      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                            FILED
      this Memorandum Decision shall not be                                       Jan 07 2020, 6:07 am
      regarded as precedent or cited before any
                                                                                        CLERK
      court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                      Court of Appeals
      the defense of res judicata, collateral                                           and Tax Court

      estoppel, or the law of the case.


      APPELLANTS PRO SE                                        ATTORNEYS FOR APPELLEES
      Kay Kim                                                  Leslie B. Pollie
      Charles Chuang                                           Travis W. Montgomery
      Indianapolis, Indiana                                    Carmel, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kay Kim and Charles Chuang,                              January 7, 2020
      Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                               19A-CT-1861
              v.                                               Appeal from the Marion Superior
                                                               Court
      David L. Gadis and Ylanda D.                             The Honorable James A. Joven,
      Gadis,                                                   Judge
      Appellees-Defendants                                     Trial Court Cause No.
                                                               49D13-1903-CT-12417



      Altice, Judge.


                                                Case Summary


[1]   In 2017, Kay Kim and Charles Chuang (collectively, Appellants) filed, pro se, a

      lawsuit against David Gadis for water damage to their condominium unit that

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020                      Page 1 of 10
      allegedly resulted in 2017 from leaks coming from the upstairs unit owned by

      Gadis. The parties settled the matter and, on March 6, 2019, Appellants

      executed a General Release of All Claims (the Release), which expressly

      released Gadis and all his immediate family members from, among other

      things, any and all past, present, or future claims that have been or could have

      been asserted in the action. Less than a week after this first lawsuit was

      dismissed with prejudice pursuant to the Release, Appellants filed the instant

      suit against Gadis and his wife (collectively, Appellees) for water damage

      allegedly caused in 2013 and 2018 by repeated bathroom overflows. Appellees

      promptly moved for summary judgment based on the Release, and the trial

      court granted their motion.


[2]   Appellants now appeal the grant of summary judgment. Their appellate brief is

      littered with frivolous, nonsensical arguments and scandalous, impertinent, and

      racist statements. Moreover, their appellate appendix is generally useless and

      does not contain the summary judgment pleadings and designated evidence

      filed by Appellees. In addition to concluding that the trial court correctly

      granted summary judgment, we sua sponte find that appellate attorney fees are

      warranted here under Indiana Appellate Rule 66(E). On remand, the trial court

      is directed to calculate Appellees’ reasonable appellate attorney fees and order

      Appellants to pay these fees.


[3]   We affirm and remand.


                                       Facts & Procedural History


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020   Page 2 of 10
[4]   Appellants own a ground-floor condominium unit in the Village at Eagle Creek

      in Indianapolis. The unit directly above them is owned by Appellees. Over the

      years, Kim has complained to Gadis about water damage in various areas of

      her unit that she believed had been or were being caused by leaks or overflows

      from above. Kim alleged that such leaks occurred in 2013, 2017, and 2018. In

      2013 and 2017, Gadis directed the claims to his insurer, State Farm Fire and

      Casualty Company (State Farm), which denied the claims after determining

      that Appellees were not responsible for the damages.


[5]   On August 25, 2017, Appellants filed a complaint against Gadis, as well as

      Appellants’ own insurer, improperly named as Travelers Insurance Company,

      under cause number 49D10-1708-CT-32768 (the First Litigation). Appellants

      sought damages for leaks alleged to have occurred in February 2017 and August

      2017 affecting the ceiling in their dining room, kitchen, and living room.

      Appellants settled the matter with their insurer in 2017 and then continued the

      litigation against Gadis, with pro-se filings too numerous to count.


[6]   In March 2019, Appellants and Gadis settled the First Litigation, with

      Appellants executing the Release on March 6, 2019. The Release provided in

      part regarding the release and discharge of claims:


                 a. The Releasing Parties[ 1] … release and forever discharge
                 Released Parties[ 2] (including, without limitation, all immediate



      1
          Defined in the Release as Kim and Chuang.
      2
          Defined in the Release as David Gadis and State Farm.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020   Page 3 of 10
              family members) … from any and all past, present, or future
              claims, demands, obligations, liens, costs, expenses, actions or
              causes of action of any whatsoever kind … which in any way
              arise out of the incidents or which have been or could have been
              asserted in this action ….


              b. The Releasing Parties understand and agree that this
              Agreement specifically includes the release and discharge of any
              and all claims known and unknown to Releasing Parties upon
              their acceptance and execution of this Agreement, including, but
              not limited to, any and all claims known and unknown,
              anticipated and unanticipated, and expected and unexpected
              consequences of any damages arising out of the incidents or
              which could have been asserted in this action, by the Releasing
              Parties.


                                                      ****


              e. For and inconsideration of the payment described in Section 5
              of this Agreement and other valuable consideration, the
              Releasing Parties agree that they will not initiate any proceeding
              before any court or administrative agency (whether state, federal,
              or otherwise) against the Released Parties based on or
              concerning, in who [sic] or in part, any claim(s) released by this
              Agreement.


      Appellees’ Corrected Appendix Vol. 2 at 37-38. Pursuant to a stipulation of

      dismissal, the First Litigation was dismissed with prejudice on March 21, 2019.


[7]   Six days later, on March 27, 2019, Appellants filed a new complaint against

      Appellees (the Second Litigation), seeking damages for “repeated Hallway

      Bathroom Overflow from [Appellees’ unit in years] 2013 and 2018.” Appellants’

      Appendix Vol. II at 149. Kim had made Gadis aware of these claimed damages
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020   Page 4 of 10
      in 2013 and 2018. State Farm investigated and denied the first claim in October

      2013, and Gadis did not respond to Kay’s multiple emails in October 2018

      regarding that year’s alleged leak, as the First Litigation was pending and he

      had directed her in August 2017 to stop contacting him. In the Second

      Litigation, Appellants sought actual damages of $20,000 for the bathroom to be

      gutted and rebuilt and punitive damages for the non-use of the bathroom for

      many years and for alleged “ongoing harassment” by the adult son/tenant of

      Appellees, 3 whom Appellants did not name as a defendant. Id. at 156.


[8]   After two enlargements of time, 4 on May 31, 2019, Appellees responded to the

      (amended) complaint by filing a motion for summary judgment. In support of

      their motion, Appellees designated three items from the First Litigation – the

      complaint, the Release, and the order of dismissal. Appellees argued the claims

      in the Second Litigation were barred as a matter of law by the Release.

      Appellants filed over 700 pages of documents and designated evidence with the

      trial court in response to Appellees’ summary judgment motion, and they also

      filed their own motion for summary judgment. In sum, Appellants argued that

      the Release did not apply to leaks unrelated to the 2017 leaks in their dining

      room, kitchen, and living room.




      3
        Appellants alleged that the son deliberately caused the 2018 hallway bathroom stain and that he harassed
      them by banging on their door and the floor above and by yelling threats, which Appellants indicated the
      police could do nothing about.
      4
       Appellants, directing us to Indiana Appellate Rule 35, assert that the trial court abused its discretion by
      granting Appellees a second extension of time to respond to the complaint. We are perplexed by this
      argument because App. R. 35 does not apply to trial courts.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020                     Page 5 of 10
[9]    At the conclusion of the hearing on July 26, 2019, the trial court granted

       summary judgment in favor of Appellees and issued final judgment in their

       favor. 5 Appellants now appeal.


                                              Discussion & Decision


[10]   We review summary judgment de novo and will affirm the grant of summary

       judgment where the designated evidence shows 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. See Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (citing

       Ind. Trial Rule 56(C)). Matters of contract interpretation are particularly well-

       suited for summary judgment because they generally present questions of law.

       In re Indiana State Fair Litigation, 49 N.E.3d 545, 548 (Ind. 2016). “The meaning

       of a contract is a question for the factfinder, precluding summary judgment,

       only where interpreting an ambiguity requires extrinsic evidence.” Id.


[11]   Like all contracts, releases are interpreted according to the standard rules of

       contract law. Haub v. Eldridge, 981 N.E.2d 96, 101 (Ind. Ct. App. 2012).

       Where contract language is unambiguous, the intent of the parties is determined

       from the four corners of the document, giving terms their clear and ordinary

       meaning, and this court may not look to extrinsic evidence to expand, vary, or




       5
        Appellees quote extensively from a purported transcript of the summary judgment hearing, where the trial
       court painstakingly attempted to explain the effect of the Release to Kim. Appellants, however, provided
       only a small part of the transcript in the record before us, effectively ignoring Indiana Appellate Rule 9(F),
       which provides that an appellant shall request “all portions of the Transcript necessary to present fairly and
       decide the issues on appeal.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020                    Page 6 of 10
       explain the contract. Buskirk v. Buskirk, 86 N.E.3d 217, 224 (Ind. Ct. App.

       2017); Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct.

       App. 2017), trans. denied. “A term is not ambiguous solely because the parties

       disagree about its meaning.” Celadon Trucking, 70 N.E.3d at 839. Rather, “[a]

       contract is ambiguous only where a reasonable person could find its terms

       susceptible to more than one interpretation.” Haub, 981 N.E.2d at 102 (quoting

       Cummins v. McIntosh, 845 N.E.2d 1097, 1104 (Ind. Ct. App. 2006), trans. denied).


[12]   Here, the language of the Release is clear and unambiguous. Appellants

       released David Gadis and all of his immediate family members from “any and

       all past, present, or future claims … or causes of action of any whatsoever kind

       … which in any way arise out of the incidents or which have been or could

       have been asserted in [the First Litigation] …” Appellees’ Appendix at 37.

       Moreover, Appellants specifically indicated in the Release that they understood

       and agreed that the Release “includes the release and discharge of any and all

       claims known and unknown to [them] upon their acceptance and execution of

       this Agreement, including, but not limited to, any and all claims known and

       unknown, anticipated and unanticipated, and expected and unexpected

       consequences of any damages arising out of the incidents or which could have

       been asserted in this action ….” Id.


[13]   Appellants attempt to limit the effect of the Release to the two leaks that were

       the basis of the First Litigation by claiming that they would be “out of our

       mind” to sign a release of claims not directly related to the First Litigation.

       Appellants’ Brief at 15. Their argument is meritless, as the Release plainly did

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020   Page 7 of 10
       just that. It released any and all claims arising out of the incidents (defined in

       the Release as the 2017 leaks) or which could have been asserted in the First

       Litigation. When executing the Release in 2019, Appellants were fully aware of

       the claims made in the Second Litigation, which was initiated less than a week

       after the First Litigation was dismissed with prejudice. In fact, Appellants had

       notified Gadis of the alleged bathroom leaks in 2013 and 2018, and State Farm

       had denied a related claim in 2013.


[14]   The claims raised in the instant action could have been asserted in the First

       Litigation and are, therefore, barred by the Release as a matter of law. The trial

       court properly granted summary judgment in favor of Appellees.


[15]   Appellants also add at the end of their appellate brief an unsupported claim that

       the grant of summary judgment violated Article 1, Section 20 of the Indiana

       Constitution, 6 as well as federal due process. Appellants present no cogent

       argument, as exemplified by the following bizarre excerpts from their brief

       argument on this point:


                   It seems that between the Court and Appellees/Defendants’
                   motion to dismiss is “code talk” like a butcher who catches a
                   chicken out of coop and slit its throat before the dawn; so, it
                   cannot cry to alarm the universe when the new day begins….
                   Appellants/Plaintiffs designate former suit defense counsel … as
                   “Hostile” witness that he prolong [sic] the litigation for two more
                   years with lies and numerous false accusation [sic] against us
                   during [the First Litigation]; so, he can make more money for his



       6
           Article 1, Section 20 provides: “In all civil cases, the right of trial by jury shall remain inviolate.”


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020                            Page 8 of 10
               client. He sucked the blood out of us – white skin color outside
               with deepest black conscious of serial killer.


       Appellant’s Brief at 22-23. This issue is waived.


[16]   Finally, we sua sponte consider whether damages should be assessed against

       Appellants pursuant to App. R. 66(E). This rule permits us to assess damages,

       including attorney fees, “if an appeal, petition, or motion, or response, is

       frivolous or in bad faith.” Id. We exercise this discretion with extreme restraint

       and award such damages only in “instances when an appeal is permeated with

       meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay.” Sickafoose v. Beery, 116 N.E.3d 486, 495 (Ind. Ct. App. 2018) (quoting

       Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003)). “A strong

       showing is required to justify an award of appellate damages, and the sanction

       is not imposed to punish mere lack of merit, but something more egregious.”

       See Picket Fence Property Co. v. Davis, 109 N.E.3d 1021, 1033 (Ind. Ct. App.

       2018), trans. denied.


[17]   While we are generally reluctant to grant an award of appellate attorney fees,

       we conclude that such an award is warranted here given the frivolous nature of

       this appeal and Appellants’ bad-faith filings. Appellants have pursued this

       matter despite the clear and unambiguous language of the Release and have

       presented arguments “utterly devoid of all plausibility.” See id. Their brief also

       includes nonsensical accusations against Appellees’ counsel that he somehow

       defrauded and misled the court by his designation of evidence in support of

       Appellees’ motion for summary judgment, irrelevant claims that Appellees’ son
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020   Page 9 of 10
       has an extensive criminal record and is mentally ill, unsupported and scurrilous

       claims that the trial court acted unethically during the summary judgment

       hearing, 7 and several strange, racist statements regarding black police officers

       and other black individuals. Moreover, Appellants intentionally failed to

       provide us with a complete transcript of the summary judgment hearing and did

       not include in their (nearly 500-page) appendix the Appellees’ summary

       judgment filings. 8 The appendix they did provide is full of irrelevant materials

       along with an indecipherable table of contents.


[18]   In summary, we affirm the grant of summary judgment and find that appellate

       attorney fees are warranted. We therefore remand to the trial court for a

       hearing to determine the amount of reasonable appellate attorney fees.


[19]   Judgment affirmed and cause remanded.


       Robb, J. and Bradford, C.J., concur.




       7
         In one of their many post-brief filings on appeal, Appellants baselessly allege that the trial judge conspired
       with Appellees’ counsel to make money for the court reporter by requiring Appellants to order the transcript
       of the summary judgment hearing rather than allowing them to prepare a statement of the evidence pursuant
       to Indiana Appellate Rule 31(A). The trial court, however, correctly ruled that App. R. 31(A) did not apply
       here because a transcript was available.
       8
         The purpose of the appendix in civil appeals is to provide us “those parts of the Record on Appeal that are
       necessary for the Court to decide the issues presented.” Ind. Appellate Rule 50(A)(1). Thus, when appealing
       from a summary judgment ruling, “appellants should include in their appellant’s appendix all documents
       relating to the disposition of the motion for summary judgment, including any documents that the appellee
       designated.” Webb v. City of Carmel, 101 N.E.3d 850, 856 n.3 (Ind. Ct. App. 2018). Failure to include all
       necessary summary judgment materials can result in dismissal or waiver of issues on appeal. See Hughes v.
       King, 808 N.E.2d 146, 148 (Ind. Ct. App. 2004); Yoquelet v. Marshall County, 811 N.E.2d 826, 830 (Ind. Ct.
       App. 2004).

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1861 | January 7, 2020                    Page 10 of 10
