Kishpaugh v. Odegard

• Decision Date: 23 September 2014
• Docket Number: No. 49A02–1312–CT–1040.,49A02–1312–CT–1040.
• Citation: 17 N.E.3d 363
• Parties: Jessica KISHPAUGH, Appellant–Defendant, v. John ODEGARD and Miriam Odegard, Appellees–Plaintiffs.
• Court: Indiana Appellate Court

17 N.E.3d 363

Jessica KISHPAUGH, Appellant–Defendant
v.
John ODEGARD and Miriam Odegard, Appellees–Plaintiffs.

No. 49A02–1312–CT–1040.

Court of Appeals of Indiana.

Sept. 23, 2014.

17 N.E.3d 366

Steven W. Kincaid, Kincaid & Kincaid PC, Noblesville, IN, Attorney for Appellant.

Donald F. Foley, Marie Castetter, Foley & Abbott, Indianapolis, IN, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Defendant, Jessica Kishpaugh (Kishpaugh), appeals the Judgment of the trial court, awarding $85,889.36 to Appellees–Plaintiffs, John (John) and Miriam (Miriam) Odegard (collectively, the Odegards).

We affirm and remand.

ISSUES

Kishpaugh raises seven issues on appeal, which we consolidate and restate as the following four issues:

(1) Whether the trial court erred in holding Kishpaugh civilly liable for theft;

(2) Whether the trial court had subject-matter jurisdiction to declare that its order of treble damages is non-dischargeable in bankruptcy;

(3) Whether the trial court erred in determining that Kishpaugh breached the Residential Lease (Lease); and

(4) Whether the trial court erred in determining that Kishpaugh violated her obligations as a tenant under Indiana Code section 32–31–7–6 (Tenant Statute).

Although not raised in their brief as an issue on cross-appeal, the Odegards have filed a Petition for Appellate Attorney Fees.

FACTS AND PROCEDURAL HISTORY

Kishpaugh and the Odegards met in the summer of 2007 when Kishpaugh responded to the Odegards' online advertisement for a babysitter. Over the next two years, Kishpaugh provided occasional childcare services for the Odegards' three children and helped Miriam with other household tasks on an as-needed basis. During this time, Kishpaugh and Miriam developed a friendship, and the Odegards trusted Kishpaugh in their home and with their children.

In June of 2009, John—who is employed as an international product manager for a large, multinational corporation with its

17 N.E.3d 367

North American headquarters located in Indianapolis, Indiana—received a one-year job assignment in Mannheim, Germany. After it was decided that the entire family would relocate to Germany for one year, the Odegards made arrangements for caretakers to maintain and safeguard their property in Indiana. Aware that Kishpaugh's lease was about to end, Miriam asked Kishpaugh if she would be interested in renting their Indianapolis home during their absence. On August 21, 2009, the Odegards and Kishpaugh executed the Lease, under which Kishpaugh agreed to rent the Odegards' home from October of 2009 through August of 2010 for a monthly rate of $300. In addition to maintaining their house and yard, the Odegards instructed Kishpaugh to forward their mail and to drive their minivan around the block once a week to keep it in good working order.

In early September 2009, a few weeks prior to the Odegards' departure, Kishpaugh moved into the Odegards' home. With assistance from Miriam, Kishpaugh moved her possessions into the guest bedroom and stored some of her belongings in the adjacent walk-in attic. At the end of September, the Odegards left for Germany.

Because of the temporary nature of their relocation, the Odegards left their furniture and most of their personal possessions in their Indianapolis home. Even the family dog, Abby (Abby), stayed behind. Pursuant to the Lease, Kishpaugh agreed to “care for” Abby, including “feeding, water[ing], walking, administering all medicines, transportation for any vet visits, and any other care necessary.” (Appellant's App. p. 33). At some point during the fall of 2009, Kishpaugh sent an email message to the Odegards explaining that she was having a problem with Abby urinating in the living room and that she had “clean [ed] it up to the best of what I could do.” (Transcript p. 251). In response, Miriam advised Kishpaugh to put Abby in her crate before leaving the house. Then, in January of 2010, Indianapolis neighbors contacted the Odegards to inform them that Abby had been left outside and was barking.

On March 25, 2010, the Odegards discovered an unauthorized charge on their bank statement. According to the bank's customer claims department, Miriam's debit card had been used the previous day to purchase $2,716.40 worth of jewelry in Egypt. Prior to leaving Indianapolis, Miriam placed a duplicate debit card in a ceramic breadbox in her kitchen in the event of an emergency or that she lost her original card. After realizing that their account had been depleted, Miriam contacted Kishpaugh and asked her to check the breadbox for the debit card. Kishpaugh informed Miriam that she found a corporate credit card in John's name and a gift card, but the duplicate debit card was missing. The bank refunded the fraudulent charges to the Odegards' account, and while it was never conclusively established how Miriam's card had been compromised, the Odegards were suspicious of the fact that Kishpaugh's ex-husband has Egyptian ties.

In mid-April of 2010, Miriam notified Kishpaugh that John would be returning to Indianapolis for a few days for business meetings. At this time, Miriam learned that Kishpaugh had been sleeping in the master bedroom since November 2009, but Kishpaugh explained that she would return to the guest bedroom during John's stay. Even though John stayed at the house, he did not want to encroach upon Kishpaugh's space. As such, he left the house early, returned late, and ate all of his meals elsewhere. In addition to his limited presence in the home, John's jet

17 N.E.3d 368

lag and recent onset of shingles symptoms deterred him from conducting a thorough inspection of the property. Besides noting an unusual odor, John had no other immediate concerns about the house. However, John did observe that the garage door had been damaged, appearing as though a vehicle had been backed into it, and that the minivan's tire had been replaced with a spare. John did not discuss these issues with Kishpaugh. Instead, after John returned to Germany, Miriam questioned Kishpaugh about the damages. Regarding the garage door, Kishpaugh stated, “Umm ... [I] thought that was something you guys did ... [I] noticed it shortly after you left!” (Appellant's App. p. 78 (ellipses in original)). As to the minivan's tire, Kishpaugh explained that “[a] friend of mine was following me, after she helped me go get my rental car ... so she was driving ... the curb in the sub [ ]division got hit ... no major speed just got hit.” (Appellant's App. p. 76 (ellipses in original)).

Prior to leaving Indianapolis, the Odegards had arranged for their neighbor, Chip Miller (Chip), to maintain their property in Brown County, Indiana. Every four to six weeks thereafter, Chip informed Kishpaugh that he would be stopping by the house to retrieve the Odegards' Jeep and chainsaw for his trip to Brown County. In May of 2010, Chip discovered that the Odegards' chainsaw was missing from their garage. That same day, Chip also observed that the Odegards' minivan was gone despite the fact that Kishpaugh was at the house. When Chip asked Kishpaugh if she knew the chainsaw's whereabouts, Kishpaugh answered, “I don't know what you're talking about. I've never seen a chain [ ]saw.” (Tr. p. 91). Chip relayed his concerns about the missing chainsaw and minivan to the Odegards. Also around this time, the Odegards learned that Kishpaugh had not taken Abby to the veterinarian, so Chip took Abby for her check-up and shots. Miriam subsequently arranged for Abby to be boarded at a kennel until their return from Germany at a cost of $300.

On May 8, 2010, Kishpaugh notified the Odegards that she had encountered “some major financial problems” and could no longer afford to pay $300 in rent. (Appellant's App. p. 74). Kishpaugh requested a reduction of the rent to $150 or, in the alternative, an early Lease termination so that she could move in with her parents. On May 20, 2010, the Odegards informed Kishpaugh that they could not accept a lower rent and agreed to release her from the Lease. With the assistance of her parents, Kishpaugh moved her possessions out of the Odegards' home, and on May 31, 2010, she officially vacated the premises. At the Odegards' request, Chip arranged to collect the house keys from Kishpaugh. When Kishpaugh did not appear at the designated meet time, Chip used the keyless entry code to access the house through the garage and found that Kishpaugh had left the keys on the kitchen counter.

Concerned about their dog and their property, the Odegards left Germany and returned to Indianapolis on June 12, 2010—more than two months earlier than they had planned. An inspection of their house and yard quickly verified the Odegards' concerns. Although the front yard had been mowed, the grass in the back yard was three feet high, and a section of the wooden fence was “badly charred.” (Tr. p. 72). The carpet in the sunroom had cigarette burns. Inside, the house was filthy and smelled strongly of cigarette smoke and urine. Throughout the house, the...