Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CT-737 | January 17, 2017 Page 1 of 6

MEMORANDUM DECISION

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 establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Beverly Twilley

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Edward D. D’Arcy, Jr.

Michael J. Progar

Doherty & Progar LLC

Merrillville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Beverly Twilley,

Appellant-Plaintiff,

v.

Pangea Real Estate, PP Indy 6, 

LLC and All Unknown Persons,

Appellees-Defendants

January 17, 2017

Court of Appeals Case No.

49A05-1604-CT-737

Appeal from the Marion Superior 

Court

The Honorable Thomas J. Carroll, 

Judge

Trial Court Cause No.

49D06-1504-CT-11985

Baker, Judge.
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[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 
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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 
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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.
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[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 
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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.