Dr. Butt's Orthodontics, P.C., et al., Appellant-Defendant v. LLC (2024)

MEMORANDUM DECISION

Case Summary

[1] Landlord, Mall at Rockingham, LLC, brought a Complaint against tenant, Dr. Butt's Orthodontics, P.C. d/b/a My Smile (“DBO”), and against tenant's guarantors, Dr. Mohamed HanifButt, DMD, MPH, and Mishal Butt (“Guarantors”), for unpaid rent and other charges owed under the commercial lease (“Lease”). The trial court granted Landlord's motion for summary judgment and denied Guarantors’ cross-motion. After the trial court entered final judgment, DBO and Guarantors appealed. We affirm.

Issues

[2] DBO and Guarantors raise two issues for our review, which we restate as:

1. Whether Landlord breached the Lease first by failing to contribute toward DBO's property improvements thereby excusing DBO's breach for nonpayment of rent; and

2. Whether the trial court correctly calculated Guarantors’ liability under the Guaranty and obligated them to pay Landlord's attorney's fees expended in collecting DBO's debt.

Facts and Procedural History

[3] On June 28, 2019, DBO entered into a seven-year lease with Landlord,¹ to lease certain premises at the Mall at Rockingham Park in the State of New Hampshire. The Lease, governed by New Hampshire law,² characterizes a failure to pay rent or other amounts when due as a default and a breach of its terms which might trigger Landlord's termination of the Lease. In that event, DBO remains “liable for all obligations arising during the balance of the original stated term,” and Landlord is permitted to recover damages, including attorney's fees. Appellee's App. Vol. 2 at 23.

[4] Contemporaneously with the Lease, Guarantors executed a Guaranty of DBO's obligations under the Lease, in which Guarantors agreed in the preamble to

jointly and severally, ․ guarantee to Landlord, ․ the full and prompt payment when due, of all rents, charges and additional sums coming due under said Lease, ․ and together with the full and prompt payment of all damages that may arise or be incurred by Landlord in consequence of [DBO's] failure to perform such covenants and agreements (all such obligations hereinafter collectively referred to as “Liabilities”), and Guarantors further agree to pay all expenses, including attorneys’ fees and legal expenses, paid or incurred by Landlord in endeavoring to collect or enforce the Liabilities or any part thereof[.]

Id. at 35 (emphasis added). The Guaranty capped the maximum amount collectible from Guarantors:

Notwithstanding anything contained herein to the contrary, the maximum amount collectible by Landlord from Guarantors under this Guaranty shall be the amount equal to the total of Minimum Annual Rent, additional rent and all other sums and charges which would have been due from [DBO] to Landlord pursuant to the Lease for a period of one (1) year following [DBO's] default, plus any fees incurred in collection.

Id. at 36. Unlike the Lease, the Guaranty is governed by Indiana Law.³

[5] Prior to opening its orthodontics practice, DBO contracted with Landlord's contractor to make improvements to the premises. Section 24.22 of the Lease stipulated that Landlord would contribute up to $145,000 toward DBO's renovation work, provided certain requirements were satisfied.

Section 24.22 Landlord's Contribution toward [DBO's] Work

Landlord shall pay to [DBO] as Landlord's Contribution, if any, for [DBO's] Work the sum equal to the lesser of (i) $145,000.00 ․ subject to Landlord's right to deduct any Minimum Rent, Percentage Rent, additional rent ․ or other amounts owed by [DBO] to Landlord pursuant to the terms of this Lease as of the date of payment. ․ Nothwithstanding the foregoing, Landlord shall remit Landlord's Contribution to Tenant as follows:

1. Landlord shall pay fifty percent (50%) of the Landlord's Contribution within thirty (30) days after [DBO] has completed fifty percent (50%) of [DBO's] Work and [DBO] has submitted items (i)-(v) and (xi) below.

2. Landlord shall pay forty percent (40%) of the Landlord's contribution within thirty (30) days after [DBO] has completed [DBO's] Work; [DBO] has opened for business in the Premises and [DBO] has submitted items (i)-(v) below.

3. The remaining ten percent (10%) of Landlord's Contribution shall be paid within thirty (30) days after [DBO] has completed all of [DBO's] Work ․ PROVIDED no default in breach of, or failure to perform this Lease exists ․ [DBO] has executed such other instruments and documents as are required under this Lease ․ and has furnished Landlord all of the following items (vi)-(xiii) below.

(i) Schedule of Values: [DBO] shall deliver to Landlord a schedule of values in a form acceptable to Landlord consisting of a complete and accurate list of all contractors ․showing quantities and dollar amounts of [DBO's] or its general contractor's contracts[.] ․

(ii) Application for Payment: Submission of standard AIA Contractor's Application for Payment forms signed and notarized on behalf of [DBO] and/or its General Contractor.

(iii) [DBO] and General Contractor Affidavits: Affidavits stating that the required percentage of [DBO's] Work has been completed.

(iv) Certificate for Architect and General Contractor: Certificate stating that the required percentage of [DBO's] Work has been completed.

(v) Partial Waivers of Lien: Evidence satisfactory to Landlord that the requisite portion of [DBO's] Work has been paid for ․, together with proof that any and all liens ․ have been discharged, and that no security interests relating thereto are outstanding.

(vi) Proof of Payment: Evidence satisfactory to Landlord that all of [DBO's] Work has been completed and paid for in full ․ together with proof that any and all liens ․ have been discharged of record or waived and that no security interests relating thereto are outstanding.

(vii) [DBO's] affidavit: An affidavit from [DBO] listing all contractors ․ in the employ of [DBO] who have provided goods or services for the completion of [DBO's] Work in the Premises.

(viii) [DBO's] Contractor Affidavit: An affidavit from [DBO's] General Contractor ․ for completion of [DBO's] Work in the Premises.

(ix) Record Documents: ․

(x) Certificate of Occupancy Copies of all certificates and other approvals with respect to [DBO's] Work that may be required from any government authority and any board of fire underwriters or similar body for the use and occupancy ofthe Premises.

(xi) IRS Form W-9: ․

(xii) Estoppel Certificate: A [DBO]-executed estoppel certificate to the extent same may be required by Landlord's mortgage, if any.

(xiii) Permanent Improvement Affidavit: An affidavit to Landlord stating that Landlord's Contribution was used solely by [DBO] for such Permanent Improvements.

Id. at 31-32 (capitalization in original).

[6] On January 28, 2020, Landlord paid DBO $72,500, or half of its contribution amount, as DBO had “completed fifty percent (50%)” of its construction work. Id. at 31. Landlord's remaining contributions were contingent upon DBO submitting documentation to Landlord that work had been completed, DBO's contractor had been paid in full and waived any liens, and DBO was current on rent and other charges pursuant to the Lease. Instead of providing Landlord with documentation that it paid its contractor in full, DBO produced a promissory note, which had been executed July 2, 2020 and which memorialized its promise to pay the contractor at some point in the future.⁴ The relevant part of the promissory note provides:

For value received, [DBO] promises to pay to [contractor], the sum of ONE HUNDRED FORTY NINE THOUSAND FOUR HUNDRED NINETY SEVEN and 00/100 DOLLARS ($149,497.00), plus applicable interest, legal fees, and late charges, payable in full on or before September 10, 2020.

[DBO] will pay principal by making payments as follows:

A. The sum of Twenty Five Thousand and 00/100 Dollars ($25,000) on or before July 8, 2020, and

B. The sum of Twenty five Thousand and 00/100 Dollars ($25,000) on or before August 10, 2020, and

C. The sum of Ninety Nine Thousand Four Hundred Ninety Seven and 00/100 Dollars ($99,497.00) on or before September 10, 2020.

Appellant's App. Vol. 2 at 204 (capitalization in original). Because DBO did not provide evidence that the contractor had been paid in full, Landlord refused to release any further contributions to DBO.

[7] Originally DBO intended to open its practice in September 2019; however, due to delays, its opening did not occur until January 2020. Then, because of Covid-19, the State of New Hampshire imposed restrictions requiring the Mall—and by extension DBO—to close operations from March 18, 2020 until May 2020. Between October 15, 2019 and December 2021,⁵ DBO only made three rent payments: $6,029.72 on January 7, 2020 and on February 10, 2020, and $2,512.27 on February 26, 2020. On February 26, 2021, one year after DBO made its last payment, Landlord sent DBO written notice that it was in default for failing to pay rent and other charges.

[8] Pursuant to the Lease's forum selection clause ⁶ ,Landlord filed a Complaint against DBO and Guarantors in the Marion Superior Court on February 7, 2022. In its Complaint, Landlord alleged that DBO and Guarantors failed to make payments due and owing under the Lease and Guaranty, respectively. In response, DBO and Guarantors filed affirmative defenses and a counterclaim alleging that Landlord had failed to pay its contributions toward the renovation work.

[9] On September 26, 2023, Landlord filed a motion for summary judgment in favor of its claims and against the counterclaim. In its response in opposition to Landlord's motion, DBO argued Landlord breached the Lease first by withholding the remainder of the contribution amount even though DBO had paid the contractor and obtained a release of lien. On December 26, 2023, DBO and Guarantors also filed a cross-motion for partial summary judgment making two claims. First, Guarantors alleged the Guaranty's one year liability period had lapsed because Landlord used the incorrect date from which to calculate the amount of rent due. Guarantors argued that this one-year period should begin on the date of the first missed rental payment, which they claimed to be March of 2020. They maintain that because DBO and Landlord had entered into negotiations to abate DBO's rent starting in 2020 which continued into 2021, no rent was due during this period, and therefore Guarantors’ liability under the Guaranty is lower than the amount claimed by Landlord. In a second argument, Guarantors claimed the Guaranty did not provide for an award of attorney's fees.

[10] On March 19, 2024, following the hearing, the trial court entered its order with findings of fact and conclusions of law in which it determined “there is no genuine dispute of material fact that DBO breached the Lease by failing to pay rent.” Appellant's App. Vol. 2 at 21. Turning to DBO's counterclaim that Landlord was the first to breach the Lease, the trial court noted:

Because DBO was unable to provide proof of full payments to its contractors—and in fact is currently involved in litigation with an unpaid contractor—[Landlord] refused to pay the full Contribution Amount. Although it was asserted in Dr. Butt's affidavit that a promissory note has been executed for what is due and owing to contractors, [DBO was] in breach prior to the execution of this note and regardless, [ ] court would be unable to find that the promissory note described satisfies the Lease term that work be “paid in full.”

Id. at 22.

[11] As to DBO and Guarantors’ cross-motion, the trial court rejected the Guarantors’ argument that the Guaranty's liability started in March 2020 and instead concluded that “the Guaranty only limits [Guarantors’] liability to the amount due from DBO to [Landlord] pursuant to the Lease within one year following DBO's default, plus any fees incurred in collection.” Id. at 23. Similarly rejecting Guarantors’ attorney's fees claim, the court noted it “cannot assume that the parties meant to exclude an award of attorneys’ fees from the general and all-encompassing language of ‘any fees incurred in collection.’ ” Id. at 23. Finding the Lease and Guaranty authorized the recovery of Landlord's attorney's fees, the trial court ordered Landlord's attorney to submit an attorney's fee affidavit prior to the court entering final judgment. On March 21, 2024, the trial court entered an amended final judgment, awarding Landlord $620,411.73 in damages against DBO, $76,543.88 in damages against Guarantors, and attorney's fees of $45,839.17, excluding prejudgment interest.

Discussion and Decision

Standard of Review

[12] We review a trial court's grant of summary judgment de novo, using the same standard as the trial court, Performance Servs., Inc. v. Randolph E. Sch. Corp., 211 N.E.3d 508, 511 (Ind. 2023), considering only the evidence designated to the trial court and construing all facts and reasonable inferences in favor of the non-moving party. Ebert v. Ill. Cas. Co., 188 N.E.3d 858, 863 (Ind. 2022). Summary judgment is appropriate only when the designated evidence shows “there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). “If the moving party carries its burden, then the non-moving party must present evidence establishing the existence of a genuine issue of material fact.” Knighten v. East Chicago Housing Authority, 45 N.E.3d 788, 791 (Ind. 2015). When parties file cross-motions for summary judgment, “we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” SCI Propane, LLC v. Frederick, 39 N.E.3d 675, 677 (Ind. 2015).

[13] Generally, the construction of a written contract is a question of law for the trial court for which summary judgment is particularly appropriate. Cinergy Corp. v. St. Paul Surplus Lines Ins. Co., 873 N.E.2d 105, 110 (Ind. Ct. App. 2007), trans denied. However, if the terms of a written contract are ambiguous, it is the responsibility of the trier-of-fact to ascertain the facts necessary to construe the contract. Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 687 (Ind. Ct. App. 2006). Consequently, when the trial court has based its summary judgment ruling upon the construction of a written contract, it has determined either, as a matter of law, that the contract is not ambiguous or uncertain, or if the contract is ambiguous, the ambiguity can be resolved without the aid of a factual determination. Id.

[14] “The party appealing the trial court's summary judgment determination must persuade us the ruling was erroneous.” Ryan v. TCI Architects/Eng'rs/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). A trial court's findings of fact and conclusions of law in its summary judgment ruling aid our review, but they do not bind us. Matter of Supervised Est. of Kent, 99 N.E.3d 634, 637 (Ind. 2018).

1. The Lease

[15] The trial court concluded, and DBO does not dispute, that DBO breached the Lease by failing to pay rent and other charges in accordance with the Lease's provisions. Because “[a] breach of contract occurs when there is a failure without legal excuse to perform any promise which forms the whole or part of a contract[,]” Lassonde v. Stanton, 956 A.2d 332, 338 (N.H. 2008), DBO essentially attempts to justify its breach. Specifically, DBO argues that its failure to pay rent and other charges should be excused because Landlord breached the Lease first by not paying DBO the second contribution amount toward the renovation costs, which stressed DBO's finances and resulted “in the Business [sic] failure.” Appellant's Br. at 31. DBO additionally claims that the trial court erred by not addressing its raised affirmative defenses of course of dealing, and of bad faith and unconscionability.

[16] When interpreting a written agreement, we give the language used by the parties to the agreement its “reasonable meaning, considering the circumstances and the context in which the agreement was negotiated, and reading the document as a whole.” Town of Pembroke v. Town of Allenstown, 189 A.3d 309, 312 (N.H. 2018). “We give an agreement the meaning intended by the parties when they wrote it.” Found. for Seacoast Health v. Hosp. Corp. of America, 71 A.3d 736, 740 (N.H. 2013). Absent ambiguity, “the parties’ intent will be determined from the plain meaning of the language used in the contract.” Id. “The interpretation of unambiguous contractual language is a question of law, which we review de novo.” See id.

A. Contribution to Renovations

[17] DBO maintains that Landlord breached Section 24.22 of the Lease pertaining to Landlord's contributions by refusing to make further payments toward the overall renovation costs. The plain language of the provision conveys that Landlord's obligation to pay its remaining installments would be triggered only after DBO fulfilled its own obligations, including payment in full to the contractor for the completed work and payment of the rent due under the Lease. Santos v. Metro. Prop. & Cas. Ins. Co., 201 A.3d 1243, 1248 (N.H. 2019) (“A condition precedent is a provision that makes an act or event contingent upon the performance or occurrence of another act or event.”); Holden Eng'g and Surveying, Inc. v. Pembroke Rd. Realty Trust, 628 A.2d 260, 262 (1993) (“conditions precedent are not favored, and we will not so construe such conditions unless required by the plain language of the agreement.”).

[18] DBO does not dispute that it had “not paid its contractor[ ] in full.” Appellee's App. Vol. 2 at 48. Instead, DBO refers to its July 2, 2020 promissory note to its contractor as evidence that payment had been made and its obligation satisfied. Appellee's App. Vol. 2 at 48; Appellant's App. Vol. 2 at 204. However, Section 24.22(vi) (emphasis added) clearly provides

Proof of Payment: Evidence satisfactory to Landlord that all of [DBO's] Work has been completed and paid for in full ․ together with proof that any and all liens ․ have been discharged of record or waived and that no security interests relating thereto are outstanding.” (emphasis added).

DBO's “promise to pay”⁷ the contractor provides the contractor with a security interest in the amount due rather than with a satisfaction of DBO's debt in contravention of Section 24.22 of the Lease. Furthermore, the designated evidence also confirms that the promissory note did not constitute full payment to the contractor as required by the Lease as the contractor filed a lawsuit against DBO on November 20, 2020 to pursue payment under the construction contract.

[19] DBO's other arguments are equally without merit. DBO subjectively believed it had “complied with all of the Contribution Conditions of the Lease” to receive “full payment” of Landlord's contribution toward the renovation costs. Appellant's App. Vol. 2 at 159. However, a subjective belief cannot trump the unambiguous wording of Section 24.22 of the Lease, which the parties mutually agreed upon and voluntarily entered into. Mills v. Nashua Fed. Sav. & Loan Ass'n, 433 A.2d 1312, 1315 (N.H. 1981) (“Parties generally are bound by the terms of an agreement freely and openly entered into, and courts cannot make better agreements than the parties themselves have entered into or rewrite contracts merely because they might operate harshly or inequitably.”); Moore v. Grau, 193 A.3d 272, 281 (N.H. 2018) (“We know of no legal principle that would permit us to allow ‘additional considerations’ [ ] to alter the plain language of an unambiguous contract provision.”).

[20] DBO also asserts that it would have paid, or been able to pay, the contractor, if Landlord had paid its second portion of its contribution amount without enforcing the requirements of Section 24.22. However, DBO's contention amounts to a request to ignore the explicit provisions of the Lease, which we cannot do in light of the unambiguous wording of Section 24.22. Thiem v. Thomas, 406 A.2d 115, 118 (N.H. 1979) (A court may ignore an express contractual provision only when it concludes that a different interpretation of the contract reflects the actual intent of the parties at the time the contract was made.).

B. DBO's Affirmative Defenses

[21] As an alternative argument, DBO claims the trial court erred by not addressing the affirmative defenses it raised, specifically, course of dealing and bad faith and unconscionability. In support of its argument, DBO points to (1) Landlord's suggestions to contract with a specific contractor for its renovation work, (2) the negotiations between the parties regarding Landlord's contribution payment, and (3) Landlord's refusal to pay the contribution balance in light of the Covid pandemic's devastating impact on businesses.

[22] Without further evidence to support DBO's claims, these facts do not suggest “behavior inconsistent with the parties’ agreed upon common purpose and justified expectations,” and are not inconsistent “with common standards of decency, fairness and reasonableness.” Livingston v. 18 Mile Point Drive, Ltd., 972 A.2d 1001, 1006 (N.H. 2009) (One implied good-faith obligation is the “limitation of discretion in contractual performance,” which “prohibits behavior inconsistent with the parties’ agreed-upon common purpose and justified expectations,” as well as behavior inconsistent “with common standards of decency, fairness and reasonableness.”) (internal quotations omitted). The Lease's provisions are evidence of the parties’ agreed-upon common purpose in which DBO leased certain premises from Landlord in exchange for Landlord's expectation that DBO would pay rent and assorted expenses. Landlord's suggestions to retain a certain contractor to complete the renovation work and its enforcement of the contractual provisions preceding the payment of its second contribution toward DBO's renovation do not demonstrate behavior inconsistent with the Lease's provisions.

[23] The designated evidence before us does not create a genuine issue of material fact that DBO has a legal excuse or an affirmative defense for its failure to pay rent and accompanying costs. We affirm the trial court's summary judgment for Landlord and against DBO.

2. The Guaranty

[24] Turning to the Guaranty, which underlies DBO's liabilities incurred in the Lease, Guarantors make a two-fold argument. They claim there is a genuine issue of material fact regarding: (1) whether the Guarantors’ maximum exposure under the Guaranty was limited to one year following DBO's default, and (2) whether Guarantors are liable for Landlord's attorney's fees.

A. One Year Period

[25] The Guaranty limits the Guarantors’ liability exposure to the minimum annual rent plus additional charges owed by DBO “for a period of one (1) year following [DBO's] default[.]” Appellee's App. Vol. 2 at 36. Without a definition of ‘default’ in the Guaranty, Guarantors claim that the default period started from DBO's “February 2020 rental default.” Appellant's Br. at 39. They maintain that because Landlord and DBO worked “through the difficulties” brought about by “the [C]ovid pandemic in 2020” by attempting to re-negotiate the terms of the Lease, “there was no rent due during this [one-year] Guaranty Period” Id. at 39. Since we determined there is no genuine issue of material fact DBO defaulted under the Lease without a legal justification, Guarantors must comply with their obligation under the Guaranty to remit “the full and prompt payment when due” of one year's rent and additional charges. Appellee's App. Vol. 2 at 35.

[26] Section 18.1 of the Lease provides, in pertinent part, that in the event of “default under and breach of this Lease,” and “without grace period, demand or notice (the same being hereby waived by [DBO]), Landlord ․ shall have the right thereupon or at any time thereafter to terminate this Lease by giving notice to [DBO] [.]” Appellee's App. Vol. 2 at 23 (emphasis added). Given the clear language of the Lease allowing Landlord to give notice “at any time” following DBO's default, we conclude, as the trial court did, that Guarantors’ one-year obligation shall be calculated from February 26, 2021, the date Landlord issued its notice of DBO's default under the Lease provisions. Id.

B. Attorney's Fees

[27] Guarantors also argue that the trial court erred in holding them responsible for Landlord's attorney's fees. The Guaranty's preamble states: “Guarantors further agree to pay all expenses, including attorneys’ fees and legal expenses, paid or incurred by Landlord in endeavoring to collect or enforce the Liabilities or any part thereof and in enforcing this guaranty.” Appellee's App. Vol. 2 at 35. Rejecting the preamble's language, the Guarantors instead point to the concluding paragraph of the Guaranty and argue it serves as a limiting provision that supersedes the remainder of the Guaranty. Specifically, the concluding paragraph states, in relevant part:

Notwithstanding anything contained herein to the contrary, the maximum amount collectible by Landlord from Guarantors under this Guaranty shall be the amount equal to the total of Minimum Annual Rent, ․ for a period of one (1) year following [DBO's] default, plus any fees incurred in collection.

Id. at 36 (emphasis added). They claim there is a genuine issue of material fact that they are responsible for payment of Landlord's attorney's fees because the concluding paragraph merely references “fees incurred in collection” and not attorney's fees. Id.

[28] We do not consider the two provisions to be contradictory or ambiguous: the preamble's statement of attorney's fees incurred in “collecting or enforcing” DBO's liabilities under the Lease is integral to the more encompassing statement in the concluding paragraph of “fees incurred in collection” Id. at 35; Luse Thermal Techs., LLC v. Graycor Indus. Constructors, Inc., 221 N.E.3d 701, 714 (Ind. Ct. App. 2023) (“When the terms of a contract are clear and unambiguous, those terms are conclusive, and the court will not construe the contract or look at extrinsic evidence, but rather will simply apply the contract provisions.”). Accordingly, because Guarantors are responsible for attorney's fees as a matter of law, the trial court properly included this award in its calculation of damages.

Conclusion

[29] With respect to the Lease, we conclude the designated evidence supports that DBO's breach of the Lease for nonpayment of rent was not justified because DBO failed to fulfill the condition precedent necessary to trigger Landlord's payment of remaining contributions to DBO's property improvements. DBO also failed to present any designated evidence to support its claim of affirmative defenses.

[30] With respect to the Guaranty, we conclude that Guarantors’ liability under the Guaranty was correctly calculated from February 26, 2021, the date Landlord issued its notice of DBO's default under the Lease's provisions and was properly increased by payment of Landlord's attorney's fees pursuant to the Guaranty's unambiguous language.

[31] Finding that no genuine issue of material fact exists with respect to DBO and Guarantors’ respective obligations under the Lease and Guaranty, we affirm the trial court's entry of summary judgment in favor of Landlord and against DBO and Guarantors.

[32] Affirmed.

FOOTNOTES

1.   Landlord is owned by Simon Property Group which has its corporate headquarters in Indianapolis.

2.   The lease provides that “[t]his Lease shall be construed under the laws of the State where” the premises are located, i.e., New Hampshire. Appellee's App. Vol. 2 at 29. A contract provision that an agreement is to be governed by the law of another state operates only as to the substantive law of that state, and the procedural law of the forum state applies to procedural issues. Simon Prop. Grp., L.P. v. Acton Enterprises, Inc., 827 N.E.2d 1235, 1244 n.1 (Ind. Ct. App. 2005), trans. denied. Laws that merely prescribe the manner in which individual rights and responsibilities may be exercised and enforced in a court are procedural. Id.

3.   Specifically, the Guaranty provides, “This Guaranty shall be binding upon Guarantors, and upon the heirs, legal representatives, successors and assigns of the Guarantors and shall be governed by the laws of the State of Indiana.” Appellee's App. Vol. 2 at 35.

4.   Because DBO did not pay its contractor, the contractor filed a lawsuit against DBO in November of 2020 in “Cause # 2010 CV 392 in the Somerville District Court in the Commonwealth of Massachusetts.” Appellant's App. Vol. 2 at 111.

5.   DBO abandoned the premises in December 2021.

6.   Section 18.2 of the Lease states that “Any action, suit or proceeding relating to, arising out of or in connection with the terms, conditions and covenants of this Lease may be brought by Landlord against [DBO] in the Circuit or Superior Court of Marion County, lndiana.” Appellee's App. Vol. 2 at 24.

7.   In fact, the express terms of the promissory instrument itself undisputedly state it is a “promise to pay” in accordance with a future payment schedule with certain payments to be made in July, August, and September of 2020.

DeBoer, Judge.

Judges May and Tavitas concur. May, J., and Tavitas, J., concur.