author: CRONE, Judge.

text:
    TRUST NO. 6011, LAKE COUNTY TRUST COMPANY, Trustee, Simon Beemsterboer, and Victoria J. Beemsterboer, Appellants-Defendants, v. HEIL'S HAVEN CONDOMINIUMS HOMEOWNERS ASSOCIATION, Appellee-Plaintiff.
    No. 43A05-1108-PL-433.
    Court of Appeals of Indiana.
    April 17, 2012.

      Karl L. Mulvaney, Shannon D. Lan-dreth, Bingham Greenebaum Doll LLP, Indianapolis, IN, Michael E. Armey, Warsaw, IN, Sheldon L. Lebold, Orland Hills, IL, Attorneys for Appellants.

      Stephen R. Snyder, Randall L. Morgan, Snyder Morgan LLP, Syracuse, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Simon and Victoria J. Beemsterboer reside on property ("the Beemsterboer Property") owned by Trust No. 6011, Lake County Trust Company, Trustee. Victoria is the beneficiary of the Trust. The Beemsterboer Property shares a border with Heils Haven Condominiums. When the condominiums were developed, several agreements were executed between the Heil's Haven Condominiums Homeowners Association ("the Association") and the previous owners of the Beemsterboer Property, granting various easements to each to use portions of the others' property. The Beemsterboers attempted to develop their property in a manner that allegedly infringed on the easements originally granted to the Association. The Association filed suit against the Trust and the Beemsterboers (collectively referred to as "the Beemsterboers") seeking to enjoin the Beemsterboers from improving their property in a manner that infringed on the easements, and the trial court granted the requested relief.

The Beemsterboers appeal, arguing that the trial court erred in granting injunctive relief because (1) one of the agreements has terminated; (2) the improvements can be made in a manner that does not infringe upon the Association's existing easements to use the Beemsterboer Property; and (3) the Association's encroachment is greater than that permitted by agreement. We conclude that one agreement has terminated and that the improvements can be made in a manner that does not infringe upon the Association's continuing easements. We further conclude that the trial court's order deals effectively with the Association's encroachment. Therefore, we affirm in part and reverse in part.

Facts and Procedural History

The Beemsterboer Property is located in Kosciusko County, west of and adjacent to property occupied by Heil's Haven Condominiums. These properties extend roughly from Hatchery Road on the south to Lake Wawasee on the north. The properties were once a single parcel owned by James and Jane Fry. The Frys lived in a residence on the west side of the property and operated a motel on the east side. In the 1980s, the Frys converted the motel into Heil's Haven Condominiums and divided the single parcel into two parcels, each with frontage on Lake Wawasee: a western parcel with the personal residence and an eastern parcel for the condominiums. Ultimately, the Frys western parcel came into the possession of the Beemster-boers.

When Heil's Haven was developed, the Frys and the Association executed several written agreements creating easements for the shared use of property and an agreement granting the Association an easement over a portion of the Frys' property. All relevant documents were duly recorded. Two are titled "Cross License Agreement," one dealing with the use of a water pump and a sidewalk ("the Water and Walkway Easement"), and the other dealing with a septic system shared by the two parcels ("the Septic Easement"). Exs. A and B. Two other agreements grant an easement to the Association only ("the Replacement Walkway Easement" and "the Encroachment Agreement"). Exs. C and D.

The Water and Walkway Easement granted the Frys, and their successors and assigns, "a license for use of the pump and utility house, mechanical equipment therein and lines connecting said pump and utility house to [the Frys' property]" and granted the Association, and its successors and assigns, the use of a paved sidewalk running along the east side of the Frys' property (now the Beemsterboer Property) for "ingress and egress" to Lake Wa-wasee. Ex. B. at 3. The walkway ease ment granted in the Water and Walkway Easement is identified in a 2010 Survey as "Cross License Agreement-Ingress and Egress." Plaintiffs Ex. S. The Water and Walkway Easement provided in relevant part,

3. Use of License Premises. Use of [the sidewalk] is confined to the present uses of [the Association], the present buildings thereon and the present lack of access to the lakefront of [the Association] by direct walkway.. ...
4. Use of License Premises. Use of [the pump and utility house, ete.] is confined to present uses of [the Frys], the present buildings thereon, and the present lack of individual water well [on the Frys' property).. ...
6. .... Should the water lines connecting said pump and utility house with [the Frys' property] fail to such an extent that a water supply is not available to [the Frys' property], then this Cross License Agreement shall terminate, ten (10) days after such failure, and all rights granted hereunder shall terminate.
7. Termination of License. The licenses granted herein may be terminated by agreement of the parties, duly recorded, or shall terminate automatically as hereinabove described or such shall also terminate [aJutomatically at such time as [the Association] has walkway access to the lakefront portion [of the Association's property] by means other than [the sidewalk].

Ex. B. at 3 (emphases added).

In the event the Water and Walkway Easement terminated, the Frys and the Association had a backup plan: the Replacement Walkway Easement. Specifically, the Replacement Walkway Easement granted an easement to the Association to use a three-foot-wide area on the Frys' property (now the Beemsterboer Property) when "the current License for ingress and egress to the lakefront of the Heil's Haven [Condominiums] no longer exists and at such time the [replacement walkway areal may be used for installation of a concrete sidewalk to be used by owners of Units in the Heil's Haven Condominiums or their guests." Ex. D. at 2.

The Septic Easement granted an easement to both the Frys and the Association to use a common septic and filter bed system. One septic tank is on the Association's property and the other is on the Beemsterboer Property. The Septic Easement granted each party "a license for the location and use of two (2) septic tanks, one (1) sewage pump and one (1) filter bed." Ex. A. at 3. The Septic Easement further provided that "[eJxelusive use of the [licensed areal to either Fry or [the] Association is not hereby granted," and that "[tlhe license granted herein may be terminated by agreement of the parties, duly recorded." Id. (emphasis added). Presently, the Beemsterboers do not require the use of the septic system, but the Association does.

Finally, the Encroachment Agreement permitted the Association to maintain a deck that encroached onto the Frys' property (now the Beemsterboer Property) "for so long as the wooden deck which constitutes such encroachment is not expanded, altered or modified in any manner and continues to be used as part of the [property] known as Heil's Haven Condominiums." Ex. C. at 2. The 2010 Survey shows that the deck's encroachment is greater than that described in the Encroachment Agreement. Ex. S. However, the deck has not been expanded, altered, or modified since the Encroachment Agreement was executed.

Subsequent to the development of Heil's Haven, the Frys sold their residence, and it was eventually purchased/inherited by Garry Bickel, the owner immediately prior to the Beemsterboers. During Bickel's ownership, a fire destroyed the residence and the water lines to the pump and utility house mentioned in the Water and Walkway Easement. Bickel built a new residence with its own water supply on his property. Bickel also installed a new sidewalk that he intended the condominium owners to use in the same manner as they had used the old sidewalk. Bickel believed that the new sidewalk was located wholly within the area licensed to the Association in the Water and Walkway Easement. Bickel later learned, however, that the new sidewalk extended farther onto his property than provided for in the Water and Walkway Easement. Currently, the sidewalk installed by Bickel is the only paved path that runs from Heil's Haven's parking lot to the lakefront. The condominium owners use the sidewalk to transport pad-dleboats, sailboats, and other equipment from the parking lot to the lakefront.

In 2008, Bickel sold the property to the Trust, and the Beemsterboers began residing there. In a March 2010 letter, Simon Beemsterboer informed the Association of his intent to install a fence along the parties' common property line. Plaintiff's Ex. Q. The proposed fence would enclose the Beemsterboers' yard, including the sidewalk installed by Bickel and the easement granted to the Association in the Water and Walkway Easement. Id. The fence would also enclose one of the septic tanks referred to in the Septic Easement.

Also that spring, the Beemsterboers began constructing a stairway from their second story deck. The stairway and its supporting posts lie wholly within the Beemsterboer Property. In other words, the stairway and posts are not in the walkway area described in the Water and Walkway Easement. Tr. at 24, 105, 114. However, the construction of the Beem-sterboers' stairway resulted in the removal of a portion of the edge of the sidewalk and degrades the usable width of the sidewalk. Apparently, this occurred because, as previously mentioned, the sidewalk installed by Bickel extended farther onto the Beemsterboer Property than the walkway area described in the Water and Walkway Easement.

On June 2, 2010, the Association filed a complaint for preliminary and permanent injunctions against the Beemsterboers seeking to enjoin them from constructing the fence and continuing construction of the staircase. That same day, the trial court issued a temporary restraining order granting the requested relief. On July 13, 2010, following an evidentiary hearing, the trial court entered a preliminary injunction prohibiting the Beemsterboers from econ-structing a fence or other structure obstructing the areas described in the Water and Walkway Easement and the Septic Easement. The Beemsterboers filed a counterclaim, alleging that the Water and Walkway Easement and the Septic Easement no longer served any purpose and/or were terminated and that Heil's Haven's deck encroachment should be removed because it is outside the encroachment area described in the Encroachment Agreement.

The trial court conducted a bench trial, ordered the parties to submit proposed findings of fact and conclusions thereon, and took the matter under advisement. The trial court adopted the Association's proposed findings of fact and conclusions thereon and entered a judgment ("the Judgment") that provides in relevant part as follows:

FINDINGS OF FACT
9. By letter dated March 19, 2010, [] Simon Beemsterboer, notified Condominium Association of his intent to install a fence along the common property line of the parties which, if installed, would prevent access of [the Association] over the ingress/egress license running from Condominium's roadside parking area to Condominium's lakefront over the area depicted as "Cross License Agreement-Ingress and Egress []" on the [2010 Surveyl. Exhibit Q.
10. The fence proposed by [the Beemsterboers] would also prevent access to a septic tank lid shown on [the 2010 Survey] which access is needed for the purpose of cleaning the septic tank which constitutes a part of the system utilized by Condominium for its connection to the Turkey Creek Regional Sewer District sewer line adjacent to Condominium property. Exhibit Q.
12. In the Spring of 2010, [the Beemsterboers] undertook a construction project by which a staircase from a second story deck on [their] property was relocated from the west side of the deck to the east side of the deck. This construction resulted in a destruction of a portion of the sidewalk utilized by Condominium owners and the east side stairease encroaches into the sidewalk area intended for use by Condominium owners and as reconstructed by Bickel. The newly constructed staircase prevents access by Condominium owners to the Condominium lakefront and in particular, obstructs the usable width of the sidewalk for the purpose of transporting items from the lakefront on the Condominium to the parking area of the Condominium. Exhibits K-P; Exhibit S.
13. Condominium owners have no means of access from the roadside of Condominium property to the lakefront of Condominium property other than over and across [the license granted in the Water and Walkway Easement].
14. It is impractical for Condominium owners to relocate the two septic tanks partially on [the Beemsterboers'] property, which tanks are utilized for the connection by Condominium to the Turkey Creek Regional Sewer District sewer line.
15, With the exception of the portion of [the Water and Walkway Easement] providing for the sharing of the water supply and utility building, which terminated when a new well was installed on the Beemsterboer [PJroperty by Bickel, none of the other agreements have terminated.
CONCLUSIONS OF LAW
2. The fence proposed by [the Beem-sterboers] would violate the provisions of [the Water and Walkway Easement and the Septic Easement].
3. The staircase installed by [the Beemsterboers] interferes with [the Association's] use of [the Water and Walkway Easement].
4. [The Association] is entitled to utilize, for ingress and egress purposes, the sidewalk reconstructed by Bickel on the Beemsterboer [PJroperty to its full extent even though such sidewalk may be shown to be slightly outside the boundaries of [the Water and Walkway Easement] as shown by [the 2010 Survey].
5. [The Beemsterboer Property] is subject to the terms and provisions of [the Water and Walkway Easement, the Septic Easement, the Encroachment Agreement, and the Replacement Walkway Easement], excepting only those provision of [the Water and Walkway Easement] which pertain to a water supply to the Beemsterboer [PJroperty.
JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. [The Beemsterboers], and their successors and assigns, are permanently enjoined from obstructing [the Association's] use of the areas described in [the Water and Walkway Easement and the Septic Easement]. [The Beemster-boers] shall not place a fence which in any fashion blocks [the Association's] access to or use of such areas.
2. [The Beemsterboers] shall remove the staircase depicted on the [2010 Survey] and shall repair those portions of the sidewalk removed for the purpose of constructing such staircase.. ...
3. [The Beemsterboers] shall not in any fashion interfere with [the Association's] use of the reconstructed sidewalk, installed by Garry Bickel ... including that portion of the sidewalk immediately adjacent to [the Water and Walkway Easement] located outside the boundaries thereof.
4, [The Beemsterboers] and their successors and assigns are permanently enjoined from in any fashion interfering with [the Association's deck], the subject of [the Encroachment Agreement], even though the actual location of the deck encroachment may vary slightly from the description contained in the [the Encroachment Agreement].

Appellants' App. at 11-14.

The Beemsterboers filed a motion to correct error and a motion to stay the judgment. The trial court denied the first and granted the latter. The Beemster-boers appeal.

Discussion and Decision

Standard of Review

When, as here, issues are tried upon the facts by the court without a jury, Trial Rule 52 provides that a trial court "shall find the facts specially and state its conclusion thereon" either "[uJpon its own motion" or upon "the written request of any party filed with the court prior to the admission of evidence." "Our standard of review on judgments under Trial Rule 52 differs slightly depending upon whether the entry of specific findings and conclusions comes sua sponte or upon [written] motion by a party." Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind.Ct.App.2011), trans. denied (2012). According to the record before us, neither party filed a written request for findings of fact and conclusions thereon, and therefore the trial court entered findings and conclusions sua sponte.

Where the trial court enters specific findings sua sponte, [ ] the specific findings control our review and the judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.

Id.

We apply the following two-tier standard of review to sua sponte findings and conclusions: whether the evidence supports the findings, and whether the findings support the judgment. Findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility.

Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839 (Ind.Ct.App.2009) (citations and quotation marks omitted), trans. denied. "[ WJhile we defer substantially to findings of fact, we do not do so to conclusions of law." McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App.2010) (citation omitted), trams. denied (2011). "We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions." Id.

I. The Water and Walkway Easement

The Beemsterboers argue that the trial court erred in finding that one, but not both, of the easements granted in the Water and Walkway Easement remains in effect. They challenge Finding 15 and Conclusions 2 through 5 and ask us to reverse Paragraphs 1 through 3 of the Judgment. Appellants' App. at 12-14. The trial court found that the easement granted to the Frys, and their successors and assigns, to use the pump and utility house, etc., had terminated but that the easement for ingress and egress granted to the Association had not. The Beem-sterboers contend that, pursuant to its express terms, the Water and Walkway Easement terminated in its entirety when the fire burned down Bickel's residence.

To resolve this issue we must construe the terms of a written contract, a pure question of law. Therefore, our standard of review is de novo. Drees Co., Inc. v. Thompson, 868 N.E.2d 32, 38 (Ind.Ct.App.2007), trans. denied. Fundamental rules of construction guide us here. "Unless the terms of a contract are ambiguous, they will be given their plain and ordinary meaning." Tanton v. Grochow, 707 N.E.2d 1010, 1013 (Ind.Ct.App.1999). "The terms of a contract are not ambiguous merely because controversy exists between the parties concerning the proper interpretation of terms." Id. "Where the language is not uncertain or ambiguous the intention of the parties is determined by a proper construction of the language of the instrument." GTA v. Shell Oil Co., 171 Ind.App. 647, 650, 358 N.E.2d 750, 752 (1977).

More specifically, we have said:

"The nature, extent and duration of an easement created by an express agreement or grant must be determined by the provisions of the instrument creating the easement. An easement is an interest in land and may be held in fee. A fee simple or lesser estate in land may be created so as to be defeasible. While an easement is normally held in fee, it is well established that an easement, like any other estate in land, may be held as a determinable fee. An easement which is held as a determinable fee will terminate upon the happening of the event upon which its existence is conditioned without any action by the gramtor of the estate or his successors in interest."

Larry Mayes Sales, Inc. v. HSI, LLC, 744 N.E.2d 970, 972-73 (Ind.Ct.App.2001) (quoting Erie-Haven, Inc. v. First Church of Christ, 155 Ind.App. 283, 289, 292 N.E.2d 837, 841 (1973)) (emphasis added).

Paragraph 6 of the Water and Walkway Easement states, "Should the water lines connecting said pump and utility house with [the Frys' property] fail to such an extent that a water supply is not available to [the Frys' property], then this Cross License Agreement shall terminate." Ex. B. at 3 (emphasis added). The Association asserts that "this" refers only to the topic of Paragraph 6; namely, the water easement. We disagree. "This" obviously refers to "Cross License Agreement," which is the title of the instrument and thus encompasses both easements granted therein.

This construction is consistent with the rest of the instrument. Paragraph 7 governs termination and applies to the "licenses" granted in the Water and Walkway Easement. Paragraph 7 sets forth three events that will terminate both easements:

The licenses granted herein may be terminated by agreement of the parties, duly recorded, or shall terminate automatically as hereinabove described or such shall also terminate [aJlutomatically at such time as [the Association] has walkway access to the lakefront portion [of the Association's property] by means other than [the sidewalk].

Id. One of the events that terminates the "licenses" is "as hereinabove described," which clearly refers to the immediately preceding paragraph, the only other place termination is addressed.

We conclude that the Water and Walkway Easement automatically terminated by its own express terms when the Bickel residence burned down and the water supply failed. Therefore, we conclude that the trial court clearly erred in determining in Finding 15 that the provisions of the Water and Walkway Easement pertaining to the Association's easement for ingress and egress are still in effect. Further, Conclusions 3 and 4 are clearly erroneous, as are 2 and 5 to the extent that they are based on Finding 15. Accordingly we reverse the following: the portion of Paragraph 1 of the Judgment that permanently enjoins the Beemsterboers from obstruct ing the Association's use of the walkway easement described in the Water and Walkway Easement and from placing a fence that blocks the Association's access to or use of that area; Paragraph 2 of the Judgment, ordering the Beemsterboers to remove the staircase and repair the sidewalk; and Paragraph 3 of the Judgment, prohibiting the Beemsterboers from interfering with the reconstructed sidewalk. Appellants' App. at 13-15.

II. The Septic Easement

The Beemsterboers also contend that the trial court clearly erred in determining in Finding 10 that their proposed fence would prevent the Association's access to a septic tank lid. Finding 10 underlies both Conclusion 2, in which the trial court concluded that the fence would violate the Septic Easement, and part of Paragraph 1 of the Judgment, in which the trial court permanently enjoined the Beemsterboers from obstructing the Association's use of or placing a fence which in any fashion blocks the Association's access to the easement area described in the Septic Easement. The Beemsterboers do not argue that the Septic Easement terminated, but rather that the Septic Easement does not require that the septic system be maintained in an unfenced area. The Beem-sterboers further argue that the Association would have access to the easement area described in the Septic Easement either through a gate opening, a removable piece of fence, or other accommodation presented at trial. Appellants' Br. at 26 {citing Tr. at 31, 112-13). The Association baldly asserts that the fence would prevent access to the septic tank and do not address whether the accommodations offered by the Beemsterboers would provide adequate access.

In resolving this issue we observe that

[it is well established that easements are limited to the purpose for which they are granted. The owner of an easement, known as the dominant estate, possesses all rights necessarily incident to the enjoyment of the easement. The dominant estate holder may make repairs, improvements, or alterations that are reasonably necessary to make the grant of the easement effectual. The owner of the property over which the easement passes, known as the ser-vient estate, may use his property in any manner and for any purpose consistent with the enjoyment of the easement, and the dominant estate cannot interfere with the use. All rights necessarily incident to the enjoyment of the easement are possessed by the owner of the dorai-nant estate, and it is the duty of the servient owner to permit the dominant owner to enjoy his easement without interference. The servient owner may not so use his land as to obstruct the easement or interfere with the enjoyment thereof by the owner of the dominant estate. Moreover, the owner of the dominant estate cannot subject the ser-vient estate to extra burdens, any more than the holder of the servient estate can materially impair or unreasonably interfere with the use of the easement.

McCauley, 928 N.E.2d at 314 (citations and quotations omitted).

Our review of the record before us reveals that at trial, a condominium owner testified that the Association would have access to the septic tank on the Beemster-boer Property if a gate was built into the Beemsterboers' proposed fence. Tr. at 31. In its appellee's brief, the Association does not cite to any evidence in the record that supports the trial court's finding that the fence would block access to the septic tank. The Association does not argue that the accommodations offered by the Beem-sterboers would be insufficient. Accordingly, we conclude that Finding 10 and Conclusion 2 are clearly erroneous. Nevertheless, we observe that Paragraph 1 of the Judgment permanently enjoins the Beemsterboers from "obstructing" the use of the area described in the Septic Easement and prohibits them from placing "a fence which in any fashion blocks" the Association's access to or use of the area described in the Septic Easement. A fence that provides ready access to the septic tank would not obstruct or block the Association's access to the area described in the Septic Easement. However, a fence that does not provide ready access to the septic tank would obstruct and block the Association's access. Therefore, we need not reverse this portion of the Judgment.

III The Encroachment Agreement

Finally, we turn to the Beemsterboers' challenge to Paragraph 4 of the Judgment, in which the trial court permanently enjoined them "from in any fashion interfering with the [Association's] deck, ... even though the actual location of the deck en-eroachment may vary slightly from the description contained in [the Eneroachment Agreement]." Appellants' App. at 14. The Beemsterboers present two arguments. First, they assert that it was error for the trial court to grant the Association the right to encroach upon their property beyond that described in the Encroachment Agreement. However, they "only request that the deck be cut back to conform to the easement in the event the order to remove the stairway is affirmed." Appellants' Br. at 28; Appellants' Reply Br. at 15. Because we have reversed the trial court's order to remove the stairway, we need not address this issue.

Second, the Beemsterboers argue that Paragraph 4 permanently enjoins them from "any" interference with the deck "in all cireumstances." Appellants' Br. at 27. They note that the Encroachment Agreement permits the Association to maintain the deck "for so long as the wooden deck which constitutes such encroachment is not expanded, altered or modified in any manner and continues to be used as part of the [property] known as Heil's Haven Condominiums." Ex. C. at 2. The Beemsterboers' reading of the trial court's order is overly expansive. We read the trial court's order as restricting the Beemsterboers from interfering with the deck based on the fact that its current and historical encroachment is somewhat greater than that described in the Encroachment Agreement. The trial court's order does not affect the terms of the Encroachment Agreement. Accordingly, we affirm Paragraph 4 of the Judgment.

Conclusion

We affirm the portion of Paragraph 1 of the Judgment pertaining to the Septic Easement, as well as Paragraph 4. We reverse the portion of Paragraph 1 pertaining to the Water and Walkway Easement, as well as Paragraphs 2 and 3.

Affirmed in part and reversed in part.

FRIEDLANDER, J., and BAILEY, J., concur.

      . Although these agreements use the term "license," the interests conveyed therein are effectively easements, and the parties treat them as such. See 25 Am.Jur.2d Easements and Licenses § 2 (2012) ("While it has been said to be difficult to distinguish an easement from a license in real property, easements and licenses are distinct in principle An easement is more than a mere personal privilege in that it is a grant of limited use of land which burdens the servient estate for the benefit of the dominant estate, whereas a license merely confers a personal privilege to do some act or acts on the land.") (footnotes omitted); Id. at § 117 ("A license in real property is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein. It is a personal, revocable, and unassignable privilege, conferred either by writing or parol."); Indus. Disposal Corp. of Am. v. City of E. Chicago, Dep't of Water Works, 407 N.E.2d 1203, 1205-06 (Ind.Ct.App.1980) (''To distinguish the legal relationship 'license' from the more substantial relationship 'easement,' license should be limited to a revocable relationship. Under such a classification, an irrevocable relationship would constitute an easement ..., no matter how created, because an irrevocable license in legal effect is no different than an easement.") (citation omitted).

      . An earlier encroachment agreement contains the same description of the Frys' property encroached upon by Heil's Haven's deck. Plaintiff's Ex. X. The record does not indicate why a second identical agreement was executed, but it is not relevant to our analysis.

      . The Association argues that the Frys were aware of the deviation and consented to it. Tr. at 52-53.

      . The Association argues that the two easements granted in the Water and Walkway Easement are unrelated. That argument disregards that the parties chose to combine the easements in one agreement entitled "Cross License Agreement." The Association also argues that the Frys would not have been able to develop the condominiums if the condominiums did not have access to the lakefront. Although the necessity of a walkway illuminates the purpose of the Water and Walkway Easement, it does not affect the construction of its termination provisions.

      . We observe that the Replacement Walkway Easement grants the Association an easement to install a concrete sidewalk for purposes of ingress and egress to the lakefront.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    Shawn A. KECKLER, Kari Felda, Special Administrator to The Estate of Ryan S. Holloway, Janice Norman, DeWayne Scott, Timothy J. Boganwright, Sara Boganwright, and Indiana Farm Bureau Insurance Company, Appellants-Defendants, v. MERIDIAN SECURITY INSURANCE COMPANY, Appellee-Plaintiff.
    No. 43A03-1112-PL-551.
    Court of Appeals of Indiana.
    April 24, 2012.

      Roger B. Finderson, Lebamoff Law Offices, A Professional Corporation, Fort Wayne, IN, Attorney for Appellants.
    Karl L. Mulvaney, Kandi Kilkelly Hidde, Barry C. Cope, Bingham Greenebaum Doll, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Shawn Keckler, Kari Felda (as Special Administrator to the Estate of Ryan Holloway), Janice Norman and De Wayne Scott (as the mother and father of Bryant Scott), Timothy and Sara Boganwright, and Indiana Farm Bureau Insurance Company ("Farm Bureau") (collectively, "the Appellants") appeal the trial court's entry of summary judgment in favor of Meridian Security Insurance Company ("Meridian") in Meridian's declaratory judgment action. We reverse and remand.

Issue

The Appellants raise five issues, which we combine and restate as the following two issues:

I. whether the trial court properly concluded as a matter of law that an exclusionary clause in Meridian's umbrella insurance policy that insured Nathan Creighton at the time of a severe automobile accident caused by him precludes any and all claims by the Appellants against Meridian's policy; and
II. whether public policy requires exclusion of coverage for the Appellants' claims.

Facts

Shortly after noon on June 29, 2008, Creighton was driving a car westbound on State Road 25, an undivided two-lane road in Kosciusko County, when he approached a vehicle that was stopped in the westbound lane in front of him and waiting to make a left turn southbound onto County Road 1800 West. Creighton, who was eighteen years old, had three passengers in his car: Scott, Holloway, and Keckler. Instead of stopping behind the turning vehicle, Creighton attempted to pass it on the left, crossing into the oncoming eastbound lane of State Road 25. This caused an immediate head-on collision with a pick-up truck driven by Timothy Boganwright, who was traveling eastbound on State Road 25. Scott and Holloway were pronounced dead at the scene of the accident. Both Keckler and Creighton sustained brain injuries and have no memory of the accident. Boganwright also was injured, but his injuries were not as severe.

Police investigating the crash seene discovered that Holloway was in possession of several bags of marijuana and that Creighton was in possession of one bag of marijuana. Police also stated in a crash report that there was a "strange odor" coming from Creighton's car and that he "also had glassy eyes and appeared very disorderly," although Creighton was unconscious when police arrived on the seene. App. p. 77. There is no evidence as to whether the "strange odor" was consistent with marijuana, either burnt or fresh. Neither Creighton nor Keckler can remember much, if anything, that occurred on the day of the accident, and nothing about the accident itself.

Police obtained a search warrant to test Creighton's blood and urine at the hospital for drugs and alcohol. The test results were negative for alcohol but positive for cannibinoids, ie., marijuana. Creighton later was charged with and pled guilty to one count of Class D felony operating a vehicle with a controlled substance in the body resulting in serious bodily injury, pursuant to Indiana Code Section 9-80-5-4(a)(2).

At the time of the accident, Creighton's primary insurer (through his father) was Progressive, with a global policy limit of $500,000. Creighton also was an insured under his father's umbrella policy issued by Meridian, with a coverage limit of $1,000,000. Keckler, Felda, Norman and Seott, and the Boganwrights each filed separate lawsuits against Creighton for personal injury or wrongful death. Farm Bureau, the Boganwrights' insurer, is pursuing subrogation against Progressive for payments it has made to the Bogan-wrights. After these lawsuits were filed, Meridian filed a separate declaratory judgment action against the Appellants asserting that it was not required to provide coverage for any injuries caused by Creighton because of the following exclusionary clause in the policy:

The coverages provided by this policy do not apply to ... "Bodily injury" or "personal injury" arising out of ... [t]he use, sale, manufacture, delivery, transfer or possession by any person of a Controlled Substance(s) as defined by the Federal Food and Drug Law at 11 USCA Sections 811 and 812. Controlled substances include but are not limited to cocaine, LSD, marijuana and all narcotic drugs. However, this exclusion does not apply to the legitimate use of prescription drugs by a person following the orders of a licensed physician. ...

App. pp. 40, 42. The declaratory judgment complaint also alleged that the injuries fell under the policy's exclusionary clause for "expected or intended" injuries, Id. at 40.

Keckler filed a motion for summary judgment against Meridian, in which the other Appellants joined, and Meridian responded with a cross-motion for summary judgment. As part of its designation of evidence, Meridian submitted the deposition of a toxicologist, Dr. Daniel McCoy. Dr. McCoy reviewed Creighton's hospital test results as well as depositions given by Creighton and Keckler, which were incon-elusive on any time frame in which Creighton might have last smoked marijuana before the accident. Dr. McCoy explained that the test performed by the hospital was "generic" and did not indicate whether the cannibinoids in Creighton's system were THC, or carboxy THC, or a combination of the two. App. p. 165. THC is the psychoactive ingredient in marijuans, while earboxy THC is not psychoactive but is a metabolite of THC, or "a residual nonactive drug that hangs on or keeps or it stays around for a longer period of time." Id. Carboxy THC can be detected within a person's body for days after smoking marijuana, while the psychoactive effect and detectable amount of THC peaks at about twenty to thirty minutes after usage and then declines. Also, a person who frequently smokes marijuana may have car-boxy THC in their system essentially "all the time." Id. at 168. Dr. McCoy opined that, for normal activities, the psychoactive effect of marijuana is felt for three to six hours, although testing of persons having to perform complicated tasks, such as pilots, has indicated that marijuana may af-feet the performance of such tasks for as long as twenty-four hours.

At one point, Dr. McCoy testified that the driving maneuver Creighton made in crossing into the oncoming lane of traffic was "consistent with marijuana use." Id. at 162. Upon further questioning, Dr. McCoy testified that the maneuver also was consistent with any number of other factors that could distract a driver, such as using a cell phone or eating. Dr. McCoy agreed that he did not know, based on the hospital test result, "when Mr. Creighton would have last used marijuana," and also that there could not be any testing now performed, even if a sample of Creighton's blood still existed, that could reliably determine the last time he had smoked mariJuana. Id. at 174. The following colloquy between Dr. McCoy and counsel also took place:

Q: All right. Doctor, let me ask you this: As you sit here, can you say that it's more likely than not that Mr. Creighton's actions in this wreck were caused by THC intoxication versus some other reason?
A: No I cannot.
Q: Is there any way that you can think of now, any additional information that is available that you have not seen that you believe would change that opinion?
A: I don't believe there's any information available that would.

Id. at 179. Dr. McCoy again stated that he did not have "an actual opinion on Nathan Creighton's intoxication at the time of this collision...." Id. at 184. He also was asked whether he could say "to any degree of scientific probability ... whether or not this wreck arose out of the use of marijuana," and he replied, "I can't say that with any degree of precision at all." Id. at 196.

On November 7, 2011, the trial court entered summary judgment in favor of Meridian. The trial court noted that "[nlo blood test was performed on Nathan S. Creighton's blood to determine its level of THC, the psychoactive or impairing element of marijuana." hi at 19. It also concluded, "The facts do not demonstrate that the possession or transportation or mariJuana within the Dodge Intrepid driven by Nathan S. Creighton was the efficient and predominating cause of the accident." Id. However, the trial court ruled that Meridian was not required to provide any coverage for the accident, observing that the general public policy of Indiana "is that no illicit drug use shall occur while driving a vehicle" and that under the criminal law, " 'there is no accepted agreement as to the quantity of a controlled substance needed to cause impairment.'" Id. (quoting Bennett v. State, 801 N.E.2d 170, 176 (Ind.Ct.App.2003)). The Appellants now appeal.

Analysis

Our standard of review for the grant or denial of a motion for summary judgment is the same as it is for the trial court originally ruling on the motion: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Kroger Co. v. Plonski, 980 N.E.2d 1, 4-5 (Ind.2010). Summary judgment should be granted only if the designated evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 5. "All factual inferences must be construed in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party." Id.

The fact that cross-motions for summary judgment are filed does not alter this standard of review. Life v. F.C. Tucker Co., Inc., 948 N.E.2d 346, 350 (Ind.Ct.App. 2011). Additionally, where, as here, a trial court enters findings of fact and conclusions thereon as part of its summary judgment ruling, our standard of review is not altered. Runkle v. Runkle, 916 N.E.2d 184, 191 (Ind.Ct.App.2009), trams. denied. Such findings and conclusions merely aid our review by providing us with a statement of reasons for the trial court's action. Id.

I. Insurance Policy Language

This case turns upon an exclusionary clause in Meridian's policy. Interpretation of an insurance policy is a question of law that is appropriate for summary judgment. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind.2009). Insurance policies are governed by the same rules of construction as other contracts and unambiguous terms in policies are given their ordinary meaning. Id. "We interpret policy terms 'from the perspective of an ordinary policyholder of average intelligence"" Id. (quoting Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 246-47 (Ind.2005)). If there is an ambiguity in a policy, we construe it strictly against the insurer. Id. "This is particularly the case where a policy excludes coverage." Id. We will nevertheless enforce limits on coverage if the policy unambiguously favors the insurer's interpretation. Id.

"We will not remove a risk from coverage if the policy can be construed to reasonably protect that risk." Moons v. Keith, 758 N.E.2d 960, 962 (Ind.Ct.App.2001), trans. denied. An exclusionary clause in an insurance policy " 'must clearly and unmistakably express the particular act or omission that will bring the exclusion into play'" Estate of Kinser v. Indiana Ins. Co., 950 N.E.2d 23, 26 (Ind.Ct.App.2011) (quoting Jackson v. Jones, 804 N.E.2d 155, 158 (Ind.Ct.App.2004)). Similarly, an exelusion in an insurance policy must clearly and unmistakably bring within its seope the particular act or omission that will give rise to the exelusion in order to be effective, and coverage will not be excluded or destroyed by an exelusion or condition unless such clarity exists. Id. at 27 (quoting Asbury v. Indiana Union Mut. Ins. Co., 441 N.E.2d 232, 242 (Ind.Ct.App.1982)). Generally, when an insurer wishes to rely upon an exclusionary clause in its policy, it is raising an affirmative defense to coverage and it bears the burden of proving its applicability. Hoosier Ins. Co. v. Audiology Found. of America, 745 N.E.2d 300, 309 (Ind.Ct.App.2001), trans. denied.

Again, Meridian's policy excludes coverage for any claim for personal injury "arising out of ... [tlhe use, sale, manufacture, delivery, transfer or possession by any person" of a controlled substance, including marijuana. App. p. 42. Although both Creighton and Holloway were both found to be in possession of marijuana at the time of the accident, the trial court concluded that the accident did not "arise out of" the possession or transportation of marijuana. On appeal, Meridian makes no argument that the trial court erred on that point. It also makes no argument that the injuries fell under the policy's exclusionary clause for "expected or intended" injuries. Id. at 40. It argues solely that the accident and the injuries suffered by Bogan-wright, Holloway, Keckler, and Scott arose out of Creighton's "use" of marijuana.

In Indiana, the phrase "arising out of" as used in insurance policies long has been construed to mean that one thing must be the "efficient and predominating" cause of something else. See Indiana Lunbermens Mut. Ins. Co. v. Statesman Ins. Co., 260 Ind. 32, 34, 291 N.E.2d 897, 899 (1973). For example, in Sharp v. Indiana Union Mutual Insurance Co., 526 N.E.2d 237 (Ind.Ct.App.1988), trans. de-mied, we addressed a homeowner's insurance policy that excluded coverage for claims "arising out of" the use of a motor vehicle by the insured. In that case, a person injured in a car crash with the insured attempted to argue that this exclusion did not apply, because the insured's excessive drinking at home and resulting extreme intoxication before driving was the true cause of the accident. We rejected this argument, concluding that the use of the vehicle was the "efficient and predominating" cause of the injuries and that the insured's consumption of alcohol before driving did not cause any injury that was independent of the use of the vehicle. Sharp, 526 N.E.2d at 240. Additionally, when there is more than one possible cause of an otherwise insurable injury, it generally is a question of fact as to what the predominant cause of the injury was in order to determine if the injury "arose out of" an activity that is excluded from coverage. See Barga v. Indiana Farmers Mut. Ins. Group, Inc., 687 N.E.2d 575, 579 (Ind.Ct.App.1997), trans. denied.

Thus, here, in order to invoke the controlled substances exclusionary clause in its policy, Meridian was required to establish that Creighton's use of marijuana was the efficient and predominating cause of the injuries to Boganwright, Holloway, Keekler, and Scott. We hold that Meridian failed to meet this burden on summary judgment. Although Meridian attempts to convince us otherwise, Dr. MeCoy's testimony does not establish as a matter of law that Creighton's use of marijuana at some point was the efficient and predominating cause of the accident.

First, we believe that persons of average intelligence reading Meridian's policy and its exelusion for injuries "arising out of" the use of marijuana would presume that, for the exclusion to have effect in the case of a car accident, there must be some evidence that the accident was caused by or at least related to marijuana's impairing or psychoactive effects, or possibly use of the drug while driving. We find the exclusionary clause to be unambiguous in that regard; even if it were ambiguous, we would construe it against Meridian to make application of the exelusionary clause more limited in its seope. §

We also conclude that case law regarding criminal convictions for operating a vehicle with a controlled substance in one's blood, or for operating a vehicle while intoxicated resulting in death or serious bodily injury, have little to no application in this context. In the case cited by the trial court, Bennett v. State, 801 N.E.2d 170, 176 (Ind.Ct.App.2003), this court held that it was constitutional for the legislature to make it a crime to operate a motor vehicle with metabolites of a controlled substance in one's body and cause death, even if there was no evidence that the controlled substance actually impaired the person's driving ability. Bennett, 801 N.E.2d at 177-78. This presents a much different analysis than the interpretation of an insurance policy's exclusionary clause.

Moreover, we stated "that there is no accepted agreement as to the amount of controlled substances necessary to cause impairment." Id. at 177. As support for this proposition we cited Shepler v. State, 758 N.E.2d 966 (Ind.Ct.App.2001), trans. denied. Shepler, in turn, based this statement upon the testimony of a probation officer who had received training in the effect of marijuana on the human body and who had said "that it is not possible to determine the amount of marijuana ... present in a person's body" and that "there is no accepted agreement as to the amount of marijuana necessary to cause impairment." Shepler, 758 N.E.2d at 968. Here, by contrast, Dr. McCoy's testimony clearly establishes that it is possible for a person to test positive for the presence of marijuana cannibinoids in his or her system on the sole basis of the presence of the nonpsychoactive marijuana metabolite carboxy THC, as opposed to the psychoactive ingredient THC. According to Dr. McCoy, it also is possible to perform a test for marijuana usage that can reveal whether the person has any of the psychoactive THC in his or her system, but that no such test was performed on Creighton.

We also observe that in order to support a conviction for operating while intoxicated causing death or serious bodily injury, or operating with a controlled substance in the body causing death or serious bodily injury, the prosecution does not have to prove a causal link between the person's intoxication or use of a controlled substance and the death or injury. See Abney v. State, 766 N.E.2d 1175, 1178 (Ind.2002). Rather, the prosecution only needs to prove that the defendant's "driving conduct" was a substantial cause of the death or injury. Id. Here, under well-established principles of insurance policy interpretation, in order to rely upon the exclusionary cause Meridian must prove that Creighton's use of marijuana was the efficient and predominate cause of the accident and the injuries to Boganwright, Holloway, Keckler, and Seott. Under Abney, Creighton's guilty plea to operating a motor vehicle with a controlled substance in the body resulting in serious bodily injury, pursuant to Indiana Code Section 9-30-5-4(a)(2), did not establish that his use of marijuana was the efficient and predominate cause of the accident. In sum, we conclude that the criminal law statutes on operating a vehicle with a controlled substance in the body do not control the issues here.

Turning back to Dr. McCoy's deposition, Meridian argues that he "found that it was more likely that the marijuana in Creighton's blood and urine was from usage within eighteen (18) hours before the accident," and that he "testified that the intoxicating effects of marijuana can last up to a maximum of twenty-four (24) hours." Appellee's Br. p. 12. Dr. McCoy's actual testimony on this point was much less definitive than Meridian makes it out to be. Here is the question and answer that Meridian relies upon:

Q: Now, does the fact that these test results were positive allow you to draw any conclusions about whether that usage of marijuana was, for example, more likely in the last 18 hours before the accident than in a day or two or three before the accident?
A: Very difficult to respond in more likely. I can say this: That because the detection in the blood as opposed to the also detection in the urine, the time frame for use would be shorter in terms of the transitive of marijuana in its drugs or its constituents throughout the body. I can't specify that it would be within 18 hours necessarily, but it's more likely it would be within that time frame than outside of that time frame. But that's just a probability that it's not possible to judge exactly how probable or how great that probability is.

App. p. 190. Even standing alone, this question and answer is highly equivocal on the probability that Creighton had ingested marijuana less than eighteen hours before the accident. Certainly, Dr. McCoy did not intend to give any opinion that Creighton would have been feeling the psychoactive effects of marijuana at the time of the wreck, given his testimony elsewhere that he did not have "an actual opinion on Nathan Creighton's intoxication at the time of this collision . . .." Id. at 184. Meridian also notes that Dr. McCoy agreed that if Creighton had smoked marijuana within three to six hours of the accident, it would be much more likely that the marijuana played a role in the accident. However, there was in fact no evidence that Creighton smoked marijuana within three to six hours of the accident; the question to that effect from counsel was purely hypothetical.

Meridian also seems to suggest that it could be inferred that Creighton had smoked marijuana not long before the accident based on these observations from the police officers responding to the crash: that Holloway and Creighton both were found in possession of marijuana, that a "strange odor" was noted to be coming from the car, and that Creighton "had glassy eyes and appeared very disorderly," although he also was reported to be unconscious. Id. at 77. Although there was marijuana in the car, there is no mention of any paraphernalia used to smoke marijuana being found. As for the "strange odor," there is no evidence that it was a marijuana-related odor, and even if it was, whether it was an odor associated with fresh or raw marijuana, such as Holloway and Creighton possessed, or burnt or recently-smoked marijuana. Finally, as for Creighton's "glassy eyes" and "disorderly" demeanor, there is no evidence that such observations were more consistent with marijuana usage as opposed to suffering a brain injury in a head-on motor vehicle collision. We readily conclude, after reviewing the entirety of Dr. McCoy's deposition and the other designated evidence, that there is a genuine issue of material fact as to whether Creighton was under the psychoactive influence of marijuana at the time of the accident and, therefore, whether Creighton's use of marijuana was the efficient and predominant cause of the accident and resulting injuries. As such, Meridian has not established as a matter of law that the accident arose out of the use of marijuana, as required to invoke the exclusionary clause in its policy regarding controlled substances.

We note that this case is much different than one cited by Meridian, Forman v. Penn, 945 N.E.2d 717 (Ind.Ct.App.2011), trans. denied. There, we addressed the applicability of a controlled substances exclusion in a homeowner's policy that was virtually identical to the exclusion here. A guest at the insured's home suffered permanent injuries after he ingested methadone that had been prescribed to one of the home's occupants. The guest later sued the insured. The insurer sought to avoid providing coverage based on the controlled substances exclusion; the trial court entered summary judgment in favor of the insurer, and we affirmed. Forman, 945 N.E.2d at 721. We held that although an occupant of the house had a prescription for the methadone, the injured party did not. Id. Thus, his injuries clearly arose out of the illegitimate use of the drug. Id. Here, by contrast, the evidence currently is lacking regarding a causal link between Creighton's use of marijuana and the wreck and ensuing injuries.

IL. Public Policy

Regardless of the lack of conclusive, undisputed evidence that the accident here arose out of Creighton's use of marijuana, Meridian essentially contends that we should read a "public policy" exclusion into its insurance policy, as the trial court effectively did. In a nutshell, Meridian argues that because Creighton admitted to committing a crime in connection with the accident, ie. having marijuana and/or its metabolites in his body at the time, we should not require it to provide coverage for any injuries associated with the accident. We disagree.

Meridian cannot direct us to any Indiana case that has read a "public policy" exclusion into an insurance policy. Meridian does argue that "public policy considerations were ... implicit" in this court's decision in General Housewares Corp. v. National Surety Corp., T4l N.E.2d 408 (Ind.Ct.App.2000), where we held that the "known loss doctrine" will preclude coverage for a loss that has already occurred of which the insured had actual knowledge, even where the policy does not expressly exclude coverage for such a loss. We disagree that "public policy" was a consideration in our decision, as opposed to a matter of contract interpretation based upon "the fundamental requirement in insurance law that the loss be fortuitous." Id. at 418. There is no claim here that the losses were not "fortuitous." Meridian also cites cases, such as City of Muncie v. United National Insurance Co., 564 N.E.2d 979 (Ind.Ct.App.1991), that mention "public policy" in the context of interpreting insurance policy exclusions for intentionally caused injuries. See also Allstate Ins. Co. v. Boles, 481 N.E.2d 1096, 1098 (Ind.1985) ("Insurance companies are free to limit their liability in a manner not inconsistent with public policy as reflected by case or statutory law."). These cases do not support citing public policy to alter or add to the language of an insurance policy.

Given the lack of Indiana law on point, Meridian relies heavily upon a case from Pennsylvania, Minnesota Fire and Casualty Co. v. Greenfield, 579 Pa. 333, 855 A.2d 854 (Pa.2004). There, a drug dealer sold heroin to a woman in his home; the woman then took the heroin and died from an overdose of it in the home. The drug dealer subsequently pled guilty to involuntary manslaughter and unlawful delivery of heroin. The drug dealer was insured under a homeowner's policy that did not contain any explicit exelusion for injuries "arising out of" the use of controlled substances. The insurer filed a declaratory judgment action, and the Pennsylvania intermediate appellate court held that the insurer was not required to provide any coverage to the drug dealer under the theory of "inferred intent," or in other words that the drug dealer's provision of heroin to the deceased made her adverse reaction to it "an expected occurrence" and thus excluded from coverage under the policy's language.

The Pennsylvania Supreme Court affirmed the intermediate appellate court but rejected the lower court's reliance on "inferred intent." Instead, the Greenfield opinion held:

recovery is precluded for damages that arise out of an insured's criminal acts regarding a Schedule I substance, as a matter of overriding public policy. Therefore, in situations when an insured commits a criminal act, with respect to a Schedule I controlled substance, and unintended or unexpected injuries or losses occur as a result, whether by accident or negligence, public policy will not allow coverage under the contract of insurance.

Greenfield, 855 A.2d at 866. The court stated that although " '[o)uly dominant public policy'" would permit it to invalidate or rewrite a contract, "[ilf the explicit criminalization of use or possession or sale of drugs that have a high potential for abuse, no currently accepted medical use in the United States, and lack of accepted safety for use under medical supervision does not manifest convincing proof of public interest, what would?" Id. at 867 (quoting Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 207 (2002)). The court concluded, "we will not countenance the turning of illegal activities regarding Schedule I controlled substances into < money-making occasions." Id. at 869.

We decline to find Greenfield to be persuasive authority for rewriting the Meridian policy to allow it to exclude coverage in this case for the following reasons. First, even though the Greenfield majority read an exclusionary clause into the policy, it still stated that recovery would be precluded for damages "that arise out of an insured's criminal acts regarding a Schedule I substance. ..." Id. at 866 (emphasis added). As we have already held, there is insufficient evidence here for summary judgment purposes that the accident and resulting injuries "arose out of" Creighton's use of marijuana.

Second, we note that the Greenfield majority expressly did not overrule an earlier case, Eisenman v. Hornberger, 438 Pa. 46, 264 A.2d 673 (1970), which had refused to exclude 3 Two of the court's justices dissented, arguing that "this court should not rewrite the contract for the insurance company." Id. at 872, 264 A.2d 673 (Cappy, C.J., dissenting). insurance coverage for a fire accidentally and unintentionally started by an insured while he was committing a burglary. See id. The Eisenman court held that because the policy at issue did not contain a clause excluding coverage for any damages arising out of a "violation of law," it would not rewrite the policy to include such a clause. Eisenman, 264 A2d at 675. That court found no "overriding public policy which would preclude recovery." Id. It noted there was no evidence the insurance policy was purchased in contemplation of committing a crime, or that it promoted the burglary, or that it was plausible that denying coverage would act as a criminal deterrent. Id. Finally, the court stated, "the sanctions of the criminal law and the coverage of the insurance policy address themselves to quite separate and distinct actions on the part of the insured." Id.

By merely "providing further refinement" of Eisenman, rather than overruling it, the Greenfield majority thus carved out a special exception for Schedule I controlled substances and damages arising out of erimes committed in connection with them, while apparently continuing to allow insurance coverage for damages that unintentionally or unexpectedly arise out of other crimes, such as burglary, unless a policy expressly excludes coverage in such cases. See Greenfield, 855 A.2d at 866. We believe it is dangerous for a court to decide by judicial fiat that the unintended consequences of some crimes are insurable, while the unintended consequences of other crimes are not. The fact of the matter is that insurance companies are fully capable of drafting exclusionary clauses to their liking.

Indeed, Meridian's policy does contain an exclusion of coverage for any " '[pler-sonal injury ... [alrising out of a eriminal act committed by or at the direction of one or more 'insuredsg'...." App. p. 40. The type of injuries for which the Appellants are seeking recovery here are "bodily" injuries, not "personal. Thus, this particular exclusion does not cover their claims. Nonetheless, this exclusion is clear evidence that Meridian knew how to draft an exclusionary clause similar to the one it is asking us to impose in this case with respect to the Appellants' "bodily injury" claims. We are not persuaded that we ought to rescue Meridian from drafting its policy in this manner.

Similarly, our third reason for not following Greenfield is the well-settled principle of Indiana law that "[wle may not rewrite an insurance contract." Bowen v. Monroe Guar. Ins. Co., 758 N.E.2d 976, 980 (Ind.Ct.App.2001). The power to interpret insurance policies does not extend to changing their terms. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind.Ct.App.2004), trans. denied. Reading a "public policy" exception into Meridian's policy would be a rewriting of the policy, in contravention of established law that prohibits such rewriting. We believe that such a radical departure from Indiana law must be undertaken by our supreme court or the legislature.

In sum, we conclude that Meridian has not met its burden on summary judgment of establishing that the exclusionary clause for injuries arising out of the use of marijuana applied in this case. Our holding today has no effect on the validity of cases such as Bennett and Shepler that decided much different questions in the context of the criminal law. As the Pennsylvania Supreme Court noted in Eisenman, "the insurance policy in no way saves the insured from the consequences of his criminal act." Eisenman, 264 A.2d at 675. Creighton has been penalized for that act. Denying insurance coverage here, on the other hand, would have drastic consequences not only for Creighton, but also for "innocent" injured parties seeking recompense for the injuries he caused.

Conclusion

We reverse the entry of summary judgment in favor of Meridian and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FRIEDLANDER, J., and MAY, J., concur.

      . There is another type of testing for cannibi-noids that can differentiate between THC and carboxy THC, but it is not usually performed by hospitals and was not performed here.

      . The Appellants also contend that Dr. McCoy's testimony was not even admissible, under Indiana Evidence Rule 702, on the question of whether Creighton was under the influence of marijuana at the time of the accident. We need not resolve that question, having concluded that his testimony was insufficient to establish that fact for summary judgment purposes.

      . Two of the court's justices dissented, arguing that "this court should not rewrite the contract for the insurance company." Id. at 872 (Cappy, C.J., dissenting).

      . We also note that the Greenfield majority apparently placed no importance on the insured's conviction for involuntary manslaughter.

      . "Personal injury" is defined in the policy as injury arising out of matters such as false arrest, malicious prosecution, libel, slander, or invasion of privacy. "Bodily injury" is '"'bodily harm, sickness, or disease, including required care, loss of services and death that results." App. p. 38.


text:
    The KROGER COMPANY, Appellant-Defendant, v. WC ASSOCIATES, LLC, as successor in interest to Metro Acquisitions, LLC, Appellee-Plaintiff.
    No. 49A05-1108-PL-412.
    Court of Appeals of Indiana.
    April 25, 2012.

      Rodney V. Taylor, Christopher & Tay lor, Indianapolis, IN, Attorneys for Appellant.
    Steven M. Crell, Edward F. Schrager, Cohen Garelick & Clazier, Seott A. Benkie, Douglas A. Crawford, Benkie & Crawford, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

The Kroger Company ("Kroger") appeals summary judgment granted in favor of WC Associates, LLC ("WC"), as sucees-sor in interest to Metro Acquisitions, LLC ("Metro"). We affirm in part, reverse in part, and remand.

Issues

Kroger raises three issues, which we restate as:

I. whether the trial court properly found that Kroger breached a reciprocal easement agreement;
II. whether the trial court properly found that Kroger committed criminal conversion, criminal trespass, and criminal mischief; and
III. whether the trial court properly awarded sanctions against Kroger.

On cross-appeal, WC argues that it is entitled to appellate attorney fees.

Facts

In November 1993, Kroger entered into a Reciprocal Easement Agreement ("Agreement") with Metro, a developer. The Agreement provided that Kroger owned Parcel I, near Rockville Road in Indianapolis. Metro owned Parcel II, III, and IV. Kroger and Metro desired "to establish certain rights and servitudes over the Parcels in order to facilitate the integrated use thereof as a shopping center," which was named Westpoint Commons. Appellant's App. p. 208. The Agreement addressed easements, maintenance and upkeep of the common areas, liability insurance, damage or destruction of the property, restrictions, taxes, default, and signage. Regarding easements Agreement provided in part:

Section 2.4-The parties hereby establish an exclusive easement over Parcel I in favor of Parcel(s) II, III, and IV to permit the construction, use and maintenance of a sign at the location designated on the Plot Plan, including any electrical lines required to illuminate the sign, provided that all lines are constructed underground.

Id. at 208-04. With respect to signage, the Agreement provided:

Section 9.1-Developer shall erect on Parcel I a pylon for a sign at the location as shown on the Plot Plan, subject to the reasonable approval of Kroger prior to erection. After completion of the construction thereof, Kroger shall reimburse Developer for that portion of the costs of construction thereof equal to the product of multiplying such costs times a fraction, the numerator of which is the square footage of the sign panel designated by Kroger to be located thereon and the denominator of which shall be the total square footage of all sign panels to be located thereon, but in no case in excess of Fifteen Thousand Dollars ($15,000.00).
Section 9.2-Kroger shall maintain the pylon for the sign shown on the Plot Plan in a good state of repair and operation at all times. Parcels II, III and IV Owners shall reimburse Kroger not more frequently than onee each calendar month for its prorata share of the costs of maintaining the pylon and illuminating the panels located thereon.... Section 9.3-Kroger shall have the right to attach to and the obligations to maintain at its expense, a sign panel on the pylon in the location immediately below the name of the Shopping Center and permanent signs on the exterior of the storeroom located on Parcel I. Each such sign shall identify Kroger, its tenant or occupant, or the services or products of Kroger or its tenants or occupants in a suitable fashion consistent with their normal practice and the requirements of Section 9.5 hereof, and nothing contained herein shall limit or proscribe the use or display of non-permanent signs on the storeroom located on Parcel I in a manner consistent with the normal business of the occupant thereof.
Section 9.4-Pareel II and IV shall have the right to attach and maintain, at its expense, a sign panel on the pylon and may place permanent signs on the exterior of the buildings located on Parcel II and IV thereof in suitable fashion consistent with its normal practice and the requirements of Section 9.5 hereof.... Section 9.5-All permanent signs and panels hereinabove provided shall be of good quality and in good operating condition, appearance, maintenance and repair at all times and shall be of a design that is consistent with the architectural design of the Shopping Center and subject to any and all applicable governmental approvals.

Id. at 207. The Agreement also provided: "In the event of litigation by reason of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorneys' fees in addition to all other expenses incurred by such litigation." Id.

Kroger and Metro entered into a First Amendment to Reciprocal Easement Agreement ("Amendment") in August 1996, and the Amendment provided:

1. Section 24 of Article II shall be amended to read: "The parties hereby establish a Exclusive Easement over Parcel IV in favor of Parcels) I, II and III to permit the construction, use and maintenance upon Parcel IV of a sign at the location designated on the Plot Plan.... Access by Kroger to maintain the pylon and underground electrical service to the sign shall be granted upon the parking lot and driveway areas that currently exist or may exist upon Parcel IV from time to time.
The sign referenced in Article IX, Section 9.1, is to be located on Parcel IV....
3. All other terms and conditions of this Agreement shall remain in full force and effect except as expressly modified by this Amendment.

Id. at 220. A sign pylon was then constructed on Parcel IV, which was owned by WC's predecessor.

At some point, Kroger began operating a fuel center on property adjacent to the Westpoint Commons shopping center. In April 2009, Kroger removed the top portion of the Westpoint Commons' sign structure, changed the Kroger sign panel, added a panel to advertise its fuel prices, and left the other business's sign panels without lighting and electricity. WC hired contractors to restore the original sign pylon at a cost of $47,954.42.

In August 2009, WC filed a complaint against Kroger for breach of contract, theft, criminal conversion, criminal trespass, and criminal mischief. WC requested treble damages pursuant to Indiana Code Section 34-24-3-1. Kroger filed a counterclaim against WC, alleging breach of contract, conversion, criminal mischief, promissory estoppel, and constructive fraud.

In February 2010, WC filed a motion for summary judgment, arguing that Kroger had breached the Agreement and that Kroger's conduct amounted to criminal trespass, criminal mischief, and criminal conversion. Kroger responded and filed a cross-motion for summary judgment regarding WC's claims. Kroger filed a designation of evidence that included affidavits from three Kroger employees, Daniel DiCioccio, Nicholas Alm, and Doug Bur-dine.

WC filed a reply and argued that Kroger had submitted false affidavits WC requested sanctions pursuant to Indiana Trial Rule 56(G). After a hearing, the trial court entered findings of fact and conclusions thereon ruling on the motion for summary judgment and cross motion for summary judgment. The trial court found, "because the Sign Pylon is located on Parcel IV, which is owned by WC, that WC is the owner of the Sign Pylon." Appellant's App. p. 17. The trial court found that the Agreement and Amendment did not "give Kroger the right to deconstruct, reconstruct, modify, add anything to or take anything away from or otherwise in any way alter or affect the Sign Pylon, its function or operation." Id. at 24. The trial court found that Kroger exceeded the scope of its rights and breached the Agreement and Amendment. The trial court concluded that WC incurred $47,954.42 in damages as a result of the breach and was entitled to attorney fees as the prevailing party under the Agreement. The trial court also concluded that Kroger committed criminal conversion, eriminal trespass, and criminal mischief. In sum, the trial court granted summary judgment to WC on its motion for summary judgment and also granted summary judgment to WC on Kroger's counterclaims.

The trial court permitted Kroger to file a written response to WC's request for sanctions. The trial court also scheduled a damages hearing to address Indiana Code Section 34-24-3-1 and reasonable attorney fees. After the hearing, the trial court found that portions of DiCioccio's affidavit were misleading and false and that DiCioc-cio "on behalf of Kroger acted in bad faith in an attempt to delay these proceedings and mislead the Court regarding the facts designated and whether a material dispute of fact was present." Id. at 42. The trial court ordered Kroger to pay WC's attorney fees but noted that Kroger was already required to pay WC's attorney fees under the Agreement. The trial court then ordered Kroger to pay WC's attorney fees in the amount of $71,509.25. The trial court also ordered Kroger to pay additional damages of $23,977.21 under Indiana Code Section 34-24-3-1. In total, the trial court ordered Kroger to pay damages of $143,440.88 to WC. Kroger now appeals.

Analysis

I. Breach of Contract

Kroger argues that the trial court erred by granting summary judgment to WC on its breach of contract claim. Our standard of review for a trial court's grant of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974.

Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case, the entry of specific findings and conclusions does not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

According to Kroger, the Agreement and Amendment to the Agreement unambiguously allowed it to modify the sign pylon. The interpretation of a contract is a pure question of law and is reviewed de novo. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind.2005). Courts should interpret a contract so as to harmonize its provisions, rather than place them in conflict. Id. at 252. We must look at the contract as a whole. Id. We will construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Sunburst Chem., LLC v. Acorn Distributors, Inc., 922 N.E.2d 652, 654 (Ind.Ct.App.2010). If a contract's terms are clear and unambiguous, we must give those terms their clear and ordinary meaning. Dunn, 886 N.E.2d at 252. "A contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms." Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind.2002). "When a contract's terms are ambiguous or uncertain and its interpretation requires extrinsic evidence, its construction is a matter for the factfinder." Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind.2010). The terms of a contract are not ambiguous merely because a controversy exists between the parties concerning the proper interpretation of terms. Sunburst, 922 N.E.2d at 654.

At first, the sign pylon was to be located on Parcel I, which is owned by Kroger, and the Agreement provided:

Section 24-The parties hereby establish an exclusive easement over Parcel I in favor of Parcels) II, III, and IV to permit the construction, use and maintenance of a sign at the location designated on the Plot Plan, including any electrical lines required to illuminate the sign, provided that all lines are constructed underground.
* *# #k * * *
Section 9.1-Developer shall erect on Parcel I a pylon for a sign at the location as shown on the Plot Plan, subject to the reasonable approval of Kroger prior to erection. After completion of the construction thereof, Kroger shall reimburse Developer for that portion of the costs of construction thereof equal to the product of multiplying such costs times a fraction, the numerator of which is the square footage of the sign panel designated by Kroger to be located thereon and the denominator of which shall be the total square footage of all sign panels to be located thereon, but in no case in excess of Fifteen Thousand Dollars ($15,000.00).
Section 9.2-Kroger shall maintain the pylon for the sign shown on the Plot Plan in a good state of repair and operation at all times. Parcels II, III and IV Owners shall reimburse Kroger not more frequently than once each calendar month for its prorata share of the costs of maintaining the pylon and illuminating the panels located thereon....
Section 9.3-Kroger shall have the right to attach to and the obligations to maintain at its expense, a sign panel on the pylon in the location immediately below the name of the Shopping Center and permanent signs on the exterior of the storeroom located on Parcel I. Each such sign shall identify Kroger, its tenant or occupant, or the services or products of Kroger or its tenants or occupants in a suitable fashion consistent with their normal practice and the requirements of Section 9.5 hereof, and nothing contained herein shall limit or proscribe the use or display of non-permanent signs on the storeroom located on Parcel I in a manner consistent with the normal business of the occupant thereof.
Section 9.4-Parcel II and IV shall have the right to attach and maintain, at its expense, a sign panel on the pylon and may place permanent signs on the exterior of the buildings located on Parcel II and IV thereof in suitable fashion consistent with its normal practice and the requirements of Section 9.5 hereof.... Section 9.5-All permanent signs and panels hereinabove provided shall be of good quality and in good operating condition, appearance, maintenance and repair at all times and shall be of a design that is consistent with the architectural design of the Shopping Center and subject to any and all applicable governmental approvals.

Appellant's App. at 208-04, 207. That Agreement was amended due to a change in the location of the sign pylon to Parcel IV, which was owned by the developer, and the Amendment provided:

1. Section 24 of Article II shall be amended to read: "The parties hereby establish a Exclusive Ease ment over Parcel IV in favor of Parcel(s) I, II and III to permit the construction, use and maintenance upon Parcel IV of a sign at the location designated on the Plot Plan.... Access by Kroger to maintain the pylon and underground electrical service to the sign shall be granted upon the parking lot and driveway areas that currently exist or may exist upon Parcel IV from time to time.
2. The sign referenced in Article IX, Section 9.1, is to be located on Parcel IV....
3. All other terms and conditions of this Agreement shall remain in full force and effect except as expressly modified by this Amendment.

Id. at 220.

Under the Agreement and Amendment, the developer, WC's predecessor, was to construct the sign pylon. Kroger had the right to attach and the obligation to maintain a "sign panel on the pylon." Id. at 207. Kroger also had the obligation to maintain the "pylon" in a "good state of repair and operation at all times." Id. The trial court concluded that Kroger did not have the "right to deconstruct, reconstruct, modify, add anything to or take anything away from or otherwise in any way alter or affect the Sign Pylon, its function or operation." Id. at 24.

Kroger argues that the trial court's finding that WC owned the sign pylon is unsupported by the designated evidence. According to Agreement and Amendment, the sign pylon was constructed on Parcel IV, which is owned by WC. Additionally, according to the Agreement and Amendment, the developer, WC's predecessor, constructed the sign pylon. Further, Kroger had an easement on Parcel IV to maintain the sign pylon. Under the Agreement and Amendment, the trial court properly found that WC owned the sign pylon.

Kroger also argues that the trial court's interpretation of the Agreement and Amendment was incorrect because of a September 1994 letter from Kroger to Eaton & Lauth (the developer and a predecessor to WC). However, if the Agreement and Amendment are unambiguous, we cannot examine such extrinsic evidence. See Johnson, 920 N.E.2d at 256. Thus, we must first determine if the Agreement and Amendment are ambiguous.

Kroger argues that the Agreement and Amendment are ambiguous because the terms "sign panel" and "sign pylon" are not defined. The common definition of "pylon" is "a relatively tall structure at the side of a gate, bridge, or avenue, marking an entrance or approach." DICTIONARY.COM, http://www.dictionary.com (last visited March 19, 2012). A "panel" is defined as "a distinet portion, section, or division of a wall, wainscot, ceiling, door, shutter, fence, etc., especially of any surface sunk below or raised above the general level or enclosed by a frame or border." Id. Given the common and ordinary definitions of these terms, it is clear that "sign pylon" refers to the entire structure, while "sign panel" refers to the individual signs on the pylon. The lack of definitions of these terms in the Agreement and Amendment does not create an ambiguity.

Kroger also contends that the “parties clearly contemplated that Kroger's need to change its signage would evolve over time consistent with its normal practice and the prevailing customs of the day." Appellant's Br. p. 183. Kroger relies upon the portion of the Agreement that provides:

Kroger shall have the right to attach to and the obligations to maintain at its expense, a sign panel on the pylon in the location immediately below the name of the Shopping Center and permanent signs on the exterior of the storeroom located on Parcel I. Each such sign shall identify Kroger, its tenant or occupant, or the services or products of Kroger or its tenants or occupants in a suitable fashion consistent with their normal practice and the requirements of Section 9.5 hereof....

Appellant's App. p. 207. However, the "normal practice" language in the Agreement referred only to the identification of Kroger and its services or products on the individual sign panel. Nothing in that language gave Kroger the right to modify the sign pylon or attach multiple sign panels.

The Agreement required Kroger to "maintain" the sign pylon "in a good state of repair and operation" and allowed it to attach and maintain a sign panel. Appellant's App. at 207. We agree with the trial court that neither the Agreement nor the Amendment allowed Kroger to modify the sign pylon or attach multiple sign panels to the pylon. We conclude that the Agreement and Amendment were unambiguous and that the trial court properly interpreted the documents. As a result, we agree that Kroger breached the Agreement, and the trial court properly granted summary judgment to WC on this issue.

II Criminal Conversion, Criminal Trespass, and Criminal Mischief

Next, Kroger argues that the trial court erred by granting summary judgment to WC on its claims of criminal conversion, criminal trespass, and criminal mischief. The trial court found that Kroger had "knowingly or intentionally exerted unauthorized control over WC's property," that Kroger had "knowingly or intentionally interfered with the possession or use of WC's property," and that Kroger had "recklessly, knowingly or intentionally damaged or defaced property of another with the consent of WC." Appellant's App. at 26-27.

A person who "knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent" commits criminal trespass. Ind.Code § 35-43-2-2(a)(d). A person who "knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion." I.C. § 35-48-4-3(a). A person who "recklessly, knowingly, or intentionally damages or defaces property of another person without the other person's consent" commits criminal mischief. I.C. § 35-483-1-2(a)(1).

The criminal trespass and criminal conversion statutes include two levels of criminal intent-knowingly or intentionally. "A person engages in conduct 'intentionally' if, when he engages in the conduct, it is his conscious objective to do so." I.C. § 85-41-2-2(a). "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." I.C. § 35-41-2-2(b). The criminal mischief statute includes a third level of criminal intent-recklessly. "A person engages in conduct 'recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct." I.C. § 35-41-2-2(c).

In the eriminal conversion context, we have held that criminal intent is an essential element to the offense that must be proven. NationsCredit Commercial Corp. v. Gravel Enterprises, Inc., 703 N.E.2d 1072, 1078 (Ind.Ct.App.1998), trans. denied. "It is this mens rea requirement that differentiates criminal conversion from the more innocent breach of contract or failure to pay a debt situation that the criminal conversion statute was not intended to reach." Id. "The legislature did not intend to criminalize bona fide contract disputes." Id. at 1079.

Kroger argues that it reasonably believed it had a right to modify the sign pylon and that this is a basic contract dispute, not a case of criminal intent. According to Kroger, the trial court should have granted its cross-motion for summary judgment on the criminal conversion, trespass, and mischief claims and should have denied WC's motion for summary judgment on those claims. WC argues that, because the contract was unambiguous, the trial court was correct in granting summary judgment.

Under WC's argument, anytime a party to an unambiguous contract breaches the contract, the party's criminal intent would be established. Although we disagree with Kroger's interpretation of the Agreement and Amendment and concluded that the Agreement was unambiguous, our holding does not mean that Kroger had criminal intent in modifying the sign pylon or adding an additional sign panel. We cannot say that every breach of contract case results from a criminal intent. Our supreme court recently made the same observation when it held that a finding of breach of contract "does not lead ineseapa-bly to a finding of criminal fraud." Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 193 (Ind.2012). Some additional evidence other than a simple breach of contract is necessary to establish erimi-nal intent. For example, in Midland-Guardian Co. v. United Consumers Club, Inc, 499 N.E.2d 792, 798 (Ind.Ct.App.1986), Midland's "pattern of unauthorized control over others money" showed the high probability of awareness that its control over UCC's funds was unauthorized.

Furthermore, "we normally regard a finding of criminal intent as the sort of determination requiring intervention by a fact-finder...." White v. Indiana Realty Associates II, 555 N.E.2d 454, 458 (Ind.1990). The granting of summary judgment in a civil action involving criminal intent is a "rare situation." Id. Our supreme court recently held that "finding criminal intent in the absence of a confession invariably requires weighing evidence, judging witness credibility, and drawing reasonable inferences from the facts, all of which are improper in considering a motion for summary judgment." Klinker, 964 N.E.2d at 195. "[Slummary judgment is almost never appropriate where the claim requires a showing that the defendant acted with criminal intent or fraudulent intent." Id.

We conclude that the evidence here is "definitely not so overwhelming as to mandate us" to conclude that Kroger had criminal intent when it modified the sign pylon. Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1291 (Ind.2006). Conversely, neither is the evidence so clear that Kroger is entitled to summary judgment in its favor. We conclude that the trial court erred when it granted WC's motion for summary judgment regarding its eriminal mischief, criminal trespass, and criminal conversion claims. Kroger's intent is for a jury to decide.

III. Sanctions

The final issue is whether the trial court properly awarded sanctions against Kroger for its affidavits filed as part of the summary judgment proceedings. A trial court enjoys broad discretion in determining appropriate sanctions. Davidson v. Perron, 756 N.E.2d 1007, 1013 (Ind.Ct.App.2001). The trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and cireumstances of the case, or if it misinterprets the applicable law. Id. Absent clear error and resulting prejudice, the trial court's determinations with respect to violations and sanctions should not be overturned. Id.

WC requested sanctions pursuant to Indiana Trial Rule 56(G), which provides:

Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith ' order the party employing them 'to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

"This rule should be strictly enforeed to preserve the intent and purpose of the summary judgment proceeding." GDC Envtl. Services, Inc. v. Ransbottom Landfill, 740 N.E.2d 1254, 1261 (Ind.Ct.App.2000). As a general proposition, a finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind.2005).

The trial court here found DiCioec-cio's affidavit, which was submitted with Kroger's response in opposition to WC's motion for summary judgment and in support of Kroger's cross motion for summary judgment, to be problematic. Specifically, the trial court found that DiCioccio's affidavit misrepresented the contents of Exhibit 1 as an agreement for the construction of the sign pylon, that the affidavit misrepresented the contents of a September 19, 1994 letter to Eaton & Lauth, and that the affidavit misrepresented that Kroger obtained government approval for the modification of the sign pylon.

Having reviewed the affidavit and the attached documents, we agree that the affidavit misrepresented the contents of the documents and the cireumstances. Kroger was given the opportunity to explain the inconsistencies and failed to adequately do so. The trial court concluded that Kroger "acted in bad faith in an attempt to delay these proceedings and mislead the Court regarding the facts designated and whether a material dispute of fact was present." Appellant's App. p. 42. We cannot say that the trial court abused its discretion in making this determination.

IV. Appellate Attorney Fees

WC requests appellate attorney fees based on the prevailing party provision of the Agreement and Indiana Appellate Rule 66(E). An award of attorney fees is appropriately limited to those fees incurred because of the basis underlying the award. Nance v. Miami Sand & Gravel LLC, 825 N.E.2d 826, 838 (Ind.Ct.App.2005), trans. denied. The party requesting an assessment of attorney fees bears the burden of proving an appropriate allocation of fees between issues for which attorney fees may be assessed and those for which they may not. Id. "While a perfect breakdown is neither realistic nor expected, a reasonable, good faith effort is anticipated." Id.

Appellate attorney fees are appropriate under the prevailing party provision in the Agreement, which provides: "In the event of litigation by reason of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorneys' fees in addition to all other expenses incurred by such litigation." Appellant's App. at 207. WC is entitled to appellate attorney fees by reason of the breach of the Agreement, and we remand to the trial court for calculation of those fees. However, the Agreement does not entitle WC for appellate attorney fees for its criminal conversion, criminal trespass, and criminal mischief actions.

WC also asks for appellate attorney fees under Indiana Appellate Rule 66(E). Under Indiana Appellate Rule 66(E), we "may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith." Such damages are in our discretion and may include attorney's fees. We must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal. In re Estate of Carnes, 866 N.E.2d 260, 267 (Ind.Ct.App.2007). A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious. Id. WC argues that Kroger continued to "misrepresent the facts" and continued to "assert to this Court the same false testimony that was asserted in DiCioccio's Affidavit." Appellant's Br. p. 32. However, WC does not explain its argument with any specificity. We conclude that WC has failed to demonstrate that it is entitled to appellate attorney fees based on Indiana Appellate Rule 66(E).

Conclusion

The trial court properly granted summary judgment to WC on its breach of contract claim and properly granted WC's request for sanctions under Indiana Trial Rule 56(G). However, the trial court erred by granting summary judgment on WC's claims of criminal mischief, eriminal trespass, and criminal conversion. We grant WC's request for appellate attorney fees regarding its breach of contract action, but we deny WC's request for appellate attorney fees pursuant to Indiana Appellate Rule 66(E). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and BRADFORD, J., concur.

      . KG Indianapolis Portfolio, L.P., and H & R Real Estate Investment Trust were also named as defendants. The two companies filed a motion for summary judgment, and the trial court granted summary judgment in their favor concluding that neither company was responsible for Kroger's actions.