Edward Rose of Indiana v. Fountain, No. 2-781A240

Docket NºNo. 2-781A240
Citation431 N.E.2d 543
Case DateFebruary 24, 1982
CourtCourt of Appeals of Indiana

Page 543

431 N.E.2d 543
EDWARD ROSE OF INDIANA, Appellant (Defendant Below),
v.
C. Wayne FOUNTAIN, Appellee (Plaintiff Below).
No. 2-781A240.
Court of Appeals of Indiana, Second District.
Feb. 24, 1982.

Page 544

Jeffrey M. Nicholls, George J. Heid, Lafayette, for appellant.

C. Wayne Fountain, pro se.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant Edward Rose of Indiana (Rose) appeals from a judgment in favor of plaintiff-appellee C. Wayne Fountain (Fountain) claiming error in the trial court's application of IC 32-7-1-7 and in the court's determination that Rose was not entitled to withhold Fountain's security deposit as damages for breach of a lease agreement.

We reverse.

FACTS

The facts most favorable to the judgment indicate that on February 2, 1980 the parties entered into a lease agreement whereby Fountain agreed to rent an apartment from Rose for a period of six months. Because of the lease's provision that Fountain was entitled to hold over as a month-to-month tenant after expiration of the six month term, 1 the lease required that Fountain give at least thirty days written notice of his intention to surrender the premises. 2 The lease further provided that one month's rent would serve as liquidated damages in the event of Fountain's failure to give the requisite notice.

Prior to the end of the six-month lease period, Rose sent Fountain a routine form letter reminding him of his obligation to give notice; however, Fountain ignored the

Page 545

letter and failed to give written notice before the last day of the term when he vacated the premises. Pursuant to the lease agreement, Rose retained Fountain's $150.00 security deposit which was to be "retained as security for the faithful performance of all the covenants, conditions and agreements" of the lease. 3

Fountain brought suit in the Tippecanoe County Court and judgment was entered in his favor in the sum of $150.00 plus court costs of $10.00.

ISSUES

Rose presents two issues 4 for appeal:

1. Did the trial court err in applying IC 32-7-1-7?

2. Did the trial court err in failing to find that Rose was entitled to withhold Fountain's security deposit and apply it to damages suffered by Fountain's failure to give notice to quit?

DECISION

ISSUE ONE-Did the trial court err in applying IC 32-7-1-7?

CONCLUSION-The provisions of IC 32-7-1-7 apply to a landlord's duty to give notice to his tenant and were therefore inapplicable to the facts before the trial court.

As to issue one, Rose contends that the trial court improperly applied IC 32-7-1-7 which provides:

Where the landlord agrees with the tenant to rent the premises to him for a specified period of time, or where the time for the determination of the tenancy is specified in the contract, or where a tenant at will commits waste, or in the case of a tenant at sufferance; or where, by the express terms of the contract, the rent is to be paid in advance, and the tenant has entered, and refuses or neglects to pay the rent, and in any case where the relation of landlord and tenant does not exist, no notice shall be necessary.

Rose argues that this code section is a limitation on the landlord's obligation to give notice and that it was error to apply the statute to a factual situation involving a tenant's notice to his landlord.

A perusal of the code provisions surrounding IC 32-7-1-7 convinces us that Rose's argument is correct. A single statutory provision cannot be construed standing alone, but...

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16 practice notes
  • White v. State, 8 Div. 473
    • United States
    • Alabama Court of Criminal Appeals
    • August 24, 1990
    ...not put a spouse's separate property beyond the protection of the law and subject to the depredation of the other spouse. See Dively, 431 N.E.2d at 543. "Given the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant neither had a possessory interest ......
  • Scott v. Anderson Newspapers, Inc., No. 4-583A158
    • United States
    • Indiana Court of Appeals of Indiana
    • April 29, 1985
    ...as a whole so as to give effect to each part thereof, if reasonably possible. Edward Rose of Indiana v. Fountain (1982), Ind.App., 431 N.E.2d 543, 545; Barr v. State (1980), Ind.App., 400 N.E.2d 1149, 1150; Ind. Alcoholic Bev. Comm. v. State ex rel. Harmon (1976), 171 Ind.App. 156, 355 N.E.......
  • Folsom v. State, CR-93-1835
    • United States
    • Alabama Court of Criminal Appeals
    • July 28, 1995
    ...not put a spouse's separate property beyond the protection of the law and subject to the depredation of the other spouse. See Dively, 431 N.E.2d at 543. " 'Given the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant neither had a possessory interes......
  • Parham v. State, No. 1225
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1988
    ...not put a spouse's separate property beyond the protection of the law and subject to the depredation of the other spouse. See Dively, 431 N.E.2d at 543. Given the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant neither had a possessory interest i......
  • Request a trial to view additional results
16 cases
  • White v. State, 8 Div. 473
    • United States
    • Alabama Court of Criminal Appeals
    • August 24, 1990
    ...not put a spouse's separate property beyond the protection of the law and subject to the depredation of the other spouse. See Dively, 431 N.E.2d at 543. "Given the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant neither had a possessory interest ......
  • Scott v. Anderson Newspapers, Inc., No. 4-583A158
    • United States
    • Indiana Court of Appeals of Indiana
    • April 29, 1985
    ...as a whole so as to give effect to each part thereof, if reasonably possible. Edward Rose of Indiana v. Fountain (1982), Ind.App., 431 N.E.2d 543, 545; Barr v. State (1980), Ind.App., 400 N.E.2d 1149, 1150; Ind. Alcoholic Bev. Comm. v. State ex rel. Harmon (1976), 171 Ind.App. 156, 355 N.E.......
  • Folsom v. State, CR-93-1835
    • United States
    • Alabama Court of Criminal Appeals
    • July 28, 1995
    ...not put a spouse's separate property beyond the protection of the law and subject to the depredation of the other spouse. See Dively, 431 N.E.2d at 543. " 'Given the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant neither had a possessory interes......
  • Parham v. State, No. 1225
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1988
    ...not put a spouse's separate property beyond the protection of the law and subject to the depredation of the other spouse. See Dively, 431 N.E.2d at 543. Given the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant neither had a possessory interest i......
  • Request a trial to view additional results

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