 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
                                                           Oct 31 2014, 10:07 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                           ATTORNEY FOR APPELLEE:
MICHAEL A. WILKINS                                 BETHANY R. NINE-LAWSON
Indianapolis, Indiana                              Indianapolis, Indiana

GARY PRICE
Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

SALLY APPLEGATE-RODEMAN and                        )
LESLIE M. RODEMAN,                                 )
                                                   )
       Appellants-Plaintiffs,                      )
                                                   )
           vs.                                     )       No. 49A02-1312-PL-1044
                                                   )
JDK, LLC d/b/a LIVRITE FITNESS,                    )
                                                   )
       Appellee-Defendant.                         )

                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Cynthia Ayers, Judge
                           Cause No. 49D04-1001-PL-002739


                                        October 31, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
        Sally    Applegate-Rodeman          (“Applegate-Rodeman”)           and    Leslie    Rodeman

(collectively “the Rodemans”) appeal the trial court’s summary judgment ruling in favor

of Livrite Fitness Center (“Livrite”) as to the Rodemans’ claim for compensation for

injuries Applegate-Rodeman suffered while exercising at Livrite’s facility. On appeal,

the Rodemans raise two issues, which we consolidate and restate as whether the trial

court erred in granting summary judgment in favor of Livrite.

        We affirm.

                                  Facts and Procedural History

        The relevant facts were stated in part in the Rodemans’ previous appeal as

follows:

        On February 2, 2008, Applegate-Rodeman joined Northeast Fitness,
        subsequently renamed Livrite Fitness Center, and she signed the “Northeast
        Fitness Membership Agreement (“Membership Agreement”). Clause Two
        of the Membership Agreement provided that the membership was for
        twelve months, would expire on February 1, 2009, and would renew
        automatically on a month-to-month basis at the expiration of the initial term
        unless terminated or cancelled by either party as provided under the
        Membership Agreement. Next to Clause Two was a blank for initials,
        which Applegate-Rodeman did not initial. Clause Eight of the Membership
        Agreement contained a release of liability provision.[1]

        In January 2009, Applegate-Rodeman’s health benefits provider, American
        Healthways Services, Inc. (“Healthways”), executed a separate agreement
        (“Healthways Agreement”) with Livrite to provide services for its
        members. Applegate-Rodeman had never expressly renewed or cancelled
        her original Membership Agreement but enrolled in the Healthways

1
  It is well established in Indiana that “parties are permitted to agree in advance that one is under no
obligation of care for the benefit of the other, and shall not be liable for the consequences of conduct
which would otherwise be negligent.” Marshall v. Blue Springs Corp., 641 N.E.2d 92, 95 (Ind. Ct. App.
1994). We have held that “it is not against public policy to enter into an agreement which exculpates one
from the consequences of his own negligence.” Id.


                                                   2
         program, and Healthways paid Livrite directly for Applegate-Rodeman to
         use the facility.

         In September 2009, Applegate-Rodeman was injured when she stepped on
         a moving treadmill at the Livrite Fitness Center. The Rodemans filed a
         complaint in January 2010 alleging that Livrite’s conduct, in allowing the
         treadmill to continue running between users and in failing to inspect the
         premises, was negligent.

         On October 29, 2012, the Rodemans filed a motion for partial summary
         judgment. Subsequently, Livrite and the Rodemans each filed motions to
         strike portions of the designated evidence. A hearing was held on these
         matters on August 31, 2011. On September 13 and 14, 2011, the
         Rodemans filed a motion for leave to amend complaint to add a new
         defendant. On September 26, 2011, the trial court granted summary
         judgment to Livrite, denied the Rodemans’ motion for partial summary
         judgment, and denied both parties’ motions to strike. Thereafter, on
         October 3, 2011, the trial court granted the Rodemans leave to amend
         complaint, and on October 5, 2011, the Rodemans filed an amended
         complaint to add defendant Threestrands by Grace, which is an entity that
         also runs Livrite Fitness.

Applegate-Rodeman v. JDK, LLC, No. 49A02-1110-PL-950 (Ind. Ct. App. Oct. 15,

2012).

         The Rodemans appealed and, because the trial court’s order did not indicate that

the disposition was a final judgment or state a just reason for delay such that the

Rodemans had a right to an immediate appeal, this court dismissed the appeal as

premature on November 28, 2012. Id.

         On March 26, 2013, Livrite filed a motion to enter final judgment with the trial

court. The Rodemans objected to the motion. The trial court entered the order as final on

November 19, 2013. The Rodemans now appeal. Additional facts will be provided as

necessary.



                                             3
                                Discussion and Decision

      In reviewing a trial court’s ruling on a motion for summary judgment, we apply

the same standard as the trial court. Francis v. Yates, 700 N.E.2d 504, 506 (Ind. Ct. App.

1998). Summary judgment is appropriate only if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Id. Although facts

may not be in dispute, summary judgment is inappropriate if conflicting inferences arise

from undisputed facts. Id. On appeal, the appellant bears the burden of proving that the

trial court erred in determining that there are not genuine issues of material fact and the

moving party was entitled to judgment as a matter of law. Id.

      When reviewing the trial court’s interpretation of a contract, we view the
      contract in the same manner as the trial court. To determine the intent of
      the parties at the time the contract was made, we examine the language
      used to express their rights and duties. Words used in a contract are to be
      given their usual and common meaning unless it is clear from the contract
      and the subject matter thereof that another meaning was intended. Words,
      phrases, sentences, paragraphs, and sections of a contract cannot be read
      out of context. If possible, the entire contract must be read together and
      given meaning.

Avant v. Cmty. Hosp., 826 N.E.2d 7, 10 (Ind. Ct. App. 2005) (internal citations omitted).

      The Rodemans argue that the trial court erred in concluding that the Membership

Agreement between Livrite and Applegate-Rodeman, which contained a provision

releasing Livrite from liability for injuries suffered by members while using the facility,

was in effect at the time of Applegate-Rodeman’s injury. They assert that “the plain

language of the Membership Agreement indicates that the contract had terminated well

before the time Sally was injured because she did not separately assent to the automatic

renewal of the initial one-year agreement.” Appellants’ Br. at 4.

                                            4
       The clause at issue stated:

       2. Initial Term: The initial term of this agreement shall be 12 / 24 / 36
       months (circle applicable period and cross-off inapplicable periods.) The
       initial term shall be automatically renewed on a month to month basis at the
       expiration of initial term unless terminated or cancelled by the Club or
       Member as provider under this Agreement. __ (initials)

Appellants’ App. p. 163. Applegate-Rodeman selected the twelve-month option for the

initial term. Neither of the Rodemans placed their initials on the line following the

renewal clause. The Rodemans argue that, because they did not place their initials next

to the automatic renewal clause, the entire Membership Agreement, including the release

of liability clause, expired on February 1, 2009, nearly eight months prior to Applegate-

Rodeman’s injury. They contend that, even if the un-initialed automatic renewal clause

led to an ambiguity in the agreement, “the trial court should have treated the ambiguity as

a patent ambiguity, construing the renewal option clause against the drafter, [Livrite].”

Appellants’ Br. at 4.

       We disagree. Under this unique set of facts and circumstances, we conclude that

the Membership Agreement continued to have effect after the initial twelve-month term

expired, in a manner similar to that of a holdover tenancy.

       When a lessee of real property under a lease for a definite term holds over after the

expiration of that term, the lessor has the option of treating the lessee as a tenant or a

trespasser. Mooney-Mueller-Ward, Inc. v. Woods (1978), 175 Ind. App. 302, 371 N.E.2d

400, 403. In the absence of an agreement to the contrary, when a tenant holds over

beyond the expiration of the lease and continues to make rental payments, and the lessor

does not treat the tenant as a trespasser by evicting him, the parties are deemed to have

                                             5
continued the tenancy under the terms of the expired lease. Marshall v. Hatfield, 631

N.E.2d 490, 492 (Ind. Ct. App. 1994).

       Here, Applegate-Rodeman admitted that she agreed to the terms set forth in the

Membership Agreement. She selected the twelve-month initial term option. Neither

Livrite nor Applegate-Rodeman cancelled or terminated the agreement after the initial

term had expired. Indeed, Applegate-Rodeman continued to use the facility regularly

after the expiration of the initial term. Applegate-Rodeman admitted that, on the day of

the injury, she was still a member of Livrite since she had not cancelled or terminated her

membership pursuant to the Membership Agreement. Appellants’ App. p. 145. There is

no language in the Agreement indicating that Applegate-Rodeman’s initials are required

to validate the initial term clause. And Applegate-Rodeman did not testify that she did

not intend to agree to the automatic renewal. This evidence indicates that a valid contract

between Applegate-Rodeman and Livrite existed at the time of Applegate-Rodeman’s

injury. Therefore, Livrite and Applegate-Rodeman are deemed to have continued the

Agreement under its original terms, including the release of liability clause, thereby

barring Applegate-Rodeman’s claim against Livrite.

       Furthermore, the agreement between Livrite and Healthways (“the Healthways

Agreement”), which lacks a release of liability clause, does not supersede or replace the

Membership Agreement between Applegate-Rodeman and Livrite, as the Rodemans

claim. The Healthways Agreement contains terms and provisions providing for payment

of health facility membership fees by Healthways for its covered persons.              The

Healthways Agreement does not establish membership to Livrite for Applegate-

                                            6
Rodeman, nor does it contain any language indicating that its purpose is to replace an

existing membership agreement between a member and the facility.               Instead, the

Healthways Agreement states that covered persons “are entitled, at no charge, including

those fees normally associated with initiation or monthly dues, to establish a basic fitness

membership with unrestricted hours at the Facility[.]” Appellants’ App. p. 166. The

Healthways Agreement also provides that, if a member terminates her membership in

Healthways, she, rather than Healthways, would be responsible for fulfilling the

remaining terms of her membership with the facility. It is apparent, then, that the

Healthways Agreement did not establish Applegate-Rodeman’s membership at Livrite.

Her membership was established by the Membership Agreement.                    Instead, the

Healthways Agreement simply provided a means for Healthways to compensate Livrite

for Applegate-Rodeman’s membership.

       Under these facts and circumstances, the trial court properly concluded as a matter

of law that the release from liability provision in the Membership Agreement between

Applegate-Rodeman and Livrite barred the Rodemans’ claims against Livrite.

                                       Conclusion

       For all of these reasons, we conclude that the trial court did not err in granting

summary judgment in favor of the Appellees.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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