Chasteen v. Smith
| Decision Date | 14 December 1993 |
| Docket Number | No. 84A01-9308-CV-281,84A01-9308-CV-281 |
| Citation | 625 N.E.2d 501 |
| Parties | Donald CHASTEEN & Catherine Cox, Appellants-Defendants, v. Dale SMITH, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
William J. Tabor, Terre Haute, for appellants-defendants.
Thomas C. Newlin, Fleschner, Fleschner, Stark, Tanoos & Newlin, Terre Haute, for appellee-plaintiff.
Donald Chasteen and Catherine Cox appeal an adverse judgment in the amount of $2,506.00 on the plaintiff Dale Smith's complaint for possession of real property leased to Chasteen and Cox, and for damages to the rental property caused by Chasteen and Cox as tenants. We reverse and remand.
The record reflects that despite repeated demands for possession and written notice, Chasteen and Cox refused to move from the premises owned by Smith. On December 11, 1992, Smith filed a pro se small claims suit for possession and asked for damages. Chasteen and Cox refused Smith entry in late December, 1992, but then vacated the premises on December 31, 1992. In February, 1993, Chasteen and Cox filed a counterclaim, seeking the return of their damage deposit. The matter went to trial on March 2, 1993. At that time, Smith amended his claim by increasing the amount of damages and requesting attorney fees.
Chasteen and Cox argue in this appeal that Smith's claims for damages are barred as a matter of law by the Indiana Security Deposit Statutes because Smith failed to provide the statutorily required notice within forty-five days from the date they vacated the premises. Smith admitted at trial that he provided Chasteen and Cox with no written itemization of the amount of damages he had or would suffer by reason of their noncompliance with the rental agreement. Smith also admitted that he knew the defendants' forwarding addresses.
Indiana Code 32-7-5-14 provides In case of damage to the rental unit or other obligation against the security deposit, the landlord shall mail to the tenant, within forty-five (45) days after the termination of occupancy, an itemized list of damages claimed for which the security deposit may be used as provided in section 13 of this chapter, including the estimated cost of repair for each damaged item and the amounts and lease on which the landlord intends to assess the tenant. The list must be accompanied by a check or money order for the difference between the damages claimed and the amount of the security deposit held by the landlord.
If the landlord fails to comply, the tenant may recover all of the security deposit due the tenant and reasonable attorney's fees. I.C. 32-7-5-12. This court has twice held that compliance with I.C. 32-7-5-1 et seq. is necessary before a landlord may withhold a security deposit or make a claim for damages. Duchon v. Ross (1992), Ind.App., 599 N.E.2d 621; Skiver v. Brighton Meadows (1992), Ind.App., 585 N.E.2d 1345.
In Duchon, we held that a landlord can attempt to pursue a claim for "other damages," that is, a claim for amounts in excess of the security deposit or other types of damages, only if it returns the tenant's security deposit within forty-five days or provides the statutory notice. 599 N.E.2d at 625. We also held that a letter which failed to include estimated costs of repair and which was not accompanied by the difference between the damages claimed and the amount of the security deposit did not comply with the requirements imposed by statute. Id. at 624.
Smith maintains that by initiating suit within the forty-five day period, indeed, even before the statutory period began to run, he has substantially complied with the requirements of I.C. 32-7-5-1 et seq. We cannot agree, at least in this case. Although Smith made a claim for damages when he filed his small claims action, he never itemized the damages he had or would reasonably suffer by reason of his tenants' noncompliance or estimate the amounts attributable for each item of damage. Thus, under Duchon, Smith did not substantially comply with the notice requirement imposed by I.C. 32-7-5-12, 14.
The trial court concluded that the chapter governing...
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Hill v. Davis, 32A05-0412-CV-694.
...that he was keeping the security deposit and applying it to unpaid rent only), reh'g denied, trans. denied. We find Chasteen v. Smith, 625 N.E.2d 501 (Ind.Ct.App.1993), instructive and more similar to the facts of this case. In Chasteen, a landlord filed a small claims complaint seeking dam......
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Mileusnich v. Novogroder Co., Inc.
...to comply with the notice of damages requirement constitutes an agreement by the landlord that no damages are due. Chasteen v. Smith (1993), Ind.App., 625 N.E.2d 501, 502. Because no damages are due, we conclude that Novogroder is required to remit Mileusnich his full security deposit plus ......
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Matusky v. Sheffield Square Apartments
...of damages within forty-five days of their vacating the apartment, judgment should have been entered for Matuskys. See Chasteen v. Smith (1993), Ind.App., 625 N.E.2d 501 (by operation of statute, the failure of a landlord to comply with the notice of damages requirement constitutes an agree......
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Deckard Realty & Development v. Lykins
...days of the termination of the rental agreement and delivery of possession. I.C. §§ 32-7-5-12(a)(3) and 14; Chasteen v. Smith, 625 N.E.2d 501, 502 (Ind.Ct.App.1993). Failure to provide such notice within forty-five days constitutes an agreement by the landlord that no damages are due. I.C. ......