Greasel v. Troy
| Decision Date | 16 December 1997 |
| Docket Number | No. 29A05-9612-CV-532,29A05-9612-CV-532 |
| Citation | 690 N.E.2d 298 |
| Court | Indiana Appellate Court |
| Parties | William Chris GREASEL, III, Appellant-Plaintiff, v. Margaret E. TROY, Appellee-Defendant. |
William Chris Greasel III appeals a $1,100.00 judgment against him following a small claims action involving the return of a residential lease damage deposit. 1 The issues Greasel raises on appeal have been consolidated as follows:
(1) whether the damages against Greasel are supported by the evidence;
(2) whether the trial court properly denied Greasel's Motion to Correct Error; and
(3) whether Appellee Margaret E. Troy is entitled to trial attorney fees under the terms of the lease agreement.
In addition to the issues raised by Greasel, Appellee Troy raises the issue of whether she should be awarded appellate attorney fees pursuant to Indiana Appellate Rule 15(G).
We affirm.
The facts most favorable to the judgment are that on July 25, 1995, Greasel and Troy signed a renewal agreement in which Troy extended an existing lease of property to Greasel for the term of August 1, 1995 until July 31, 1996. On August 1, 1996, after Greasel had vacated the premises, Troy and real estate agent Lucinda Pearson performed an inspection of the house which revealed strong pet odors in the carpet. Determining that the odors necessitated replacement of the carpet, Troy obtained a carpet and padding replacement estimate from Carpetland in the amount of $1,473.06.
On August 20, 1996, Troy provided Greasel with a statement of damages that listed the estimated cost of replacing the carpet. A copy of the Carpetland estimate was attached to the statement.
On August 28, Greasel filed suit in small claims court for return of the $1,000.00 security deposit. On September 17, 1996, Troy filed her counterclaim for $1,473.06 in damages plus costs, interest and attorney fees. On September 30, 1996, judgment as to the $1,000.00 security deposit was rendered in favor of Troy. Additionally, Greasel was ordered to pay Troy $400.00 in damages and $700.00 in attorney fees pursuant to the counterclaim. A copy of the entry of judgment was sent to the parties October 2, 1996. On November 1, 1996, Greasel filed a Motion to Correct Error which asked for a new trial based on newly discovered evidence, and it was denied.
In reviewing sufficiency of the evidence to support a judgment, this court neither weighs the evidence nor judges the credibility of witnesses, but considers only the evidence most favorable to the judgment and all reasonable inferences to be drawn therefrom. Rueth v. Quinn, 659 N.E.2d 684, 687 (Ind.Ct.App.1996), trans. denied. Therefore, the judgment is affirmed if it can be sustained on any legal theory supported by the evidence. Id.
Greasel argues that the damages are not supported by the evidence because Troy failed to comply with the statutory notice requirement.
Section 32-7-5-13(1) of the Indiana Code provides that a security deposit may be used 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." Indiana Code Section 32-7-5-14 provides further:
In the 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 plans to assess the tenant. This 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.
In Duchon v. Ross, 599 N.E.2d 621, 625 (Ind.Ct.App.1992), we found summary judgment in favor of tenants was proper where the landlord's letter was insufficient to meet the statutory duty imposed on landlords by Indiana Code Section 32-7-5-14. In Duchon, the landlord's letter alleged damaged items but failed to include any estimated repair costs or a check for the balance remaining after damages were deducted; instead, it merely stated that an accounting would be sent to the tenants upon final determination of the costs. Id. at 624. This court found that the "explicit and mandatory" direction of Section 14 requires that the letter include estimated costs of repair and be accompanied by payment for the excess deposit (if any). Id. The exclusion of costs or accompanying payment renders the letter insufficient under the statutory notice of damages requirement. Id. at 625.
The purpose of the notice provision is to inform the tenant that the landlord is keeping the security deposit and for what reason. Meyers v. Langley, 638 N.E.2d 875, 878 (Ind.Ct.App.1994). It provides the tenant an opportunity to challenge the costs for which the deposit is being used. Id. Troy provided Greasel with a timely and complete statement of the damages assessed against the security deposit in compliance with Indiana Code Section 32-7-5-14. Greasel vacated the premises on or about July 28, 1996; the lease terminated on July 31, 1996. On August 20, 1996, Troy provided Greasel with an itemized statement of damages which Troy planned to deduct from the security deposit. The damages assessed were the replacement cost of the carpet and padding that was the subject of the trial court's award. The statement also expressed Troy's intent to retain the entire amount of the security deposit because the damages exceeded $1,000.00.
In addition to the carpet damage, Troy listed in her statement of damages other items that she felt were unacceptable; however, she assigned no estimated costs to them, indicating her intent to assess only the carpet damage costs against Greasel. She made no claim at trial for damages other than those involved in replacement of the carpet. Therefore, Troy's failure to assign cost estimates to the other items does not render the statement insufficient under Section 32-7-5-14. Troy's statement of damages satisfies the statutory notice requirement and entitles her to retain the entire security deposit.
Troy's compliance with the statutory notice requirement also preserves her right to recover "other damages" beyond the amount of the security deposit to which she is entitled. Miller v. Geels, 643 N.E.2d 922, 925 (Ind.Ct.App.1994). Section 32-7-5-12(c) of the Indiana Code states "[t]his section does not preclude the landlord or tenant from recovering other damages to which either is entitled." Therefore, where the landlord provides notice in satisfaction of the statute, she may then seek to recover any "other damages" beyond the security deposit to which she is entitled under the lease agreement. Miller, 643 N.E.2d at 926.
Troy complied with the notice requirement and may claim "other damages." The lease agreement authorizes the recovery of such damages in Section 6 which provides in pertinent part:
Tenant shall maintain the Leased Premises in a good state of repair, reasonable wear and tear excepted, and will have repaired, at Tenant's expense, any damage caused by Tenant's misuse, negligence or neglect and any damage done by guests, invitees and pets of Tenant.
....
Tenant shall make all other repairs not required to be made by Landlord to maintain the Leased Premises in the same condition they are at the commencement of this Lease and shall reimburse Landlord for the cost of any repairs listed ... which result from the acts or neglect of Tenant, its agents, contractors or invitees. Tenant accepts the Leased Premises in their present condition.
The lease agreement requires the tenant to repair the pet odor damage at his own expense. Therefore, the trial court could properly award damages beyond the amount of the security deposit to Troy based on her compliance with the statutory notice requirement of Indiana Code Section 32-7-5-14 and Section 6 of the lease agreement.
The trial court provided no explanation for its denial of Greasel's Motion to Correct Error. A Motion to Correct Error is a prerequisite for appeal when a party seeks to address newly discovered material evidence. Ind. Trial Rule 59. The Motion to Correct Error must be filed not later than 30 days after the entry of final judgment. Id. Greasel offered as a basis for his Motion to Correct Error what he describes as "newly discovered evidence" that would likely result in reversal of the judgment against him. Troy argues that the motion was not timely because Greasel failed to file it within thirty (30) days of the date he had personal knowledge of the trial court's judgment.
Greasel's motion was timely filed. The judgment was read to the parties after trial in small claims court on September 30, 1996. A copy of the entry of judgment sent to the parties on October 2, 1996 stated, "Copies of the above served on all parties this date in compliance with Rule 72(d)." R. at 12. Greasel filed his Motion to Correct Error on November 1, 1996.
Indiana Trial Rule 59(C) provides:
The motion to correct error, if any, shall be filed not later than thirty (30) days after the entry of a final judgment or an appealable final order.
....
Trial Rule 72(D) provides:
Immediately upon the entry of a ruling upon a motion, an order or judgment, the clerk shall serve a copy of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear...
To continue reading
Request your trial
- Cinergy Corp. v. Associated Elec. & Gas
-
DSI v. Natare Corp.
...appeal rise to the level of implausibility that would warrant an award of attorney fees under Appellate Rule 15(G). See Greasel v. Troy, 690 N.E.2d 298 (Ind.Ct.App.1997). Judgment affirmed and request for appellate attorney fees DARDEN, J., and BARNES, J., concur. 1. Deputy Ron Elliott subm......
-
Estate v. Peters
...the proponent to set out facts showing the exercise thereof; the bare assertion of due diligence is insufficient. Greasel v. Troy , 690 N.E.2d 298, 303-04 (Ind. Ct. App. 1997).[43] As Edward's former spouse, Diana has no interest in Edward's estate and is not a party to the heirship proceed......
-
Taflinger Farm v. Uhl
...argument could have been made, we do not find Taflingers' contentions utterly devoid of all plausibility. See, e.g., Greasel v. Troy, 690 N.E.2d 298, 304 (Ind.Ct.App.1997) (holding that an award of appellate attorney fees was not warranted where a challenge was supported with pertinent lega......