Kay Kim and Charles Chuang v. David L. Gadis and Ylanda D. Gadis (mem. dec.)

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
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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
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[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.
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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
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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.
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[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.”
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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
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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.”
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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
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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).
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