Jessica Kishpaugh v. John Odegard and Miriam Odegard, 17 N.E.3d 363

Background

Owners John and Miriam Odegard leased their Indianapolis home to tenant Jessica Kishpaugh from Oct 2009–May 31, 2010 while the Odegards were temporarily in Germany; the Lease required care of their dog and maintenance of the premises and limited guests.
While the Odegards were away, significant damage and loss occurred: severe soiling (urine, smoke, burns), damaged furnishings, a scorched fence, damaged garage door and minivan (7,000 extra miles), and several missing items (rings, chainsaw recovered at pawn shop, rare coin collection, debit card used fraudulently abroad).
Evidence showed Kishpaugh had exclusive possession during the relevant tenancy period, admitted financial hardship, had access to areas where stolen items were kept (attic, breadbox), and allowed a friend to stay at the house.
The Odegards sued for theft under the Crime Victims Relief Act (treble damages), breach of the Lease, violation of the Indiana tenant statute (I.C. § 32-31-7-6), and criminal mischief; bench trial resulted in judgment for the Odegards totaling $85,889.36 (actual damages, attorney fees, treble damages awarded per Relief Act).
Trial court found sufficient circumstantial evidence of theft, breach of lease obligations (failure to return premises in clean condition, unauthorized guests, neglect of dog), and statutory tenant violations; court also commented that theft would be nondischargeable in bankruptcy though state court cannot conclusively resolve dischargeability.
On appeal, the Court of Appeals affirmed the trial court on theft, lease breach, and tenant statute violation; held the bankruptcy-dischargeability conclusion was nonbinding (bankruptcy court has primary jurisdiction) but harmless; remanded to calculate appellate attorney fees owed to the Odegards.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kishpaugh committed theft under I.C. § 35-43-4-2 and Relief Act entitlement to treble damages	Circumstantial evidence (exclusive control, access to storage locations, pattern of missing items, financial motive, pawned items) supports finding of knowing/unauthorized control and deprivation	Theft could have occurred after Kishpaugh vacated (12-day gap); findings insufficiently specific to prove elements for each item or identify perpetrator	Affirmed: preponderance satisfied by circumstantial evidence; treble damages awarded; court credited Odegards’ testimony over Kishpaugh’s
Whether state court could declare treble damages non-dischargeable in bankruptcy	State court’s findings can have collateral estoppel effect and guide bankruptcy court	Only bankruptcy court should decide dischargeability under 11 U.S.C. § 523; state court lacks exclusive jurisdiction	State court’s conclusion on nondischargeability is nonbinding; harmless error because bankruptcy court may determine preclusive effect later
Whether Kishpaugh breached the Lease (duty to maintain/return premises, limit guests, care for pet, limited vehicle use)	Lease terms require returning premises clean and restrict guests/use; evidence shows severe damage, unauthorized occupant(s), minivan misuse, and failure to care for dog	Damage may have occurred after she vacated; she cleaned before leaving; limited or permitted use of vehicle	Affirmed: evidence supports breach—damages, unauthorized guest(s), pet neglect, and excessive vehicle use
Whether Kishpaugh violated tenant statute (I.C. § 32-31-7-6) delivering premises clean and proper at termination	Statute requires delivery in clean/proper condition except ordinary wear and tear; damage far beyond ordinary wear and tear	Some damage was ordinary over months or occurred after termination	Affirmed: damage was not ordinary wear and tear; statutory violation established; remedies (actual damages, fees) available

Key Cases Cited

MCS LaserTec, Inc. v. Kaminski, 829 N.E.2d 29 (Ind. Ct. App. 2005) (standard of review and Trial Rule 52(A) findings)
Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660 (Ind. Ct. App. 2011) (preponderance standard in civil actions for criminal conduct)
Buntin v. State, 838 N.E.2d 1187 (Ind. Ct. App. 2005) (sufficiency of circumstantial evidence)
Nichols v. State, 591 N.E.2d 134 (Ind. 1992) (direct vs. circumstantial evidence distinction)
Thompson v. State, 804 N.E.2d 1146 (Ind. 2004) (circumstantial evidence need not exclude every hypothesis of innocence)
Metzler v. State, 540 N.E.2d 606 (Ind. 1989) (standard for circumstantial evidence inferences)
Brink v. State, 837 N.E.2d 192 (Ind. Ct. App. 2005) (review focuses on reasonableness of inferences supporting judgment)
Klingman v. Levinson, 831 F.2d 1292 (7th Cir. 1987) (bankruptcy court primacy on dischargeability issues and collateral estoppel considerations)
Brown v. Felsen, 442 U.S. 127 (1979) (Congress intended bankruptcy courts to decide dischargeability)
Carey v. Carey, 733 N.E.2d 14 (Ind. Ct. App. 2000) (limited concurrent state-court jurisdiction on certain nondischargeability issues)
In re Guy, 101 B.R. 961 (N.D. Ind. 1988) (state-court findings may have collateral estoppel effect in bankruptcy)
In re Luedtke, 429 B.R. 241 (N.D. Ind. 2010) (bankruptcy court analyzes state-law theft vs. § 523(a)(4) larceny/embezzlement)
Collins v. McKinney, 871 N.E.2d 363 (Ind. Ct. App. 2007) (elements for breach of contract damages)
Gershin v. Demming, 685 N.E.2d 1125 (Ind. Ct. App. 1997) (contract provision permitting appellate attorney fees enforceable)
Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004 (Ind. Ct. App. 2009) (prevailing plaintiff under Relief Act may recover appellate attorney fees)
Humphries v. Ables, 789 N.E.2d 1025 (Ind. Ct. App. 2003) (when contract allows attorney fees, appellate fees may also be awarded)