelesé Easement Agreement.
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`Agreement dated
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`200909011881 in
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`1111 4—5; Exhibit E.-
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`3.
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`Paragraph 4' of the Wireless Easement Agreement states that its term “shall be
`T5 Unis:0n shall “voluntarily cease to use the Easements for a period of more
`perpetual” unless
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`Esichibit A: Goodwin Affidavit, 1H} 4—5; Exhibit E: Wireless Easement
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`than five years...
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`Agreement.
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`4.
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`Neitl
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`period of five (5) o
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`5.
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`1er T5 Unison nor T6 Unison has voluntarily ceased to use the Easements for a
`r more fears. ExhibitA: Goodwin Afiidavit, 1} 4-5.
`In consideration for granting the perpetual Easement, the Mills received valuable
`consideration in th=v amount of Fifty Thousand and 00/100 Dollars ($50,000.00) from T5 Unison.
`ExhibitA: Goodwin Affidavit 1] 4—5.
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`6.
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`The Easemept was assigned to T6 Unison by way of an Assignment of Easement
`dated July 18, 2009, recorded August 10, 2009 as Instrument Number 200909017587 in the Office
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`of the Tippecanoe County' Recorder. Exhibit A: Goodwin Aflz‘davit, 1] 4-5; Exhibit E: Wireless
`Easement Assignment.
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`Good
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`and valuable consideration is recited in each instrument granting or assigning
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`the Easement, inc
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`luding tlile July 18, 2009 Assignment of Easement to T6 Unison. Exhibit A:
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`Goodwin Aflidavit,
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`6,
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`Exhibit E: Wireless Easement Agreement; Exhibit F: Easement
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`Assignment.
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`8.
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`On January 23, 2004, Mills executed a Real Estate Mortgage (“TCO Mortgage”) in
`Bank, which was recorded November 5, 2004 as Instrument Number 2004-
`favor of Lafayette
`04030674 in the Office ofithe Tippecanoe County Recorder. Exhibit D: Exhibit A t0 the TCO’S
`Complaint, TCO’S
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`Mortgage.
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`9.
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`The
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`Mortgage, through a series of assignments, was owned by and foreclosed in
`favor of TCO. Exhibits H: Complaint.
`Mills' defaultéd on the underlying note secured by the Mortgage. Exhibit I: TCO
`Decree ofForeclosure.
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`10.
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`11.
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`As a
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`Easement. Exhibit
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`result of the Mills’s default, foreclosure of the Mortgage has extinguished the
`I: TCO Decree ofForeclosure.
`T6 Unison hag suffered damages in the amount of $50,000.00 as a result of its loss of
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`12.
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`use ofthe Easement. Exhibit A, Goodwin Affidavit, 11 4-5.
`LEGAL ANALYSIS
`IV.
`Standard fori Summary Judgment
`A.
`Summary ju.
`igment is proper where the evidence shows that no genuine issue of material
`fact exists and the moving péfiy is entitled to judgment as a matter 0f law. Ind. Trial Rule 56(C);
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`So)
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`McIntyre v. Baker, 660 N.E.2d 348, 349 (Ind. Ct. App. 1996). The purpose of summary judgment
`is to terminate litig ition abéut which there can be no factual dispute and which may be determined
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`as a matter of law. Straley v.‘ Kimberly, 687 N.E.2d 360, 363 (Ind. Ct. App. 1997).
`The standards for consideration of a motion for summary judgment are well established. A
`moving party is en
`titled to; summary judgment as a matter of law if the pleadings, depositions,
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`affidavits, answers
`genuine issue of m
`598 N.E.2d 558, 56
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`to interrogatories and admissions, together With any testimony, do not reveal a
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`éterial féct. Rule 56(C), Indiana Rules of Trial Procedure; Nelson v. Dinkins,
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`O (Ind. Gt. App. 1992). The purpose of summary judgment is to resolve quickly
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`and inexpensively t
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`hose disputes in which no genuine issue of material fact exists and in which one
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`party is entitled to j
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`udgment as a matter of law. Bailey v. Shelter Mutual Ins. C0., 615 N.E.2d 508,
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`509 (Ind. Ct. App. 1993).
`A factual issue is material for purposes of T.R. 56(C) if it bears on the ultimate resolution 0f
`a relevant issue. Board ofSchool Commissioners ofCity oflndianapolis v. Pettigrew, 851 N.E.2d
`326, 330 (Ind.Ct.App. 2006). A factual issue i5 genuine if it is not capable of being conclusively
`VanKirk v. Miller, 869 N.E.2d 534, 539-40
`foreclosed by reference to undisputed facts.
`As a fesult, despite conflicting facts and inferences on some elements of 'a
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`(Ind.Ct.App. 2007).
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`claim, summary judgment is proper where there is no dispute or conflict regarding a fact that is
`dispositive of the claim. Bd; ofSchool Comm ’rs, 851 N.E.2d at 330 (Ind.Ct.App. 2006).
`ARGUMENT
`V.
`T6 Unison is entitled t0 recover its purchase price from the Mills. ' The Mills conveyed a
`perpetual easement to T6 Uhison’s predecessor in interest in éxchange for $50,000.00 (“Purchase
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`Money”). Mills have receivéd an undeserved benefit from the $50,000.00 easement purchase price
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`without providing the bargaified for consideration, a perpetual easement. Mills failed to uphold their
`agreement when they defauited on their mortgage note obligations allowing the parent real estate
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`parcel to be foreclosed. The foreclosure judgment extinguished T6 Unison’s easement interest,
`thereby breaching the agreement between T6 Unison and the Mills.
`A.
`Unjust Emiichment
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`their failure to sat-
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`Mills have been unj ustly enn'ched by the Purchase Money they received as consideration for
`the Easement.
`Mills’ actions resulted in the Easement’s foreclosure. T6 Unison is entitled to
`recover its Purchase Monejy. Mills’s retention of the Purchase Money deprives T6 Unison of both
`its Purchase Money and.its bargained for perpetual Easement, while simultaneously unfairly
`The lavs} does not permit Mills to reap a benefit, an unjust enrichment, from
`benefiting Mills.
`isfy their mortgage loan obligations. The law does, however, provide for the
`disgorgement of a
`n unjusf enrichment. Mills should not be permitted to continue to benefit from
`depriving T6 Unison of the Purchase Money paid in consideration of a benefit Mills failed to
`convey.
`The law disfavors a: windfall. Purcell v. Southern Hills Investments, LLC, 847 NE 2d 991,
`1002 (Ind.Ct.App. 2006). Where a measurable benefit has been conferred on a Defendant, and
`where retention of that benefit without payment is unjust, a finding of unjust enrichment is
`appropriate. Hughes v. Cfiattem, Inc., 818 F. Supp. 2d 1112, 1124 (S.D. Ind. 2011); Savoree v.
`Indus. Contracting & Erécting, Inc., 789 N.E.2d 1013, 1020 (Ind.Ct.App.2003).
`Unjust
`enrichment is an equitable doctrine that provides for recovery “... where the circumstances are such
`that under the law of natfiral and immutable justice there should be a recovery”.
`Bayh v.
`Sonnenburg, 573 N.E.2d 3:98, 408 (Ind.1991). To prevail on a claim of unjust enn'chment, a
`claimant must establish “thqf a measurable benefit has been conferred on the defendant under such
`circumstances that the defeqdant's retention of the benefit without payment would be unjust.” Id at
`408.
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`A finding of unjust enrichment must be applied here in order to give effect to the parties’
`intentions and prevent an! unjust outcome. Mills admit that they executed an Easement Agreement
`in favor of Sprint Spectrutm, L.P. on 0r about October 29, 2004. Exhibit J: Admission No. 1. Mills
`admit that they réceived monthly rent payments for the easement from October 29, 2004 through
`2009. Exhibit J: Admission Nos. 2 4 5 6 7 & 8.
`Mills admit that they and David J. Mills
`executed the Wireless Eafiement Agreement to T5 Unison on or about April 13, 2009, granting T5
`Unison a perpetual easemaent on the Real Estate. Complaint 116 Answer 114.
`T5 Unison paid the
`Mills and David J. Mills fthe sum of $50,000.00 in consideration for the easement in perpetuity
`created by the Wireless Eésement Agreement (“Easement”). Complaint 118 Answer 117; Admissions
`Nos. 10, 11.
`Mills accethed the $50,000.00 payment from T5 Unison as consideration for the
`Wireless Easement Agreement. Exhibit J: Admission Nos. 10 & 11.
`Mills also granted é Mortgage encumbering the Real Estate 0n or about January 23, 2004.
`The Mortgage was not recprded until after the Easement Agreement on November 5, 2004. Mills
`defaulted on their payment} obligations secured by the Mortgage, and the Mortgage was foreclosed
`on April 18, 2012, Exhibitil. TCO Decree ofForeclosure. The Easement held by T6 Unison was
`extinguished by the TCO 1%)ecree of Foreclosure dated April 18, 2012. Exhibit I: TCO Decree 0f
`Foreclosure. _Mills have béen unjustly enriched by their receipt of the $50,000.00. T6 Unison,
`through its predecessor in interest, exchanged good consideration for a perpetual easement across
`the Real Estate and Mills’$ actions are the proximate cause of the loss of the Easement. It is
`inequitable for Mills to retain the benefit of the $50,000.00 after allowing the perpetual easement to
`be extinguished;
`Mills accepted the Plilrchase Money in exchange for their promise of a perpetual Easement.
`Mills have not provi‘ded the ybargained for perpetual Easement in exchange for the Purchase Money.
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`Mills have retained the bgnefit of the Wireless Easement Agreement without fulfilling their
`obligations to T6 Unison.
`WHEREFORE, Plaiintiff, T6 Unison Loan Servicing, LLC, by counsel, prays for
`declaratory judgme nt againsit David J. Mills, Thomas B. Mills, and Donna J. Mills as a result of
`their unjust enrichm ent in thie sum of $50,000.00, plus costs, and all other just and proper relief.
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`B.
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`Breach 0f Céntract.
`The Wireless Easemlent Agreement between T6 Unison and the Mills constitutes a valid and
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`binding contract between tfle parties. Complaint 1115; Answer 1] 9. Pursuant to the terms of the
`Wireless Easement Agreemient the Mills granted T6 Unison a perpetual easement across the Real
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`Estate in exchange for a si‘lngle $50,000.00 payment. Exhibit E: Wireless Easement Agreement.
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`Mills defaulted on a Mortga1ge encumbering the Real Estate, and on April 19, 2012, the perpetual
`Easement was extinguished] Exhibit I: TCO Decree 0f Foreclosure. Mills no longer hold a fee
`interest in the Real Estate aind cannot satisfy their obligations pursuant to the Wireless Easement
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`Agreement.
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`“Generally, where nd ambiguity is present the trial court is constrained by the ‘four comers’
`rule.” Roberts v. Cmty. Hofgps. OfInd, Ina, 897 N.E.2d 458 (Ind. 2008); Clark v. CSX Transp,
`Ina, 737 N.E.2d 752, 757 (11:1d.Ct.App. 2000), trans. denied 783 N.E.2d 691 (Ind. 2002).
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`[I]n construing [a] written instrument[ ], the language of the instrument, if
`unamlbiguous',‘ determines the intent of the instrument such that parol or
`extril'lsic evidence ls inadmissible to expand, vary, or explain the instrument
`unless there has been a showing of fraud, mistake, ambiguity, illegality,
`dures's or undue influence. Even if ambiguity exists, extrinsic evidence ls
`only |admissibjle to explain the instrument and not contradict it.
`Id., at 758, quoting,‘Lippeatt v. Comet Coal & Clay Ca, Ina, 419 N.E.2d 1332, 1335 (Ind.Ct.App.
`1981). The contract must be read as a whole with an interpretation that harmonizes its provisions,
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`avoiding any constiruction bf contractual language that renders any words, phrases, or terms
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`ineffective or meaningless.
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`OEC-Diasonics v. Major, 674 N.E.2d 1312 (Ind. 1996); Bicknell
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`Minerals, Inc. v. 7Tilly, 57(:) N.E.2d 1307, 1316 (Ind. Ct. App. 1991), trans. denied. A written
`contract must be co nstrued aiccording to its terms and when they are plain they are conclusive. Reed
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`v. Lewis, 74 Ind. 433 (Ind. 1§881).
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`The Mills e‘l‘xecuted ,{he Wireless Easement Agreement dated April 14, 2009 to T5 Unison,
`recorded June 3, 2009 as iInstrument Number 200909011881 in the Office of the Tippecanoe
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`County Recorder. L
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`S‘tatemefit 0f Undisputed Fact N0. 2. Paragraph 4 of the Easement states that its
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`term “shall be per;
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`actual” uinless T5 Unison shall “voluntarily cease to use the Easements for a
`
`period of more than five yéars....”
`Statement 0f Undisputed Fact N0. 3. The Easement was
`assigned to T6 Unison for éood and valuable consideration. Statement of Undisputed Fact No. 7.
`Neither T5 Unison nor T6 Unison ceased using the Easement for a period of five (5) years.
`Statement 0f Undisputed Faict N0. 4. T5 Unison paid the Mills and David J. Mills the sum of Fifty
`
`Thousand and 00/1
`
`60 Dolleitrs ($50,000.00) in consideration for the granting of the Easement in
`
`perpetuity. Stateme
`On January
`
`through a series of
`
`Nos. 8 and 9. Mill
`
`Vzt of Umiiisputed Fact N0. 5.
`
`23, 2064, Mills executed the Mortgage in favor of Lafayette Bank which,
`assignménts, was held and foreclosed by TCO. Statement 0f Undisputed Fact
`s defaulted on the Mortgage, which led to the foreclosure of TCO’s Mortgage
`
`and the extinguishment of thie Easement. Statement 0f Undisputed Fact Nos. 10 and I 1.
`“The essential elements of a breach of contract action are the existence of a contract, the
`
`defendant's breach thereof, and damages.” Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind.Ct.App.
`
`1993). The Easement unam:biguously states that it was granted to T5 Unison, and assigned to T6
`
`Unison, unless the grantee céased to use it for a period of five (5) years. Because the Easement was
`never abandoned fof five (5) years, it was to be perpetual. The failure of the Mills to satisfy their
`mortgage requirements resul;ted in the foreclosure of the Mortgage by TCO, thereby extinguishing
`the rights of T6 Unison in the Easement and breaching its express terms. T6 Unison has suffered
`
`l
`
`11
`
`

`

`3
`
`_
`
`damages in the arm
`
`)unt of Eifty Thousand and 00/100 Dollars ($50,000.00) as a result of its loss of
`
`‘1
`
`use of the Easemen
`
`For all 0f th
`
`t. Statenfient 0f Undisputed Fact N0. 12.
`CONCLUSION
`e foregoing reasons, no genuine issues of material fact exist in this action and T6
`
`VI.
`
`l
`
`F
`
`Unison Site Management, IFLC is entitled to the entry of summary judgment against Thomas B.
`Mills and Donna J. Mills and in its favor on its cross-claims; and all other just and proper relief.
`
`Respectfillly submitted,
`LEWIS & KAPPES, P.C.
`
`Tammy L. Oman, Anyfio. 25041-30
`Jennifer S. Ortman, Atty. No. 30399-30
`LEWIS & KAPPES, P.C.
`2500 One American Square
`Indianapolis, IN 46282
`P: (317) 639-1210
`F: (3 17) 639-4882
`TOHman@lewis-kappes.com
`JOHman@lewis-kappes.com
`
`12
`
`

`

`u)
`
`CERTIFICATE OF SERVICE
`The undersigned héreby certifies that a copy of the foregoing has been served upon all
`
`Counsel and Parties of Rec;ord via first class, United States mail, postage prepaid, this 28th day of
`
`‘
`
`January, 2014:
`Rothberg Logan and Warscb LLP
`David R. Smelko
`P.O. Box 11647
`Fort Wayne, IN 46859-1647
`
`»
`
`‘
`
`z
`
`Timothy Manges
`David E. Bailey
`Eilbacher Fletcher LLP
`803 South Calhoun Street, 4th Floor
`Fort Wayne, IN 461802
`David A. Rosenthaf
`410 Main Street
`Lafayette, IN 47901
`
`Margaret A. Molloy
`Taylor Law Firm
`8730 Commerce Park Placej Ste. C
`Indianapolis IN 46268
`
`!
`
`1
`
`i
`
`J
`
`Tammy L. Ortman, Atty. N01. 25041-30
`Jennifer S. Ortman, Atty. NO. 30399-30
`LEWIS & KAPPES, P.C.
`2500 One American Square
`Indianapolis, IN 46282
`P: (317) 639-1210
`F: (317) 639-4882
`TOrtmanfaDlewis—ka opes.con5
`JOrtmanQMewis-kar pes.corri
`
`‘
`
`‘
`
`JW/
`
`Tammy L. Ortman
`
`13
`
`

`

`fn
`
`EXHIBIT A
`
`

`

`STATE OF INDIANA
`)
`) SS:
`COUNTY 0F 'Il'IPPECANOE )'
`
`.
`
`IN THE TIPPECANOE SUPERIOR COURT
`CAUSE NO.: 79D02-1012—MF-00026
`
`-
`
`TCO ASSETS LAND, LLC,
`
`Plaintiff, 1
`
`v.‘
`
`THOMAS B. MILLS,
`DONNA J M11.LS,
`DAVID J. MILLS,
`FAMILY SPORTS, LLC',
`MALONE’S GYMNASTICS CENTER, LLC
`ON DECK, INC.,
`SOCCER CENTRAL OF. GREATER LAFAYETTE
`TOWER ENTITY 2, LLC,
`T6 UNISON SITE MANAGEMENT, LLC and
`DEUTSCHE BANK TRUST COMPANY AMERICAS,~
`A NEW YORK BANKINGCORPORATION, AS
`TRUSTEE FOR THE BENEFIT 0F
`INDENTURE
`' THE NOTEHOLDERS UNDER THE AMENDED
`I AND RESTATED INDENTURE, DATED AS OF _
`‘MAY6, 2010
`
`I
`
`,
`
`.
`
`VVVVVVVVVVVVVVVVVVVVVVV
`
`Defendants.
`AFFIDAET 0F RAYMOND w. GOODWIN
`Raymond W. Goodvfin, for his affidavit, states as follows:
`amoverz the age of eighteen (18), am of sound mind, and am competent to
`davit and to testify to its contents.
`
`1'.
`
`I
`
`execute this Aff.
`
`At all timés relevant hereto, Ihave served as Senior Counsel for American Tower
`2.
`Corporation par ant company ofAmerican_Towers LLC (“AT”).
`AT or its subsidiaries acquired the membership interest of T6 Unison Site.
`3.
`Management, LLC which is the holder of an easement burdening the real (estate commonly
`
`

`

`known as 3 180 VWest Coiunty Road 250'North, West Lafayette, Indiana and current holder of the
`casement interest (“Ease'inent”);
`IJn my capacity as Senior Counsel, I have access to AT’s records, including the
`4.
`business records for and relating to the Easement. I make this Afiidavit based upon my review
`[of those records relating to the Easement and fiom my personal knowledge of how the records
`are kept and maintained by AT 1n the course of'1ts regularly conducted business activities.
`The Easement was originally granted by and through an Easement Ageement
`dated October 29, 2004; bears the signatures of Thomas B. Mills, Donna J. Mills and David J.
`
`5.
`
`Mills as the grantors, Spfint Spectrum L.P., as the grantee, and-describes a portion of certain real
`estate commony known; as 3180 West County Road 250 North, West Lafayette, Indiana. A
`Memorandum c‘Jf Agreement was recorded thereafier as Instrument Number 05018466 by and 1n _
`the Office ofthe Tippecain'oe County Recorder.
`A true and accurate copy of the Easement is designated as Exhibit B in support of
`6..
`the Response to Plaintiffi-s Motion_for (partial) Summary Judgment.
`The Easélment has been assigned by and through successive instruments,
`
`7.
`
`l
`
`including:
`
`. Wireless Communication Easement and Aséignment Agreement dated April 14,
`2009, recérded June 3 2.009 as Instrument Number 20090901 1881 in the Ofl‘ice of
`
`‘
`
`i
`
`l
`
`,
`
`‘
`
`.
`
`t;he Tippécanoe County Recorder; a true and accurate copy of the Wireless'
`Communication Easement and Assignment Agreement is designated as Exhibit C
`iln support of the Response to PIaintifi-‘s Motion for (partial) Summary Judgment
`
`>
`
`.
`
`I A
`
`ssignment of Easement dated July 18, 2009, recorded August 10, 2009 as
`iIlnstrument Number 200909017587 in the Office of the Tippecanoe County
`
`|
`
`|
`
`i
`
`‘
`
`a
`
`‘
`
`2
`
`

`

`, Recorder: a-true-and accurate copy of the Assignment of Easement is designated
`as Exhiblit D in support of the Response to Plaintiffs Motion for (partial)
`Summarx Judgment.
`
`8. ‘
`
`_ Good. amid valuable consideration is recited ‘in each instrument gaming or
`assigning the Easement.‘
`
`.
`
`I
`
`1
`
`‘
`
`I AFFIRM UNIJDER THE PENALTIES FOR PERJURY THAT THE FOREGOING
`STATEMENTS ARE TIIME AND ACCURATE.
`“/1
`
`

`

`EXHIBIT B
`
`
`
`
`
`
`

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`.p'laceofbeginning.
`‘Rickl'ePlateRailroadforadistancaoi962.8fleettothe
`.dagrdeaand15minutesEastonthewesterlylineofthe
`IiikneoftheNicklePlateRailroad,thenceSouth36
`a!distanceofi788.7feet-totheWesterlyright-ot-vay
`552.3feet,thenceNorth1degreean
`15minutesWestflor
`59mmlineo:theNortheast.Quarter31;)fioradiatanoaat
`aparter('3‘)atthesaidSection3.0,thenceWestanthe
`635.7fiaehHashoi:theSoutheastcorneroi!thaNortheast
`Iagcti-on10,asheretotoredescribedsaidpointbeing
`aridtheSouthlineoftheNurthaautQuarter(3;)of
`Westerlyright—obwaylineoftheNicklePlateRailraad
`Beginningahapoinhattheintersectiono:the
`ogmplatelydescribedasfallow:
`West,Wabashmomship.TippecanoeCounty,Indiana,more
`.Qqarber(1c)
`0.:Section10,Township23-North,Range5
`ApantoftheSoutheastQuarter(1|)ofthenortheast
`mo
`6aidtracto£landcontains17.5acres,mareor
`to‘theplaceo:beginning.
`degraaand15minutesEmtfaradistancea:789.7fleet,
`_.5m?limetoradistanceof€54feat!thencaSouth1.
`‘75jmfitaRailroad;thenceSoutheasterlyonthestaidrightof
`-535feattatheWesternrighta:wayStineortheNickel
`'mmnmEasterlyonthesaidNorth11mforadistanceo:
`lihaoftheSouthHalfoithesaidNortheastQuarter;
`minutesWest9101'‘a-distanceo:888.3feettoheNorth
`forudistanceOE200feet;thenceNorth0-de
`eesand49
`aaflyfiasfeet;thenceaunt):8?.degreesand45mime“West
`thgnceNorthodagmez'aand4’9minutesWestflnradistance
`9
`gr""WegtgnhesaidSouthlinetoradistancect528-7feet:
`,toxemia;thanaa.80uth88degreesand45minutes
`"5".-rig:tada'vber:-
`323%:-WeaoftheSoutheastcorneroftheNortheast_
`.3Nppcheas:uarter,saidpointo:beginningbeing117B
`.~Bag1-gangatagointontheSouthlinocfthesaid
`oow:
`£1{emucounty,In
`ana,.muracamplatelydescribedas
`frownship23North,Rana5West,Wabash-Wmmship,
`'Apart:oftheNortheastquarteru:Sectinn1o,
`mippacanoefloimtytintheStateozIndiana:
`'ackimwledgéd,thefollowingdescribedrealestatein
`'valuablaiaanaiderauon,thereceiptatwhichi5hereby
`vatsurvivarship,forthesumor;One-Dollar.($1.00)andother
`holdasienantsincommonandnobasjointtenantswithrights
`intgrestitoDavidJ.H1113,the'cnuplaandtheindividualtn
`andDonna;J.Kills,husbandandwife,andanundivided15/100
`
`'mmWWBanundivided35/100interesttainhuman'3.mus
`Rssqqiation,Inc.(-I'Grantor“).anIndianaunmoratiun,comma
`musmommmzssn'mthatProducersMarketing
`
`i
`
`g
`
`Lafayette.IN
`47905
`Mailingaddressfertaxbills:-44:5LourdesLane“
`
`$23”:fifi’z'fo’zss‘bt‘bfifi WW
`
`

`

`‘
`
`said tract ct land contains 5 acres, more or lean.
`\Exes?! A part o: the Northeast: Quarter o: Section
`mownahip twentynmree (23) North, Range F’iVe
`Tan 1Q) ,
`Wabash mournship. Tippecanoe County, Indiana,
`‘ast.
`(5)
`more completely described a5 follows, to-wit:
`being}
`111g at the sautheast corner o: the Northeast
`Garment:
`Quartgr oz saoticsn 1043-5 gaid corner being marked by a
`h 88'~45'-00" Wes along the
`railroad spike; thence Souk
`aouthl line oi said quarter section and the agproximate
`centeglim ot aounty Road 250 North a diatance of 1573.02
`Ito the point. at beginning o! the herein described
`fleet
`tract, mid point being marked by a PK nail: thence
`cantifinui-ng South 88'454-00“ West. along said south line
`andspid u proximate center line: a. diatanca or 83.28 fleet
`to a ¢PK na' 1: thencu North o'nw'voo" mat: a distance o£
`523.04 feet to a re-bam thence North. Ba'uwh-oo" East
`parallel with said south line a distance of 33.28 fleet to
`theme South 0‘—49'--00" East a distance ufl
`n raqbar;
`523.0; rent to the point o: beginning, containing 1.000
`afirflv'
`lama EXGEPT Part. of the Eas't Halt of the West Hal:
`' ct 3m"; Northeast. Quarter o: Section man (10) , "newnsmp
`ttwanty—three {23) North, Range rive (5.; West in Wabaah
`wawnfiship, mippenmwe county. Indiana, more completely
`described as follows, to-wit:
`Begifining at an iron pipa cm the South line of the
`Nottigaash quarter at Section 10-23-5 and the centerline
`of County Road. #250 'N, said point baing 1656.5 fleet: West
`' ox the Southeast corner at said Quarter Section and Bo
`ash ~01 the west line of Grantor's tract ofl land}
`E
`fleet}
`North o‘d's' West a distance of 623.04 feet to an
`thénce
`thence South 88‘45' Went and nrallel ta the
`iron! pipe:
`South line or said Quarter Section a dis ance .of 250.0
`fleet: to an iron piya; thence South 0‘49' East a distance
`at" 8.7.04 teat, flu an inn pips! thence North 88’45' East:
`and parallel to the South 11m. at said. Quarter Section a
`distance oi 2.00.0 feet to an Won pipe: thence South
`East a distance of 436.0 feat: to a railroad spike
`0-49?
`on-tha South line oi said Quarter Section: enema North
`8815' East 31mg said Bowmlina a distance of 50.0 feet
`to the plans or beginning, containing 1.0 acres, morn or
`less.
`This uonveyamq is index subject to a1). easements and
`resgrictions .0: momma, the mos: taxes due and .pnyabla
`1n 1993., and all subsequent taxes.
`‘ cnanhpr cantifies that no Indiana gnoss income tax
`:19 due on the transier of the real estate made by this
`da_efi .
`i The undersigned person exacuting this deed an behalf.
`of. Grantor represents and certifiea that he i5 a duly
`elalbted officer of Grantcr and has been £u11y empowared,
`by proper resalution of the Board o£ Directors n:
`Giant“, to execute and deliver this deed; that Grantow
`has‘ full. corporate capacity to aorwey the real estate
`dqapribad harem: anti that an necaasazy corporate action
`for the milking cf such nonveyance has been takan and.
`‘rdnn‘e.
`
`

`

`Roquesied By: RAY “30/28/2004
`
`‘
`
`. 19
`
`.
`
`as.
`
`m Ewmmas "mot, gramme ms executed thia deed this
`mu
`zzmagy a:
`.PRonuc'aRs WING msocmmxox, .mc.
`WMX’IW
`
`nyz’on B. Wont, M