Bryan Alex, Appellant-Plaintiff v. Maria Perez, Appellee-Defendant (2026)

MEMORANDUM DECISION

Case Summary

[1] Bryan Alex appeals the trial court order enforcing the Mediated Agreement (“the Agreement”) regarding partition of real property owned by him and Maria Perez. We affirm but remand for correction of a clerical error.

Issues

[2] Alex raises five issues, which we consolidate and restate as the following three issues:

1. Whether the trial court erred in interpreting the Agreement.

2. Whether Perez waived her arguments regarding the Agreement's deadline to refinance or assume the loan on the Property.

3. Whether the trial court abused its discretion when it ordered Alex to pay Perez's attorney's fees as a sanction.

Facts and Procedural History

[3] Alex and Perez purchased real property at 126 Parkview Drive, Madison, Indiana (“the Property”), as tenants in common in September 2021. The two had previously been in a romantic relationship, but their romantic relationship ended on January 8, 2022, after which Alex vacated the property and did not return.

[4] On September 26, 2023, Alex filed a complaint for partition of the Property. Thereafter, the parties agreed to mediation, and, on May 7, 2024, they executed the Agreement and subsequently filed it with the court. The Agreement provides, in relevant part:

(1) [Perez] shall have six months from the date of signing a final release between the parties to remove [Alex] from the mortgage by way of refinance or assumption of the loan. In the event [Perez] is unable to refinance or assume the mortgage in her name only, she will place the property for sale. [Alex] agrees to effectuate any documents necessary for [Perez] to refinance, assume or sell the property․.

* * *

(7) The parties agree to sign an appropriate release with language agreed to by both parties as to any and all related or possible claims arising from their prior relationship and associated business dealings. [Alex] shall prepare such release and will send the release for review to [Perez] by the end of business today. [Perez] shall have one week from the time of her counsel receiving the release from counsel for [Alex] to sign an agreed upon release.

App. v. 2 at 63-64.

[5] On May 30, 2024,¹ Alex's counsel conveyed to Perez's counsel a document entitled “Confidential Release of All Claims, Hold Harmless, and Indemnification Agreement” (“the Release”). Ex. at 15. On June 4, Perez signed the Release, and her counsel returned it to Alex's counsel on June 10. As of the date of the Appealed Order in this case, Alex had not signed the Release.

[6] Perez applied for refinancing of the Property in August and November of 2024; both applications were denied. Beginning on November 17, Perez posted the Property for sale on Facebook Marketplace and also placed a physical “For Sale by Owner” sign on the Property. Id. at 26. Perez received some inquiries about the Property but no written financial offers.

[7] On March 3, 2025, Alex filed a motion to set a hearing on Perez's alleged noncompliance with the Agreement by failing to sell the Property. In May, Perez notified Alex that she had obtained refinancing on the Property and that the lender would be sending Alex a quitclaim deed to sign, have notarized, and return to the lender. Alex failed to sign or return the quitclaim deed as requested for the refinancing of the Property. As a result, Perez incurred an additional “rate lock” expense of $1,000.00. Appealed Order at 3. On June 3, Perez filed a motion to show cause alleging that she had secured refinancing of the Property, but Alex had refused to execute a quitclaim deed, in “willful and intentional contempt” of the Agreement. App. v. 2 at 125.

[8] The court conducted evidentiary hearings on the parties’ pending motions on July 29 and September 16. Perez asserted that Alex had violated the terms of the Agreement by failing to sign the quitclaim deed. She further argued that the Agreement's six-month deadline for her to refinance or assume the loan on the Property had not yet begun because it commenced when the Release was “final” and the Release was not final until Alex had also signed it. Ex. at 13. Alex argued that the six-month deadline to refinance had commenced on June 4, 2024, the date on which Perez signed the Release, and therefore had already expired. Alex further argued that the expiration of the six-month period to refinance had extinguished his obligations under the Agreement to “effectuate documents necessary for [Perez] to refinance, assume or sell the Property.” Id. at 9.

[9] In its October 20 order, the trial court found that the six-month refinancing time limit contained in the Agreement “had not yet begun, much less expired[,]” because Alex had never signed the Release, and, therefore, no “final release has ever existed between the parties.” Appealed Order at 2-3. The court further found that Alex had violated paragraph one of the Agreement, which required him “to effectuate any documents necessary for [Perez] to refinance, assume [the mortgage,] or sell the [P]roperty[,]” by failing to sign the quitclaim deed. Id. at 3. The court found that Perez had “acted in good faith and in compliance with the terms of [the Agreement],” while Alex had “knowing[ly] and willful[ly]” refused to comply with the Agreement. Id.

[10] The court ordered that: the six-month refinancing time limit would not begin to run unless and until Alex signed the Release; Alex shall “sign all documents necessary for [Perez] to complete the refinance and/or assumption of the loan and mortgage associated with [the Property]”; Alex shall pay Perez $1,000.00 as reimbursement for the rate lock fee she incurred due to Alex's delay; Alex shall pay a $4,145.00 “sanction[,]” pursuant to Rule 2.7(E)(3) of the Indiana Rules of Alternative Dispute Resolution (“ADR”), to Perez for the attorney's fees she had incurred to enforce the Agreement; and Alex shall sign a Stipulation of Dismissal of this case. Id. at 4-5. This appeal ensued.

Discussion and Decision

Standard of Review

[11] The trial court, sua sponte, entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. On appeal of a case tried to the bench, we “consider whether the evidence supports the trial court's findings[,]” and we will not set them aside “unless they are clearly erroneous—i.e., the record contains no facts supporting them either directly or inferentially.” Town of Brownsburg v. Fight Against Brownsburg Annexation, 124 N.E.3d 597, 601 (Ind. 2019). Then, we consider “whether the findings support the court's legal conclusions. We give no deference to conclusions of law but review them de novo.” Id. And we defer to the trial court's assessment of the credibility of the witnesses. T.R. 52(A); see also, e.g., Terry Weisheit Rental Props., LLC v. David Grace, LLC, 12 N.E.3d 930, 935 (Ind. Ct. App. 2014).

[12] However, “[t]he interpretation and construction of contract provisions is a function for the courts.” In re Paternity of A.B., 267 N.E.3d 510, 521 (Ind. Ct. App. 2025). Thus, reviewing the terms of a contract is a pure question of law, and our standard of review is de novo. Id.

[13] Finally, we note that Perez has not filed an appellee's brief. Under such circumstances, “we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error.” Id. at 518. Prima facie error means error “at first sight, on first appearance, or on the face of it.” Id. “Still, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required.” Id. (citation modified).

Issue One: Breach of Contract

[14] Alex challenges the trial court's interpretation of the Agreement. When we interpret a contract, we seek “to determine the parties’ intent while making every attempt to construe the contract's language so as not to render any words, phrases, or terms ineffective or meaningless.” Thomas v. Valpo Motors, Inc., 258 N.E.3d 236, 241 (Ind. 2025) (citation modified). “If the contract's terms are unambiguous, then they are conclusive of the parties’ intent, and courts give the contract its plain meaning.” Wohlt v. Wohlt, 245 N.E.3d 611, 616 (Ind. 2024) (citation modified). However, “[a] contract is not ambiguous simply because the parties disagree about the proper interpretation of its terms. Instead, for an ambiguity to exist, the contract must be subject to more than one reasonable interpretation.” Id. (citation modified). Moreover, “[t]o the extent the contract reveals any ambiguities, those ambiguities are generally construed against the drafter.” Thomas, 258 N.E.3d at 241.

[15] Here, provision 7 of the Agreement is unambiguous. Its plain terms provide that “[t]he parties agree to sign an appropriate release” regarding possible claims arising from their prior relationship and associated business dealings. App. v. 2 at 64 (emphases added). The Agreement does not state that only Perez must sign the Release; it clearly states that both “parties” agreed to sign. Id.

[16] Moreover, the Release itself, which Alex drafted, clearly states that it is a “mutual[ ] release” in which both Perez and Alex “release and forever discharge” each other from all claims. Ex. at 15; see also Mutual Release, Black's Law Dictionary (12th ed. 2024) (defining mutual release as “[a] simultaneous exchange of releases of legal claims held by two or more parties against each other.”). The Release further provides that “[t]he undersigned have CAREFULLY READ the Release, fully understand it, and sign this as the free and voluntary act of the undersigned.” Ex. at 15. (emphasis original). The Release then provides signature lines for both Perez and Alex.

[17] Thus, it is clear from the plain language of both the Agreement and the Release that the parties intended for each of them to sign the Release. Moreover, we note that it would have been highly unusual for Perez, who was represented by legal counsel, to agree to release Alex from liability if the release was not mutual. “[W]here one construction of a contract would make it unusual and extraordinary, but another, equally consistent with the language, would make it reasonable, just, and fair, the latter construction must prevail.” Assoc. Aviation Underwriters v. George Koch Sons, Inc., 712 N.E.2d 1071, 1076 (Ind. Ct. App. 1999) (citation modified), trans. denied. It is reasonable and fair to construe the Agreement as requiring that both parties sign the Release, and it is undisputed that Alex did not do so.²

[18] Provision 1 of the Agreement is equally clear; it states in plain terms that Perez has six months from the date of signing “a final release between the parties” to refinance or assume the mortgage. App. v. 2 at 63 (emphasis added). The plain meaning of “final” in this context is “coming at the end: being the last in a series, process, or progress.” See Final, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/final [https://perma.cc/7Z9C-6NGX]. As already noted, a mutual release is, by definition, one in which each party releases the other; thus, if one party has not assented to the mutual release, an essential last step in the process has not been completed, and the mutual release cannot be considered final. Therefore, the trial court reasonably construed the contract to provide that the six-month deadline for Perez to refinance has not yet begun, much less expired, as there is no final release.

[19] Finally, the Agreement unambiguously states that Alex “agrees to effectuate any documents necessary for [Perez] to refinance, assume [the mortgage,] or sell the [P]roperty.” Id. The plain meaning of “effectuate” is to put something “into effect or operation.” See Effectuate, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/effectuate [https://perma.cc/C22S-VH7K]. Yet Alex failed to sign or return the quitclaim deed, which was necessary for Perez to obtain refinancing for the Property.

[20] The plain language of the Agreement required both parties to sign the Release, at which point the Release would be final and the six-month deadline for Perez to refinance or assume the loan would begin to run. The Agreement also clearly required Alex to sign any documents that were necessary for Perez to refinance, assume the loan, or sell the Property. We agree with the trial court's findings that the six-month deadline to refinance had not begun to run because the Release was not final, Perez complied with the terms of the Agreement, and Alex violated the Agreement by failing to sign the quitclaim deed.

Issue Two: Waiver

[21] Alex alleges that Perez waived any right to enforce what he calls the “condition precedent” requirement that he sign the Release in order for the six-month refinancing deadline to start running. Appellant's Br. at 19. He contends that Perez's attempts to refinance the loan and/or sell the Property are evidence of her agreement that the six-month deadline had started to run when she signed the Release on June 4, 2024.

[22] Alex cites Harrison v. Thomas, 761 N.E.2d 816 (Ind. 2002), in support of his claim. That case notes that a purchaser of real property to whom the benefit of a contractual condition precedent inures may waive that condition either explicitly or through actions that effectively communicate a waiver. Id. at 820. However, as another panel of this Court recently noted,

“[w]aiver of a contractual provision is an intentional relinquishment of a known right involving both knowledge of the existence of the right and the intent to relinquish it.” L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1051 (Ind. Ct. App. 2012) (citing Westfield Nat. Ins. Co. v. Nakoa, 963 N.E.2d 1126, 1132 (Ind. Ct. App. 2012)), trans. denied. “ ‘Waiver may be implied from the acts, omissions, or conduct of one of the parties to the contract.’ ” Id. (quoting Westfield, 963 N.E.2d at 1132). However, “[s]ilence, inactivity[,] or acquiescence is not waiver unless the party against whom waiver is claimed had a duty to act or speak.” M.O. v. Ind. Dep't of Ins. Patient's Comp. Fund, 968 N.E.2d 254, 261 (Ind. Ct. App. 2012) (citing Hastetter v. Fetter Props., LLC, 873 N.E.2d 679, 684 (Ind. Ct. App. 2007)).

Farmhouse Invs., LLC v. Quattro Real Est. Holdings, LLC, 268 N.E.3d 765, 774-75 (Ind. Ct. App. 2025). “[W]hether there has been a waiver of a contract provision is ordinarily a question of fact.” Harrison, 761 N.E.2d at 820.

[23] Here, Perez never expressly stated an intention to waive Alex's signature on the Release.³ Further, she took no action showing an intent to relinquish her right to Alex's signature on the Release or her right to six months in which to refinance after he signed the Release. The fact that she tried to secure refinancing and/or sale of the Property without the final release signed by Alex does not demonstrate an intent to waive the signature requirement; rather, as Perez explained at trial, she took such actions before the parties had even entered into the Agreement on May 7, 2024. See, e.g., Tr. at 16-18 (Perez testifying that she tried to refinance and/or assume the loan on the Property in September and November 2022 and January or February 2023). After the Agreement, she continued trying to refinance despite the lack of a final Release. She testified that she did so simply because she wanted to “settle the debt,” id. at 25-26, “fix [her] credit,” id. at 61, and “remove [Alex] off [her] home[,]” id. However, she repeatedly testified at trial that the Agreement did not require her to attempt to refinance or assume the loan “until both parties signed a mutual release.” Id. at 34; see also id. at 40-41, 51, 61. Clearly the trial court found Perez's testimony credible, and we will not second-guess that credibility determination on review. See, e.g., Terry Weisheit, 12 N.E.3d at 935.

[24] Alex also points to Perez's June 3, 2025, Motion for Rule to Show Cause in which she stated that she had “diligently attempted to refinance the mortgage within the six-month period but was denied in November 2024.” App. v. 2 at 123. He also notes that, in response to an interrogatory asking about the circumstances surrounding her listing of the Property for sale, Perez stated, in part: “The final [January] release form was signed June 4, 2024, and according to the [A]greement the 6 months started after that day.” Ex. at 8. Perez's responses to interrogatories were admitted into evidence for impeachment purposes only, “not as substantive evidence.” Tr. at 32. Nevertheless, Alex seems to contend that Perez is legally bound by these prior statements and estopped from contradicting them.

[25] Alex cites no supporting legal authority for that contention, and we find none. Rather, a witness is free to contradict an answer he or she has previously given, such as responses to discovery requests like interrogatories, and, “[w]hen this occurs there arises a credibility question for the trier of fact.” Vlatos v. Ind. Bonding & Sur. Co., 333 N.E.2d 835, 837 (Ind. Ct. App. 1975). Again, the trial court clearly found Perez's trial testimony on this issue to be credible, and we will not “reassess credibility” of witnesses on appeal. Terry Weisheit, 12 N.E.3d at 935; see also, e.g., Vance v. Lozano, 981 N.E.2d 554, 557 (Ind. Ct. App. 2012) (noting, on review of facts determined in a bench trial, we defer to the trial court's assessment of witness credibility).

[26] Alex has not made a prima facie showing that Perez waived her argument that the Release was not final—and therefore did not trigger the six-month deadline to refinance—until both parties signed it.

Issue Three: Attorney's Fees

[27] Finally, Alex challenges the trial court's award of Perez's attorney's fees as a sanction for his “knowing and willful” refusal to comply with the Agreement. Appealed Order at 3. Trial courts “have broad discretion in assessing attorney fees.” Johnson v. Shanehsaz, 152 N.E.3d 7, 17 (Ind. Ct. App. 2020). Here, the trial court awarded the attorney's fees pursuant to Rule 2.7(E)(3) of the Indiana Rules of ADR, which provides: “In the event of any breach or failure to perform under [a mediation] agreement, upon motion, and after hearing, the court may impose sanctions, including entry of judgment on the agreement.”

[28] Alex's challenge to the imposition of the sanction is based entirely upon his claims that he did not breach the Agreement. As we have concluded above that he did breach the Agreement, his challenge to the award of attorney's fees as a sanction fails.

Conclusion

[29] Alex has not established prima facie error in the trial court's interpretation of the Agreement; rather, the trial court correctly determined that Perez did not breach the Agreement but Alex did by failing to sign documents necessary for Perez to refinance or assume the mortgage or sell the Property. And Perez did not waive her argument that the deadline to refinance the Property had not begun to run because there did not yet exist a final Release containing Alex's signature. Finally, the trial court did not abuse its discretion when it ordered Alex to pay Perez's attorney's fees as a sanction for violation of the Agreement Therefore, we affirm but remand for the trial court to correct the clerical error contained in paragraph 6 of the final order, to wit: “2025” must be changed to “2024.” Appealed Order at 2.

[30] Affirmed and remanded with instructions.

FOOTNOTES

1.   The Appealed Order contains a typographical error in paragraph 6, where it gives the date as May 30, 2025, rather than 2024. On remand, the trial court shall correct that error.

2.   It is immaterial that the Agreement did not give Alex a deadline by which he had to sign the Release; it is undisputed that Alex has never signed the Release at any time.

3.   In addition, Alex does not contend that Perez had “a duty to act or speak out” about his failure to sign the Release. Farmhouse Invs., 268 N.E.3d at 775.

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.