author: DARDEN, Senior Judge.

text:
    The PENIEL GROUP, INC. and Beech Grove Holdings, LLC, Appellants, v. Elizabeth BANNON, Kenneth G. Schaefer, Linda A. Schaefer, Norma Thinnes, Betty Benefiel, Janet Beeler, Charles Dodson and Beth Dodson, Appellees.
    No. 49A02-1201-PL-42.
    Court of Appeals of Indiana.
    July 30, 2012.

      Donn H. Wray, Nicholas K. Ghal, Stewart & Irwin, P.C., Indianapolis, IN, Attorneys for Appellants.
    Daniel P. Mclnerny, Bryan H. Babb, Alex C. Intermill, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellee Betty Benefiel.
    Katherine L. Shelby, Margaret M. Christensen, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Ap-pellees Charles Dodson and Beth Dodson.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

The Peniel Group, Inc. (“Peniel”) and Beech Grove Holdings, Inc. (collectively, “Beech Grove Holdings”) appeal the trial court’s entry of summary judgment in favor of Betty Benefiel, Kenneth G. and Linda A. Schaefer, Janet Beeler, and Charles and Beth Dodson (collectively, the “Appellees”).

We affirm.

ISSUE

Whether the trial court properly granted the Appellees’ cross-motions for summary judgment.

FACTS

Churchman Hill Plaza (the “Site”) is a commercial retail center located in Beech Grove, Indiana. From approximately 1969 until 1996, a dry cleaning business, owned and operated by various individuals over that period of time, was one of the tenants at the Site. In 1981, Churchman Hill Associates obtained title to the Site.

In 1989, the Dodsons formed a partnership with two others called the Four Corners Group. On June 30, 1989, the partnership purchased the business assets of Speed Queen Fabric Care, the dry cleaning business that operated at the Site, from David and Janet Beeler. The assets purchased from the Beelers included four coin-operated self-service dry cleaning machines, which used the chemical tetrachlo-roethene (“PCE”), a dry cleaning solvent. The PCE was stored in an above-ground storage tank at the Site.

On two occasions, either Charles Dodson or an employee spilled “a small” quantity of PCE as they were refilling the machines. (App. 118). Concrete basins underneath the machines contained the spills. Occasionally “[s]mall amounts” of PCE leaked from the machines into the concrete basins when the rubber seals on the doors failed. (App. 121). Employees placed used PCE filters in containers before discarding them in a dumpster located at the Site. The partnership ceased using the dry-cleaning machines in 1996 or 1997.

On or about March 7, 1997, ATC Associates, Inc. (“ATC”) conducted an environmental site assessment at the Site. Field samples obtained by ATC in the immediate vicinity of the dry cleaning business revealed the presence of the chemicals PCE and trichloroethene (“TCE”) in the groundwater and PCE in the soil. ATC opined that “the source of contaminants is the on-site dry cleaner” and “likely related to the dry cleaning process.” (App. 193).

ATC conducted a second assessment of the Site in 2000 and again found levels of PCE and TCE in the soil and groundwater. ATC presented its site assessment to Churchman Hill Plaza Associates, the Site’s then-owner, on January 27, 2000. In 2001, LNR Churchman Hill Plaza, LLC, by LNR Partners, Inc., formerly known as Lennar Partners, Inc., purchased the Site.

In June of 2005, Bryan Phillips, as President of Lassiter Development Corporation (“Lassiter”) entered into an agreement to purchase the Site from LNR Churchman Hill Plaza, LLC. As part of the sale, Lassi-ter received copies of the prior environmental assessments conducted at the Site. In September of 2005, Lassiter assigned the agreement for sale to Beech Grove Holdings, Inc., of which Phillips is a member. Peniel, which Phillips had started in 1999 as a real estate development and property management company, managed the Site on behalf of Beech Grove Holdings, Inc.

In 2005, Peniel retained American Environmental Corporation (“AEC”) to conduct a third assessment of the Site. The assessment revealed levels of PCE and TCE above default closure levels established by the Indiana Department of Environmental Management (“IDEM”) under its Risk Integrated System of Closure (“RISC”), which is a “guidance manual that describes how to achieve consistent closure of contaminated soil and groundwater using existing IDEM programs.” http://vnuw.in.gov/idem/4198.htm (last visited June 26, 2012).

In November of 2005, AEC informed IDEM that there had been “[a] release of hazardous substances” at the Site. (App. 462). On or about September 15, 2006, IDEM sent a certified letter to Phillips, “requesting” that Peniel, as “a potentially responsible person,” “perform an investigation to characterize the nature and extent of the contamination,” as provided by IDEM’s RISC and pursuant to Indiana Code section 13-25-4-5. (App. 462).

Subsequently, AEC performed further site investigations at the behest of Peniel and provided its findings to IDEM. The findings again revealed levels of PCE above default closure levels. IDEM, however, did not compel remedial action, and Beech Grove Holdings took no such action.

On November 21, 2008, Beech Grove Holdings filed a complaint against the Ap-pellees pursuant to Indiana Code section 13-30-9-2, which provides:

A person may, regardless of whether the person caused or contributed to the release of a hazardous substance ... into the surface or subsurface soil or groundwater that poses a risk to human health and the environment, bring an environmental legal action against a person that caused or contributed to the release to recover reasonable costs of a removal or remedial action involving the hazardous substances....

Beech Grove Holdings asserted that the Appellees, “[t]hrough their actions and/or inactions with respect to the chlorinated solvents located on the Site ... caused and/or contributed to the release of a hazardous substance ...” at the Site. (App. 36). Accordingly, pursuant to Indiana Code section 13-30-9-3, which provides for the allocation of the “costs of the removal or remedial action in proportion to the acts or omissions of each party” in an environmental legal action, Beech Grove Holdings sought a judgment against the Appellees for all costs related to the PCE and TCE contamination of the Site, including, but not limited to, “investigation, assessment, remediation, corrective action, [and] consulting” costs. (App. 37).

The Dodsons filed their answer on February 20, 2009, wherein they denied liability and raised as an affirmative defense that Beech Grove Holdings’s claims are barred by the applicable statute of limitations. The Dodsons also filed a cross-claim against their co-defendants.

Benefiel filed her answer on December 4, 2009. Benefiel denied ever operating a dry cleaning business at the Site and therefore asserted that she was not a proper party to either the Dodsons’ or Beech Grove Holdings’s actions. Benefiel, however, admitted that dry cleaning chemicals were used at the Site. She also raised as an affirmative defense that any claims were barred by the statute of limitations.

On August 11, 2010, Beech Grove Holdings filed a motion for partial summary judgment as to liability only. The Dod-sons filed a cross-motion for summary judgment, asserting that the six-year statute of limitations provided by Indiana Code section 34-11-2-7 barred the complaint. The Dodsons argued that the statute of limitations began to run on February 28, 1998, when the Environmental Legal Action (“ELA”) statutes found under Article 30 of Title 13 of the Indiana Code became effective. The Dodsons asserted that the claim accrued on that date because Beech Grove Holdings, or its predecessors, discovered, or could have discovered, that the Site had been contaminated prior to the effective date of the ELA. The Dodsons further argued that Beech Grove Holdings failed to designate evidence that the Dodsons “caused or contributed to the release of a hazardous substance into the surface or subsurface soil or groundwater as required by the ELA.” (App. 165).

On April 6, 2011, Benefiel filed a response in opposition to Beech Grove Holdings’s motion for partial summary judgment. She argued that Beech Grove Holdings failed to designate evidence creating a genuine issue of material fact as to Benefiel’s liability. Specifically, Benefiel asserted that “a dispute remains regarding the material fact of whether [she] operated a dry cleaning facility at the Site.... ” (App. 467). She therefore argued that Beech Grove Holdings had failed to show that she caused or contributed to the release of a hazardous substance.

Subsequently, Benefiel and the Schae-fers filed motions to join the Dodsons’ cross-motion for summary judgment, which the trial court granted. Thereafter, on June 1, 2011, Beech Grove Holdings filed its response in opposition to the cross-motion for summary judgment. Beech Grove Holdings argued that the ten-year statute of limitations applied to its claim; the accrual date is not the date that the ELA was enacted; and the prior owners’ knowledge of hazardous substance contamination, if any, at the Site cannot be imputed to Beech Grove Holdings. As to the Dodsons’ liability, Beech Grove Holdings designated evidence in the form of the affidavit of expert witness Audrey Kortz, AEC’s vice president, who had never visited the Site but opined that the spills of PCE during the Dodsons’ operation of the dry-cleaning business “more likely than not reached the subsurface soil and groundwater at the Site.” (App. 499).

The Dodsons filed their reply brief in support of them cross-motion for summary judgment on August 4, 2011. Therein, they argued the claim was barred by either a six-year or ten-year statute of limitations because Beech Grove Holdings’s “predecessors in interest knew about the contamination since 1997....” (App. 521). Furthermore, they designated deposition testimony of Kortz and the affidavit of expert witness Andrew Gremos, an environmental consultant who had visited the Site, to refute that they caused or contributed to any contamination of the Site.

The trial court held a hearing on the parties’ motions on August 8, 2011. On November 2, 2011, the trial court issued findings of fact and conclusions of law; found that the evidence did not establish that the Dodsons or Benefiel caused or contributed to the contamination of the Site’s soil or groundwater; and entered summary judgment in favor of the Appel-lees.

DECISION

Beech Grove Holdings asserts that the trial court erred in granting summary judgment on the issue of the applicable statute of limitations. When reviewing a grant or denial of summary judgment, our well-settled standard of review is the same as it was for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Landmark Health Care Assocs., L.P. v. Bradbury, 671 N.E.2d 113,116 (Ind.1996).

Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Ind. T.R. 56(C); Blake v. Calumet Const. Corp., 674 N.E.2d 167, 169 (Ind.1996). “A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.” Scott v. Bodor, Inc., 571 N.E.2d 313, 318 (Ind.Ct.App.1991).

All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party. Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996). However, once the movant has carried its initial burden of going forward under Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues, which should be resolved at trial. Otto v. Park Garden Assocs., 612 N.E.2d 135, 138 (Ind.Ct.App.1993). If the nonmovant fails to meet his burden, and the law is with the movant, summary judgment should be granted. Id.

“The fact that the parties make 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.” Indiana Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000).

First, Beech Grove Holdings maintains that the trial court’s order, granting summary judgment in favor of Benefiel, the Schaefers and Beeler, must be reversed as “the court did not decide the case on the issue of statute of limitations at all” and “failed to show the existence of any factual development that could support summary judgment in favor of these cross-movants.” Beech Grove Holdings’s Br. at 13. We disagree.

Where, as here, the trial court makes findings in rendering summary judgment, those findings aid in appellate review, but are not binding on this court. Thus, findings that accompany a grant of summary judgment do not alter the nature of our review. Rather, we will affirm a summary judgment order if it is sustainable upon any theory or basis found in the record.

Gagan v. Yast, 966 N.E.2d 177, 184 (Ind.Ct.App.2012) (internal citations omitted). Thus, the fact that the trial court’s findings do not specifically address the statute of limitations issue will not bar this court from determining whether the Appellees are entitled to summary judgment on that basis.

Next, Beech Grove Holdings argues that its claim under the ELA is a contribution action, and therefore, subject to a ten-year statute of limitations pursuant to Indiana Code section 34-11-1-2. Beech Grove Holdings further argues that “[bjecause a contribution action under the ELA is afforded a 10-year statute of limitation from the first dollar of environmental response costs incurred at the Site,” which Beech Grove Holdings contends it incurred in 2005, Beech Grove Holdings asserts that its claim is timely. The Ap-pellees, however, argue that the claim is subject to the six-year statute of limitations pursuant to Indiana Code section 34-11-2-7 as an action for damages against real property.

Statutes of limitation seek to provide security against stale claims, which in turn promotes judicial efficiency and advances the peace and welfare of society. “The party pleading a statute of limitation bears the burden of proving the suit was commenced beyond the statutory time allowed.” When application of a statute of limitation rests on questions of fact, it is generally an issue for a jury to decide.

Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1279 (Ind.2009) (internal citations omitted).

[3] Again, Beech Grove Holdings argues that the ELA is a contribution scheme. Contribution involves the partial reimbursement of one who has discharged a common liability. Small v. Rogers, 938 N.E.2d 18, 22 (Ind.Ct.App.2010). “Discharge” is defined as “[a]ny method by which a legal duty is extinguished; esp., the payment of a debt or satisfaction of some other obligation.” Black’s Law DictionaRY 495 (8th ed. 2004).

In Indiana, there is a dearth of cases that address the applicable statute of limitations under the ELA. In Cooper Indus., LLC v. City of South Bend, 863 N.E.2d 1253, 1256 (Ind.Ct.App.2007), trans. granted, opinion vacated, 878 N.E.2d 219 (Ind.2007) and vacated, 899 N.E.2d 1274 (Ind. 2009), this court addressed whether South Bend’s claim under the ELA was time-barred by the general six-year statute of limitations. The court determined that “[njeither Cooper nor the City ehallenge[d] the trial court’s application of Indiana Code section 34-11-2-7, the general statute of limitations for injury to property other than personal property.”

Upon transfer, however, the Indiana Supreme Court noted that “[t]he parties disagree over whether South Bend conceded the six-year property damage or the ten-year ‘catch-all’ statute of limitation applies at trial.” Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1286 n. 9 (Ind.2009). Finding that “South Bend’s ELA claim would survive under either proposed time period,” our supreme court did not address the purported concession, but for the sake of argument, “adopt[ed] six years as the applicable time period.” Id. at 1286. Cf. Pflanz v. Foster, 888 N.E.2d 756, 758 (Ind.2008) (finding that the parties agreed that the general ten-year statute of limitations applied to the contribution claim asserted under Indiana’s Underground Storage Tanks Act (“USTA”), which is a separate environmental provision). We therefore look to our federal district court for guidance.

In Taylor Farm Ltd. Liab. Co. v. Viacom, Inc., 234 F.Supp.2d 950 (S.D.Ind.2002), the district court addressed whether a complaint filed under the ELA is barred by the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), where the defendant Viacom had entered into a court-approved comprehensive settlement agreement with the Environmental Protection Agency (“EPA”), requiring it to clean up hazardous waste at a site that had been operated as a landfill. Viacom argued that the CERCLA’s “contribution bar” prevented Taylor from making a contribution claim against it, while Taylor argued that “because it did not contribute in any way to the original contamination,” it was not suing Viacom for contribution. 234 F.Supp.2d at 962.

The Taylor-court found that the ELA “is not, on its face, a contribution scheme” because it “permits ‘any person’ to sue to ‘recover the reasonable costs of a removal or remedial action.’” Id. (citing Indiana Code section 13-80-9-2). But Cf. Bernstein v. Bankert, No. 1:08-CV-0427-RLY-DML, 2010 WL 3893121, at *10 (S.D.Ind. Sept. 29, 2010) (citing to Pflanz, which, again, addressed the statute of limitations under the USTA not the ELA, in finding that the “ELA contains no provision for limitation of actions; therefore, the courts have applied Indiana’s ten-year statute of limitations to ELA claims for contribution”). The Taylor-couH explained that “[cjontribution is an action among parties who have been found to be liable for at least some portion of the damages alleged in the underlying lawsuit,” id., and that “[u]nder the common law of contribution, only a defendant in a lawsuit, or a party who has already been found liable in a previous action may bring a claim for contribution.” Id. at 972.

Here, we agree with the district court holding in Taylor. We cannot say that a claim brought under the ELA is a claim for contribution where it allows a plaintiff who is neither liable for the release of a hazardous substance nor has been found liable, to recover the costs of remediation from another party “without regard to the plaintiffs part in causation of the damage.” See Cooper, 899 N.E.2d at 1285. Accordingly, we find that the ELA is subject to the six-year statute of limitations pursuant to Indiana Code section 34-11-2-7(3) (providing that actions for injuries to real property must be commenced within six years after the cause of action accrues).

Having found that Beech Grove Holdings’s claim is subject to a statute of limitations of six years, we now must address whether the claim is timely under Indiana Code section 34-11-2-7.

A cause of action accrues under this statute “when a claimant knows, or in the exercise of ordinary diligence should have known of the injury.” “The determination of when a cause of action accrues is generally a question of law for the courts to determine. For claims to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred.”

Martin Oil Mktg. Ltd,, v. Katzions, 908 N.E.2d 1183, 1187 (Ind.Ct.App.2009) (internal citations omitted), trans. denied; see also Cooper, 899 N.E.2d at 1286 (stating that under the ELA “the statute of limitation will begin to run on the earlier date of actual discovery or when a reasonable person would discover the facts”).

In this case, Beech Grove Holdings filed its complaint on November 21, 2008. Thus, we must determine if Beech Grove Holdings knew of, or reasonably could have discovered, the damage to the Site before November 21, 2002.

Beech Grove Holdings does not quarrel with the general rule of law that “parties are usually held accountable for the time which has run against their predecessors in interest.” Beech Grove Holdings’s Reply Br. at 6-7. See Cooper, 899 N.E.2d at 1279 (“Indiana adheres to the rule that ‘third parties are usually held accountable for the time running against their predecessors in interest.’ ” (quoting Mack v. Am. Fletcher Nat’l Bank and Trust Co., 510 N.E.2d 725, 734 (Ind.Ct.App.1987), trans. denied)). Furthermore, Beech Grove Holdings concedes, and the designated evidence shows, that its predecessors-in-interest discovered or knew of the contamination at the Site as early as 1997. See Beech Grove Holdings’s Reply Br. at 7.

Beech Grove Holdings, however, would not have had a cause of action until the ELA became effective on February 28, 1998, and therefore, “the statute of limitation could - not have begun to accrue until that date” or after that date. See Cooper, 899 N.E.2d at 1285. According to the designated evidence, Churchman Hill Associates, the predecessor-in-interest, became aware of the contamination as early as 1997, and certainly no later than 2000, the year ATC prepared a second environmental assessment of the Site on behalf of, and reported the detection of PCE and TCE in soil and groundwater samples to, Churchman Hill Associates. Thus, Beech Grove Holdings’s predecessor-in-interest knew of the contamination of the Site for at least eight years before Beech Grove Holdings commenced the action. We therefore find that Beech Grove Holdings is barred from bringing its claim under the ELA. Accordingly, the Appellees are entitled to summary judgment as a matter of law. Because this issue is dispositive, we need not address Beech Grove Holdings’s argument that the trial court “erred in finding that no genuine issues of material fact remain regarding whether the Dod-sons ‘caused or contributed’ to the release of the hazardous substance at the Site.” Beech Grove Holdings’s Br. at 18.

Affirmed.

NAJAM, J., and RILEY, L, concur.

      . Citations to the appendix are to Beech Grove Holdings’s appendix.

      . " 'Closure' is IDEMs written recognition that a party has demonstrated attainment of specific investigative of remediation objectives for contaminants in a particular area.” http:// www.in.gov/idem/files/remediation-closure-guidesect-01 .pdf (last visited June 26, 2012).

      .Beech Grove Holdings also named Elizabeth Bannon and Norma Thinnes as defendants. They, however, are not parties to this appeal.

      . We note that regarding claims brought under Indiana Code section 13-30-9-2, Indiana Code section 34-11-2-11.5 (eff. May 10, 2011) provides:
      (b)Subject to subsections (c), (d), and (e), a person may seek to recover the following in an action brought on or after the effective date of this section under IC 13-30-9-2 or IC 13 — 23—13—8(b) to recover costs incurred for a removal action, a remedial action, or a corrective action:
      (1) The costs incurred not more than ten (10) years before the date the action is brought, even if the person or any other person also incurred costs more than ten (10) years before the date the action is brought.
      (2) The costs incurred on or after the date the action is brought.
      (c) Costs are eligible for recovery under subsection (b) regardless of whether any part of the costs is incurred before the effective date of this section.
      (d) This section does not permit a person to revive or raise new claims in an action brought under IC 13-30-9-2 or IC 13-23-13 — 8(b) that was finally adjudicated or settled before the effective date of this section.
      (e) Any person that brought an action under IC 13-30-9-2 or IC 13-23-13-8(b) that was not finally adjudicated or settled prior to the effective date of this section may not amend that action, or bring a new action, under this section.

      . Our supreme court did recognize that the USTA provides "only a right of contribution, whereas the ELA does not so limit seeking cost recovery from another party.” Cooper, 899 N.E.2d at 1285. Furthermore, under section six of the ELA, “an action to recover costs related to a release from an underground storage tank may be brought under the ELA or the USTA” but not under both. See id. at 1282 (citing Indiana Code section 13-30-9-6).

      . Section 113(f)(2) of CERCLA provides: "A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.”

      . The "plain language” of Indiana Code section 13-30-9 makes it clear that the legislature did not intend the ELA to be a contribution-only statute, where its purpose clearly is meant to "shift the financial burden of environmental remediation to the parties responsible for creating contaminations” as "an incentive for potential [innocent] buyers of contaminated land who might be deterred by the substantial costs to clean up the land, thus preventing not only the cleanup but also redevelopment and economic renewal.” Cooper, 899 N.E.2d at 1284.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    DEAN V. KRUSE FOUNDATION, INC., Dean Kruse and Kruse International, Appellants-Defendants, v. Jerry W. GATES, Appellee-Plaintiff.
    No. 59A05-1201-CT-37.
    Court of Appeals of Indiana.
    Aug. 7, 2012.

      Thomas E. Densford, Alicia C. Sanders, Bauer & Densford, Bloomington, IN, Attorneys for Appellant.
    Geoffrey M. Grodner, Kendra G. Gjer-dingen, Mallor Grodner, LLP, Blooming-ton, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants/Counterclaim Plaintiffs, Dean V. Kruse Foundation (Foundation), Dean V. Kruse (Kruse), and Kruse International (collectively, the Kruse Parties), appeal the trial court’s judgment against Appellee-Plaintiff/Coun-terclaim Defendant, Jerry W. Gates (Gates).

We reverse and remand with instructions.

ISSUE

The Kruse Parties raise two issues on appeal, which we consolidate as the following issue: Whether the trial court erred when it interpreted the parties’ agreement to contain a liquidated damages clause.

FACTS AND PROCEDURAL HISTORY

The Foundation is a charitable organization operating a World War II and automobile museum in Auburn, Indiana. In 2003, Kimball International donated its furniture factory, a 42.79-acre parcel of real estate with a 300,000 square foot manufacturing facility, located in West Baden, Indiana, to the Foundation. Although the facility housed at least one tenant, the high cost of maintaining the property adversely impacted the Foundation. The Foundation encountered a number of difficulties, including the payment of property taxes, utility bills, and insurance as well as theft and vandalism. The Foundation continued to lose money on the property, and had to take out loans and requesting advances from a tenant to pay expenses.

Beginning in 2004 or 2005, the Foundation made a number of attempts to sell the property. Although the property was sold once, the Foundation later took back the property because the buyer failed to make payments. In March 2006, the Foundation retained Colliers Turley, Martin, Tucker (Colliers), a real estate broker, to list and market the property. Colliers conducted a market survey for the property, providing three values for the property based on three classifications of potential buyers. The first tier of potential buyers included those who would make the highest and best use of the property, ie., as an income producing property, resulting in a sales range of $4.5 million to $5.2 million. The second tier included those buyers who would put the property to secondary uses. The value range in this case was between $3.5 million and $4.5 million. The third tier of potential buyers consisted of speculators for whom the property had a value range of $2 million to $3.5 million. Based on these values, Colliers generated an asking price of $5,750,000 for the property.

Thereafter, Colliers was unsuccessful in locating a buyer. Kruse, an auctioneer and licensed real estate broker, decided to auction the property. Kruse believed the property to be worth five million dollars given its size, which even then was a “junk price.” (Transcript p. 129). Kruse International and Colliers conducted marketing efforts advertising the auction.

On July 12, 2006, the property was auctioned on site. The auction was conducted as a final, rather than as a reserve, auction. Each bidder received a brochure, disclosures, a bidder’s agreement, and the Purchase Agreement, which was a standardized agreement from the Indiana Realtors Association. The terms of the Purchase Agreement were published in the packet, including the amount of earnest money and the date of closing. According to Kruse, “[ejvery single bidder” had to sign the documents in order to qualify as a bidder. (Tr. p. 122). Seven to nine bidders registered and four to six bidders participated, including Gates. Gates was a professional and experienced real estate developer, whom Kruse had known and served with on the Board of the Indiana Association of Realtors for many years. At the end of the bidding process, Gates was the high bidder with a bid of $4 million, which, with a 5% buyer’s premium, resulted in a purchase offer of $4,200,000. Thereafter, both Gates and Kruse filled out the blank portions of the Purchase Agreement.

The Purchase Agreement provided, in relevant part, as follows:

[Buyer] agrees to pay therefore the sum of Four Million Dollars ($4,000,000) on the following terms: Cash At Closing Plus 5% Buyers Premium[.] One Hundred Thousand Dollars ($100,000) of said purchase price is hereby deposited as earnest money with Kruse Real Estate[,] same to be refunded if the above offer is not accepted on or before today or if the title to the above property is found defective and said defects cannot be remedied within a reasonable time. However, if the buyer fails to complete the purchase within a reasonable time due to no fault of the seller, then the earnest money deposited is forfeited, and seller may sue for specific performance.

(Appellant’s App. p. 27).

On August 9, 2006, Gates informed the Kruse Parties in writing that he was terminating the Purchase Agreement. Prior to that, Kruse spoke with Gates regarding problems with the property’s title and condition. Gates expressed his reluctance to handle a large project. Kruse threatened specific performance of the Purchase Agreement, which Gates rebuffed.

Subsequently, Kruse and Colliers contacted the other bidders and other potential buyers of the property. Through the combined efforts of Colliers and the Kruse Parties, over a thousand potential buyers, ranging from institutional to individuals, were solicited for offers. In the end, Colliers received an offer for $5 million, which fell through for lack of financing; an offer for $1.1 million, which was rejected for being too low; and one offer of $2 million, to which Colliers and the Kruse Parties made a counter-offer of $3.5 million. The $1.1 million and $2 million offers were both made in September 2006, and -written on the same form as the Purchase Agreement. Ultimately, the Kruse Parties and French Lick-West Baden Development Park, the latter offeror, agreed upon a sales price of $2,350,000 and executed a purchase agreement.

On October 4, 2006, Gates filed suit against the Kruse Parties and Colliers for breach of contract, fraud, and conversion. On November 27, 2006, The Kruse Parties filed a counterclaim for breach of contract and slander of title. On February 27, 2009, Gates moved for partial summary judgment on the breach of contract claims. On July 10, 2009, the Kruse parties filed their response and cross-motion for partial summary judgment on breach of contract, fraud, and conversion. On December 21, 2009, the trial court granted summary judgment in Gates’ favor and the Kruse Parties were ordered to return the earnest money with interest.

The Kruse Parties appealed. In Dean V. Kruse Foundation v. Gates, 932 N.E.2d 763 (Ind.Ct.App.2010), trans. denied

{Kruse I), we reversed the trial court and remanded with instructions to enter summary judgment in favor of the Kruse Parties on Gates’ breach of contract claim as well as on the Kruse Parties’ breach of contract, fraud, and conversion claims. Further, we instructed the trial court to hold a hearing on the appropriate amount of damages. On August 5, 2011, Gates’ guardians were substituted by joint stipulation, and on August 19, 2011, the trial court entered a summary judgment order in favor of the Kruse Parties.

On December 2, 2011, the trial court held a hearing on damages. The Kruse Parties sought damages in the amount of $2,468,794. This amount was based on the difference between the purchase price in the Purchase Agreement ($4 million) and the purchase price from the subsequent sale of the property to French Lick-West Baden Development LLC ($2,350,000). In addition, the Kruse Parties sought the buyer’s premium of $200,000 and prejudgment interest in the amount of $718,794. The amount of $100,000, the earnest money deposit, was credited against the foregoing.

On December 20, 2011, the parties filed their Joint Request for Court to Enter Judgment. On January 3, 2012, the trial court issued its Entry Determining Damages as Required by the Court of Appeals. The trial court awarded damages to the Kruse Parties in the amount of $100,000 based on its conclusion that the Purchase Agreement contained a liquidated damages provision coupled with an option for the Kruse Parties to pursue specific performance against Gates. In particular, the trial court concluded as follows.

In this case the amount of $100,000.00 is not grossly excessive or unjust considering the four million dollar purchase price. The trial court finds the evidence as to the value of the property was uncertain. The [cjourt also finds the property in question may have been sold for more if a longer period of time were available to market it. Mr. [Luke] Wes-sel [(Wessel) of Colliers] testified the value of the property was $3.5 million after the sale fell through with Gates. Therefore, the damages were uncertain. Any certainty arises solely from the sale of the property to a different buyer. Regarding the evaluation of whether the $100,000.00 provision is a liquidated damages clause or a penalty, the trial court notes the Kruse [P]arties would be required to mitigate damages if they were entitled to claim legal damages. The trial court heard evidence at trial for damages from Mr. Wessel and the evidence was far from clear regarding the value of the property before the sale to Gates and the value after the sale fell through.
Mr. Wessel testified as to value before the sale to Gates and gave his opinion of the value in ranges. For highest and best use the range was $4.5 to $5.2 million. For secondary use the range was $8.5 to $4.5 million for speculator price the range was $2.0 to $3.5 million. Mr. Wessel testified that the two top tiers (other than the speculator price) would be 90% of prospective buyers. Mr. Wessel’s opinion of value of the property in September of 2006 after the sale fell through was $8.5 million. Mr. Kruse had been initially advised the property would bring $4-5 million and it was listed for $5.75 million. The uncertainty regarding the value of the property and what it could be sold for within a certain time frame supports a conclusion that the ease of determining actual damages in this case is not what it may seem on the surface.
The trial court finds the provisions in the [P]urchase [A]greement prepared by the Kruse Parties to be unambiguous regarding what was to happen in the event of a breach by the purchaser. The Seller “may sue for specific performance!.”] The Kruse [P]arties elected not to pursue specific performance. Also, the Seller got to keep the $100,000.00. It was “forfeited!”] Nothing more was provided in the way of remedies for the purchaser’s breach of the contract prepared by the Kruse Parties and the document had an integration clause that it contained “all the terms and conditions agreed upon” and there were no others “not stated in this instrument!.”] The court should give unambiguous liquidation clauses “force and effect!”] [See Beck v. Mason, 580 N.E.2d 290, 294 (Ind.Cl.App.1991) ].
The trial court finds and concludes the $100,000.00 provision in the [P]urchase [A]greement prepared by the Kruse Parties was a liquidated damages clause and the Kruse Parties chose not to pursue specific performance. The [Purchase [A]greement did not provide for any further remedies and the [P]urchase [A]greement contained all of the terms, conditions, and agreement of the parties according to the language of the [Par-chase [A]greement. The [P]urchase [A]greement was prepared by the Kruse Parties. The Kruse Parties were sophisticated and experienced in commercial real estate transactions. Therefore since the Kruse parities have already received the $100,000.00 the trial court finds they are not entitled to anything further. The trial court finds the Kruse Parties damages to be $100,000.00 pursuant to the [P]urchase [A]greement prepared by the Kruse Parties.

(Appellant’s App. pp. 9-12).

The Kruse Parties now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Here, the parties jointly requested an entry of judgment, and the trial court issued its Entry Determining Damages as Required by the Court of Appeals, which contains findings of fact and conclusions of law. Ind. Trial Rule 52(A) governs the trial court’s use of findings and conclusions when matters are adjudicated at a trial by the court without a jury. Pursuant to T.R. 52(A), we will set aside the judgment only upon a showing that the judgment is clearly erroneous. Ream v. Yankee Park Homeowner’s Ass’n, Inc., 915 N.E.2d 536, 540 (Ind.Ct.App.2009), trans. denied. In determining whether a judgment is clearly erroneous, we will neither reweigh the evidence nor determine the credibility of witnesses, but will consider only the evidence supporting the judgment and the reasonable inferences to be drawn from that evidence. Id. Where, as here, the trial court has issued written findings and conclusions, we engage in a two-tiered review, determining first, whether the evidence supports the findings and second, whether the findings support the judgment. Id. In deference to the trial court’s proximity to the issues, we will disturb the judgment of the trial court only where there is no evidence supporting the findings or the findings fail to support the judgment. Id. However, when a question of law is dispos-itive, we owe no deference to the trial court and review the issue de novo. Id.

The issue before us is whether the forfeiture provision in the Purchase Agreement constitutes liquidated damages or an unenforceable penalty. “The question whether a liquidated damages clause is valid, or whether it constitutes a penalty, is a pure question of law for the court.” Gershin v. Demming, 685 N.E.2d 1125, 1128 (Ind.Ct.App.1997). The trial court intei-preted the Purchase Agreement to contain a liquidated damages clause thereby limiting the Kruse Parties’ damages to the earnest money deposit.

On appeal, the Kruse Parties contend that the forfeited earnest money deposit constituted a penalty, rather than liquidated damages. In support of this interpretation the Kruse Parties assert that (1) the parties intended that the earnest money was to secure performance of Gates’ obligation to purchase the property; (2) their damages were ascertainable; and (3) the language of the Purchase Agreement did not limit their remedies for breach solely to retention of the earnest money and specific performance.

Arguing in support of the trial court’s ruling, Gates contends that the forfeited earnest money deposit represents liquidated damages as evidenced by (1) our opinion in Kruse I, which Gates contends determined the forfeiture provision to be a liquidated damages clause; (2) the Kruse Parties’ refusal to return the earnest money following breach; and (3) interpretation of the forfeited earnest money as an unenforceable penalty would render other provisions of the Purchase Agreement meaningless.

II. Law of the Case

We first address Gates’ argument that because this court’s opinion in Kruse I impliedly found the forfeited earnest money to be liquidated damages, the law of the case doctrine precludes further consideration of this issue. Specifically, because this court recognized that the earnest money was forfeited under the Purchase Agreement, Gates contends that this court by implication must have first concluded that the forfeiture provision equated to an enforceable liquidated damages provision. As a result, Gates argues that the issue has been decided and the law of the case precludes our further consideration of whether the forfeited earnest money constitutes liquidated damages or a penalty.

The law of the case doctrine provides that an appellate court determination of a legal issue is binding on the trial court and this court in any subsequent appeal in the same case and involving the same facts. In re Guardianship of Stalker, 953 N.E.2d 1094, 1101-02 (Ind.Ct.App.2011). The purpose of the doctrine is to minimize unnecessary relitigation of legal issues once they have been resolved by an appellate court. Id. at 1102. All issues decided directly or by implication in a prior decision are binding in all further portions of the same case. Id. However, we also note that the law of the case doctrine is a discretionary tool. Id. To invoke this doctrine, the matters decided in the earlier appeal must clearly appear to be the only possible construction of an opinion. Id. Thus, questions not conclusively decided in the earlier appeal do not become the law of the case. Id. Moreover, statements that are not necessary in the determination of the issues presented are dicta, are not binding, and do not become the law of the ease. Id.

We find that the law of the case doctrine does not apply for the following reasons. First, Kruse I does not analyze whether the forfeiture clause at issue is a liquidated damages clause; it merely noted that under the express terms of Purchase Agreement the earnest money is forfeited. Kruse I, 932 N.E.2d at 767, 769. Second, the issues before us in Kruse I were expressly limited to those raised by the parties in their respective motions for summary judgment. Those included 1) whether either party breached the Purchase Agreement; 2) whether the Kruse Parties committed fraud; and 3) whether the Kruse Parties’ retention of the earnest money constituted conversion. See Kruse I, 932 N.E.2d at 767-69. For the third issue, this court reasoned that Gates could not show that the Kruse Parties were “aware that there was a high probability that [their] control over the property was unauthorized,” since retention of the earnest money “was expressly allowed under the contract in the event of the purchaser’s breach.” Id. at 769. We therefore found that Kruse was “contractually entitled to keep the earnest money when Gates refused to close the sale.” Id.

Gates’ argument assumes that retention of earnest money forecloses any other monetary remedy. If anything, Kruse I would seem to imply that the provision at issue was a penalty as evidenced by this court’s remand for consideration of the damages issues.

In their counterclaim, the Kruse Parties request “all damages incurred as a result of the breach ... including all transaction costs, auction fees, buyer premiums, realtor commissions, costs of collection and reasonable attorney fees, and for all other proper relief. Because the record before us does not include this information, we reverse and remand for a determination of damages.

Id. at 768 (internal citations omitted). In light of the foregoing, we find that the issue was not decided directly or by implication. Therefore, the law of the case doctrine does not preclude our subsequent determination.

III. Liquidated Damages

A liquidated damages clause provides for the forfeiture of a stated sum of money upon a breach of contract without proof of damages. Rogers v. Lockard, 767 N.E.2d 982, 990 (Ind.Ct.App.2002). Liquidated damages clauses are generally enforceable where the nature of the agreement is such that damages for breach would be uncertain, difficult, or impossible to ascertain. Id.

While liquidated damages clauses are ordinarily enforceable, contractual provisions constituting penalties are not. Id. at 991. The distinction between a penalty provision and one for liquidated damages is that a penalty is imposed to secure performance of the contract and liquidated damages are to be paid in lieu of performance. Gershin, 685 N.E.2d at 1128. To determine whether a stipulated sum payable upon breach of contract constitutes liquidated damages or a penalty, the facts, the intention of the parties, and the reasonableness of the stipulation under the circumstances of the case are all to be considered. Id. The use of the words “damages,” “penalty,” “forfeiture,” and “liquidated damages” are not conclusive, but should be considered in connection with other provisions in the contract to determine the nature of the provisions. Rogers, 767 N.E.2d at 991. However, despite the plethora of abstract tests and criteria for the determination of whether a provision is one for a penalty or liquidated damages, there are no hard and fast guidelines to follow. Id.

A. Purchase Agreement

Here, the Purchase Agreement does not label the forfeited earnest money as liquidated damages. Instead, the Purchase Agreement only provides that the earnest money is part of the purchase price, forfei-table upon breach by Gates. The parties cite to three cases to identify relevant characteristics analogous to the kind of contractual provision involved in this case. However, only one of these cases involves a contractual provision not expressly referred to as liquidated damages and none address a sale conducted in the manner as was done in this case.

In Mandle v. Owens, 164 Ind.App. 607, 330 N.E.2d 362, 363 (1975), trans. denied, we considered a provision in a residential housing purchase agreement that called for forfeiture of earnest money in the event of the purchaser’s breach. The purchaser failed to complete the transaction and the seller brought suit to collect its damages. Id. The agreement provided that the earnest money constituted part of the purchase price but was otherwise silent on whether the earnest money was liquidated damages. Id. at 366. The court could not determine from the language whether the forfeiture provision constituted liquidated damages or a penalty. Id. Relying upon the presumptions that “a lump sum named by the parties to a contract is a penalty rather than liquidated damages” and that ambiguities in the contract must be construed against the drafter, the court ultimately concluded the provision was an unenforceable penalty. Id.

In Rogers v. Lockard, 767 N.E.2d 982 (Ind.Ct.App.2002) and Beck v. Mason, 580 N.E.2d 290 (Ind.Ct.App.1991), the court reviewed contractual provisions expressly cast as liquidated damages. Beck also involved the sale of residential real estate, with the purchaser providing a $1,000 deposit on the property. Id. at 291. The purchase agreement explicitly labeled the deposit as “liquidated damages and not as a penalty or forfeiture.” Id. The purchasers did not obtain financing and requested return of the deposit. Id. The seller kept the deposit and sued for actual damages, claiming that the deposit, even as liquidated damages, did not preclude recovery of their actual damages. Id. Though concluding that a liquidated damages clause does not necessarily bar additional damages, the court held that the provision at issue reflected the parties’ intent that the deposit constituted liquidated damages because of its express labeling as such. Id. at 293.

In Rogers, the court considered a provision that expressly labeled earnest money as liquidated damages, but also permitted the sellers to seek their legal and equitable remedies. Rogers, 767 N.E.2d at 989. In its interpretation of a residential real estate contract, the court compared its provision to that appearing in Mandle and Beck. Id. at 991-92. It distinguished Beck by concluding that the addition of the sellers’ right to seek equitable and legal remedies rendered an interpretation of the provision as a liquidated damages clause inconsistent. Id. at 991. As a result, the court concluded that the provision operated as punishment for the purchaser’s breach and “not as an estimation of the actual damages.” Id. at 992.

[12] Applying these precedents to the ease at bar, we find that the provision before us indicates an intent to penalize the purchaser for a breach rather than an intent to compensate the seller in the event of breach. The earnest money deposit is clearly specified as partial payment of the purchase price, suggesting that the earnest money was not paid in lieu of performance, but rather as compulsion for the purchaser to complete his purchase of the property following the auction. Although there is no mention of forfeiture as a penalty, the provision is also not labeled as liquidated damages. Further, the Purchase Agreement provides that the remedy of specific performance may be available to the seller in the event of default, suggesting that there is no ability for the purchaser to simply ‘walk away’ in the event of his breach. These features arguably favor interpretation of the provision as a penalty rather than as one providing for liquidated damages.

Support for this interpretation also emerges from the facts and circumstances of the transaction itself. Mandle, Beck, and Rogers all involved residential real estate purchases between individuals. The case at bar involves an auction of commercial real estate to the highest bidder. The Foundation auctioned the property in the face of unsustainable maintenance costs and failed attempts to sell the property. Kruse believed the property to be worth five million dollars based on its size. As the trial court found, “both parties to the [P]urchase [A]greement were sophisticated individuals with extensive experience in commercial real estate transactions for decades.” (Appellant’s App. p. 9). The contract used was a form agreement from the Indiana Association of Realtors and both Kruse and Gates had been board members of said association. Kruse testified that all bidders were informed of the required earnest money amount. Kruse also stated that the earnest money was used to pre-qualify bidders for participation in the auction. Kruse stood ready to perform his part of the bargain and, even without a breach, would have been entitled to retain the earnest money, applying to part of the purchase price under the express terms of the Purchase Agreement. This suggests that the earnest money was not intended to be taken in lieu of purchase. Thus, the facts and circumstances point to an interpretation of the provision as compulsion for the purchaser to consummate the transaction, rather than a reasonable forecast of the damages to be paid in lieu of performance.

B. Additional Factors

We consider two additional factors to determine whether a provision constitutes liquidated damages or a penalty. We consider the proportion of the amount claimed to be liquidated damages with the amount of the loss likely to occur in the event of breach. Gershin, 685 N.E.2d at 1128. We also consider whether the damages were certain or ascertainable in the event of breach. See Rogers, 767 N.E.2d at 992-93.

First, a party seeking to enforce a liquidated damages provision must demonstrate some proportionality between the loss and the sum established as liquidated damages. Harbours Condominium Ass’n, Inc. v. Hudson, 852 N.E.2d 985, 993 (Ind.Ct.App.2006). If the sum is not greatly disproportionate to the loss likely to occur or the loss sought to be avoided, the provision will be accepted as a liquidated damages clause and not as a penalty. Gershin, 685 N.E.2d at 1128. However, if the sum sought to be fixed is grossly disproportionate to the loss which may result from the breach, courts will treat the sum as a penalty rather than as liquidated damages. Id.

Here, the trial court found that the earnest money of $100,000 represented 2.5% of the purchase price. Citing Mandle, the trial court concluded that 2.5% of the purchase price in this case was not grossly excessive or unjust because the purchase agreement in Mandle specified an earnest money deposit of 1% of the purchase price. However, Kruse testified that the amount of the earnest money deposit was known to bidders beforehand in order to pre-qualify them for participation at the auction. Presumably, neither the parties nor the other bidders would know what proportion the earnest money would bear to the winning bid. We therefore do not find the proportion of the forfeited amount to the sales price to be dispositive.

Next, we turn to trial court’s determination that damages in the event of breach were uncertain, except as determined by the sales price later received by the Kruse Parties. The trial court concluded that evidence of the property’s value was uncertain because of the different market values for the property provided by Wessel. Wessel testified to Colliers’ appraisal of the property based on multiple uses, with value ranges listed for each type of potential buyer — up to $5.2 million for an investor using the property for income purposes and $2 million for speculators. Upon Gates’ breach, Colliers noted that the property was thereafter tainted: potential buyers would learn of Gates’ refusal to purchase and being inquisitive as to why Gates refused to consummate the transaction, would therefore be reluctant to purchase the property, resulting in lower offers.

Wessel was equivocal on the approximate percentage of potential buyers per category and insisted on the original asking price of $5.6 million because he was without instructions to offer less following Gates’ breach. However, Wessel testified that he believed the fair market value of the property at the time of the breach to be $3.5 million, which represented the Kruse Parties’ counter-offer to the eventual buyer of the property following its sale in October 2008. Finally, Wessel offered his opinion that the Kruse Parties may have been able to receive more for the property if they had more time to market the property. Based on this testimony, the trial court concluded “[t]he uncertainty regarding the value of the property and what it could be sold for within a certain time frame supports a conclusion that the ease of determining actual damages in this case is not what it may seem on the surface.” (Appellant’s App. p. 11).

We cannot agree with the trial court that evidence of the property’s value was uncertain. “[I]n most real estate purchase agreements, a measure of damages should be readily ascertainable.” Rogers, 767 N.E.2d at 990, fn. 6. The measure of damages in a breach of real estate contract is the difference between the sale price of the property to be sold and the fair market value of the property at the time of breach. Showalter, Inc. v. Smith, 629 N.E.2d 272, 275 (Ind.Ct.App.1994), abrogated on other grounds by Mitchell v. Mitchell, 695 N.E.2d 920 (Ind.1998). The price paid by a subsequent purchaser following the breach may also be admissible as evidence of the property’s fair market value. See id.

Here, there was sufficient evidence for the trial court to determine the fair market value of the property at the time of breach. Wessel testified to his opinion of fair market value at the time of breach, $3.5 million. Approximately two months following the breach, by October 2008, the Kruse Parties sold the property for $2.35 million. This evidence was uncontested at the hearing. Further, we note that the lapse of time between the breach and the date of the subsequent sale does not necessarily render the foregoing amounts “unsuitable for determining the fair market value of the property at the time of the breach.” Showalter, 629 N.E.2d at 275. Accordingly, because the Kruse Parties provided sufficient evidence to allow the trial court to determine the fair market value of the property following Gates’ breach, we find that the trial court erred by concluding that damages were uncertain. Cf. Patel v. United Inns, Inc., 887 N.E.2d 139, 150-51 (Ind.Ct.App.2008), reh’g denied.

C. Exclusivity of Remedies

Finally, we examine the trial court’s conclusion that the Kruse Parties were precluded from exercising any remedy except specific performance upon Gates’ breach. The Purchase Agreement provided that upon forfeiture of the earnest money deposit, “the seller may sue for specific performance.” (Appellant’s App. p. 27). The trial court found this language to be unambiguous and limited the Kruse Parties to retention of the earnest money and specific performance. Further, the trial court relied upon an integration clause in the Purchase Agreement to determine that the Kruse Parties could only avail themselves of specific performance and the forfeited deposit as remedies following breach. Because the Kruse Parties elected to sell the property, the trial court concluded that they waived the availability of specific performance and their damages were limited to the earnest money deposit. The integration clause provided that the Purchase Agreement contained all “the terms and conditions agreed upon, it being agreed that there are no conditions, representations, warranties or agreements not stated in this instrument.” (Appellant’s App. p. 27).

Here, the Kruse parties contend that the provision at issue is permissive in scope and thus its damages are not limited solely to specific performance and the forfeited deposit. The Kruse parties argue that the language of the Purchase Agreement does not contain the word ‘exclusive’ and that there is no other express or implied limitation on their contractual remedies. They also contend that the integration clause does not exclude their remedies at law because an exclusion of remedies must be stated definitely and affirmatively in the contract to show clear intent to exclude a remedy.

In contrast, Gates relies upon his argument that the forfeited earnest money constitutes liquidated damages as well as the integration clause to argue that the Purchase Agreement “did not provide for any other remedies, and specified it contained all the terms and conditions agreed upon by the parties.” (Appellee’s Br. p. 12). As such, Gates contends that the Kruse Parties are without a remedy, except as specified in the Purchase Agreement.

We cannot agree with the trial court that the Kruse Parties are precluded from asserting legal damages. Generally, a party is entitled to damages at law unless specifically excluded in the agreement. See Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 502 (Ind.Ct.App.2007). While it is true the Purchase Agreement makes no mention of remedies other than specific performance, the clear import is that the Kruse Parties were entitled to such remedies as the law may allow and may elect from among them the remedy of specific performance. The remedy of specific performance is preceded by the word “may,” which connotes permission rather than a requirement. Moreover, providing a party with a remedy does not necessarily make it exclusive. Thus, the language indicates that the Kruse Parties had a choice between either remedies — it could pursue specific performance, an equitable remedy, but was not required to do so. See Rogers, 767 N.E.2d at 992. As such, we find that the provision does not provide a definite and affirmative limitation. Thus, the Kruse Parties’ remedies were not limited solely to the forfeited earnest money deposit and specific performance.

The integration provision in the Purchase Agreement does not alter this conclusion. Generally, where the parties to an agreement have reduced the agreement to a written document and have stated in an integration clause that the written document embodies the complete agreement between the parties, the parol evidence rule prohibits courts from considering parol or extrinsic evidence for the purpose of varying or adding to the terms of the written contract. I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1080, 1035 (Ind.Ct.App.1998), trans. denied. The underlying assumption advanced by the trial court and by Gates is that legal remedies contradict the terms of the Purchase Agreement. As discussed above, they do not. Accordingly, we conclude that the Kruse Parties’ remedies were not limited by the Purchase Agreement to the forfeited earnest money and specific performance, but instead also include the full measure of damages for breach of contract.

In sum, we hold the contractual provision to be an unenforceable penalty based on the following factors. First, the language of the Purchase Agreement, the facts and circumstances of the transaction demonstrate that the parties intended the provision at issue to act as a penalty, rather than an agreed measure of damages. Second, evidence of damages presented to the trial court was reasonably certain, therefore precluding a finding of liquidated damages. Finally, the Purchase Agreement does not preclude the Kruse Parties from seeking damages for Gates’ breach. Thus, we conclude that the provision at issue cannot be enforced as a liquidated damages provision and instead represents an unenforceable penalty.

Because the trial court concluded that the provision at issue constituted a liquidated damages provision, it necessarily did not determine the amount of contractual damages awardable to the Kruse Parties. Having determined the earnest money forfeiture provision to be a penalty, we remand to the trial court for a proper determination of damages consistent with this opinion.

CONCLUSION

Based on the foregoing, we conclude that the trial court erred in determining that the forfeiture provision in the Purchase Agreement constituted a liquidated damages clause. We reverse the judgment of the trial court and remand with instructions to the trial court to calculate the measure of damages as a result of Gates’ breach of contract.

Reversed and remanded with instructions.

DARDEN, S.J. and MAY, J. concur.

      . Gates also argues that the Kruse Parties impliedly argued that the earnest money was liquidated damages in Kruse I and to assert the opposite now is incongruous with their prior position. However, the opinion in Kruse I contains no mention that the Kruse Parties asserted that the forfeited earnest money constituted liquidated damages, but merely mentions that the Kruse Parties sought damages for Gates’ breach.


author: BAILEY, Judge. CRONE, Judge,

text:
    CSL COMMUNITY ASSOCIATION, INC., Appellant-Defendant, v. Clarence Ray MEADOR, Appellee-Plaintiff.
    No. 40A01-1112-MI-579.
    Court of Appeals of Indiana.
    Aug. 13, 2012.
    Scott A. Tanner, Tanner Law Group, Indianapolis, IN, Attorney for Appellant.
    John D. Gay, North Vernon, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Country Squire Lakes Community Association, Inc., a homeowner’s association, (HOA), appeals the trial court’s grant of Clarence Ray Meador’s (Meador) motion for declaratory judgment, which abrogated Meador’s obligation to pay HOA dues and assessments. We reverse.

Issue

The sole issue for our review is whether the trial court erred in abrogating Mea-dor’s obligation to pay HOA dues and assessments.

Facts and Procedural History

The Country Squire Lakes Community (Community) was established as a gated residential vacation and retirement community in the 1970’s. The Community is located on approximately 1400 acres in North Vernon and includes approximately 4000 lots and more than thirty miles of paved roads. At the time the Community was developed, it provided residents with a variety of recreational amenities, such as an Olympic-sized swimming pool, tennis courts, playgrounds, clubhouses, picnic areas, a marina, lakes, beaches, and a campground. There was a full-time security team of fifteen to twenty guards that patrolled the premises. The HOA was organized to collect dues and assessments from property owners to pay for maintenance of the common areas and amenities.

On his first visit to the Community in 1997, fifty-nine-year-old Meador was impressed that the Community was the largest recreational facility in the Midwest. Meador observed residents riding bicycles, boating on the lake, using grills in the park and campground, swimming, and playing tennis, badminton, and volleyball.

The following year, Meador and his wife, who had been travelling around the country in their motor home, purchased Lot 620, which included a double-wide trailer and a forty-foot boat dock. Meador owned a pontoon boat that he regularly drove across the lake to the marina to purchase gas for his lawnmower and ice cream or a Popsicle. The Meadors also had a golf cart and bicycles, which they rode around the community.

In 2006, Meador purchased Lot 619. The deed for each lot contains a list of property covenants labeled “Restrictions, Conditions, Covenants, and Agreements,” (Covenants). Appellant’s App. at 7, 17. The Covenants state that every property owner shall be a mandatory member of the HOA and shall pay his allocated share of the mandatory dues and assessments to the HOA for the costs to maintain the common areas, streets, lakes, dams, and other improvements and amenities. The annual dues are $75 per lot, and the current annual assessment is $300 per lot. The Covenants further provide that they run with the land, and that the property owner agrees to pay dues and assessments for community property irrespective of whether the privilege of using the property is exercised.

In addition, the HOA’s Bylaws provide that each property owner may cast only one vote regardless of the number of lots that he owns, and that an owner cannot vote if he is delinquent in paying dues or assessments for any of the lots that he owns. The Bylaws further provide that a lot owner’s membership terminates when the member no longer owns any lots.

As the years passed and the economy fluctuated, the Community was invaded by investment purchasers who purchased lots for rental or contract properties. As the Community shifted from owner-occupied to tenant-occupied, the rental property owners frequently stopped paying the fees and assessments to the HOA. Currently 60% to 65% of these owners are delinquent on their fees and assessments, leaving the HOA with a three to four million dollar revenue shortfall. As a result of this shortfall, dues and assessments are used on essentials such as payments on a $950,000 improvement loan, repairs to a dam, insurance, and limited road maintenance, leaving insufficient funds to maintain the recreational amenities. For example, the Olympic-sized swimming pool and the children’s wading pool are both empty and need to be repaired before they can be refilled. The surface of the tennis court is rubble, and the court has no net. In addition, Meador has not been able to use his boat dock in six years and had to move his pontoon boat to another lake when the Community’s lake became contaminated with raw sewage. Further, the bathhouse is saturated with mildew, the putting green is not usable, and there is just one tire swing on the entire playground. Residents are no longer allowed to play cards in the clubhouse, and arsonists burned down the pavilion. There is no longer a full-time security force patrolling the Community, and the Community’s security gates have been removed.

In addition to the demographical changes in the community, the HOA has suffered from years of financial mismanagement. For example, as far back as June 2005, the HOA president discovered a $450,000 shortfall in the budget and resigned because he knew that the HOA would run out of money before the end of the fiscal year. In 2008, the HOA borrowed $950,000 to repair deteriorating roads but was only able to repair seven to ten miles of them. Insurance proceeds for the repair of the pool were not used for that purpose, and the HOA has not been placing money in a reserve fund as required by the covenants. Currently, the reserve fund has only $15,000, which is earmarked for a new snow plow truck.

The HOA hired a management company in August 2009 to help reduce the shortfall so that the recreational amenities could be repaired. However, at trial, the management company’s office manager testified that after two years, 60% to 65% percent of the property owners were still not paying their dues and assessments, and the office manager believed that it could take five to six years “to get it back where it was” so long as nothing unforeseen happens during that time. Tr. at 90.

Over the years, Meador, who has lived in the Community for fifteen years and regularly paid his dues and assessments, has tried to influence the HOA Board of Directors in their budgetary decisions. However, his interest in the Community has not been well-received. For example, at one board meeting, he was told to “sit down and shut up and if [he didn’t] like it, get out.” Tr. at 10. Meador has also unsuccessfully tried to get a financial audit of the HOA for years. Eventually, Mea-dor stopped paying the assessments for Lot 619. At the 2009 annual HOA meeting, Meador was not allowed to vote because of this delinquency. As a result, in May 2009, Meador filed a Complaint for Declaratory Judgment wherein he asked the trial court to issue a declaratory judgment advising whether he was a member of the HOA and whether he had been illegally denied his right to vote on HOA matters. Meador explained that he filed the complaint because he was “tired of being told to sit down and shut up” and hoped to see the current HOA dissolved and replaced. Tr. at 42.

Meador filed an amended complaint in 2009, wherein he added counts for breach of contract, negligence, and constructive fraud. In June 2011, following unsuccessful attempts at mediation, now seventy-four-year-old Meador filed a Second Amended Complaint for Declaratory Judgment wherein he again asked the trial court to issue a declaratory judgment advising whether he was a member of the HOA and whether he had been illegally denied his right to vote on HOA matters. Meador also asked the trial court to abrogate his obligation to pay fees and assessments to the HOA because the HOA had not maintained the Community’s amenities and common areas.

On November 30, 2011, following a bench trial, the trial court issued an amended order which concluded that the changes in the Community were so radical that the original purpose of the Community and the deed restrictions had long ago been defeated. The trial court therefore abrogated Meador’s obligation to pay dues and assessments. The court further concluded that Meador could still vote at the HOA meeting because his obligation to pay dues and assessments had been abrogated. Lastly, the trial court stated that other delinquent property owners could not vote. The HOA appeals.

Discussion and Decision

The HOA argues that the trial court erred in abrogating Meador’s obligation to pay dues and assessments as provided by one of the covenants in the deed to Meador’s property. When special findings of fact and conclusions of law are made in accordance with Indiana Trial Rule 52, this Court must determine whether the evidence supports the findings and whether the findings support the judgment. Mayer v. BMR Properties, LLC, 830 N.E.2d 971, 978 (Ind.Ct.App.2005). Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them, and the trial court’s judgment is clearly erroneous if it is unsupported by the findings and conclusions which rely upon those findings. Dallas v. Cessna, 968 N.E.2d 291, 296 (Ind.Ct.App.2012). In establishing whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom. Id.

While conducting our review, we cannot reweigh the evidence or judge the credibility of any witness, and must affirm the trial court’s decision if the record contains any supporting evidence or inferences. Id. However, while we defer substantially to findings of fact, we do not do so for conclusions of law. Id. We evaluate conclusions of law de novo and owe no deference to a trial court’s determination of such questions. Id.

A restrictive covenant is an express contract between the grantor and the grantee that restrains the grantee’s use of his land. Villas West II of Willow-ridge Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind.2008), cert. denied, 555 U.S. 1213, 129 S.Ct. 1527, 173 L.Ed.2d 657 (2009). Although the law does not favor restrictive covenants, the contractual nature of these restrictions has led courts to enforce them in equity as long as the restrictions are unambiguous and do not violate public policy. Hrisoma-los v. Smith, 600 N.E.2d 1363, 1366 (Ind. Ct.App.1992). However, public policy requires the invalidation of restrictive covenants when there have been changes in the character of the subject land that are “so radical as practically to destroy the essential objects and purposes of the agreement.” Cunningham v. Hiles, 182 Ind. App. 611, 516, 395 N.E.2d 851, 855 (1979) (quoting Bachman v. Colpaert Realty Corp., 101 Ind.App. 306, 319-20, 194 N.E. 783, 789 (1935)).

Here, the trial court concluded that because the amenities in the Community had not been maintained, the changes in the Community were so radical that the original purpose of the Community and the deed restrictions were destroyed. The trial court therefore abrogated Meador’s obligation to pay dues and assessments. The HOA responds that the trial court’s decision “conflicts with long-established Indiana contract law.” Appellant’s Br. at 13.

Bob Layne Contractor, Inc. v. Buennagel, 158 Ind.App. 43, 301 N.E.2d 671, 678 (1973) and Sorrentino v. Cunningham, 111 Ind.App. 212, 39 N.E.2d 473 (1942), are instructive. In Bob Layne, this Court held that the construction of a super highway along one edge of a restricted residential area was not a sufficient change of condition to abrogate restrictions against commercial development in favor of lots abutting the highway where the benefits of the covenant could still be realized by property owners in the restricted area. Bob Layne, 301 N.E.2d at 678.

In Sorrentino, Cunningham argued that a restrictive covenant prohibiting the sale of alcohol in Irvington, a community on Indianapolis’ east side, should no longer be enforced because of changes in conditions. Specifically, he argued that much of the neighborhood had developed into a commercial center, several taverns operated from premises adjacent to the restricted area, and the area had been annexed into Indianapolis since the restrictions were imposed. This Court, however, enforced the restriction against alcohol because it was for the benefit of all lot owners in the area, and other lot owners were still in a position to benefit from it. Sorrentino, 39 N.E.2d at 478; see also Brendonwood Common v. Franklin, 403 N.E.2d 1136, 1140 (Ind.Ct.App.1980) (holding that a change in conditions was not so radical as to defeat the original purpose of the covenants).

Here, as in Bob Layne and Sorrentino, the covenant regarding the payment of dues and assessments is for the benefit of all property owners in the area, and the property owners are still in a position to benefit from these payments. For example, dues and assessments are used to pay essentials to the community, such as payments on the $950,000 improvement loan, repairs to a dam, insurance, and limited road maintenance. We agree with the HOA that the “lack of recreational facilities is not the type of ‘radical change’... that would justify the abrogation of a private contractual property covenant.” Appellant’s Reply Brief at 1. Further, the HOA Bylaws clearly state that the dues and assessments on the communal property are due irrespective of whether the privilege of using the property is exercised. Thus, we conclude that the trial court erred in abrogating Meador’s obligation to pay dues and assessments.

We recognize that the HOA’s financial mismanagement and a change in the demographics of the Community have led to a revenue shortfall and an inability to maintain the Community’s amenities, and we appreciate the trial court’s attempt to provide relief following these untenable circumstances. However, the relief provided is not one afforded under Indiana law, and thus we cannot affirm the judgment. The abrogation of Meador’s obligation to pay dues and assessments is not a remedy for these problems, but there are potential alternatives that Meador and the HOA can investigate.

Conclusion

Because the evidence does not support the trial court’s conclusion that the changes in the Community were so radical that the original purpose of the Community and the deed restrictions were destroyed, the trial court erred in abrogating Meador’s obligation to pay dues and assessments.

Reversed.

RILEY, J., concurs.

CRONE, J., dissents with separate opinion.

CRONE, Judge,

dissenting.

The majority acknowledges that “public policy requires the invalidation of restrictive covenants when there have been changes in the character of the subject land that are ‘so radical as practically to destroy the essential objects and purposes of the agreement.’ ” Op. at 600 (quoting Cunningham, 182 Ind.App. at 516, 395 N.E.2d at 855). In my view, the relevant facts found by the trial court and recited by the majority constitute overwhelming proof that changes have occurred in the Community over the past decade or so that are far more radical than a mere “ ‘lack of recreational facilities.’ ” Id. at 601 (quoting Appellant’s Reply Br. at 1). Real-estate speculators have turned what once was a well-appointed, well-financed, well-maintained, and well-patrolled retirement and recreational community into an economically and infrastructurally devastated eyesore. As such, I believe that the trial court did not err in abrogating Meador’s obligation to pay dues and assessments under the Covenants. That said, because a lot owner’s ability to vote is contingent upon his payment of assessments, I would reverse the trial court’s ruling that Mea-dor may retain his voting rights.

      . The HOA also argues that if Meador's obligation to pay dues and assessments is abrogated, the abrogation terminates Meador's right to vote in HOA business. Because we find that Meador's obligation to pay dues and assessments was not abrogated, we need not address this issue.

      . The amended order redacted references to a document that was not admitted into evidence.

      . See Ind.Code § 32-30-5-1 et seq., (Receivership); Ind.Code § 36-4-3-1 et seq., (Annexation); and 11 U.S.C. § 1 et seq. (Bankruptcy). We also note that other states have used blanket receivership orders, which are designed to assist communities where investor owners collect rent with no intention of ever paying the association. See Donna DiMaggio Berger, Can a Blanket Receivership Order Comfort Your Struggling Community?. Condo and HOA Law (Sept. 29, 2009), http://www. condoandhoalawblog.com/2009/09/can-blanket-receivership-ordercomfort-html.


author: MAY, Judge.

text:
    Mitzi BOSLEY, Appellant-Plaintiff, v. NIKTOB, LLC, Design Industries, Inc. Peg Rail, Inc., and Originnovations, Inc., Appellees-Defendants.
    No. 49A04-1111-PL-599.
    Court of Appeals of Indiana.
    Aug. 27, 2012.

      Thomas W. Vander Luitgaren, Brandi R. Foster, Van Valer Law Firm, LLP, Greenwood, IN, Attorneys for Appellant.
    George M. Plews, Angela (Dorrell) Green, Jonathan Penn, Plews Shadley Racher & Braun LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

MAY, Judge.

NIKTOB, LLC, leased a building from Mitzi Bosley. It sued Bosley in Marion Superior Court 7 (the “environmental court”) over environmental issues and for breach of contract. Bosley subsequently brought, in Marion Superior Court 10 (the “ejectment court”), an independent ejectment action. NIKTOB counterclaimed, raising the same environmental and contract issues that were pending in the first lawsuit. Bosley moved in the ejectment court to dismiss the NIKTOB counterclaim. The ejectment court denied her motion to dismiss and granted summary judgment for NIKTOB on the issues it raised in its counterclaim. Bosley appeals those decisions, and we reverse.

FACTS AND PROCEDURAL HISTORY

In August 2008, NIKTOB brought a complaint for damages and declaratory relief (the “environmental action”) against Bosley, from whom it leased an industrial building with some environmental contamination. It made claims under Ind.Code § 13-30-9-2, which provides:

A person may, regardless of whether the person caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment, bring an environmental legal action against a person that caused or contributed to the release to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.

NIKTOB also alleged Bosley was liable for negligence, nuisance, and trespass in dealing with the contaminants, was strictly liable for certain environmental damage, and breached her contract with NIKTOB. NIKTOB also sought a declaration that Bosley’s insurer was obliged to provide coverage.

In September 2010, while the environmental action was pending, Bosley brought a lawsuit in the ejectment court seeking to eject NIKTOB from the building. She alleged the lease had ended, NIKTOB was a holdover tenant, and NIKTOB had not paid the rent it owed Bosley. NIKTOB answered and, in March 2011, counterclaimed. All of the allegations NIKTOB made in its ejectment counterclaim had already been asserted in the environmental action and were repeated virtually verbatim in the ejectment counterclaim. In August 2011, Bosley moved to dismiss the counterclaim. In October 2011, the ejectment court denied Bosley’s motion to dismiss the counterclaim, then granted summary judgment for NIKTOB on its counterclaim.

DISCUSSION AND DECISION

As NIKTOB should not have been permitted to amend its answer in the ejectment action to include a counterclaim on issues already pending before another court in the environmental action, Bosley’s motion to dismiss the counterclaim should have been granted.

Indiana Trial Rule 12(B)(8) permits the dismissal of an action when “[t]he same action [is] pending in another state court of this state.” Beatty v. Liberty Mut. Ins. Group, 893 N.E.2d 1079, 1084 (Ind.Ct.App.2008). The rule implements the general principle that when an action is pending in an Indiana court, other Indiana courts must defer to that court’s authority over the case. Id. The rule applies even when the parties, subject matter, and remedies are only substantially the same. Id. Our review of the trial court’s ruling on Bosley’s motion to dismiss under Trial Rule 12(B)(8) is de novo. See id.

Indiana Trial Rule 18(A) provides:

(A) Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if:
(1) at the time the action was commenced the claim was the subject of another pending action [.]

(Emphasis added.)

It is a “fundamental axiom of law,” State ex rel. American Fletcher Nat’l Bank & Trust Co. v. Daugherty, 258 Ind. 632, 634, 283 N.E.2d 526, 528 (1972), that courts of concurrent jurisdiction cannot exercise jurisdiction over the same subject at the same time. Trial Rule 12(B)(8) implements this principle by allowing dismissal of one action on the ground that the same action is pending in another Indiana court.

Whether two actions being tried in different state courts amount to the same action depends on whether the outcome of one action will affect the adjudication of the other. Id. The rule applies and an action -should be dismissed where the parties, subject matter, and remedies are precisely or even substantially the same in both suits. Id. Thus, when faced with a challenge to a decision whether to dismiss on the basis of T.R. 12(B)(8), the critical question before us is whether the parties, subject matter, and remedies are either precisely or substantially the same. Id. “As a matter of policy and practicality in the operation of our judicial system, only one court should be able to exercise jurisdiction over a cause of action at any particular time. To hold otherwise would create confusion and chaos in our trial and appellate courts.” State ex rel. Coleman v. Hendricks Superior Court II, 272 Ind. 40, 41, 396 N.E.2d 111, 112 (1979).

NIKTOB’s environmental action and its counterclaim in Bosley’s ejectment action are at least substantially the same. All of the allegations NIKTOB made in the ejectment counterclaim previously had been asserted in the environmental action, and were repeated virtually verbatim in the ejectment counterclaim. In its motion to consolidate in the environmental action, NIKTOB correctly noted the environmental action and the ejectment action “involve common questions of law and fact. Both actions involve the same parties (and their affiliates) and both actions involve claims relating to the parties’ respective property interests in the Bosley property and the rights of the parties under the lease.” (App. at 296.)

NIKTOB asserts Bosley, by asking the ejectment court to construe the lease agreement, “opened the door for the court to consider all claims and issues arising out of the agreement.” (Appellees’ Br. at 20.) It notes Bosley cited to no authority “that permits a plaintiff to selectively avoid adjudication of claims originating out of an agreement in a case that the plaintiff filed.” (Id.) (emphasis in original). But no adjudication is being “selectively avoided” here. All the claims to which NIK-TOB refers remain before the court in the environmental action.

NIKTOB’s counterclaim in the ejectment action should have been dismissed, and summary judgment for NIKTOB on the counterclaim issues was therefore improper. We accordingly reverse.

Reversed.

FRIEDLANDER, J., and BARNES, J., concur.

      . As the NIKTOB counterclaim should have been dismissed, we need not address whether the summary judgment on those matters was error. See App. at 9, where the trial court noted in its summary judgment order that after Bosley moved for summary judgment on her ejectment complaint, NIKTOB "responded and cross-moved for summary judgment on NIKTOB’s counterclaim." (Emphasis supplied.)

      . The Appendix includes a Motion to Consolidate that NIKTOB brought in the environmental action, asking that the ejectment action be consolidated with the environmental action in the court where the environmental action is pending. The motion appears twice in Bosley's appendix. Neither is dated or file-stamped, but both are accompanied by a Certificate of Service that states the motion was mailed March 15, 2011. We cannot determine from the record whether the motion was ruled on. (See Appellant’s App. at 268, 295.) In her reply brief, Bosley asserts NIKTOB withdrew that motion to consolidate. The page of the appendix to which she directs us in support contains the motion itself, but does not indicate the motion was withdrawn.
      In the motion, NIKTOB asserts the environmental action and the ejectment action "involve common questions of law and fact. Both actions involve the same parties (and their affiliates) and both actions involve claims relating to the parties’ respective property interests in the Bosley property and the rights of the parties under the lease.” (Id. at 296.)