author: DARDEN, Senior Judge.

text:
    PNC BANK, NATIONAL ASSOCIATION, Successor to National City Bank, Successor by merger with National City Bank of Indiana, Appellant v. LA DEVELOPMENT, INC., Andrew L. Arbuckle, Robert J. Lane, and INTA, LLC, Appellees, and INTA, LLC, Cross-Claim and Counterclaim Appellant, v. PNC Bank, National Association, Successor to National City Bank, Successor by merger with National City Bank of Indiana, Counterclaim Appellee, and LA Development, Inc., Cross-Claim Appellee.
    No. 41A01-1107-MF-314.
    Court of Appeals of Indiana.
    Aug. 6, 2012.

      Karl L. Mulvaney, Thomas C. Scherer, Whitney L. Mosby, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellant.
    Daniel J. Paul, Stephen K. Watson, Williams Barrett & Wilkowski LLP, Greenwood, IN, Attorneys for Appellees.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

PNC, National Association, successor to National City Bank, and successor by merger with National City Bank of Indiana (collectively, “the Bank”) appeals the trial court’s decision in favor of Cross/Counter Claimant INTA, LLC (“INTA”) in an action filed by the Bank against LA Development, Inc. (“LA Development”), Andrew L. Arbuckle (“Arbuck-le”), Robert J. Lane (“Lane”), and INTA.

We reverse and remand.

ISSUE

Whether the trial court abused its discretion in denying PNC’s motion for the mandatory appointment of a receiver in a mortgage foreclosure action.

FACTS

On June 18, 2004, the Bank and LA Development entered into a loan agreement whereby the Bank extended credit to LA Development under three notes. The obligations due to the Bank were secured by (1) a mortgage executed by LA Development against real property known as “Harrison Crossings” and located in Johnson County, Indiana; and (2) a mortgage executed by LA Development against certain real property commonly known as “Kingston Village” and located in Johnson County, Indiana. LA Development contractually agreed to the appointment of a receiver by its execution of the mortgages. As guarantors, Arbuckle and Lane guaranteed all of LA Development’s obligations to the Bank.

In the fall of 2008, the notes had been fully advanced and had matured by their express terms. LA Development was in need of additional funds to complete the development of about eighteen acres of partially completed lots in Harrison Crossing. INTA, an Indiana Limited Liability Company, agreed to advance $705,000 to LA Development to pay for infrastructure, to satisfy certain lien claimants, and to complete the development in exchange for the conveyance of twelve lots of its choosing to be platted in Harrison Crossing.

On September 15, 2008, a three-party closing occurred involving LA Development, the Bank, and INTA. The following documents, among others, were executed: (1) a forbearance agreement between LA Development and the Bank; (2) a loan agreement between INTA and LA Development; (3) a mortgage note signed by LA Development in favor of INTA as evidence of the INTA loan; (4) a mortgage signed by LA Development mortgaging and conveying certain parts of Harrison Crossing to INTA; and (5) a subordination agreement between INTA and the Bank.

As to INTA and LA Development, Section 2.4 of the Subordination Agreement provided that when the lots in Harrison Crossing Phase III were platted and ready for sale, INTA would obtain payment by selecting twelve of the approximate thirty-nine lots “located in Harrison Crossings Phase III and as described in the Site Plan attached to the Forbearance Agreement.” (App. 119). As to INTA and the Bank, Section 2.2 of the Subordination Agreement provided:

The foregoing priorities and subordination between the parties shall exist and continue to exist notwithstanding the date, manner, or order of attachment or recording, or the lack thereof of any mortgage granted by [LA Development] to INTA on Harrison Crossing Phase III and the Bank hereby COVENANTS, STIPULATES, and AGREES that all liens, mortgages, encumbrances, security interests, and assignments of every kind and character created under, renewed and extended under or existing by virtue of any mortgage granted to the Bank in or to Harrison Crossing Phase III or any part thereof, are hereby SUBORDINATED AND MADE SECONDARY AND INFERIOR, to the liens, mortgages, encumbrances, security interests, and assignments created under, renewed and extended under or existing by virtue of the INTA Mortgage and related documents securing payment of the INTA Obligations described in Paragraph 2.3.

(App. 119).

From September 15, 2008, through May 20, 2010, twelve advances of the INTA loan were requested and disbursed. As of October of 2010, the project inspector reported that almost all of the work for Harrison Crossing was complete — including roads, curbs, sewer, lights and signage — except for platting and recording the plat. Indeed, the lots were never platted.

On April 20, 2011, the Bank filed its “Complaint For Damages, To Foreclose Mortgages, Enforce Guaranties And For Immediate Appointment of a Receiver,” against LA Development, Arbuckle, Lane, and INTA. The complaint included four counts: Count I: Action for Damages; Count II: Foreclosure of Mortgages; Count III: Action on the Guaranties; and Count IV: Request for Appointment of a Receiver. In the complaint, the Bank alleged, among other things, that LA Development defaulted on its obligations “by failing to pay off the Notes upon maturity” and by defaulting under the forbearance agreement. (App. 16-17). The Bank claimed that the “the indebtedness under the Notes is immediately due and owing by [LA Development] to the Bank.” (App. 17).

On the same date, the Bank filed a separate motion for immediate appointment of a receiver, alleging that LA Development had agreed in the loan documents to the appointment of a receiver and that the appointment was mandatory under Indiana Code section 82 — 30—5—1(4). In its motion, the Bank alleged that the appointment of a receiver was necessary to take all actions necessary to manage and control the partially completed residential development and to prepare the development for sale including, but not limited to, platting the lots and recording a final plat. In addition, the Bank requested the appointment of a receiver over LA Development under the discretionary provisions of Indiana Code sections 32-30-5-1(5) and (7) because LA Development is insolvent and justice required the appointment of a receiver under the facts and circumstances of the case.

On May 10, 2011, INTA filed its answer, cross-claim against LA Development, and counter-claim against the Bank for foreclosure of the mortgage on a portion of the residential development. In its cross/counter claim, INTA alleged that the Bank relinquished its right to the appointment of a receiver in the Subordination Agreement.

On May 27, 2011, INTA also filed an objection to the Bank’s motion to appoint a receiver. Among other things, INTA alleged that the “Subordination Agreement subordinated, in their entirety, [the Bank’s] mortgages to INTA’s mortgages.” (App. 282). Therefore, “any request for a receiver based upon [the Bank’s] mortgages under the mandatory provisions of the Receivership Statute, were subordinated to INTA” and INTA’s rights “are superior to any request [the Bank] might make under and pursuant to its mortgages as a result of the terms of the Subordination Agreement.” (App. 282-83).

After a hearing on the Bank’s motion to appoint a receiver and INTA’s response thereto, the trial court denied the Bank’s request for appointment of a receiver. This interlocutory appeal ensued.

DECISION

The Bank alleges that the trial court erred in not concluding that appointment of a receiver is mandatory under the law and the facts of this case. The Bank notes that the statutory framework governing the mandatory appointment of receivers is Indiana Code section 32-30-5-1. Pursuant to subsection 4 of Indiana Code section 32-30-5-1, a mortgagee’s right to appointment of a receiver in a foreclosure action is mandatory once the general provisions of subsection (4) and any of the further provisions of subsections (A) through (F) are satisfied. See Citizens Fin. Servs. v. Innsbrook Country Club, Inc., 833 N.E.2d 1045, 1054 (Ind.Ct.App.2005).

The Bank states that it has satisfied the general provisions of subsection (4) and at least two conditions in subsections (A)-(F). Specifically, it asserts that it has met the requirement of Indiana Code section 32-30-5-1 (4)(B), which states that a receiver shall be appointed when “it appears that the property may not be sufficient to discharge the mortgaged debt” and Indiana Code section 32-30-5-l(4)(C), which states that a receiver shall be appointed when “either the mortgagor or the owner of the property has agreed in the mortgage or in some other writing to the appointment of a receiver.”

INTA does not dispute that the Bank satisfied all of the general provisions of Indiana Code section 32-30-5-1(4) and the conditions set forth in subsections (B) and (C) of the statute. However, it argues that the Bank relinquished its right to the mandatory appointment of a receiver in the Subordination Agreement.

The primary rule of contract construction is to ascertain and give effect to the parties’ mutual intent. Perfect v. McAndrew, 798 N.E.2d 470, 479 (Ind.Ct.App.2003). The parties’ intent must be derived from their written expressions within the four corners of the contract. Id. Unambiguous contracts must be specifically enforced as written without any additions or deletions by the court. Id. However, when the language of a contract is ambiguous or uncertain, its meaning is to be determined by the consideration of extrinsic evidence. Id. A contract is ambiguous if reasonably intelligent people could find its provisions susceptible to more than one interpretation. Id.

The Bank agrees that the Subordination Agreement unambiguously contemplates the subordination of “liens” and “priorities”; however, it does not agree that the agreement subordinates all of its rights or remedies. The Bank points to the wording of the key provisions of the Subordination Agreement in support of its argument. In Paragraph 2.1, the agreement states that the bank mortgages “are and shall be subject to, subordinate and junior, as a second priority mortgage to the first priority lien of the INTA Mortgage-” (App. 119). In Paragraph 2.2, the agreement states that the Bank agrees that “all liens, mortgages, encumbrances, security interests, and assignments ... are hereby expressly SUBORDINATED AND MADE SECONDARY AND INFERIOR....” Id. In paragraph 2.3, the agreement states that the “mortgage liens granted to the Bank are and shall be subordinate.... ” Id.

INTA, on the other hand, argues that the Subordination Agreement unambiguously deprives the Bank of all of its rights and remedies derived from the mortgages and other loan documents. INTA emphasizes that Paragraph 2.2 of the Subordination Agreement lists “liens” and “mortgages” separately and that a reasonable reading of the paragraph leads to the conclusion that “mortgages” represents something more than “liens.”

The interpretations by both parties are reasonable. While Paragraph 2.2. can be read to indicate that the “mortgages” subordinated are something other than liens (possibly including the rights and remedies that are consonant with mortgages), Paragraph 2.3 specifically refers to “mortgage liens” (plausibly indicating that the mortgage liens, and not the rights and remedies thereunder, are subordinated). In short, the Subordination Agreement is ambiguous.

In construing the Subordination Agreement, we may turn to the writings executed at the same time and relating to the same transaction to ascertain the parties’ intent. GEICO Ins. Co. v. Rowell, 705 N.E.2d 476, 482 (Ind.Ct.App.1999). Absent contractual language indicating that the documents are unrelated, the instruments are construed together. Id. at 482.

Here, the intent of the parties is demonstrated when the Subordination Agreement is construed together with the other September 15, 2008 closing documents. The Forbearance Agreement specifically provides that the Bank “is entitled to take any and all action and exercise all rights and remedies granted to it under the Loan Documents by applicable law.” (App. 180). The Forbearance agreement also provides that “the Bank expressly reserves and shall retain all rights, claims, remedies, actions, and causes of action in connection with (A) the Obligations or the Loan Documents; and (B) any actions or failure by [LA Development] either before or after the execution of this Agreement.” (App. 183). A reading that the Bank subordinated all of its default rights and remedies in the mortgages by executing the Subordination Agreement-as argued by INTA— cannot be reconciled with the language in the Forbearance Agreement signed on the same date and at the same closing as the Subordination Agreement.

Furthermore, the Bank’s default rights and remedies are not solely located in the mortgages. The Bank’s loan agreement, for example, authorizes the Bank to foreclose its Harrison Crossing mortgage and to “take over and complete construction of [Harrison Crossing] upon an event of default.” (App. 45). The Subordination Agreement expressly references the Bank’s loan agreement and loan documents; however, it subordinates only “the Bank’s Mortgages.” (App. 117-19). If the parties had intended to subordinate all of the Bank’s default rights and remedies to INTA, then the Subordination Agreement would have included specific language listing all of the rights and remedies of the Bank in each of its loan documents, including the mortgages. The express limitation to “the Bank’s Mortgages” supports the conclusion that the subordination contemplated by the parties was simply a lien subordination and not a subordination of all rights and remedies.

In addition, the parties’ intention not to subordinate all rights and remedies is demonstrated by the extrinsic evidence. The Bank has elected to foreclose on Harrison Crossing, an action that INTA concedes is authorized. If the Bank waived all of its enforcement rights and remedies under the mortgages by executing the Subordination Agreement, then the right to foreclose on Harrison Crossing would be included. Either the Bank subordinated all of its enforcement rights and remedies in the mortgages or it did not. INTA cannot pick and choose which rights and remedies the Bank subordinated to support its argument.

Our construction of the Subordination Agreement emphasizes the necessity of using specific language to limit rights and remedies of the junior creditor. As one commentator has stated:

A lien subordination agreement should prohibit the junior creditor from enforcing its subordinated rights in the collateral or in any other way interfering with the senior creditor’s liens in the collateral until the senior debt is paid in full. This prohibition will permit the senior creditor to control any liquidation of the collateral and also the timing of that liquidation. Despite being subordinated to senior liens, a junior creditor has rights that may be burdensome to the senior creditor. For example, a junior creditor could commence mortgage foreclosure of the common collateral on the debtor’s default. Despite the senior creditor’s higher priority, the timing of the foreclosure may not be in the senior creditor’s best interests. Consequently, the senior creditor should require that the junior creditor waive its rights to marshal assets and agree to postpone any enforcement rights that it may have against the collateral.

Mears, Patrick E., “Who’s On First? Negotiating Debt and Lien Subordination Agreements in Real Estate Transactions,” 13 Prob. & Prop. 18, 22-23 (1999).

Based upon our construction of the loan documents and our interpretation of the extrinsic evidence, we must conclude that the Bank did not relinquish all of its rights and remedies in the Subordination Agreement. Because the Bank has shown that the requisite provisions of Indiana Code section 32-30-5-1 have been satisfied, and the Bank did not relinquish its mandatory right to the appointment of a receiver, we conclude that the trial court’s order is erroneous.

CONCLUSION

We reverse and remand with instructions that the trial court vacate its order and grant the Bank’s request for the appointment of a receiver.

Reversed and remanded.

MAY, J., and CRONE, J., concur.

      . This is an interlocutory appeal of right. See Indiana Rule of Appellate Procedure 14A(6).

      . A receiver is a "disinterested person appointed by a court ... for the protection or collection of property that is the subject of diverse claims (for example, because it belongs to a bankrupt or is otherwise being litigated).” BLACK'S LAW DICTIONARY 1296 (8th ed. 2004).

      . Indiana Code section 32-30-5-1 provides in relevant part:
      A receiver may be appointed by the court in the following cases:
      (4) In actions in which a mortgagee seeks to foreclose a mortgage. However, upon motion by the mortgagee, the court shall appoint a receiver if, at the time the motion is filed, the property is not occupied by the owner as the owner’s principal residence and:
      (A) it appears that the property is in danger of being lost, removed, or materially injured;
      (B) it appears that the property may not be sufficient to discharge the mortgaged debt;
      (C) either the mortgagor or the owner of the property has agreed in the mortgage or in some other writing to the appointment of a receiver;
      (D) a person not personally liable for the debt secured by the mortgage has, or is entitled to, possession of all or a portion of the property;
      (E) the owner of the property is not personally liable for the debt secured by the mortgage; or
      (F) all or any portion of the property is being, or is intended to be, leased for any purpose.

      . Because we conclude that the Bank was entitled to the mandatory appointment of a receiver under Indiana Code section 32-30-5-1(4), we do not address the issue of whether an appointment was proper under the discretionary appointment provisions of Indiana Code 32-30-5-1(5) and (7).


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    WARRICK COUNTY, Indiana, A Political Subdivision, by and through its County Commissioners, Nova CONNER, Don Williams, And Phillip Baxter, and Cincinnati Insurance Co., Appellants-Defendants, v. William HILL and Stacy Hill, Appellees-Plaintiffs.
    No. 87A01-1201-PL-8.
    Court of Appeals of Indiana.
    Aug. 7, 2012.

      Brian L. England, Ryan J. Guillory, Hunt Suedhoff Kalamaros LLP, Indianapolis, IN, Attorneys for Appellants.
    Mark K. Phillips, Law Offices of Mark K. Phillips, Boonville, IN, Attorney for Appellees.

      . Warrick County has filed the instant appeal and is not joined by Cincinnati Insurance Company. Nevertheless, a party of record in the trial court shall be a party on appeal. See Ind. App. R. 17(A).

   OPINION

BRADFORD, Judge.

In this interlocutory appeal, Appellant-Defendant Warrick County, Indiana, challenges the trial court’s denial of its motion for summary judgment in an action brought against it and Cincinnati Insurance Company by Appellees-Plaintiffs William Hill and Stacy Hill. Upon appeal, Warrick County claims that the trial court erred in denying summary judgment on multiple grounds. We affirm.

FACTS AND PROCEDURAL HISTORY

The Hills are residents of Warrick County, Indiana, and have a house on Framewood Drive in Newburgh. In 2001 and 2002, Warrick County performed drainage work in a ditch adjacent to the Hills’ home. The work involved installing a polyethylene pipe into the ditch and subsequently filling the ditch with backfill, thereby eliminating the ditch. Thereafter, the Hills discovered that the crawl space under their home had significant standing water. The Hills contacted Warrick County. In September of 2002, Warrick County sent contractor MCF to the Hills’ residence to install underground downspout lines and direct them into an open ditch in back of the Hills’ property, as a remedy. Apparently, downspout lines which had previously drained the Hills’ home’s roof gutters into the now-filled ditch adjacent to their property had been disconnected during the drainage project. MCF additionally installed a sump pump.

On November 20, 2002, the Hills signed an Agreement and Release in which War-rick County agreed to pay MCF’s $2714 bill and the Hills $500 in additional damages. In exchange, the Hills agreed to “release[] and forever discharge!]” War-rick County from certain claims or liability. App. p. 63. The Release Agreement identified the Hills’ water problem and the scope of the release as follows:

[T]he [Hills] have contended that they have suffered certain damages to their home caused by interference with a certain drain which drains down spouts from the roof gutters on this home into an open ditch which had been running along the side of the real estate owned by the [Hills] which caused water to fill the crawlspace underneath said home and which the [Hills] contend has caused mold to accumulate within the home and has caused the [Hills] to incur certain expense in order to correct said drainage problem!.]
[T]he [Hills] further have contended that the above damage to their home along with the accumulation of water under the crawlspace has been caused by blockage of the drains caused by the County in installing a drain pipe into that open ditch;
[The Hills] now expressly agree that the County is released and forever discharged from any claims or liability for any damages that may now or may hereafter be discovered as a result of the aforementioned blockage or interference with the drainage from the home of the [Hills] as hereinabove referred to[.]

App. pp. 62-63.

Thereafter, the Hills continued to have problems with accumulating water, including water in the crawlspace and sink holes in their yard. The Hills contacted War-rick County many times after MCF completed its work. According to Ms. Hill, Warrick County indicated that the sink holes were unrelated to drainage and probably due to heavy rain.

In approximately May 2007, Ms. Hill noticed that brick had begun to pull away from the side of her house. She also noticed cracks in the brick wall on her home’s west side. Ms. Hill contacted her insurance carrier, who sent an adjuster to the house, and ultimately hired an engineering firm. In August of 2007, Donan Engineering issued a report indicating that the Hills’ home’s structural problems were attributable to the high moisture condition in the foundation soil. On December 5, 2007, Andy Easley Engineering submitted a report indicating that the moisture and foundational problems were due to the County’s eliminating the open ditch adjacent to the Hills’ home, leading to a higher water table. Easley recommended the construction of a groundwater interception drain to lower the ground water level on the Hills’ property.

On December 14, 2007, the Hills submitted a notice of tort claim, and on November 25, 2008, filed a complaint against Warrick County and Cincinnati Insurance Company seeking damages caused by Warrick County’s filling of the drainage ditch. In their complaint, the Hills alleged that Warrick County’s elimination of the ditch was not contemplated by their Release Agreement. In its answer, Warrick County asserted that the Hills’ claims were barred on several grounds, including (1) failure to provide timely Notice of Tort Claim under the Indiana Tort Claims Act; (2) the six-year statute of limitations; and (3) operation of the Release Agreement.

On July 9, 2011, Warrick County moved for summary judgment on the above three grounds. On August 12, 2011, the Hills filed a response disputing Warrick County’s claims for summary judgment and requesting trial. Following Warrick County’s September 19, 2011 reply, the trial court held a hearing on October 11, 2011, after which it denied Warrick County’s motion on October 18, 2011. Warrick County petitioned the trial court to certify the matter for interlocutory appeal, which it did. This court accepted the appeal on February 20, 2012.

DISCUSSION AND DECISION

Upon appeal, Warrick County challenges the trial court’s grant of summary judgment. On appeal, the standard of review for a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.2003) (citing Ind. Trial R. 56(C)). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Id. Review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in court. Id.

I. Indiana Tort Claims Act

The parties do not dispute the applicability of the Indiana Tort Claims Act (“ITCA”). Under section 34-13-3-8 (2007) of the ITCA, a tort claim against a political subdivision is barred unless notice is filed with the political subdivision within one hundred eighty (180) days after the loss occurs.

On appeal, we are generally bound by the same standard as the trial court, specifically, that we must consider all designated material in the light most favorable to the nonmoving party. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.Ct.App.2007), trans. denied. However, compliance with the notice provisions of the ITCA ‘“is a procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial.’ ” Hupp v. Hill, 576 N.E.2d 1320, 1323 (Ind.Ct.App.1991) (quoting Ind. Dep’t of Highways v. Hughes, 575 N.E.2d 676, 678 (Ind.Ct.App.1991)). Accordingly, judgments based upon compliance with ITCA are subject to review as negative judgments, which we will reverse only if contrary to law. Id. at 1324. Otherwise stated, a negative judgment may only be reversed if the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to a conclusion other than that reached by the trial court. Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193, 1199 (Ind.Ct.App.2010).

Warrick County points to designated evidence indicating that the Hills’s observation of water problems occurred on a continuing basis since 2002. According to Warrick County, the continuing nature of the water problems links them to the original problems observed and addressed in 2002. Given this alleged 2002 origin of the problems, the Hills’ December 2002 Notice of Tort Claim, in Warrick County’s view, fell well outside the statutory 180-day time frame.

The Hills respond by arguing that the issue of structural damage to their home was not discovered until May 2007, that they did not know its cause until December 2007, and that they filed their notice of tort claim regarding this structural damage on December 14, 2007, which was within the 180 days.

In denying Warrick County’s motion for summary judgment, the trial court observed from the designated evidence that the 2002 water problems were attributed to unconnected downspouts. The court also observed that the structural damage discovered in 2007 was attributed to excessive soil moisture content resulting from the elimination of a ditch adjacent to the Hills’ home. Distinguishing the downspout problem from the excessive moisture content problem, the court observed that the structural damage and its cause were not discovered until as late as December 2007, and concluded that the Hills were within the ITCA’s 180-day time frame when they filed their notice.

We find no error in the trial court’s decision. The undisputed evidence demonstrates that Warrick County’s drainage project involved more than one component, including disconnecting existing downspouts and filling in an existing ditch. The 2002 problems were attributed, by an expert contractor, to the disconnected downspouts. The 2007 problems, in contrast, were attributed by an expert to the removal of a ditch and the resulting excessive soil moisture content. These problems are easily distinguished: one involves the inadequate means by which excessive water is removed; the other, the factors forcing an excessive amount of water into the soil. The presence in 2002 of downspout problems could not be said to indicate the existence of other problems. To the contrary, the fact of their diagnosis likely eliminated speculation about other causes. Given the multi-part nature of Warrick County’s drainage redirection project, we reject its contention that the presence of some water problems necessarily placed the Hills on notice of the origin of all problems. We find no error in the trial court’s refusing to grant summary judgment on ITCA timing grounds.

II. Statute of Limitations

Warrick County additionally claims that the Hills’ claims are barred by Indiana Code section 34-11-2-7 (2007), which enforces a six-year statute of limitations on actions for injury to property other than personal property. Warrick County’s argument is premised upon its contention that injury to the Hills’ property occurred in 2002 or earlier. The Hills do not dispute the applicability of section 34-11-2-7 but claim that their injury occurred in 2007, when they discovered the structural damage to their home.

Under Indiana’s discovery rule, a cause of action accrues, and the limitation period begins to run, when a claimant knows or in the exercise of ordinary diligence should have known of the injury. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1280 (Ind.2009). The determination of when a cause of action accrues is generally a question of law. Id. For an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, but only that some ascertainable damage has occurred. Id.

In denying Warrick County’s motion for summary judgment on statute of limitations grounds, the trial court relied upon the same reasoning it used in denying summary judgment on ITCA grounds. The court specifically observed that the Hills did not discover the structural damage to their home until May 2007, and they did not know it was attributable to the filling of the drainage ditch until December 2007. The filing of their complaint in November 2008, it concluded, was therefore well within the six-year statute of limitations.

The reasoning we used to affirm the trial court’s ITCA ruling is similarly applicable here. While the Hills may have experienced ongoing water problems, the downspout problems discovered and addressed in 2002 do not demonstrably encompass the structural damage/excessive soil moisture content discovered in 2007. Accordingly, we find no error in the trial court’s denial of summary judgment on section 34-11-2-7 grounds.

III. Discovery Rule

Warrick County further argues that the discovery rule should not apply to toll the ITCA and statute of limitations deadlines because, in its view, the Hills were aware of some damage in 2002, even if they were not aware of the full extent of this damage. Warrick County cites to multiple cases from other jurisdictions in support of this point.

There can be no question that a cause of action may accrue before the full extent of damage is known or ascertainable, so long as some damage is ascertainable. See Cooper Indus., 899 N.E.2d at 1280. But here, as the trial court concluded, the evidence demonstrates no ascertainable damage to the structure of the Hills’ home until 2007. The evidence indicating that there were water problems on the Hills’ property prior to that time does not demonstrate that these problems had caused structural damage to their home or that they were attributable to Warrick County’s actions. Warrick County does not dispute that a cause of action accrues when a plaintiff has notice of his injury and its cause. See Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 77 (Ind.Ct.App.2010) (observing that cause of action accrues when plaintiff knows or should have discovered that he has sustained an injury due to the act of another), trans. denied. Warrick County’s argument on this point warrants no relief.

IV. Release Agreement

Finally, Warrick County points to the Release Agreement the Hills signed in 2002 and claims that its terms preclude their current action. Generally, the construction of a written contract is a question of law for the trial court for which summary judgment is particularly appropriate. Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 688, 687 (Ind.Ct.App.2006). If the terms of a written contract are ambiguous, however, it is the responsibility of the trier-of-faet to ascertain the facts necessary to construe the contract. Id. Consequently, when summary judgment is granted based upon the construction of a written contract, the trial court has either determined as a matter of law that the contract is not ambiguous or uncertain, or that the contract ambiguity, if one exists, can be resolved without the aid of a factual determination. Id.

In denying Warrick County’s motion for summary judgment, the trial court referenced the language in the Release Agreement identifying as problematic the “interference with a certain drain which drains down spouts from the roof gutters on this home into an open ditch” and the “blockage of the drains by the County in installing a drain pipe into [an] open ditch.” As the trial court observed, nothing in the Release Agreement mentioned an elevated water table, nor did any language connect the known blockage problems with structural damage to the home.

It appears that the trial court concluded the language of the Release Agreement was unambiguous and clearly did not cover structural damage caused by the heightened water table brought about by the County’s filling of the ditch. To the extent the trial court may have found an ambiguity, the denial of summary judgment demonstrates that the ambiguity could not be resolved without the aid of a factual determination.

We find no error in the trial court’s decision. The Release Agreement, which specifically referenced the problematic downspouts, did not mention the complete elimination of the drainage ditch or structural damage to the home, suggesting that these problems were not a contemplated term of the release. Warrick County suggests that certain language referencing “other damages” and “interference with drainage from the home” demonstrates that the structural problems now at issue were an understood term in the Release Agreement. Given the multiple sources of water problems and their varying effects, we are unpersuaded that certain identified problems in the Release Agreement also implicated unidentified problems. At most, the language creates an ambiguity, construed against the drafter, for a fact-finder to resolve. See MPACT Const. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 910 (Ind.2004) (“When there is ambiguity in a contract, it is construed against its drafter.”). We find no abuse of discretion in the trial court’s denial of summary judgment on this ground.

The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.

      . At the same time, the court granted Defendant Cincinnati Insurance Company’s motion for summary judgment.

      . The judgment contains a footnote indicating that any statements listed in the judgment do not constitute findings and conclusions, and that any information listed in the order is simply included for purposes of providing "some guidance to the thoughts of the court.”


author: ROBB, Chief Judge.

text:
    Michael THALHEIMER, Appellant-Defendant, v. Ramon and Stacey HALUM, Appellees-Plaintiffs.
    No. 49A02-1203-PL-167.
    Court of Appeals of Indiana.
    Aug. 13, 2012.

      Zachary J. Eichel, Einterz & Einterz, Zionsville, IN, Attorney for Appellant.
    Gary M. Selig, Jennifer A. Bonesteel, Indianapolis, IN, Attorneys for Appellees.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Ramon and Stacey Halum (collectively, the “Halums”) entered into a contract with Michael Thalheimer for Thalheimer to remove carpet and tiles in the Halums’s home and to install new tiles. After Thal-heimer did so, a dispute arose among the parties regarding whether, when, and what Thalheimer would do about some portion of the work with which the Halums were dissatisfied. Following a bench trial, Thal-heimer appeals the trial court findings and judgment in favor of the Halums. Thal-heimer raises four issues, which we restate as: 1) whether the Halums’s spoliation of evidence, if at all, required a finding in favor of Thalheimer; 2) whether the doctrine of economic loss precluded the Ha-lums’s negligence claim; 3) whether the warranty in the contract precluded the Halums’s breach of contract claim; and 4) whether the evidence presented supports the trial court’s findings regarding the quality of Thalheimer’s work. The Ha-lums contend Thalheimer’s appeal was made in bad faith, and accordingly they request appellate attorney fees.

We affirm upon concluding that Thal-heimer waived his claim that the Halums spoliated evidence; the economic loss doctrine did not preclude the Halums’s negligence claim; the trial court did not abuse its discretion in finding that Thalheimer’s conduct negated the warranty in the contract; and the trial court did not abuse its discretion in finding that Thalheimer’s work was of poor quality. We deny the Halums’s request for appellate attorney fees.

Facts and Procedural History

On June 8, 2008, the Halums entered into a written contract with Thalheimer for his compensation to remove carpet and tiles in the Halums’s living room, entryway, and at least one hallway, and to install new tiles. Thalheimer completed the work in late June, the Halums conducted an initial review of his work, and Thal-heimer and the Halums made a verbal agreement for Thalheimer to return at some unspecified later date to fix about six of the tiles which were unsatisfactory to the Halums. The Halums also paid Thal-heimer in full and provided Thalheimer with two $100 gift cards as well, which Thalheimer believed to be a bonus.

Over the next several months, Thalheimer and the Halums corresponded by email to negotiate when and how many tiles Thalheimer would adjust when he returned to the Halums’s home because the Halums identified additional tiles with which they were dissatisfied. At some point, the Halums became frustrated with the negotiations, hired another contractor to redo the flooring, and retained an attorney.

A little over a year after the contract was signed, on June 16, 2009, the Halums filed suit against Thalheimer, alleging breach of contract, negligence, and violation of an implied warranty of habitability.

Following a bench trial, the trial court entered an order which states:

[T]he Court ... now finds as follows:
1. That the [Halums] are entitled to Judgment against [Thalheimer] on their Complaint in the amount of $14,262.38, which represents the amount [the Ha-lums] paid in labor and materials to Jeremy Keenan to have their floor torn out and re-installed as a result of [Thal-heimer]’s Breach of Contract and negligence in installing the original floor per the parties’ contract.

Appellant’s Appendix, at 3-4.

Thalheimer filed a motion to correct error, which the trial court denied in an order which states:

FINDINGS OF FACT
4. [Thalheimer] alleged [in his motion to correct error] that the Court misapplied the law to the facts of this case and if certain corrections are made that the outcome would have been in favor of [Thalheimer].
5. The Court rejects [Thalheimer]’s arguments on the Motion to Correct Error and hereby denies the same.
CONCLUSIONS OF LAW
1. The contract was performed by [Thalheimer] and he was paid in full by the [Halums]. The contract was also supposed to be performed in a “good and workmanlike manner”.
2. The tile floor installation was done improperly, installed in an unworkman-like manner, and was a poor quality job. The [Halums] attempted to have [Thal-heimer] complete repair to the floor for several months, to no avail, and ended up having the entire floor replaced.
3. [Thalheimer] breached the contract, but was paid for his work, quantum meruit.
4. “Damage from a defective product or service may be recoverable under a tort theory if the defect causes personal injury or damage to other property, but contract law governs damage to the product or service to perform as expected.” Gunkel v. Renovations, Inc., 822 N.E.2d 150, 153 (Ind.2005). [The Ha-lums] presented additional evidence of physical injury to their son due to' scuffing his feet and falling down due to the unevenness of the tile floor installed by [Thalheimer] in order to support their claim of negligence. Gunkel is applicable to the facts of this case because the loss to [the Halums] was not purely economic. Tort law is therefore pertinent and should have been applied.
5. Expert testimony was presented by [the Halumsj’s witness, Jeremy Keenan, that the tile floor installation was of poor quality and needed to be redone in its entirety due to tile color and texture differences found in each new tile lot. He also found that he could not insure that the replacement of the offending tiles, by themselves, would not cause further damage to the floor during installation due to cracking and misalignment when placed next to the other non-offending tiles. Mr. Keenan was qualified as a skilled witness to establish the standard of care in installing this type of floor. That standard should have been met by [Thalheimer] in his initial installation and was not which supports the finding in favor of [the Halums].
6. Error alleged by [Thalheimer] that relates to spoliation of evidence and standing to sue were waived by [Thal-heimer] and therefore not considered in this order.

Id. at 5-7.

Thalheimer now appeals.

Discussion and Decision

I. Standard of Review

In reviewing an order in which the trial court makes findings of fact and conclusions of law, our standard of review is well-settled:

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court’s •proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Challengers must establish that the trial court’s findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions.

McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App.2010), trans. denied.

II. Spoliation of Evidence

Thalheimer first argues the Ha-lums committed spoliation of evidence by having Keenan remove and redo Thalheimer’s tile installation, all in the same month that the Halums filed suit. The Halums’s spoliation of evidence, Thalheimer argues, required the trial court to find in his favor. Before we discuss whether spoliation occurred or its effect, if any, on the trial court’s findings, we address the threshold issue of whether Thalheimer waived appellate review of this issue.

Waiver is a threshold issue because generally a party is precluded from presenting an argument or issue to Indiana appellate courts unless the party first raised that argument or issue to the trial court. GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647, 651 (Ind.Ct.App.2002).

This rule exists because trial courts have the authority to hear and weigh the evidence, to judge the credibility of witnesses, to apply the law to the facts found, and to decide questions raised by the parties. Appellate courts, on the other hand, have the authority to review questions of law and to judge the sufficiency of the evidence supporting a decision. The rule of waiver in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or argument that it never had an opportunity to consider. Conversely, an intermediate court of appeals, for the -most part, is not the forum for the initial decisions in a case. Consequently, an argument or issue not presented to the trial court is generally waived for appellate review.

Id. (citations omitted); see, e.g., Harris v. Superior Ct. of Arizona ex rel. Cnty. of Maricopa, 278 Fed.Appx. 719, 722 (9th Cir.2008) (holding that the appellant waived his appellate claim of spoliation of evidence by raising it for the first time on appeal).

Thalheimer insists he raised the issue of spoliation to the trial court, referring us to two portions of the record: 1) one page of the transcript in which Ramon Halum states that in June 2009 Keenan redid Thalheimer’s work of June 2008, and 2) portions of Thalheimer’s motion to correct error in which he summarizes the law regarding spoliation of evidence and urges the trial court to make an inference in his favor. Thalheimer also appears to contend the Halums’s spoliation of evidence was so obvious that he should not have needed to explicitly make such an argument to the trial court.

Arguments articulated in a motion to .correct error which were not made at trial do not preserve issues for appellate review. If the opposite were true, motions to correct error might contain a bevy of untimely objections, petty complaints regarding the logistical presentation of evidence, attempts to rework trial strategies that did not work well, and other untimely arguments that would distract from the purpose of a motion to correct error.

We are also not persuaded by Thalheimer’s contention that some arguments are so obvious that they do not require explicit argument or presentation of any evidence. As stated, an argument must be raised before the trial court to preserve an issue for appeal. If an argument is as obvious as Thalheimer characterizes his own regarding spoliation, evidence or an argument will inevitably be presented at trial, even if unintentionally.

It is this latter type of argument which we now address. Specifically, whether the testimony to which Thalheimer now refers us sufficiently raised the issue of spoliation to avoid waiver:

Q [Thalheimer’s trial attorney]: So ... so just to clarify. June, 2008 Mr. Thal-heimer laid the floor and June, 2009 Mr. Keenan laid the floor. Is that right?
A [Ramon Hulmán] Yes.

Transcript at 57 (ellipses in original).

This single question and answer is insufficient to argue spoliation occurred, and thus, insufficient to preserve the issue of spoliation for appellate review. This question was part of cross-examination which spanned less than one and one-half pages in the transcript. Read in context, this question appears to have been intended to clarify that Keenan redid Thalheimer’s work during the two-year warranty period after Thalheimer completed the work. This question — and the focused, limited cross-examination in the entirety— did not explicitly seek to present evidence of spoliation, appear to have been intended to demonstrate evidence of spoliation, or raise the issue of spoliation at all.

III. Economic Loss

Generally, the economic loss doctrine provides that where a contract exists, that “contract is the only available remedy where the loss is solely economic in nature, as where the only claim of loss relates to the [service or] product’s failure to live up to expectations, and in the absence of damage to other property or person.” Gunkel, 822 N.E.2d at 152 (quotation omitted). Thalheimer argues the trial court failed to apply the economic loss doctrine in determining the claims and remedies available to the Halums. The Halums respond that the economic loss doctrine does not apply because the trial court entered a factual finding that the Halums’s young son sustained physical injury.

We are guided by Indiana case law regarding the economic loss doctrine, which began with Reed v. Cent. Soya, 621 N.E.2d 1069 (Ind.1993), modified on reh’g on other grounds by 644 N.E.2d 84 (Ind.1994). In Reed, the supreme court principally addressed whether, under Indiana’s Strict Product Liability Act, one may recover damages for property damage. The court adopted the economic loss doctrine, which is common in other states, and held that “[w]here ... only economic loss is alleged, no recovery is allowed under the Act.” Id. at 1074 (emphasis in original). The court continued:

[W]here the loss is solely economic in nature, as where the only claim of loss relates to the product’s failure to live up to expectations, and in the absence of damage to other property or person, then such losses are more appropriately recovered by contract remedies.
... Allowing a buyer to recover in tort where he has suffered only economic loss allows him to circumvent the seller’s effective limitation or exclusion of warranties under the UCC, and subjects manufacturers to liability for damages of unknown and unlimited scope.

Id. at 1074-75.

In Gunkel, the court clarified:

Indiana law under the Products Liability Act and under general negligence law is that damage from a defective product or service may be recoverable under a tort theory if the defect causes personal injury or damage to other property, but contract law governs damage to the product or service itself and purely economic loss arising from the failure of the product or service to perform as expected.
The theory underlying the economic loss doctrine is that the failure of a product or service to live up to expectations is best relegated to contract law and to warranty either express or implied. The buyer and seller are able to allocate these risks and price the product or service accordingly.

822 N.E.2d at 153.

In other words, a plaintiff may bring an action for breach of contract and may only recover economic losses under that contract, but the same plaintiff may also bring a tort action for a loss that is not purely economic and not covered in the contract. Whether the plaintiff may succeed under the tort theory is another question, but the point here is that the plaintiff is not precluded from bringing an action for personal injuries merely because a contract existed and the plaintiff also seeks a remedy under the contract. See Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492, 495 (Ind.2001) (“[U]n-der Indiana procedure, a plaintiff may readily pursue both a contract claim for damage to the product itself and a tort claim for personal injury or damage to other property under the Products Liability Act.”).

Here the Halums sued Thalheimer for a breach of contract, and the trial court found in their favor. The Halums also sued Thalheimer for negligence for the injury to their son, and the trial court found in their favor. The economic loss doctrine does not lead us to conclude the trial court committed reversible error.

Thalheimer appears to challenge the trial court’s finding that the Halums’s son sustained an injury, but this is quite different from arguing the trial court improperly failed to apply the economic loss doctrine, and is unpersuasive in its own right because we do not reweigh evidence.

IV. Warranty

Thalheimer next argues that the trial court erred in not considering the warranty included in the contract when it ruled in favor of the Halums. The portion of the contract to which Thalheimer refers states: “All workmanship guaranteed for two (2) years from date of completion.” Appellant’s App. at 92. Thalheimer contends that because of this clause, the Halums are not entitled to reimbursement from Thal-heimer for having another contractor redo the tiling work within two years after Thalheimer completed his work.

In addressing Thalheimer’s argument as to the warranty, at least two sub-issues arise. It appears from the evidence that the Halums sought Thalheimer’s additional work under the warranty and Thal-heimer was dilatory in responding. The degree to which the Halums diligently sought redress under the warranty and the degree to which Thalheimer was dilatory were factual issues at trial. The first sub-issue then, is whether the trial court abused its discretion by apparently concluding that Thalheimer’s dilatory response in effect voided the warranty. As stated, this was an issue thoroughly covered by the testimonies of Thalheimer and the Halums and the email correspondence between them. This is a factual issue, and we defer to the fact-finding court that the communication between the parties beginning at the time Thalheimer first completed the work led to the finding that Thal-heimer’s conduct effectively voided the warranty. We do not second-guess the trial court’s findings in this regard.

The second sub-issue is whether the warranty in the contract was clear. In Schultz v. Erie Ins. Grp., 754 N.E.2d 971 (Ind.Ct.App.2001), trans. denied, our court explained how the term “faulty workmanship” in an insurance contract could be read in at least two ways. Id. at 974-77. The term workmanship could refer to a final product, or it could refer to one’s craftsmanship. This ambiguity could be relevant here, where Thalheimer argues the warranty in the contract only entitled the Halums to his continued labor (i.e., craftsmanship) in the event of their dissatisfaction; while the Halums argue the warranty in the contract entitled them to a satisfactory product. Because of this genuine dispute over the interpretation of the terms of a contract, it would not have been unreasonable for the trial court to construe it against Thalheimer, who drafted it. See Binford v. Shicker, 553 N.E.2d 845, 848 (Ind.Ct.App.1990), trans. denied.

In sum, the trial court did not abuse its discretion in finding for the Halums in spite of the disputed warranty included in the contract.

V. Quality of Thalheimer’s Work

Thalheimer next argues the trial court erred in concluding that Thalheimer’s tile work was done in an unworkman-like manner. He refers us to portions of the record which support his view that his work was done properly, but this is contrary to other portions of the record which support the trial court’s finding that the quality of his work was of poor quality, namely, the testimonies of the Halums and Keenan. Thalheimer invites us to reweigh the evidence and assess the credibility of witnesses. Per our standard of review, we decline this request and affirm this conclusion of the trial court.

VI. Appellate Attorney Fees

The Halums argue Thalheimer’s appeal is frivolous and was made in bad faith, and therefore they seek appellate attorney fees under Appellate Rule 66(E). Our discretion to award attorney fees under this rule is “limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Life v. F.C. Tucker Co., Inc., 948 N.E.2d 346, 353 n. 3 (Ind.Ct.App.2011). We do not believe Thalheimer’s appeal warrants an award of appellate attorney fees to the Halums, and deny the request.

Conclusion

Thalheimer waived the issue of the Ha-lums’s spoliation of evidence by not presenting the issue to the trial court. The economic loss doctrine did not preclude the Halums’s negligence claim. The trial court did not abuse its discretion in determining the contract warranty did not bar the Halums’s breach of contract claim, or in finding that Thalheimer’s work was of poor quality. Therefore we affirm, but the Halums’s request for attorney fees is denied.

Affirmed.

BAILEY, J., and MATHIAS, J., concur.

      . We note that confidential information appears in the exhibits which are part of the appellate record. The applicable rules governing the filing of documents excluded from public access are Indiana Appellate Rule 9(G)(1)(f) and Trial Rule 5(G), the latter of which explains how such documents shall be filed.

      . There appears to be some dispute as to the length of time in which the Halums conducted this initial review of Thalheimer’s work. Because this is an issue of fact, we defer to the fact-finder’s assessment.

      . Cf. P-M Gas & Wash Co., Inc. v. Smith, 268 Ind. 297, 301, 375 N.E.2d 592, 594 (1978):

        The motion to correct error serves three purposes: (1) to present to the trial court an opportunity to correct error which occurs prior to the filing of the motion; (2) to develop those points which will be raised on appeal by counsel; and (3) to inform the opposing party concerning the points which will be raised on appeal so as to provide that party an opportunity to respond in the trial court and on appeal.

      . We note that even if Thalheimer did not waive the issue of spoliation of evidence, and even if the trial court should have concluded the Halums did, in fact, spoliate evidence, the trial court was not required to find in favor of Thalheimer. It is well-settled that when one party demonstrates that an opposing party spoliated evidence, the fact-finder has the discretion to find that the missing evidence was unfavorable to the party which destroyed the evidence, and likewise, the discretion to find that the missing evidence was not necessarily unfavorable to the party which destroyed the evidence. Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind.2006) ("If spoliation by a party to a lawsuit is proved, rules of evidence permit the jury to infer that the missing evidence was unfavorable to that party.”) (emphasis added); Am. Nat. Prop. & Cas. Co. v. Wilmoth, 893 N.E.2d 1068, 1070 (Ind.Ct.App.2008) ("If spoliation by a party to a lawsuit is proved, the jury may infer that the missing evidence was unfavorable to that party.”) (emphasis added), trans. denied.

      . Stated differently, in a manner more common when addressing breach of contract claims, did Thalheimer breach the contract first by not honoring the warranty? This is essentially what the trial court addressed, but the issue was presented at trial in a manner that is better described in the text.


author: SHARPNACK, Senior Judge.

text:
    Jorge HENRIQUEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1201-CR-6.
    Court of Appeals of Indiana.
    Aug. 22, 2012.

      Deborah Markisohn, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Jorge Henriquez appeals his conviction of resisting law enforcement, a Class D felony. Ind.Code § 35-44-3-3 (2006). We affirm.

ISSUE

Henriquez presents one issue for our review, which we restate as: whether Hen-riquez’s constitutional right to a fair and impartial jury was violated by the alleged improper influence of an alternate juror.

FACTS AND PROCEDURAL HISTORY

In June 2010, Henriquez was charged with resisting law enforcement and failure to stop after an accident with an unattended vehicle. A jury trial was held in November 2011 only as to the charge of resisting law enforcement. At some point during jury deliberations, the bailiff informed the court that she heard someone in the jury room say something to the effect of “you need to be able to live with your decision.” Tr. p. 220. The bailiff indicated that she believed the voice was that of the alternate juror. The judge and counsel discussed the appropriate way to deal with the situation, and the alternate juror was called into the courtroom. The judge instructed the alternate juror that he was not to take part in the deliberations or influence the jury in any way. The alternate juror indicated that he understood that he was not to communicate with the jury, and he was sent back to the jury room.

Following deliberations, the jury returned a verdict of guilty. Henriquez was sentenced to 365 days with 357 days suspended, and he was placed on probation for sixty days. It is from this conviction that he now appeals.

DISCUSSION AND DECISION

Henriquez contends that his constitutional right to a fair and impartial jury was violated by the failure of the trial court to “adequately ascertain if the alternate [juror] had engaged in deliberations.” Appellant’s Br. p. 10.

The State observes, and Henriquez concedes, that he did not object to this alleged error at trial. Thus, Henriquez’s failure to object results in waiver of the issue on appeal. See Beeler v. State, 959 N.E.2d 828, 830 (Ind.Ct.App.2011) (stating that issue is waived for appeal if not objected to at trial), trans. denied. Seeking to avoid procedural default, Henriquez claims that the trial court’s handling of the situation with the alternate juror constitutes fundamental error.

The mere fact that error occurred and that it was prejudicial does not satisfy the fundamental error rule; rather, the doctrine of fundamental error is only available in egregious circumstances. Dickerson v. State, 957 N.E.2d 1055, 1057 (Ind.Ct.App.2011), trans. denied. Likewise, it is not enough, in order to invoke this doctrine, to urge that a constitutional right is involved. Id. To show fundamental error, a defendant must demonstrate error that caused actual and substantial disadvantage, infecting and tainting the entire proceeding. Id. In other words, the error must so prejudice the rights of the defendant as to make a fair trial impossible. Id.

“A defendant seeking a new trial because of juror misconduct must show that the misconduct (1) was gross and (2) probably harmed the defendant.” Griffin v. State, 754 N.E.2d 899, 901 (Ind.2001), clarified on reh’g, 763 N.E.2d 450 (2002). This Court reviews the trial court’s determination on this issue for an abuse of discretion, with the appellant having the burden of showing that the misconduct meets the prerequisites for a new trial. Id.

Henriquez cites Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973), in support of his argument. In Lindsey, the local newspaper published an article during Lindsey’s burglary trial alleging a rape in connection with the burglary, although Lindsey was not charged with rape; reporting a prior commitment of Lindsey for an attack of another woman several years earlier, although this information was not in evidence; and reporting identification of Lindsey from police mug files by the prosecuting witness, although the witness had testified that she could not identify Lindsey from police photographs. Lindsey filed a motion for mistrial, which was denied by the trial court. The trial proceeded to a verdict of guilty, after which the court conducted an examination of the jury regarding the newspaper article. From this examination it was disclosed that some of the jurors had had no exposure to the article but that several had had exposure that varied from mere awareness of the publication to knowledge from having read a portion of it. In addition, there were two jurors who had read the entire article. Only these two jurors were questioned regarding whether their exposure had influenced their decision. They stated that they were not influenced by the article, and the verdict was permitted to stand.

On appeal, our Supreme Court held that the failure of the trial court to take remedial action at the proper time violated Lindsey’s constitutional right to a fair trial. Id. at 822. The Court stated that upon a suggestion of improper and prejudicial publicity, the trial court should make a determination as to the likelihood of resulting prejudice based upon both the content of the publication and the likelihood of a juror having been exposed to it. Id. at 824. If the risk of prejudice appears substantial, the court should interrogate the jury as a whole to determine who has been exposed. Id. The Court further instructed that if there has been no exposure, the trial court should then instruct upon the hazards of exposure and the necessity of avoiding exposure to extrajudicial information concerning the case. Id. If any of the jurors have been exposed, they must be individually interrogated by the court outside the presence of the other jurors to determine the degree and effect of the exposure; each such juror should then be individually admonished. Id. After all exposed jurors have been individually interrogated and admonished, the jury should be assembled and collectively admonished. Id. Finally, the Court directed that if the defendant deems such action insufficient to remove the peril, he should move for a mistrial. Id.

Here, Henriquez asserts that, pursuant to the dictates of Lindsey, the alleged conduct of the alternate juror imposed upon the trial court a duty to determine if the alternate juror had engaged in deliberations by interrogating the alternate and the regular jury members. While we acknowledge the Lindsey Court’s instruction that the trial court should make a determination as to the likelihood of resulting prejudice when there has been a suggestion of improper jury influence, see id. at 824, we are also mindful of the remainder of the Court’s instruction. That is, the trial court is obligated to interrogate the jury only if the risk of prejudice appears substantial, not merely imaginary or remote. Id.

In Agnew v. State, 677 N.E.2d 582 (Ind.Ct.App.1997), trans. denied, a panel of this Court acknowledged the procedure set forth in Lindsey but noted that if the trial court, within its discretion, determines that the jury’s exposure to prejudicial information does not raise a substantial risk of prejudice, it has no duty to interrogate the jurors or to take further remedial action. Id. at 584. The allegedly prejudicial occurrence in Agnew took place when, during deliberations, the jury asked to review the testimony of both Agnew and the victim. The jury was brought back into the courtroom to hear the taped testimony. The victim was also present in the courtroom for the replaying of the testimony, and she could be heard sobbing and crying during the replaying of Agnew’s testimony. The trial court subsequently denied both Agnew’s motion for mistrial and motion to correct error based upon the victim’s conduct and stated that it did not find the victim’s conduct to be disruptive. Id. In affirming the trial court, this Court noted the trial court’s determination that the victim’s behavior presented no risk of prejudice. Id.

We find Henri v. Curto, 908 N.E.2d 196 (Ind.2009), to be instructive as well. In Henri, it was claimed that the alternate juror used noises and gestures to communicate with the regular jurors during deliberations and to interrupt deliberations during statements favorable to Henri’s case. In addition, during deliberations the alternate juror paced and got on the floor and began exercising, causing other jurors to laugh. Our Supreme Court determined that while the alleged behavior of the alternate was disappointing and immature, it did not rise to the level of gross misconduct that would be injurious to Henri. Id. at 204.

The facts here are readily distinguishable from those in Lindsey and are more akin to the facts in Henri. During deliberations in the instant case, the bailiff reported to the court that she had heard someone in the jury room say, in a “raised voice,” something to the effect of “you need to be able to live with your decision.” Tr. p. 220. The bailiff further indicated to the court her belief that the voice she heard was that of the alternate juror. Upon receiving this information, the court asked the parties how they wanted to proceed. Defense counsel suggested bringing the jury into the courtroom and reminding them that the alternate is not to deliberate. Defense counsel also commented that “juries tend to monitor themselves pretty well” and that if the alternate is trying to deliberate, the other jurors would stop him or bring it to the court’s attention. Id. at 221. The court then brought the alternate juror into the courtroom and advised him that he was not to deliberate, take part in the deliberations, influence the jury, or communicate with the jury in any way. Further, at the request of defense counsel, the court admonished the alternate not to speak with the jury about this current communication with the court. The alternate juror indicated he understood and agreed. Defense counsel raised no objection to the trial court’s course of action or to the admonishments it gave the alternate juror.

From these facts it is clear that the trial court, in its proper discretion, determined that the alternate’s alleged conduct posed only a remote risk of prejudice, if any at all. Therefore, no full scale inquiry was warranted. We find no abuse of the trial court’s discretion and, thus, find no error, fundamental or otherwise. Moreover, in seeking a new trial based upon juror misconduct, Henriquez has not met his burden of showing that the alleged misconduct was gross and probably injurious to him. See Griffin, 754 N.E.2d at 901.

CONCLUSION

Based upon the foregoing, we conclude that it was not error for the trial court to not interrogate the jurors or take other remedial action. Henriquez’s claim of fundamental error fails.

Affirmed.

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


author: VAIDIK, Judge. CRONE, Judge,

text:
    KONRAD MOTOR AND WELDER SERVICE, INC., Konrad Lambrecht, and Sharon Lambrecht, Appellants-Defendants, v. MAGNETECH INDUSTRIAL SERVICES, Inc., Appellee-Petitioner.
    No. 45A04-1203-CC-109.
    Court of Appeals of Indiana.
    Aug. 23, 2012.

      Adam D. Decker, Crown Point, Indiana, Gerald M. Bishop, Merrillville, IN, Attorneys for Appellants.
    James M. Lewis, Mark D. Kundmueller, Tuesley Hall Konopa, LLP, South Bend, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Konrad Motor & Welder Service, Inc. (“Konrad MWS”), Konrad Lambrecht, and Sharon Lambrecht appeal the trial court’s grant of summary judgment in favor of Magnetech Industrial Services, Inc. Konrad MWS and the Lambrechts argue that there is a genuine issue of material fact regarding whether the corporate veil of Konrad Electric, Inc., a previous corporation, should be pierced in order to hold the Lambrechts individually liable for Konrad Electric’s debts and whether Konrad MWS is the alter ego of Konrad Electric.

We conclude that the trial court erred in granting summary judgment in favor of Magnetech and piercing Konrad Electric’s corporate veil because there are genuine issues of material fact such that this determination should not have been made on summary judgment. However, we conclude that the trial court properly granted summary judgment in favor of Magnetech as to the second issue because Konrad MWS is the alter ego of Konrad Electric.

We therefore affirm in part, reverse in part, and remand.

Facts and Procedural History

Konrad Electric was an Indiana corporation that was formed in August 1991. Throughout its seventeen-year existence, Sharon was the sole shareholder, president, secretary, and treasurer of the corporation. Appellant’s App. p. 40. Sharon also served as the registered agent for Konrad Electric, with its principal office located on Lindberg street in Griffith, Indiana. Id. at 95. Konrad, Sharon’s husband, was employed by Konrad Electric as its general manager.

According to Sharon, approximately 80% of the work performed by Konrad Electric involved making repairs to electric motors. Id. at 96. Konrad Electric also provided welding services for twelve different customers, including Jupiter Aluminum, Mag-netech, Meade Electric, and Amex. Id. at 58-59. The only equipment owned by Konrad Electric consisted of a pair of used service trucks, a compressor, several metal benches, an office desk, and a computer. Id. at 43-44. Konrad testified that he used his personally owed hand tools to complete the work for Konrad Electric.

Corporate records show that from its incorporation until it suspended activities in 2008, Konrad Electric did not have actual meetings. Records show three documents titled “Consent in Lieu of Annual Meeting of the Shareholders and Directors of Konrad Electric, Inc.” dated August 1997, 2000, and 2004 with no additional consents or minutes in lieu of such meetings. Id. at 85-87. However, Konrad Electric did have a corporate record book and kept all business records, including contracts, payroll records, banking records, filed tax returns, and other corporate records. Id. at 95. Konrad Electric also had a corporate bank account from which business expenses were paid. Id. at 96.

In May 2004, Jupiter hired Konrad Electric to perform repair work on two large electric motors. Konrad Electric subcontracted part of the work to Magne-tech. Notably, Magnetech and Konrad Electric had a long-time business relationship that began when Konrad Electric was formed. In March 2005, after some problems arose, Jupiter filed suit against Konrad Electric in Lake Superior Court. Konrad Electric then filed a third-party complaint against Magnetech claiming it performed defective repair work on the motors, and Magnetech counterclaimed against Konrad Electric for payment of services. In February 2006, while the lawsuit was pending, Konrad Electric stopped taking new customers and limited its activities to completing work on existing jobs. Also in February 2006, the Lambrechts formed a new corporation called Konrad MWS. Id. at 61.

Konrad MWS is an Indiana corporation. Since its inception in February 2006, Konrad has served as the sole shareholder, director, registered agent, employee, and officer of this corporation. The assets used in the start up of this new business consisted of a truck that Konrad “took back from Konrad Electric” as payment for wages owed and Konrad’s own hand tools. Id. at 59. The address listed for the corporation is the Lambrechts’ home address. Konrad admitted that he did not do motor or welding work at that address. Instead, from 2006 to 2008, the two corporations shared the same business location on Lindberg street. Konrad MWS continued conducting business at the Lindberg address until sometime in 2009, when it moved to a new location.

Konrad MWS, like Konrad Electric, repaired electric motors and welding equipment. According to Konrad, approximately 80% of the business of Konrad MWS was related to welding repair and consulting. Id. at 99. Both Konrad Electric and Konrad MWS performed these services for the same customers, including Jupiter and Meade.

In May 2008, while the lawsuit was still pending, Sharon signed a resolution to “suspend any further business activity” related to Konrad Electric. Id. at 88. According to Sharon, Konrad Electric was not making any money and there were insufficient funds to pay wages or obligations. Id. at 96. Sharon withdrew the $293 remaining in Konrad Electric’s bank account and paid it to Konrad for wages that were owed. Id.

In December 2008, Lake Superior Court entered a judgment in favor of Magnetech and against Konrad Electric in the amount of $35,131.95. Konrad Electric, however, was without assets to satisfy this judgment. Accordingly, in January 2011, Mag-netech filed a third-party complaint against Konrad MWS and the Lambrechts alleging that: (1) Konrad MWS is the alter ego of Konrad Electric and (2) Konrad Electric’s corporate veil should be pierced in order to hold the Lambrechts personally liable for the debts of Konrad Electric. Magnetech moved for summary judgment on both claims. Konrad MWS and the Lambrechts filed a cross-motion seeking summary judgment in their favor. Following a hearing, in February 2012, the trial court entered the following order granting Magnetech’s motion for summary judgment and denying the cross-motion filed by Konrad MWS and the Lambrechts:

As [Konrad MWS] operates the same business as [Konrad Electric], providing the same service to the same customers using the same equipment and operating from the same location it is clearly the alter ego of [Konrad Electric]. Further, as the Lambrechts did not properly capitalize [Konrad Electric] and did not follow corporate formalities and their own Bylaws in operating [Konrad Electric][,] [t]he court has pierced the corporate veil and finds them liable for the debts of [Konrad Electric].

Id. at 16.

Konrad MWS and the Lambrechts now appeal.

Discussion and Decision

It is undisputed that Konrad Electric is liable to Magnetech for $35,131.95. The issue is whether the Lambrechts and Konrad MWS are also liable for Konrad Electric’s debt. The trial court found that the Lambrechts and Konrad MWS are indeed liable and granted Magnetech’s motion for summary judgment. When reviewing a grant or denial of a motion for summary judgment, we stand in the shoes of the trial court and are not limited to reviewing the trial court’s reasons for granting summary judgment. Ziese & Sons Excavating, Inc. v. Boyer Constr. Corp., 965 N.E.2d 713, 719 (Ind.Ct.App.2012). We resolve any doubt about a fact or any inference to be drawn from it in favor of the nonmoving party. Id. We will affirm a grant of summary judgment only if no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Id; see also Ind. Trial Rule 56(C). If we have any doubts concerning the existence of a genuine issue of material fact, we must resolve those doubts in favor of the nonmoving party. Id. In addition, “summary judgment should not be granted when it is necessary to weigh the evidence.” Cmty. Care Ctrs., Inc. v. Hamilton, 114 N.E.2d 559, 569 (Ind.Ct.App.2002) (quotation omitted), trans. denied. The fact that the parties have made cross-motions for summary judgment does not alter our standard of review. Grinnell Mut. Reins. Co. v. Ault, 918 N.E.2d 619, 625 (Ind.Ct.App.2009).

I. Piercing the Corporate Veil

The basic principle of corporate law is that corporate shareholders are liable for acts of the corporation only to the extent of their investment and are not personally liable for the corporation’s acts. Ziese, 965 N.E.2d at 719. It is well settled that our courts are reluctant to disregard corporate identity; however, we may do so if it is necessary to prevent fraud or unfairness to third parties. Id. “When a court exercises its equitable power to pierce a corporate veil, it engages in a highly fact-sensitive inquiry.” Id. (quotation omitted).

“Because of the bedrock nature of the principle of limited shareholder liability, the burden on a party seeking to ‘pierce the corporate veil’ is severe.” Escobedo v. BHM Health Assocs., 818 N.E.2d 930, 933 (Ind.2004). Such a party may only recover from a shareholder if the party proves by a preponderance of the evidence “that the corporate form was so ignored, controlled or manipulated that it was merely the instrumentality of another and that the misuse of the corporate form would constitute a fraud or promote injustice.” Id. The fraud or injustice alleged by a party seeking to pierce the corporate veil must be caused by, or result from, misuse of the corporate form. CBR Event Decorators v. Gates, 962 N.E.2d 1276, 1282-83 (Ind.Ct.App.2012). In determining whether that burden has been met, we consider the following factors: (1) undercapitalization; (2) absence of corporate records; (3) fraudulent representation by corporation shareholders or directors; (4) use of the corporation to promote fraud, injustice, or illegal activities; (5) payment by the corporation of individual obligations; (6) commingling of assets and affairs; (7) failure to observe required corporate formalities; and (8) other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form. Ziese, 965 N.E.2d at 720. These factors are not exhaustive in that not all factors must be shown to support a determination that the corporate veil should be pierced. Gates, 962 N.E.2d at 1282.

We first address whether the trial court erred in finding that the initial corporation founded in 1991, Konrad Electric, was a mere instrumentality of the Lam-brechts formed with the sole purpose of perpetrating a fraud and therefore whether the Lambrechts should be held individually liable for Konrad Electric’s debts. The Lambrechts argue that the trial court erred in granting Magnetech’s motion for summary judgment to pierce the corporate veil of Konrad Electric and hold them individually liable for the $35,131.95 judgment against Konrad Electric. The Lam-brechts further argue that they are entitled to judgment as a matter of law.

Magnetech fails to direct our attention to any cases where Indiana courts have pierced the corporate veil on summary judgment. “This is not surprising in light of the fact that it is recognized that the determination of whether there are sufficient grounds for piercing the corporate veil ordinarily should not be disposed of by summary judgment, in view of the complex economic questions often involved, especially if fraud is alleged.” Hamilton, 774 N.E.2d at 565; see also Ziese, 965 N.E.2d at 719 (“[P]iercing the corporate veil is a fact-sensitive inquiry rendering summary judgment appropriate only in extraordinary circumstances.”). We must determine whether Magnetech has proven that Konrad Electric’s corporate form was so ignored, controlled, or manipulated that it was a mere instrumentality of the Lam-brechts and that the misuse of the corporate form would constitute a fraud or promote injustice. To answer this question, we examine the eight factors.

On one hand, Konrad Electric held itself out as a corporation and contracted with numerous companies, including Magne-tech, as a corporation. In addition, Konrad Electric had a corporate bank account, banking records, tax returns, payroll records, contracts, and other corporate records. Konrad Electric paid its obligations for seventeen years with no indication that it could not meet its obligations until the $35,131.95 Magnetech judgment. Konrad Electric did not pay the individual obligations of Sharon or Konrad and paid the debts of the corporation only. The Lam-brechts did not commingle their personal assets with Konrad Electric.

On the other hand, when Konrad Electric was formed in August 1991, it had limited assets consisting of a used service truck, a compressor, and several metal benches. In addition, except for three times when Sharon adopted a consent in lieu of annual meeting, Konrad Electric did not hold annual shareholder meetings as required by its bylaws. And after Mag-netech filed the lawsuit against Konrad Electric, Konrad Electric stopped taking new customers and suspended business operations, and the Lambrechts formed Konrad MWS and continued operating under the new company.

While it may be that Konrad Electric’s corporate veil should be pierced, this determination should not have been made on summary judgment. Hamilton, 774 N.E.2d at 565. While the facts do not appear to be in dispute, summary judgment is inappropriate where the undisputed facts themselves give rise to conflicting inferences which would alter the outcome. Bochnowski v. Peoples Fed. Sav. & Loan Ass’n., 571 N.E.2d 282, 285 (Ind.1991). More than one inference can be drawn from these facts. One reasonable inference is that Konrad Electric’s seventeen-year corporate existence was the result of the Lambrechts’ decision to form a limited liability corporation, an attractive option for small-business owners. Another equally reasonable inference is that Konrad Electric was a mere instrumentality of the Lambrechts, formed with the sole purpose of perpetrating fraud or injustice to others.

Because the record before us is inconclusive as to whether Konrad MWS was merely a sham corporation in existence to allow the Lambrechts to escape liability, we conclude that the trial court erred in piercing Konrad Electric’s corporate veil on summary judgment. See Hamilton, 774 N.E.2d at 564 (holding that if the court has any doubts concerning the existence of a genuine issue of material fact, it must resolve those doubts in favor of the non-moving party and reverse the entry of summary judgment). Thus, we remand for further proceedings to determine whether Konrad Electric’s corporate veil should be pierced and liability imposed upon the Lambrechts.

On remand, we note that if Konrad Electric’s corporate veil is pierced, Konrad, even though not a shareholder, may be held individually liable along with Sharon. See Fairfield Dev., Inc. v. Georgetown Woods Senior Apartments LP, 768 N.E.2d 463, 473 (Ind.Ct.App.2002) (finding Don Martz, allegedly not a director, officer, or shareholder of Fairfield, but nonetheless the principal figure who controlled Fair-field’s dealings with other businesses and was intimately involved in Fairfield’s projects, personally liable for Fairfield’s obligations when its corporate veil was pierced), trans. denied.

II. Alter Ego Doctrine

We now turn to the issue of whether the trial court erred in finding that Konrad MWS was the alter ego of Konrad Electric. Konrad MWS argues that the trial court erred in granting Mag-netech’s motion for summary judgment because that conclusion is not supported by the evidence and therefore it is entitled to judgment as a matter of law. Corporate identity may be disregarded “where one corporation is so organized and controlled and its affairs so conducted that it is a mere instrumentality or adjunct of another corporation.” Hamilton, 774 N.E.2d at 569 (quotation omitted). Indiana courts will not recognize corporations as separate entities where evidence shows that several corporations are acting as one. Id. A subset of piercing the corporate veil to hold one corporation liable for the actions of another is the corporate alter ego doctrine. Ziese, 965 N.E.2d at 720.

“The corporate alter ego doctrine is a device by which a plaintiff tries to show that two corporations are so closely connected that the plaintiff should be able to sue one for the actions of the other.” Id. (quotation omitted). “The purpose of the doctrine is to avoid the inequity that results when one corporation uses another corporation as a shield from liability.” Id. When a plaintiff seeks to pierce the corporate veil using this doctrine, we consider additional factors, including whether: (1) similar corporate names were used; (2) the corporations shared common principal corporate officers, directors, and employees; (3) the business purposes of the corporations were similar; and (4) the corporations were located in the same offices and used the same telephone numbers and business cards. Id. Corporate identity may be disregarded under the alter ego doctrine where multiple corporations are operated as a single entity; where they are “manipulated or controlled as a single enterprise through their interrelationship to cause illegality, fraud, or injustice or to enable one economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.” Id. (quotation omitted). Factors indicating that a corporation is the alter ego of another may include the intermingling of business transactions, functions, property, employees, funds, records, and corporate names in dealing with the public. Id.

Applying the alter ego factors to this case, our review of the evidence reveals significant similarities between Konrad MWS and Konrad Electric. The names of the two corporations, Konrad Motor & Welder Services and Konrad Electric, are very similar. The corporations also shared a common employee, Konrad. In addition, although Konrad Electric’s shares and ownership were in Sharon’s name and the shares of Konrad MWS were in Konrad’s name, they both viewed the corporations as family businesses with the same purpose. Sharon testified “we went into business in 1991” and “we started out with our own personal money.” Appellant’s App. p. 41-42 (emphases added). Konrad testified that in 1991 he decided to go out and start his own business and at that point formed Konrad Electric, whose ownership is solely under Sharon’s name.

Moreover, Konrad MWS was created to conduct the same business that Konrad Electric conducted — repairs to electric motors and welding services. Konrad MWS argues that unlike Konrad Electric, Konrad MWS does very little motor repair business and focuses more on welding repair and consulting. However, this change of business can be attributed to the loss of Konrad Electric’s biggest client, Jupiter. Konrad testified that Konrad Electric provided about 80% of the motor repair services to Jupiter. Id. at 57. After the lawsuit Konrad Electric did “very little” work for Jupiter, “mostly consulting.” Id. at 58-59. Evidence was also presented that from Konrad MWS’s inception in 2006 until the suspension of Konrad Electric in 2008, the two corporations conducted business out of the same office on Lindberg street.

Also notable is the timing in which the events took place. In March 2005, Jupiter filed suit against Konrad Electric. Konrad Electric was very profitable in 2005 with a gross income of $324,357 and gross profit of $149,520. Id. at 47. In February 2006, while the lawsuit was still pending, Konrad Electric ceased taking new customers in anticipation of its suspension and formed a new corporation, Konrad MWS. Id. at 61. In December 2008, the trial court entered judgment in favor of Magnetech and against Konrad Electric. Id. at 7. Konrad Electric then refused to pay the judgment, claiming insufficient assets. Magnetech later learned that the company was still in business, but under the name of Konrad MWS.

Although we recognize that the decision to pierce the corporate veil to hold one corporation liable for the debts of another corporation is rarely appropriate on summary judgment, the only reasonable inference here is that Konrad MWS is the alter ego of Konrad Electric. That is, Konrad Electric tried to avoid paying the judgment to Magnetech while still conducting the same business under a new name, Konrad MWS. Konrad MWS offers no other reasonable inference.

Magnetech set forth evidence that Konrad Electric and Konrad MWS had similar names and business purposes. Magnetech also showed that the two corporations shared an employee and a business address. Konrad MWS was also conveniently formed shortly after Konrad Electric was sued by Magnetech. We therefore conclude that Konrad MWS is the alter ego of Konrad Electric. Equity requires that Konrad MWS be held liable for the debt of Konrad Electric in order to protect an innocent third party, Magnetech, from unfairness. The trial court was correct in granting Magnetech’s motion for summary judgment on this issue. Konrad MWS is therefore liable for Magnetech’s $35,131.95 judgment against Konrad Electric.

Affirmed in part, reversed in part, and remanded.

BRADFORD, J., concurs.

CRONE, J., concurs in part and dissents in part with separate opinion.

CRONE, Judge,

concurring in part and dissenting in part.

I agree with the majority that the only reasonable inference that may be drawn from the undisputed designated evidence is that Konrad MWS is the alter ego of Konrad Electric. I also believe that the only reasonable inference that may be drawn from the undisputed designated evidence is that Konrad Electric was “merely a sham corporation in existence to allow the Lambrechts to escape liability” and that the trial court properly pierced the corporate veil. Op. at 1164. Therefore, I respectfully dissent as to that issue.

Konrad Electric may have had many of the outward trappings of a bona fide corporation, such as banking and payroll records, but, as the majority observes, it was incorporated with “limited assets consisting of a used service truck, a compressor, and several metal benches”; it “did not hold annual shareholder meetings as required by its bylaws”; and “after Magne-tech filed the lawsuit against Konrad Electric, Konrad Electric ceased taking new customers and suspended business operations, and the Lambrechts formed Konrad MWS and continued operating under the new company.” Id. at 1164. All three of these factors, and especially the last, establish beyond reasonable dispute that Konrad Electric was a mere instrumentality of the Lambrechts, who observed corporate formalities only when it suited them and essentially shifted the corporation’s only assets, i.e., its corporate opportunities with its existing customer base, to a new corporation in order to avoid judgment in Magnetech’s lawsuit. Although piercing the corporate veil is, and should be, a rare occurrence on summary judgment because of the highly fact-sensitive nature of the inquiry involved, I believe that it is appropriate when the relevant facts are undisputed and lead to only a single reasonable conclusion. The trial court reached the right conclusion here.

      . The fact that in 2006 Konrad Electric ceased taking new customers and the Lam-brechts formed Konrad MWS is but one factor the trial court must consider when determining whether the Lambrechts are individually liable for the debts of Konrad Electric. Certainly, the fact that the Lam-brechts formed Konrad MWS under the circumstances that they did does tend to show that the Lambrechts used Konrad Electric as their own instrumentality. But we de-dine to create a bright-line rule assessing personal liability on shareholders who form alter ego corporations. Konrad Electric operated for fifteen years before Konrad MWS's formation, and the conduct of the Lambrechts with regard to Konrad Electric during those fifteen years is also relevant to the court's analysis of whether Konrad Electric was a mere instrumentality of the Lam-brechts.