MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 17 2017, 7:45 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Beverly Twilley Edward D. D’Arcy, Jr. Indianapolis, Indiana Michael J. Progar Doherty & Progar LLC Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Beverly Twilley, January 17, 2017 Appellant-Plaintiff, Court of Appeals Case No. 49A05-1604-CT-737 v. Appeal from the Marion Superior Court Pangea Real Estate, PP Indy 6, The Honorable Thomas J. Carroll, LLC and All Unknown Persons, Judge Appellees-Defendants Trial Court Cause No. 49D06-1504-CT-11985
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 1 of 6 [1] Beverly Twilley appeals the trial court’s grant of summary judgment in favor of
Pangea Real Estate (Pangea); PP Indy 6, LLC (PP Indy 6); and other unknown
persons (collectively, the defendants). She argues that a mutual release signed
by her and Pangea is unenforceable and that she was wrongfully evicted from
her apartment. Finding that summary judgment was properly granted to the
defendants, we affirm.
Facts [2] Pangea manages an Indianapolis apartment complex, which is owned by PP
Indy 6. On July 31, 2013, Twilley entered into a lease agreement with Pangea
to live in an apartment (“the First Apartment”) beginning in September 2013.
After moving in, Twilley informed Pangea that she believed that there was
mold in the apartment. On October 3, 2013, Twilley and Pangea signed a
“Mutual Release and Move-Out Agreement.” Appellant’s App. p. 78. Twilley
agreed to move out of the First Apartment by October 30, and she was released
from any obligation she had to Pangea. In return, she agreed to the following:
Upon execution of this agreement, Tenant does hereby release and forever discharge Pangea, and its respective officers, directors, shareholders, partners, attorneys, predecessors, successors, representatives, Insurers, assignees, agents, employees and all persons acting by, through or in any way on behalf of Pangea, (collectively the “Pangea Releasees”), of and from any and all claims, debts, defenses, liabilities, costs, attorneys fees, actions, suits at law or equity, demands, contracts, expenses, damages, whether general, specific or punitive, exemplary, contractual or extra-contractual, and causes of action of any kind or nature that Tenant may now have or claim to have
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 2 of 6 against the Pangea Releasees, including without limitation all claims or causes of action which in any way, directly or indirectly, or in any other way arise from or are connected with or which could have been asserted in connection with the Property or Tenant’s occupancy or use thereof, including those regarding any Security Deposit or Interest accrued thereon; and Tenant further covenants and agrees that this Agreement may be pleaded or asserted by or on behalf of the Pangea Releasees as a defense and complete bar to any action or claim that may be brought against or involving the Pangea Releasees by anyone acting or purporting to act on behalf of Tenant.
Id. On October 12, 2013, Twilley and Pangea signed a new lease agreement for
a different apartment unit (“the Second Apartment”).
[3] Twilley’s February 2014 rent check was not honored by her bank because her
bank account had insufficient funds. On February 24, 2014, Pangea initiated
eviction proceedings in small claims court. On March 24, the small claims
court held an eviction hearing attended by both parties, and ruled in Pangea’s
favor, ordering Twilley to vacate the apartment within a week. She appealed
that decision at the trial court level, but Pangea did not pursue its claims
because it already had possession of the Second Apartment.
[4] In April 2015, Twilley filed a claim against the defendants. In her amended
complaint, she sued for the alleged presence of mold in the First Apartment,
and she claimed that her eviction from the Second Apartment was wrongful
and retaliatory. The defendants filed their answer and on December 21, 2015,
filed a motion for summary judgment along with designated evidence. Five
days before her response was due, on January 15, 2016, Twilley requested an
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 3 of 6 enlargement of time to respond to the summary judgment motion, arguing that
she needed to conduct more discovery. The trial court denied this request, and
after a January 26, 2016, hearing, granted summary judgment in defendants’
favor. On February 25, 2016, Twilley filed a motion to correct error, which the
trial court denied. Twilley now appeals.
Discussion and Decision [5] Twilley has two arguments on appeal. First, she argues that the mutual release
is unenforceable. Second, she argues that if she were given more time for
discovery, “she would have produced the CCS and the order issued by small
claims court #2 stating that Pangea’s and Indy 6’s eviction notice cause of
action against Twilley was dismissed with prejudiced [sic] . . . .” Appellant’s
Br. p. 10. She contends that, therefore, the trial court erred by denying her
motion to correct error.
[6] Summary judgment is proper where no genuine issue of material fact remains
and the movant is entitled to judgment as a matter of law. Ind. Trial Rule
56(C). We apply the same standard as the trial court. AM General LLC v.
Armour, 46 N.E.3d 436, 439 (Ind. 2015). Once the movant designates evidence
indicating that she is entitled to judgment as a matter of law, the nonmoving
party then has the burden to demonstrate that there is a genuine issue of
material fact. Id. All reasonable inferences will be construed in favor of the
nonmoving party. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 4 of 6 [7] In their summary judgment motion and designated evidence, the defendants
produced evidence showing that Twilley released and waived any legal claim
she may have had regarding the First Apartment. They also produced Twilley’s
admission that her bank did not honor her February rent check and an affidavit
of an employee who testified that the eviction decision was not made for any
other reason. Twilley did not file any response to the defendants’ summary
judgment motion.
[8] Instead, Twilley argues that the mutual release is unenforceable. She draws our
attention to Ransburg v. Richards, 770 N.E.2d 393 (Ind. Ct. App. 2002). In that
case, we held that a clause in a residential lease that provided that an apartment
complex would not be liable for any damage, even if caused by its own
negligence, was against public policy and could not be enforced. Id.
[9] Twilley’s argument is misguided. Unlike the defendant in Ransburg, the
defendants here are not citing a clause in the lease that purported to waive all
liability before the fact; instead, the defendants came to an agreement with
Twilley whereby she would be released from her obligations regarding the First
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 17 2017, 7:45 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Beverly Twilley Edward D. D’Arcy, Jr. Indianapolis, Indiana Michael J. Progar Doherty & Progar LLC Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Beverly Twilley, January 17, 2017 Appellant-Plaintiff, Court of Appeals Case No. 49A05-1604-CT-737 v. Appeal from the Marion Superior Court Pangea Real Estate, PP Indy 6, The Honorable Thomas J. Carroll, LLC and All Unknown Persons, Judge Appellees-Defendants Trial Court Cause No. 49D06-1504-CT-11985
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 1 of 6 [1] Beverly Twilley appeals the trial court’s grant of summary judgment in favor of
Pangea Real Estate (Pangea); PP Indy 6, LLC (PP Indy 6); and other unknown
persons (collectively, the defendants). She argues that a mutual release signed
by her and Pangea is unenforceable and that she was wrongfully evicted from
her apartment. Finding that summary judgment was properly granted to the
defendants, we affirm.
Facts [2] Pangea manages an Indianapolis apartment complex, which is owned by PP
Indy 6. On July 31, 2013, Twilley entered into a lease agreement with Pangea
to live in an apartment (“the First Apartment”) beginning in September 2013.
After moving in, Twilley informed Pangea that she believed that there was
mold in the apartment. On October 3, 2013, Twilley and Pangea signed a
“Mutual Release and Move-Out Agreement.” Appellant’s App. p. 78. Twilley
agreed to move out of the First Apartment by October 30, and she was released
from any obligation she had to Pangea. In return, she agreed to the following:
Upon execution of this agreement, Tenant does hereby release and forever discharge Pangea, and its respective officers, directors, shareholders, partners, attorneys, predecessors, successors, representatives, Insurers, assignees, agents, employees and all persons acting by, through or in any way on behalf of Pangea, (collectively the “Pangea Releasees”), of and from any and all claims, debts, defenses, liabilities, costs, attorneys fees, actions, suits at law or equity, demands, contracts, expenses, damages, whether general, specific or punitive, exemplary, contractual or extra-contractual, and causes of action of any kind or nature that Tenant may now have or claim to have
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 2 of 6 against the Pangea Releasees, including without limitation all claims or causes of action which in any way, directly or indirectly, or in any other way arise from or are connected with or which could have been asserted in connection with the Property or Tenant’s occupancy or use thereof, including those regarding any Security Deposit or Interest accrued thereon; and Tenant further covenants and agrees that this Agreement may be pleaded or asserted by or on behalf of the Pangea Releasees as a defense and complete bar to any action or claim that may be brought against or involving the Pangea Releasees by anyone acting or purporting to act on behalf of Tenant.
Id. On October 12, 2013, Twilley and Pangea signed a new lease agreement for
a different apartment unit (“the Second Apartment”).
[3] Twilley’s February 2014 rent check was not honored by her bank because her
bank account had insufficient funds. On February 24, 2014, Pangea initiated
eviction proceedings in small claims court. On March 24, the small claims
court held an eviction hearing attended by both parties, and ruled in Pangea’s
favor, ordering Twilley to vacate the apartment within a week. She appealed
that decision at the trial court level, but Pangea did not pursue its claims
because it already had possession of the Second Apartment.
[4] In April 2015, Twilley filed a claim against the defendants. In her amended
complaint, she sued for the alleged presence of mold in the First Apartment,
and she claimed that her eviction from the Second Apartment was wrongful
and retaliatory. The defendants filed their answer and on December 21, 2015,
filed a motion for summary judgment along with designated evidence. Five
days before her response was due, on January 15, 2016, Twilley requested an
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 3 of 6 enlargement of time to respond to the summary judgment motion, arguing that
she needed to conduct more discovery. The trial court denied this request, and
after a January 26, 2016, hearing, granted summary judgment in defendants’
favor. On February 25, 2016, Twilley filed a motion to correct error, which the
trial court denied. Twilley now appeals.
Discussion and Decision [5] Twilley has two arguments on appeal. First, she argues that the mutual release
is unenforceable. Second, she argues that if she were given more time for
discovery, “she would have produced the CCS and the order issued by small
claims court #2 stating that Pangea’s and Indy 6’s eviction notice cause of
action against Twilley was dismissed with prejudiced [sic] . . . .” Appellant’s
Br. p. 10. She contends that, therefore, the trial court erred by denying her
motion to correct error.
[6] Summary judgment is proper where no genuine issue of material fact remains
and the movant is entitled to judgment as a matter of law. Ind. Trial Rule
56(C). We apply the same standard as the trial court. AM General LLC v.
Armour, 46 N.E.3d 436, 439 (Ind. 2015). Once the movant designates evidence
indicating that she is entitled to judgment as a matter of law, the nonmoving
party then has the burden to demonstrate that there is a genuine issue of
material fact. Id. All reasonable inferences will be construed in favor of the
nonmoving party. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 4 of 6 [7] In their summary judgment motion and designated evidence, the defendants
produced evidence showing that Twilley released and waived any legal claim
she may have had regarding the First Apartment. They also produced Twilley’s
admission that her bank did not honor her February rent check and an affidavit
of an employee who testified that the eviction decision was not made for any
other reason. Twilley did not file any response to the defendants’ summary
judgment motion.
[8] Instead, Twilley argues that the mutual release is unenforceable. She draws our
attention to Ransburg v. Richards, 770 N.E.2d 393 (Ind. Ct. App. 2002). In that
case, we held that a clause in a residential lease that provided that an apartment
complex would not be liable for any damage, even if caused by its own
negligence, was against public policy and could not be enforced. Id.
[9] Twilley’s argument is misguided. Unlike the defendant in Ransburg, the
defendants here are not citing a clause in the lease that purported to waive all
liability before the fact; instead, the defendants came to an agreement with
Twilley whereby she would be released from her obligations regarding the First
Apartment if she agreed not to pursue a claim. The defendants then leased her
a new apartment. This type of negotiation is precisely the sort of behavior
sanctioned by our legislature, see Ind. Code § 32-31-8-6 (tenant cannot bring
legal action against landlord unless “landlord fails or refuses to repair or remedy
the condition”), and such mutual releases must be enforceable in order to
facilitate the kind of compromise reached in this case. Here, the defendants
remedied the condition by allowing Twilley out of her lease of the First
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 5 of 6 Apartment and giving her a new lease of the Second Apartment. She then
failed to pay rent on the Second Apartment, subjecting her to eviction. Ind.
Code § 32-31-1-8(5).
[10] As for Twilley’s second argument, she has not explained what relevant evidence
she hoped to gather. She contends that she wants the CCS from the small
claims case that was eventually dismissed. But whether the small claims case
was dismissed has no bearing on the evidence that the defendants designated in
their summary judgment motion, namely, that she signed a mutual release
regarding the First Apartment and then failed to pay her rent for the Second
Apartment. Because a party appealing the denial of a motion for enlargement
of time must show that she was prejudiced by the denial, Erwin v. Roe, 928
N.E.2d 609, 614 (Ind. Ct. App. 2010), Twilley’s second argument is unavailing.
[11] In short, the defendants met their burden to designate evidence showing that
they were entitled to judgment as a matter of law. Twilley then failed to meet
her burden of demonstrating any genuine issue of material fact. The trial court
appropriately granted summary judgment to the defendants.
[12] The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 6 of 6