Figg v. Bryan Rental Inc.

Citation646 N.E.2d 69
Decision Date30 January 1995
Docket NumberNo. 53A04-9408-CV-336,53A04-9408-CV-336
PartiesGary FIGG, Appellant (Defendant Below), v. BRYAN RENTAL INC., Appellee (Plaintiff Below).
CourtIndiana Appellate Court
OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Gary Figg appeals the trial court's grant of summary judgment in favor of Bryan Rental, Inc. We affirm.

ISSUES

I. Did the trial court err in granting summary judgment in favor of Bryan Rental, Inc.?

II. Is Figg entitled to attorney fees pursuant to Ind.Code 34-1-32-1?

FACTS

On February 26, 1991, Gary Figg entered into a lease agreement with Bryan Rental, Inc. Figg agreed to rent an apartment for a period of twelve months, beginning August 14, 1991 and ending August 14, 1992. Figg paid a security deposit of $295.00 and agreed to pay monthly rent of $325.00.

On March 27, 1992, Figg's attorney sent Bryan Rental notice that Figg had vacated the apartment. Figg's attorney enclosed the front door and mailbox keys. Three days later, Figg's attorney sent David Kamen, president of Bryan Rental, a letter indicating that Figg's vacation of the premises was permanent, and that he would not be returning for the remainder of the lease. Kamen telephoned Figg and requested that he continue his lease payments as required by the lease agreement. Figg agreed to continue his lease payments until the lease term ended or until a subtenant could be found. On April 13, 1992, Figg paid the rent for the period from March 14, 1992 to April 14, 1992. Kamen accepted and cashed the check.

On May 22, 1992, Figg's attorney sent Bryan Rental a demand letter stating that Figg had vacated the apartment on March 27, 1992, and that he was no longer liable for rent payments. Figg's attorney requested that Bryan Rental refund Figg's security deposit, as well as rent for the period from March 27, 1992 to April 14, 1992. In response, Bryan Rental sent Figg a written accounting of his security deposit on May 26, 1992. The accounting stated that Bryan Rental had applied Figg's security deposit to the rent which Figg owed for the remaining months of the lease term.

On June 15, 1992, Bryan Rental filed a complaint seeking $2,456.29 1 in Monroe Circuit Court, Small Claims docket. Figg filed a summary judgment motion, and Bryan Rental filed a summary judgment motion. The trial court granted Bryan Rental's motion, denied Figg's, and held a hearing on damages. After the hearing, the trial court issued a judgment order for Bryan Rental in the amount of $1,005.00. 2 Figg now appeals the denial of his summary judgment motion and the grant of summary judgment in favor of Bryan Rental.

DECISION
I. SUMMARY JUDGMENT

Summary judgment is an appropriate disposition if the "designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind.Trial Rule 56(C). Relying on specifically designated evidence, the moving party bears the burden of showing prima facie that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Hermann v. Yater (1994), Ind.App., 631 N.E.2d 511, 513, reh'g denied. If the moving party meets these two requirements, the burden shifts to the non-movant to set forth specifically designated facts showing that there is a genuine issue for trial. T.R. 56(E); Id.

On appeal, we are bound by the same standard as the trial court, and we consider only those matters which were designated at the summary judgment stage. Id. The party that lost in the trial court has the burden to persuade the appellate court that the trial court erred. Id. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the evidentiary matter designated to the trial court. 3 Fawley v. Martin's Supermarkets, Inc. (1993), Ind.App., 618 N.E.2d 10, 12, trans. denied. On appeal, a trial court's grant of summary judgment is "clothed with a presumption of validity." Department of Revenue v. Caylor-Nickel Clinic, P.C. (1992), Ind., 587 N.E.2d 1311, 1312-13.

A. TIMELINESS OF THE DAMAGES LETTER

Figg first argues that the trial court erred in denying his summary judgment motion and granting Bryan Rental's because Bryan Rental failed to send a damages letter to Figg in compliance with Ind.Code 32-7-5-1 et seq. We disagree.

Ind.Code 32-7-5-1 through -19 concern the duties of landlords to return security deposits to tenants. The provisions most relevant to our decision, which are found in IC 32-7-5-12 through -16, provide:

32-7-5-12 (a) Upon termination of the rental agreement, all of the security deposit held by the landlord shall be returned to the tenant, except for any amount applied to:

(1) The payment of accrued rent;

(2) The amount of damages that the landlord has or will reasonably suffer by reason of the tenant's noncompliance with law or the rental agreement; and

(3) Unpaid utility or sewer charges that the tenant is obligated to pay under the rental agreement;

all as itemized by the landlord in a written notice delivered to the tenant together with the amount due within forty-five days after termination of the rental agreement and delivery of possession. The landlord is not liable under this subsection until supplied by the tenant with a mailing address to which to deliver the notice and amount prescribed by this subsection. Unless otherwise agreed, the tenant is not entitled to apply a security deposit to rent.

(b) If the landlord fails to comply with subsection (a), the tenant may recover all of the security deposit due the tenant and reasonable attorney's fees.

(c) This section does not preclude the landlord or tenant from recovering other damages to which either is entitled.

(d) The owner of the dwelling unit at the time of the termination of the rental agreement is bound by this section. (emphasis added).

32-7-5-13. A security deposit may be used only for the following purposes:

(1) To reimburse the landlord for actual damages to the rental unit or any ancillary facility that are not the result of ordinary wear and tear expected in the normal course of habitation of a dwelling.

(2) To pay the landlord for all rent in arrearage under the rental agreement, and rent due for premature termination of the rental agreement by the tenant.

(3) To pay for the last payment period of a residential rental agreement where there is a written agreement between the landlord and the tenant that stipulates the security deposit will serve as the last payment of rent due.

(4) To reimburse the landlord for utility or sewer charges paid by the landlord that:

(A) Are the obligation of the tenant under the rental agreement; and

(B) Are unpaid by the tenant.

32-7-5-14. 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 [IC 32-7-5-13] 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. (emphasis added).

32-7-5-15. Failure by the landlord to comply with the notice of damages requirement within the forty-five (45) days after the termination of occupancy constitutes agreement by the landlord that no damages are due, and the landlord must remit to the tenant immediately the full security deposit. (emphasis added).

32-5-7-16. A landlord who fails to provide a written statement within forty-five (45) days of termination of the tenancy or the return of the appropriate security deposit is liable to the tenant in an amount equal to the part of the deposit withheld by the landlord, plus reasonable attorney's fees and court costs. (emphasis added).

Figg directs us to Ind.Code 32-7-5-14 and 15, and argues that he vacated the premises on March 27, and that his vacation triggered the 45 day period. 4 Figg further argues that Bryan Rental was required to mail its damages letter within 45 days of March 27. Bryan Rental agrees that Figg vacated the premises on March 27; however, it argues that the statute is ambiguous because the "[forty-five day] notice provisions of the Security Deposit statute do not clearly articulate what event triggers the 45 day period." Bryan Rental's Brief, p. 6. Bryan Rental argues that we should interpret the 45 day notice period as being triggered by the termination of the rental agreement, not the termination of the tenant's occupancy. Thus, according to Bryan Rental, Figg's lease did not terminate until April 14, 1992, the last day for which Figg paid rent.

We agree with Bryan Rental that the statute is ambiguous because it does not identify what event triggers the 45 day period. 5 The interpretation of a statute is a question of law to be decided by this court. One 1968 Buick, 4 Door v. State (1994), Ind.App., 638 N.E.2d 1313, 1316. In interpreting statutes, it is this court's objective to ascertain and give effect to the intent of the legislature. St. Anthony Medical Center v. Smith (1992), Ind.App., 592 N.E.2d 732, 739, trans. denied. In giving effect to the legislative intention, the objects and purposes of the statute in question must be considered, as well as the effect and consequences of such interpretation. Holmes v. Review Bd. of Ind. Employment Sec. Div. (1983), Ind.App., 451 N.E.2d 83, 86. We construe statutes to avoid an absurd result or a result that the legislature, as a reasonable body, could not have intended. Guinn v. Light (1990), Ind., 558 N.E.2d 821, 823.

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