Durf v. Molter
| Decision Date | 30 December 2005 |
| Docket Number | No. 25A03-0505-CV-218.,25A03-0505-CV-218. |
| Citation | 839 N.E.2d 1208 |
| Parties | Cathy DURF, Appellant-Defendant, v. Harold MOLTER and Doris Molter, Appellees-Plaintiffs. |
| Court | Indiana Supreme Court |
Tom A. Black, Plymouth, for Appellant.
Appellant-Defendant Cathy Durf ("the Tenant") appeals from the small claims court's order awarding Appellees-Plaintiffs Harold and Doris Molter (collectively "the Landlord") $1,950.00 for damages to the rental property.
The Landlord and the Tenant entered into a lease agreement for $650.00 per month in rent plus a $650.00 security deposit. The Tenant failed to pay her rent on October 1, 2004. On October 11, 2004, the Landlord gave the Tenant a five-day written notice of eviction. On October 13, 2004, the Tenant sent a letter to the Landlord stating that she would not vacate the premises for thirty days. In that letter, the Tenant provided the Landlord with the address where the Tenant would be living after vacating the leased premises. On October 18, 2004, the Landlord filed a notice of claim and affidavit for possession of real property.
On November 1, 2004, a hearing was held and the court ordered the Tenant to vacate the premises. The Tenant vacated the premises on November 8, 2004. When the Tenant vacated the leased premises there was some wear and tear to the residence.
On March 28, 2005, a bench trial was held on the Landlord's notice of claim and on the Tenant's counter-claim for the refund of her security deposit. On April 12, 2005, the court entered judgment in favor of the Landlord for $3,000.00 plus costs. The court found for the Tenant on her counterclaim in the amount of her security deposit, $650.00 plus attorneys fees of $400.00. The court then set off the judgments leaving the Landlord with a $1,950.00 award.
The Tenant filed a notice of appeal on April 28, 2005. The Landlord filed a motion for proceedings supplemental on May 12, 2005. On June 6, 2005, the Tenant filed a motion to stay proceedings pending appeal.
The Landlord has not filed an appellee's brief in this matter. When an appellee does not submit a brief, an appellant may prevail by making a prima facie case of error, a less stringent standard. Lewis v. Rex Metal Craft, Inc., 831 N.E.2d 812, 816 (Ind.Ct.App.2005). Prima facie, in this context, is defined as at first sight, on first appearance, or on the face of it. Id. The prima facie error rule protects this court and relieves it from the burden of controverting arguments advanced for reversal, a duty which properly remains with counsel for the appellee. Id.
The Tenant lost, in part, below. When reviewing an appeal from a negative judgment we must determine whether the judgment is contrary to law. Mileusnich v. Novogroder Co., Inc., 643 N.E.2d 937, 939 (Ind.Ct.App.1994). A judgment is contrary to law when the evidence is without conflict and leads to but one conclusion which is contrary to that reached by the trial court. Id. In determining whether a negative finding is contrary to law, we will neither reweigh the evidence nor reassess the credibility of the witnesses. Id. We will reverse a judgment only if the evidence is without conflict and leads but to one conclusion, which is the opposite of that reached by the trial court. Id.
When discussing the landlord-tenant statute regarding return of security deposits, now codified at Ind.Code § 32-31-3-15, a panel of this court stated as follows:
The landlord must provide a tenant with written notice of the damages within forty-five days of the termination of the rental agreement and delivery of possession. The tenant must provide the landlord with a mailing address in which to deliver this notice. If the landlord fails to comply the tenant is entitled to return of the entire security deposit and reasonable attorney fees. . .The failure to comply with the notice of damages requirement constitutes an agreement by the landlord that no damages are due.
Mileusnich, 643 N.E.2d at 940-41.
The undisputed facts show that the Tenant provided the Landlord with her future address once she vacated the leased premises. The Tenant was ordered to vacate the premises and did so on November 8, 2004. The Landlord admitted at the bench trial that an itemized list of damages was not tendered to the Tenant within forty-five days of the termination of occupancy by the Tenant. Therefore, the trial court correctly determined that the Tenant was entitled to the return of the full security...
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Klotz v. Hoyt
...See, e.g., Starks v. Village Green Apartments, 854 N.E.2d 411, 417-18 (Ind.Ct.App.2006), trans. not sought; Durf v. Molter, 839 N.E.2d 1208, 1210-11 (Ind.Ct.App.2005), trans. not sought; Hill v. Davis, 832 N.E.2d 544, 554-55 (Ind.Ct.App.2005), reh'g granted, subsequent appeal at 850 N.E.2d ......
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Klotz v. Hoyt, 18A02-0707-CV-556.
...not preclude the landlord or tenant from recovering other damages to which either is entitled"). We acknowledge Durf v. Molter, 839 N.E.2d 1208, 1210-11 (Ind.Ct.App.2005), in which the court held that a landlord's failure to provide his tenant with an itemized list of damages precluded him ......
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Starks v. Village Green Apartments
...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 prerequisi......