OPINION

BAILEY, Judge.

Case Summary

James R. Sapp ("Sapp") appeals the denial of his motion to correct error, which challenged a summary judgment order upon the claims of Flagstar Bank, FSB ("Flagstar") against Sapp for breach of contract, theft, conversion, and unjust enrichment. We affirm in part, reverse in part, and remand.

Issues

Sapp presents four issues for review:

Facts and Procedural History

On August 23, 2005, at a Flagstar branch in Castleton, Sapp presented a check in the amount of $125,000 for deposit into the business account of SF7 LLC1 ("the LLC Account"). The LLC Account was given a provisional settlement of $125,000. Flagstar lost the check. Two months later, on October 27, 2005, Flagstar notified Sapp of the loss and sought his assistance in identifying the source of the check. There was some indication that it had been drawn on a Flagstar account belonging to the Lenora M Sapp Trust.2

Sapp was unable or unwilling to disclose the maker of the $125,000 check that had been deposited. Flagstar threatened set-off from the Lenora M Sapp Trust account (identified by Sapp as a trust for the support of his mother, of which Sapp was trustee) and/or another account on which Sapp was a signator; however, Sapp issued checks drawn on the other accounts such that the funds were largely depleted.

Flagstar, unable to debit a particular account without the lost check, charged-back the deposit to the LLC Account on November 11, 2005. As the majority of the $125,000 had been removed in transactions over the preceding months, the charge-back resulted in a negative balance of $123,093.65. Flagstar was also unable to recoup the $123,093.65 from the Lenora M Sapp Trust account or an account owned by ESAPP, LLC. Flagstar then sued Sapp for theft, conversion, breach of contract, and unjust enrichment. When deposed, Sapp testified that the $125,000 deposit may have come from a cashier's check.

On March 1, 2010, Sapp filed a motion for summary judgment as to all counts of the amended complaint. Flagstar filed a cross-motion for summary judgment. On June 16, 2010, the trial court conducted a summary judgment hearing, at which argument of counsel was heard. Sapp argued that the provisional deposit became a final settlement under the Indiana Uniform Commercial Code ("the UCC")3, and that his refusal to make funds available to cover an illegal charge-back could not constitute theft or conversion. Flagstar contended that, notwithstanding the provisions of the UCC,4 Flagstar had a right to charge back the $125,000 deposit months later and, further, Flagstar had a right to set-off against the Lenora M Sapp Trust account, with which set-off Sapp had interfered.

On July 22, 2010, the trial court entered an order on the cross-motions, denying Sapp's motion and granting Flagstar's motion. The matter was set for a damages hearing. On November 4, 2010, following a hearing on attorney's fees, the trial court entered an order against Sapp for $123,034.63 as "damages" and $77,498.50 in attorney's fees. The order clarified that summary judgment was entered in Flagstar's favor on the unjust enrichment and theft claims but denied as to the breach of contract claim. In response to Sapp's motion to correct error, the trial court further clarified that Sapp's motion for summary judgment on the breach of contract claim was denied and also denied a request to vacate the order for attorney's fees. Sapp appeals.

Discussion and Decision

Standard of Review

Summary judgment is appropriate only if the pleadings and designated materials considered by the trial court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Yates v. Johnson County Bd. of Comm'rs, 888 N.E.2d 842, 846 (Ind.Ct.App.2008). Our well-settled standard of review is the same as it was for the trial court. Landmark Health Care Assocs. L.P. v. Bradbury, 671 N.E.2d 113, 116 (Ind.1996).

We must construe all evidence in favor of the party opposing summary judgment, and all doubts as to the existence of a material issue must be resolved against the moving party. Id. at 847. However, once the movant has carried its initial burden of going forward under Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues, which should be resolved at trial. Otto v. Park Garden Assocs., 612 N.E.2d 135, 138 (Ind. Ct.App.1993), trans. denied. If the nonmovant fails to meet his burden, and the law is with the movant, summary judgment should be granted. Id.

A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.Ct.App. 2007), trans. denied. Questions of law are reviewed de novo and we owe no deference to the trial court's legal conclusions. In re Guardianship of Phillips, 926 N.E.2d 1103, 1106 (Ind.Ct.App.2010).

We may affirm the grant of summary judgment on any basis argued by the parties and supported by the record. Payton v. Hadley, 819 N.E.2d 432, 437 (Ind.Ct. App.2004). However, neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct. App.1999). Trial Rule 56(H) specifically prohibits this Court from reversing a grant of summary judgment on the ground that there is a genuine issue of material fact, unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 45 (Ind.Ct. App.2004).

Our standard of review is not altered by the fact that the parties made cross-motions for summary judgment. Indiana Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000). Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

I. Breach of Contract

Summary judgment may be particularly appropriate in contract disputes, as interpretation of a contract presents a question of law and is reviewed de novo. Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 55 (Ind.Ct.App.2009), trans. denied. When interpreting a contract, our paramount goal is to ascertain and effectuate the parties' intent. Id. at 56.

As a threshold matter, the parties dispute—at some length—whether their contract incorporated the provisions of Article 4 of Indiana's UCC, which applies to bank deposits and collections, and provides for time limitations upon charge-back of provisional settlements. Sapp relies upon UCC provisions to argue that Flagstar did not provide notice of dishonor of the $125,000 negotiable instrument before the settlement became final.

According to Flagstar, however, Sapp's "reliance on the UCC is misplaced," Appellee's Brief at 11, and the UCC provisions for charge-backs and finality of settlement are inapplicable because (1) the Agreement contemplates only a provisional settlement until actual collection of funds and (2) there is no explicit contractual reference to UCC time limitation for charge-backs. Flagstar asserts that Sapp contracted "to bear liability for any shortfalls in the account," Appellee's Brief at 21, and "Had Flagstar and Sapp intended for the Indiana Commercial Code to apply, they could have so stated in the Disclosure Form." Appellee's Brief at 14.

In essence, Flagstar's position is that the UCC time limitations must be explicitly adopted in a contract and, in the absence of such a provision, a depositor (under freedom of contract principles) may agree to indefinitely indemnify the bank, even for the bank's own negligence. In Flagstar's view, all risk of loss is on the depositor until final collection of an item. This position is contrary to law.

In general, the UCC applies to commercial banking transactions, but the parties may agree to alter provisions, although a bank's liability for its own negligence cannot be disclaimed. Indiana Code Section 26-1-4-102(b) provides in relevant part: "The liability of a bank for action or nonaction with respect to an item handled by it for purposes of presentment, payment, or collection is governed by the law of the place where the bank is located." As for variation by agreement, Indiana Code Section 26-1-4-103(a) provides:

Here, the designated evidence includes the Business Deposit Account Disclosure Form ("the Agreement"), which provides:

(App.207.) We find no indication in the Agreement that the parties intended to fully opt-out of the application of the UCC. Moreover, the language of the Agreement is generally consistent with various UCC provisions relative to predictability and finality of banking transactions. Whether the charge-back provision in particular was altered by agreement will be discussed infra.

The Agreement provides that only provisional credit will be given for non-cash items "until collection is final ... including items drawn `on us.'" (App.207.) Notwithstanding the broad language, Sapp contends that a provisional settlement must become a final settlement no later than the midnight deadline of the eleventh business day.5 With regard to chargebacks, Indiana Code Section 26-1-4-214(a) provides:

(emphasis added.) At the summary judgment hearing, Flagstar argued, and Sapp conceded, that Flagstar was both the depositary bank and payor bank. In such a case, the right of charge-back is addressed by subsection (c) also:

Indiana Code Section 26-1-4-301(b) provides:

Subsection (a) provides:

The above-referenced "midnight deadline" is defined in Indiana Code Section 26-1-4-104(11): "`midnight deadline' with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later." Subsection (12) defines "settle" as "to pay in cash, by clearing-house settlement, in a charge or credit, or by remittance, or otherwise as instructed." A settlement may be either provisional or final.

Indiana Code Section 26-1-4-215, governing when provisional debits and credits become final, provides in relevant part:

In the section entitled "Your Ability to Withdraw Funds," the Agreement provides that funds deposited by check may be delayed when "we believe a check you deposit will not be paid" or "you deposit checks totaling more than $5,000 on any one day." (App.165.) The Agreement further provides that, in such circumstances, "we will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. They will generally be available no later than the eleventh business day after the day of your deposit." (App.165.)

As such, the Agreement employed language consistent with the UCC. A depositor entering into such a contract would reasonably expect to enjoy the protections of the UCC with regard to the allocation of risk and predictability and finality of commercial transactions. Ultimately, however, the UCC incorporates a standard of reasonableness for final settlement.

It is not disputed that Flagstar lost the check here at issue and notified Sapp two months later. To the extent that the Agreement may be said to have varied some UCC provisions by agreement (notwithstanding its recognition of the general applicability of federal and state laws), it cannot operate to indemnify Flagstar for its own failure to exercise ordinary care. The reason the funds were available to Sapp is the bank's loss of the check and failure to identify its risk during that time period. Ultimately, Sapp could not have contracted to insulate the bank from its own failure to exercise ordinary care. See Ind.Code § 26-1-4-103(a).

The dispute between Flagstar and Sapp is not resolved by construction of contract terms. To date, no fact-finder has determined whether or not the bank's loss of the check and two-month acquiescence was a failure to exercise ordinary care. Accordingly, a genuine issue of material fact precludes the entry of summary judgment.

II. Theft

Pursuant to the Agreement, Flagstar could offset a deficiency in the LLC Account by taking funds from another account in which Sapp was a primary owner. Flagstar alleged that Sapp committed theft by preventing a set-off for the charged-back deposit:

(App.8.) As such, Flagstar sought recovery pursuant to Indiana Code Section 34-24-3-1, which permits a victim of certain crimes, including theft and conversion, to bring a civil action for treble damages and attorney's fees. However, the statute does not apply to the mere failure to pay a debt. Tobin v. Ruman, 819 N.E.2d 78, 89 (Ind. Ct.App.2004), trans. denied.

The trial court granted summary judgment to Flagstar on the theft count as opposed to the alternatively-alleged conversion count. A criminal conviction for theft is not a condition precedent to recovery in a civil action for theft. Cf. Breining v. Harkness, 872 N.E.2d 155, 159 (Ind.Ct. App.2007) (discussing establishment of civil action for conversion), trans. denied. Rather, a claimant must merely prove commission of the crime by a preponderance of the evidence. Id.

To qualify for remedies under Indiana Code Section 34-24-3-1, Flagstar would be required to show that it suffered a pecuniary loss as a result of Sapp's commission of theft. Under Indiana Code Section 35-43-4-2(a), "a person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony."

Flagstar, as the party seeking summary judgment on this claim, bore the burden to make a prima facie showing that there are no genuine issues of material fact and that Flagstar was entitled to judgment as a matter of law. Am. Mgmt., Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind.Ct. App.1996). It is only when the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56 that the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id.

Sapp admits that he negotiated trust fund checks amounting to $183,000, after having knowledge that Flagstar desired a set-off against accounts upon which Sapp was a signatory. Admittedly, the withdrawal of funds prevented Flagstar from attempting an offset from those funds. However, Flagstar has designated no materials that indicate Sapp removed funds from an account of which he was a primary owner as opposed to a trustee or minority shareholder. Moreover, it was undisputed that Sapp had a right to negotiate checks or withdraw funds.

Nonetheless, an element of the theft statute was negated in that Sapp did not exert "unauthorized" control over the funds. Again, these were funds available for withdrawal, and Sapp accessed them through honored negotiable instruments. Flagstar honored each of the Trust checks that it claims were the vehicle whereby Sapp allegedly accomplished "theft." Flagstar did not come forward with sufficient designated materials to show that Sapp's control was without authorization such that he could have been found by a preponderance of the evidence to have criminally stolen the funds. Sapp is entitled to summary judgment upon this claim.

III. Unjust Enrichment

Here, the parties' relationship as depositor and depositary was governed by contract. "The existence of express terms in a valid contract precludes the substitution of and the implication in law of terms regarding the subject matter covered by the express terms of the contract." Keystone Carbon Co. v. Black, 599 N.E.2d 213, 216 (Ind.Ct.App.1992), trans. denied. The equitable remedy of unjust enrichment was not available to Flagstar. Sapp is entitled to summary judgment upon this claim.

IV. Attorney's Fees

Flagstar was awarded attorney's fees based upon Flagstar's purported establishment of Sapp's commission of theft. Having determined that summary judgment on the theft count was improvidently granted, we also reverse the award of attorney's fees predicated thereon.

Conclusion

A genuine issue of material fact precludes the entry of summary judgment on the contract claim. The designated materials establish that Sapp is entitled to judgment as a matter of law on the theft and unjust enrichment claims. Therefore, we remand for trial only upon the contract claim.

Affirmed in part, reversed in part, and remanded with instructions.

MATHIAS, J., and CRONE, J., concur.