Kahf v. Charleston South Apartments, 2-682A152

Docket NºNo. 2-682A152
Citation461 N.E.2d 723
Case DateApril 09, 1984
CourtCourt of Appeals of Indiana

Halbert W. Kunz, S. Gregory Zubek, Kunz & Kunz, Abduallah A. Bade, Earl Townsend, Townsend, Hovde, Townsend, & Montross, Indianapolis, for appellants (plaintiffs).

William H. Vobach, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee (defendant) Charleston Apartments South.

Richard R. McDowell, Mark A. Sidebottom, Hill, Fulwider & McDowell, Indianapolis, for appellees (defendants) Walter E. Justus and Zona L. Justus.

Richard L. Norris, John M. Choplin, II, Peter A. Schroeder, Norris, Choplin & Johnson, Indianapolis, for appellee (defendant) Justus Property Management, Inc.

BUCHANAN, Chief Judge.


This is a consolidated action 1 in which plaintiff-appellants Mayssun Kahf, et al. (Tenants and Guests) appeal from summary judgment in favor of defendant-appellees Charleston Apartments South 2 (Charleston South), Walter E. Justus and Zona L. Justus (the Justuses), and Justus Property Management, Inc. (JPM). Tenants and Guests claim genuine issues of material fact exist as to landlord status, estoppel to deny landlord status, manager status, estoppel to deny manager status, and liability for prior acts of negligence.

We affirm in part, reverse in part, and remand.


The undisputed facts are as follows: On August 13, 1975, Tenants entered into a lease of the apartment premises located at 2607 Larman Drive, Indianapolis. The lease named Charleston South as the lessor of the premises, and an accompanying document entitled "Regulations for Tenants" provided that JPM managed the apartment complex. On June 1, 1976, while the apartment was occupied by Tenants and their five Guests, a fire broke out and the residence was destroyed.

Seven complaints were filed, each complaint alleging the same basic facts and theories of recovery. Charleston South and its partners, the Justuses, were named as the owner/lessors, and JPM was named as the management company. All parties were alleged liable for over two million dollars in personal property damage and personal injury claims. The theories of the complaints sounded in negligence, res ipsa loquitur, and breach of implied warranty of habitability. 3 Although it was alleged generally that the fire was caused by defective electrical and heating systems, the published deposition of the plaintiffs' expert and the parties' contentions at oral argument theorized that the fire was caused by a latent electrical defect inside the apartment.

The fire, which, according to the complaints, caused serious physical injury (and, in one case, death) to several of the apartment's occupants, was only the beginning of an extended drama which carried over into years of litigation. Although Charleston South originally admitted that it was lessor of the premises, Tenants and Guests were surprised when, over two years later, Charleston South was permitted to amend its answer. In this amended answer, Charleston South denied that it owned the Based upon the amended answer, Charleston South moved for summary judgment. The summary judgment motion contained the following pertinent exhibits which were also relied upon by the Justuses in their motion for the same relief:

apartment building and denied that it executed a lease with Tenants.

1. A document of assignment, dated November 9, 1973, in which Charleston South assigned its leasehold interest in the subject property to an Indiana limited partnership, Charleston Associates. (The document stated that said leasehold interest had been assigned to Mr. Justus, by Leland Realty, in 1970 and that Mr. Justus had in turn assigned it to Charleston South later that year). Record at 130.

2. A warranty deed, also dated November 9, 1973, in which Charleston South conveyed "all improvements, but excluding the underlying land," to Charleston Associates. Record at 132.

3. Affidavits by the Justuses testifying to the above transfers and asserting that, after the transfers, Charleston South "had no part in, and no involvement in any way in, any ownership interest, possessor interest, leasehold interest, commercial activity, landlord interest, or any other involvement in any way in the activities carried out in renting" Tenants' apartment. According to the affidavits, Charleston South transferred the right to do business in its name to Charleston Associates. Record at 116.

Thus, according to Charleston South and the Justuses, the plaintiffs had sued the wrong parties--Charleston South had ceased having any interest in the premises almost two years prior to the inception of Tenants' lease.

In response, Tenants and Guests did not rest on their pleadings. Asserting that factual questions remained as to just who was the landlord and presenting an estoppel theory as well, they filed with the court the following exhibits:

1. An affidavit from the plaintiffs' attorney stating that he had been unable to find any public record of an assignment of the Charleston South business name to Charleston Associates.

2. An affidavit from Monzer Kahf [Tenant] testifying to his belief that Charleston South was his landlord.

3. Copies of the front side of four checks, signed by Kahf and made out to "Charleston South" or "Charleston South apts." during the rental period.

The plaintiffs also asserted reliance upon their lease which stated that Charleston South was the lessor.

Meanwhile, JPM sought summary judgment on similar grounds. Although apparently conceding that it had managed the apartment complex during the first part of Tenants' lease, JPM asserted that it had ceased management on April 21, 1976--over one month prior to the fire. In support of this assertion, JPM presented affidavits from its officer and the vice-president of Revel Companies attesting to a transfer of management responsibilities from JPM to Revel Companies on April 21, 1976. Tenants and Guests, armed with the lease which listed JPM as the management company, argued that JPM was estopped to deny responsibility.

The trial court entered summary judgment in favor of Charleston South, finding

"as uncontroverted material facts that the defendants Walter E. Justice [sic] and Zona L. Justice [sic] were and are the only partners of an Indiana General Partnership known as Charleston Apartments South, that such Partnership had no involvement with the ownership or operation of the premises ... and, in fact, that such Partnership had divested itself of any involvement in the ownership or operation of such apartment and of such apartment complex Record at 209-10 (emphasis supplied). A similar finding and judgment was entered in favor of the Justuses. Simply stating that no genuine issue of material fact existed, the trial court also entered summary judgment in favor of JPM.

more than two and a half years before the incidents...."

The court certified the judgments for appeal pursuant to Ind.Rules of Procedure, Trial Rule 56(C), and Tenants and Guests appeal, raising numerous issues which we have restated as follows:


1. Does a factual controversy exist as to whether Charleston South was Tenants' landlord?

2. Could Charleston South be liable for prior acts of negligence, even if it was not the landlord at the time of Tenants' lease?

3. Does a factual controversy exist as to whether Charleston South should be estopped to deny landlord status?

4. Does a factual controversy exist as to whether JPM was the manager of the apartment complex at the time of the fire?

5. Could JPM be liable for prior acts of negligence, even if it was not the manager of the complex at the time of the fire?

6. Does a factual controversy exist as to whether JPM should be estopped to deny manager status?

Before proceeding further, it is necessary to accentuate the negative. Some issues we need not address. First, although Tenants and Guests alleged a theory of res ipsa loquitur in their complaints, there is no such content in their motions to correct error and appellate brief which are limited to theories of negligence and breach of implied warranty of habitability. This issue is waived as is their attempt to assign liability to Charleston South and JPM because of some connection between them and the alleged builders of the apartment complex, Justus Construction Company (alter ego theory). See Fleetwood Corp. v. Mirich, (1980) Ind.App., 404 N.E.2d 38; Offutt v. Sheehan, (1976) 168 Ind.App. 491, 344 N.E.2d 92.

Tenants and Guests have also waived any possible trial court error with regard to the allowed amendment of Charleston South's answer. When, on April 3, 1981, Charleston South petitioned for leave to amend, the petition clearly demonstrated that Charleston South sought to retract its admission of lessor responsibility and substitute a denial of any dealings with Tenants. Record at 101-02. Attached to the petition was a certificate attesting to service by mail upon the Tenants' and Guests' attorneys. The next entry shows the petition to amend was granted by the trial court on May 26, 1981--over seven weeks after the filing of the petition. Record at 104. We must conclude that Tenants and Guests have waived their right to challenge the court's action in allowing the amendment because they did not object to Charleston South's petition until the day after it was granted. Record at 107. This is not a case in which the complaining party had no time in which to...

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