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Thursday, September 28, 2006

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Thomas E. Starks and Herman C. Price v. Village Green Apartments, an 18-page opinion (with a dissent beginning on p. 16), Judge Friedlander writes:

Thomas E. Starks and Herman C. Price (Lessees) appeal a grant of summary judgment in favor of Village Green Apartments (Village Green) and the denial of their cross-motion for summary judgment in Village Green’s lawsuit to recover damages stemming from the breach of an apartment lease.

Lessees present the following restated issues for review: 1. Did the trial court err in basing its ruling on briefs submitted by Village Green that had been stricken pursuant to Lessees’ motion? 2. Did the trial court err in granting Village Green’s motion for summary judgment and in denying Lessees’ cross-motion for summary judgment? We reverse and remand with instructions. * * *

The trial court correctly granted Lessees’ motion to strike, but was free to make a ruling supported by the law and the materials properly before it, regardless whether that ruling included rationale consistent with arguments made by Village Green in stricken material. Accordingly, we proceed to the merits of the ruling in favor of Village Green. * * *

“The failure to comply with the notice of damages requirement constitutes an agreement by the landlord that no damages are due.” Mileusnich v. Novogroder Co., Inc., 643 N.E.2d 937, 941 (Ind. Ct. App. 1994). As a result, the tenant is entitled to return of the entire security deposit and reasonable attorney fees, which must be determined upon remand. Mileusnich v. Novogroder Co., Inc., 643 N.E.2d 937. Moreover, a landlord must comply with the statutory notice requirement in order to preserve its right to recover the other damages to which it is entitled. Durf v. Molter, 839 N.E.2d 1208 (Ind. Ct. App. 2005). As we have explained, “[t]he matter of the security deposit refund, if any, should be resolved first, and is a prerequisite for pursuing claims for other damages in excess of the security deposit, or not addressed in Ind.Code § 32-31-3-13. If the required notice is not given, the landlord has implicitly agreed that there are no other damages to collect.” Id. at 1211. As a result, Village Green not only must return Lessees’ security deposit in full, but it is also foreclosed from recovering unpaid rent. Judgment reversed and remanded for proceedings consistent with this opinion.

MAY, J., concurs.
CRONE, J., dissenting as to Issue 2 with separate opinion. [which reads in part]

The majority’s conclusion renders Indiana Code Section 32-31-3-12(c) meaningless and creates a manifestly unreasonable result. I do not believe that a landlord’s failure to give a tenant proper notice of damages for which a security deposit may be used precludes the landlord from recovering unpaid rent in excess of the amount of the security deposit.

NFP civil opinions today (1):

Termination of the Parent Child Relationship of K.G., B.R., N.R., and A.R., Minor Children v. Harrison County Department of Child Services (NFP) - a 15-page opinion that concludes: "There is insufficient evidence to support the termination of Rainbolt’s parental rights. We reverse."

NFP criminal opinions today (13) (link to cases):

David Keough v. State of Indiana (NFP)

Ronald L. Michael v. State of Indiana (NFP)

State of Indiana v. Robert Sherman, Jr. (NFP)

David Thomas v. State of Indiana (NFP) - see 9/30/06 ILB entry here.

Lonnie K. Stephens v. State of Indiana (NFP)

Andre Williams v. State of Indiana (NFP)

David J. Gardner v. State of Indiana (NFP)

James L. Chestnut v. State of Indiana (NFP)

Sheldon Swartzentruber v. State of Indiana (NFP)

Clarence Lucas v. State of Indiana (NFP)

Marcus T. Randall v. State of Indiana (NFP)

Troy Noe v. State of Indiana (NFP)

Todd A. Bebout v. State of Indiana (NFP)

Posted by Marcia Oddi on September 28, 2006 11:32 AM
Posted to Ind. App.Ct. Decisions