Starks v. Village Green Apartments

• Decision Date: 28 September 2006
• Docket Number: No. 82A01-0510-CV-461.,82A01-0510-CV-461.
• Citation: 854 N.E.2d 411
• Parties: Thomas E. STARKS and Herman C. Price, Appellants, v. VILLAGE GREEN APARTMENTS, Appellee.
• Court: Indiana Appellate Court

854 N.E.2d 411

Thomas E. STARKS and Herman C. Price, Appellants, v. VILLAGE GREEN APARTMENTS, Appellee.

No. 82A01-0510-CV-461.

Court of Appeals of Indiana.

September 28, 2006.

Robert R. Faulkner, Evansville, IN, Attorney for Appellants.

Robert P. Carithers, Evansville, IN, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge.

Thomas E. Starks and Herman C. Price (Lessees) appeal a grant of summary judgment in favor of Village Green Apartments (Village Green) and the denial of their cross-motion for summary judgment in Village Green's lawsuit to recover damages stemming from the breach of an apartment lease. Lessees present the following restated issues for review:

1. Did the trial court err in basing its ruling on briefs submitted by Village Green that had been stricken pursuant to Lessees' motion?

2. Did the trial court err in granting Village Green's motion for summary judgment and in denying Lessees' cross-motion for summary judgment?

We reverse and remand with instructions.

The facts favorable to the nonmoving party are that Thomas D. Starks and Jeremy C. Price (hereinafter collectively referred to as "the sons") were going to attend college in Evansville, Indiana in the 1998-99 school year. Their fathers, the appellants in this action, rented an apartment for them at the Village Green Apartments. The lease was signed by Lessees and their sons on June 6, 1998. It is a uniform Village Green Apartments lease agreement, appearing on Village Green Apartments stationary. It states, in pertinent part:

RESIDENTIAL LEASE

This lease is entered into on June 4, 1998, by and between

THOMAS E. STARKS HERMAN CURTIS PRICE

as Resident(s), and Village Green Apartments, as Lessor, on the apartment located at

18-2612 EFFINGHAM DR. Evansville, Indiana 47715

Resident(s) covenant and agree that, unless an additional child be born to Resident(s) during tenancy, only the following persons will occupy the premises in addition to the Resident(s) listed above: THOMAS D. STARKS JEREMY C. PRICE The initial term of this lease shall commence on June 6, 1998 and end on June 30, 1999.

Appellant's Appendix at 10. Thomas E. Starks and Henry Curtis Price placed their initials above the dates listed with respect to the duration of the lease. The lease called for a security deposit of $300, a first month's rent of $412, and $494 monthly rent for the remainder of the lease period. In conjunction with the lease application, Lessees completed a form, expressly "considered part of the lease agreement," id. at 21, that listed their current addresses. Lessees also signed, on June 6, 1998, a "Cablevision Addendum" whereby they agreed to pay $20 for the first month's cable television bill, and $24 per month for cable television thereafter. Those fees were included in the total rent listed above.

The sons apparently occupied the apartment for a short time, but vacated sometime in August 1998 and apparently returned to their fathers' respective houses. Rent on the apartment was paid through September 1998, but not thereafter. In October 1998, the sons both returned to Evansville and saw what they interpreted as indications the apartment was occupied by someone else.

On October 22, 1998, Village Green sent a security deposit notice addressed to "Thomas Starks" to the address of the rental unit Lessees had rented. Id. In it, Village Green claimed Lessees had breached the lease and therefore owed $4320.50 in damages, including $4230 in unpaid rent for the balance of the lease period, $300 in "forfeit deposit—skip", and a total of $90.50 to replace the locks, clean the tub and kitchen, and replace the drip pan. Id. Village Green evidently turned the matter over for collection and on January 4, 1999, an Evansville law firm sent a letter to "Thomas E Starks" at the Effingham Drive address. Id. at 38. An identical collection letter was sent to "Herman Curtis Price" at the Effingham Drive address. Notwithstanding the fact that Lessees did not live at the apartment, they somehow received word of the collection action. On January 15, 1999, they sent a joint response to the collection firm disputing Village Green's claim, in part upon the claim that the apartment had been rented to someone else since October 1998. The collection firm responded that the apartment in fact had not been re-rented. So far as we can tell from the record, little else of consequence happened in the matter for more than four years.

On March 10, 2004, Village Green filed a lawsuit against Lessees, seeking recovery of the amount set forth in the October 22, 1998 security deposit notice ($4230.50), plus attorney fees. Lessees answered in denial on May 14, 2004, asserting the affirmative defenses of failure to state a claim upon which relief can be granted, laches, failure to mitigate damages, and failure to comply with Ind.Code Ann. § 32-31-3-14 (West, PREMISE through 2005 1st Regular Sess.). On April 7, 2005, Village Green filed a motion for summary judgment. Lessees filed a response in opposition to that motion and also filed a cross-motion for summary judgment. The trial court scheduled a hearing on those motions, first for June 27 and then for August 16, 2005. Those hearings were continued. On August 29, 2005, Village Green filed its response to Lessees' cross-motion for summary judgment. On August 31, 2005, the trial court conducted a hearing on Village Green's motion for summary judgment, and on Lessees' cross-motion for summary judgment. At that hearing, the parties submitted several oral motions. Lessees asked the court to strike Village Green's response to their cross-motion for summary judgment on grounds that the response was not timely filed. The trial court granted that motion. At the same hearing, Village Green orally moved to strike both Lessees' response to Village Green's motion for summary judgment and Lessees' cross-motion for summary judgment. The trial court denied those motions. Finally, Village Green orally moved to strike certain affidavits filed by Lessees in support of their cross-motion for summary judgment. The trial court granted that motion.

On August 31, 2005, the trial court granted Village Green's motion for summary judgment and denied Lessees' cross-motion for summary judgment.

1.

We note at the outset that Lessees challenge the ruling in favor of Village Green upon grounds that the trial court erroneously considered, and even partially incorporated into its ruling, Village Green's stricken briefs. The striking of the briefs, according to this argument, left Lessees' cross-motion for summary judgment effectively unopposed. They explain:

Where a party failed to respond to the opposing party's motion or otherwise properly object to affidavits any error is waived, Benchmark [sic] of Florida Inc. v. Star Financial Card Services, Inc., 679 N.E.2d 973, 980 (Ind.Ct.App.1997). That being the case this Court's holding in [Desai v. Croy, 805 N.E.2d 844, 850 (Ind.Ct.App.2004), trans. denied] is utterly meaningless if, as occurred here, it is so easily circumvented by making additional untimely objections at the hearing. The Trial court by granting Starks and Price's motion to strike with a wink showed absolutely no regard to this court's holding in the Desai case as adopted by the Indiana Supreme Court in [Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind.2005)], both of which are cited above. Starks and Price would urge that this Court meant what it said when it held that where the opposing party fails to timely respond to a motion for summary judgment the court should treat the motion as if it is unopposed, Desai, 805 N.E.2d at 851.

Brief of Appellants at 8. As we understand it, the gist of Lessees' argument is that because Village Green's brief in opposition to Lessees' cross-motion for summary judgment was properly stricken as untimely, the court was compelled to grant Lessees' cross-motion because it stood unopposed. This view overstates the effect of the striking of Village Green's motion in opposition.

We note first that the primary authority cited by Lessees in support of this argument, Desai v. Croy, was a medical malpractice action, which has its own unique guidelines. One of those guidelines is that a plaintiff alleging medical malpractice must demonstrate that the defendant, who owed a duty to the plaintiff, violated a standard of reasonable care, thereby causing injury to the plaintiff. Desai v. Croy, 805 N.E.2d 844. Also, because of the complicated nature of medical diagnosis and treatment, expert testimony is, as a general rule, required to establish the applicable standard of care. Id. "If medical expert opinion is not in conflict with respect to whether the physician's conduct met the requisite standard of care, there are no genuine triable issues", and therefore summary judgment would be appropriate. Id. at 850. It is with these principles in mind that Desai is to be understood.

In Desai, we determined that the trial court erred in permitting the plaintiff to file a belated response to the physician/defendant's motion for summary judgment. The physician's motion for summary judgment included the medical review panel's opinion that the physician had not breached the applicable standard of care. Having stricken the patient/plaintiff's materials in opposition to the physician's motion, the physician's motion stood unopposed. More to the point, his expert evidence that he had not breached the applicable standard of care stood unopposed. Thus, in view of a plaintiff's particular burden in a medical malpractice case, the striking of the patient's materials in opposition led inevitably to a granting of the physician's summary judgment motion. This should not be interpreted to mean, however, that in every case where a nonmovant's response to summary judgment has been stricken, or indeed one was never filed in the first place, the movant is therefore entitled to summary judgment. This court did not even go that far in Desai. (E.g., "[...