Breezewood Management Co. v. Maltbie

• Decision Date: 28 October 1980
• Docket Number: No. 1-480A81,1-480A81
• Citation: 411 N.E.2d 670
• Parties: BREEZEWOOD MANAGEMENT COMPANY, Plaintiff-Appellant, v. Dan MALTBIE and John Burke, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 670

411 N.E.2d 670

BREEZEWOOD MANAGEMENT COMPANY, Plaintiff-Appellant, v. Dan MALTBIE and John Burke, Defendants-Appellees.

No. 1-480A81.

Court of Appeals of Indiana, First District.

Oct. 28, 1980.

Claudia Carroll, Bloomington, for plaintiff-appellant.

John M. Irvine, Student Legal Services, Bloomington, for defendants-appellees.

Chris Sautter, Stephen J. Moore, Legal Services Organization of Indiana, Inc., Bloomington, for defendant-appellee John Burke.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Breezewood Management Company (Breezewood) appeals the judgment of the Small Claims Division of the Monroe Superior Court denying its claim and awarding damages upon the counterclaims of defendants-appellees Dan Maltbie (Maltbie) and John Burke (Burke) for breach of lease.

STATEMENT OF THE FACTS

On August 2, 1978, Burke and Maltbie, students at Indiana University, entered into a written lease with Breezewood for a term running from August 17, 1978, to August 17, 1979, for the rental of an apartment at 309 East First Street, Bloomington, Indiana. The apartment was in an older home recently purchased by Breezewood. Burke and Maltbie were joint lessees and were obligated to pay $235 per month; they had agreed between themselves that Burke would pay $122.50 and Maltbie would pay $112.50. The lease contained a provision that Breezewood would plaster and paint the bathroom, and repair the toilet and cold water pipes to a proper working condition. The lease provided:

"4. Condition of the Premises-Lessee has examined said premises and appurtenances prior to and as a condition precedent to this acceptance and execution hereof, and is satisfied with the physical condition thereof, and his taking possession shall be conclusive evidence of his receipt thereof in good order and repair, except as otherwise specified hereon, and agrees and admits that no representation as to condition or repair has been made by Lessor or his agent.

6. Upkeep-Lessee shall not suffer nor commit any waste in and about said premises nor the building of which they are a part, and shall keep the said demised premises, together with the fixtures therein and appurtenances, in a clean, sightly, and sanitary condition and in good repair and free from vermin and rodents, all at his own expense, and shall yield the same back to the Lessor upon termination of this lease, in the same condition, except as repaired or altered by Lessor.

7. Access-The right of free access is reserved to the Lessor and his agents and to any other person thereunto authorized by the Lessor or his agent, to inspect, repair, alter or exhibit said premises and to affix sign 'for rent' in such places on the premises as the Lessor or his agent shall determine."

Burke and Maltbie entered into possession on August 17, 1978, and paid a $235 damage deposit. Immediately they discovered numerous defects: rotting porch floor boards, broken and loose windows, an inoperable front door lock, leaks in the plumbing, a back door that would not close, a missing bathroom door, inadequate water pressure, falling plaster, exposed wiring over the bathtub, and a malfunctioning toilet. Later they discovered a leaking roof, cockroach infestation, the absence of heat and hot water, more leaks in the plumbing, and pigeons in the attic.

The City of Bloomington had in effect a minimum housing code at the time. Complaints by persons other than Burke and Maltbie prompted code enforcement officers to inspect the dwelling. They first discovered that the structure in question was not registered as required by the code. Upon inspection they discovered over fifty violations, eleven of which were "life-safety" violations, defined as conditions which may be severely "hazardous to health of the occupant." The evidence discloses that these conditions remained largely uncorrected after notice by the code officers and further complaints by Burke and Maltbie. Burke developed pneumonia and was hospitalized, the cause of which he attributed to the inadequate heating of the apartment.

On May 3, 1979, Maltbie vacated the premises, notified Breezewood, and refused to pay any further rent. Breezewood agreed to let Burke remain and pay $112.50 per month. Breezewood then filed suit against Burke and Maltbie for $610.75, which was the balance due under the written rental contract, plus certain "charges." Burke and Maltbie each filed counterclaims in which they contended there was an implied warranty of habitability which had been breached by Breezewood; they sought damages and abatement of the rent.

On July 23, 1979, with all parties present, including Robert Lewis, who is the owner of Breezewood, the court set the cause for trial on August 29, 1979. On August 28, 1979, Robert Lewis, on behalf of Breezewood, filed an unverified motion for continuance alleging only that he was an appeal's referee for the Indiana Employment Security Division and that he had hearings scheduled for August 29. The motion contained no information regarding the time when the hearings were to take place. Apparently presuming his motion would be granted, Lewis went to the hearings and did not appear at the trial. At the trial the court overruled the motion for continuance and proceeded to hear Burke's and Maltbie's case on their counterclaim. Later, on Breezewood's motion, the trial court, on October 22, 1979, permitted Breezewood to present evidence. On November 2, 1979, the trial court entered judgment against Breezewood on its complaint, granted Burke damages in the sum of $580 on his counterclaim, granted Maltbie damages of $450 on his counterclaim, and ordered the return of their damage deposit. Evidence presented by Burke and Maltbie showed that the reasonable rental value of the apartment was only $50 per month as it was during colder weather, and $75 a month during warmer weather.

ISSUES

Breezewood assigns certain errors on appeal which are, for the purpose of this opinion, restated as follows:

I. Error in overruling Breezewood's motion for continuance;

II. Insufficiency of the evidence to support an award of damages on the counterclaims under the theory of negligence per se, implied warranty of habitability, or any other theory;

III. Error in employing an improper measure of damages.

DISCUSSION AND DECISION

Issue I. Motion for Continuance

Indiana Rules of Procedure, Trial Rule 53.4 provides, in relevant part, as follows:

"Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon agreement of all the parties or upon a showing of good cause established by affidavit or other evidence." (Emphasis added.)

Ind.Rules of Procedure, Small Claim Rule 9, also provides that either party may be granted a continuance for good cause shown, but only with the specific approval of the court. Granting or denying a continuance because of a party's absence is within the sound discretion of the court. It is not error to deny a continuance when the party fails to show a sufficient reason for its absence. Flick v. Simpson, (1969) 145 Ind.App. 698, 252 N.E.2d 508, reh. denied 225 N.E.2d 118; Loudermilk v. Feld Trucking Company of Indiana, (1976) Ind.App., 358 N.E.2d 160.

In Loudermilk, supra, where the absence of the moving party was for the purpose of attending a convention, this court noted, in affirming the trial court's denial of a continuance, that the moving party had "exercised his free will and discretion in choosing his whereabouts on the trial date." As stated in Flick, supra, the unavoidable absence of a party is good cause for a continuance.

We are able to affirm the trial court's denial of the continuance for a number of reasons. In addition to the fact that the motion was unverified, it was not timely filed. See Clodfelder v. Walker, (1955) 234 Ind. 219, 125 N.E.2d 799. Further, the motion does not inform us as to whether the employment security cases were set after or before the trial setting. The record shows that Lewis filed the motion and simply walked away, trusting to fate that it would be sustained. Breezewood argues that the continuance should have been granted because of Robert Lewis's "press of business." By making such an argument Breezewood seems to say that only Lewis's other business was of valid consideration. However, the court's press of business, the fact that the defendants, their lawyers, and their witnesses had scheduled this day for trial, are all relevant factors. In any event, the court magnanimously permitted Breezewood to present its case, and we can find no prejudice.

Issue II. Insufficiency of the Evidence

It is well established that this court will not reweigh conflicting evidence on appeal. We will consider only that evidence which tends to support the trial court's findings of fact, conclusions of law, and judgment, together with all reasonable inferences which may be drawn therefrom. If, from that perspective, there is sufficient evidence to support the trial court's judgment, we must affirm. Blade Corporation v. American Drywall, Inc., (1980) Ind.App., 400 N.E.2d 1183.

The record clearly shows that the Bloomington Housing Code was in effect at the time of the lease agreement, and that a housing code official inspected the premises and found numerous housing code violations. Mr. Robert Lewis, owner and president of Breezewood, testified that he accompanied the official during the inspection, and that the official notified him of certain code violations at that time.

Under this issue Breezewood further contends the trial court's judgment is contrary to Indiana law, in that no theory of recovery can sustain the trial court's award of damages to Burke and Maltbie. A review of recent Indiana case law is in order.

In Pointer v. American Oil Company, (S.D.Ind.1969) 295 F.Supp. 573, 577, the United States District Court upheld an exculpatory clause in a lease protecting the lessor from liability even for its own negligence, and stated:

"The law...