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
