Sigsbee v. Swathwood, 3-380A87

• Citation: 419 N.E.2d 789
• Decision Date: 27 April 1981
• Docket Number: No. 3-380A87,3-380A87
• Parties: Paul G. SIGSBEE and Cynthia I. Sigsbee, Appellant(s)-Defendant(s) Below, v. Charles SWATHWOOD, Jr., and Donna Swathwood, d/b/a Osolo Market, Appellee(s)- Plaintiff(s) Below.
• Court: Court of Appeals of Indiana

Page 789

419 N.E.2d 789

Paul G. SIGSBEE and Cynthia I. Sigsbee, Appellant(s)-Defendant(s) Below, v. Charles SWATHWOOD, Jr., and Donna Swathwood, d/b/a Osolo

Market, Appellee(s)- Plaintiff(s) Below.

No. 3-380A87.

Court of Appeals of Indiana, Third District.

April 27, 1981.

John J. Lorber, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for appellants-defendants.

Stephen R. Bowers, Elkhart, for appellees-plaintiffs.

STATON, Judge.

Paul and Cynthia Sigsbee were the lessors of a building used by Charles and Donna Swathwood as lessees to conduct their grocery business under the name and style of Osolo Market. The Swathwoods brought this action to cancel their lease and to recover damages which they allege resulted from the wrongful competition and interference with their business. Later, the Sigsbees filed a counterclaim for rent under the lease. After a court trial, the trial court held that the Swathwoods were entitled to abandon the grocery store premises and were entitled to damages in the sum of $4,000.00. The Sigsbees bring this appeal and present these issues for our review:

(1) Whether there was sufficient evidence to support a finding of constructive eviction; and,

(2) Whether the trial court erred in the determination of damages.

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Evidence and Findings

The Sigsbees owned two separate buildings with common parking areas in Osolo Township, Elkhart County, Indiana. One building was leased to the Swathwoods for their Osolo Market, a small grocery store. The other building contains two business enterprises, a variety store and a beauty shop.

On August 1, 1976 the Sigsbees and the Swathwoods entered a five year lease. The total rent to be $15,000 payable at $250 on the first of each month. This lease provided the following:

"LESSORS promise and covenant, during the period of this lease to perform the following acts and to do the following things:

"1) To give LESSEES quiet and peaceable possession of said premises during the term of this lease.

"2) To maintain the exterior walls and roof of the building on said premises during the term of this lease.

"LESSORS and LESSEES agree that LESSORS may enter up and inspect said premises at all reasonable times during the period of this lease."

The record is replete with evidence establishing one thing clearly: during the occupation of the Osolo Market by the Swathwoods, there was a great deal of personal friction between the Swathwoods and the Sigsbees.

From the initiation of the lease in August of 1976, to the date of the abandonment of the Osolo Market by the Swathwoods in February of 1979, the roof of the Osolo Market experienced periodic leaks. There was extensive, conflicting evidence presented by the parties regarding the leaks from the roof. There was no dispute that the Swathwoods complained to the Sigsbees several times concerning the leaking roof; nor, that the Sigsbees attempted to patch the roof on several occasions. The Swathwoods testified that the worst problems with the leaks occurred in 1976 and 1977 when they were unable to obtain any cooperation from the Sigsbees.

There was also great friction over the right of the Sigsbees to inspect the Osolo Market under the provisions of the lease. As cited above, the terms of the lease specifically provided for inspections "at all reasonable times during the period of this lease." In February of 1978, the Sigsbees, the Swathwoods, and their attorneys resolved this dispute at a meeting. Though the Sigsbees had been inspecting the Osolo Market once a week prior to this meeting, the Sigsbees and Swathwoods agreed that Mr. Sigsbee would inspect the building still once a week but on the same day and at the same time each week and only when Mr. Swathwood was present. According to Mr. Swathwood, this arrangement "worked out fairly well."

In May of 1978, an accident involving a car parked in front of the variety store and beauty shop building caused damage to the front of the variety store. Soon thereafter, the Sigsbees erected a parking barrier between the variety store and beauty shop building and the Osolo Market building. The Sigsbees' tract of land is located at the intersection of two highways with the Osolo Market located on the corner of the intersection. The variety store and beauty shop building is located behind the Osolo Market. Thus, the parking barrier did not prevent access to the Osolo Market from the highways, it only interfered with traffic flow between the buildings. Since the Sigsbees left a gap in the barrier of 27 feet, auto traffic was not completely blocked from traveling between the buildings. Within a couple of weeks of the erection of the parking barrier, Mrs. Swathwood strategically placed three steel barrels tri-secting the 27 foot gap and thereby changed the partial barrier to complete barrier to auto traffic. ¹ At trial, the Swathwoods presented evidence of the parking barrier interfering with the traditional flow of auto traffic, particularly that of semi-truck and trailers, through the common parking areas. Testimony varied, but this interference was credited with a resulting reduction in the number of customers ranging from one-third to three-fourths of prior business.

The evidence presented a profitable picture for the Osolo Market in 1976 and 1977. From the start of 1978, however, the store experienced a severe decline in overall sales. From a net income of $6,700 in 1977, the net profit of the Osolo Market was reduced to $730 in 1978. The Swathwoods abandoned the Osolo Market in early February, 1979.

The trial court made the following findings of fact and conclusions of law:

"1. As of the 4th day of February, 1979, Plaintiff's (sic ) were entitled to elect a recourse of abandonment of the property by virtue of breaches of the Lease Agreement by the Defendant.

"3. That the Defendant's (sic ) failure to timely repair the roof to correct the leaks constitutes a breach of Defendant's (sic ) covenants, 'to give Lesee's (sic ) quiet and peaceable possession of said premises', and 'to maintain the exterior walls and roof of the building on the said premises'.

"4. That the Defendant's (sic ) erection of the barricade to traffic constitutes a breach of the Defendant's (sic ) obligation under the Lease 'to give Lesee's (sic ) quiet and peaceable possession of said premises';

"5. That the Defendant's (sic ) methodology and frequency of inspection of the premises was in breach of the Defendant's (sic ) obligation under the Lease 'to give Lesee's (sic ) quiet and peaceable possession of said premises':"

"8. That Plaintiff's (sic ) as a result of Defendant's (sic ) breaches of the Lease sustain an income loss for 1978 of $5,970.00 and for the month of January, 1979, an additional $497.00 upon which loss Plaintiff's (sic ) would have paid taxes of approximately $1,293.00;"

"12. That Plaintiff's (sic ) are entitled to judgment for $6,467.00 lost income, less taxes which they would have paid upon said income, less repairs done by the Defendant's, (sic ) less rental monies withheld for snow removal from Defendant's, (sic ) less labor for repairs and unpaid rent for a net of $4,000.00." ²

Upon the above findings and conclusions, we reverse and vacate numbers 1, 8, and 12; remand for further proceedings consistent with this opinion numbers 3, 4, and 5; and, affirm the remaining portions of the judgment.

II. Constructive Eviction

The first allegation of error by the Sigsbees is insufficient evidence to support a finding of constructive eviction. ³ When reviewing a challenge to the sufficiency of the evidence, this Court will not weigh the evidence nor judge the credibility of witnesses. Rosenberg v. Village Shopping Center, Inc. (1968), 251 Ind. 1, 238 N.E.2d 642; Lawrence County Comm'rs v. Chorely (1979) Ind.App., 398 N.E.2d 694. Where the trial court has made findings of fact and conclusions of law, we consider only that evidence and the reasonable inferences therefrom which supports the judgment. Blade Corp. v. American Drywall, Inc. (1980) Ind.App., 400 N.E.2d 1183; Shahan v. Brinegar (1979) Ind.App., 390 N.E.2d 1036. This Court will set aside the findings of fact and conclusions of law of the trial court only where "clearly erroneous." Ind.Rules of Procedure, Trial Rule 52(A); Blade Corp. v. American Drywall, Inc., supra. We find the trial court's determination with respect to this issue to be clearly erroneous.

Constructive eviction, recognized in Indiana as early as 1885, see Avery v. Dougherty (1885), 102 Ind. 443, 2 N.E. 123; was first definitively outlined in Talbott v. English (1901), 156 Ind. 299, 305-306, 59 N.E. 857, 860, as a breach by the lessor "so direct and positive, and so substantial and permanent in character as to operate as a material and effectual exclusion of the tenant from the beneficial enjoyment of some part of the leased premises." In Talbott v. English, the Court was faced with the issue of whether the lessor's actions amounted to constructive eviction or were, in fact merely trespass. Expanding upon the above definition, the Court stated the following:

"Eviction is either actual or constructive, actual when the tenant is deprived of the occupancy of some part of the demised premises, and constructive when the lessor, without intending to oust the lessee, does an act by which the latter is deprived of the beneficial enjoyment of some part of the premises, in which case the tenant has his right of election, to quit, and avoid the lease and rent, or abide the wrong and seek his remedy in an action for the trespass. But in every case of constructive eviction the tenant must quit the premises if he would relieve himself from liability to pay rent; and whether or not he is justifiable in so quitting is a question of fact for the jury."

Id. at 307-308, 59 N.E. at 860. We emphasize the Court's language, "in every case of...