OPINION
Appellant-Defendant Cathy Durf ("the Tenant") appeals from the small claims court's order awarding Appellees-Plain-tiffs Harоld and Doris Molter (collectively "the Landlord") $1,950.00 for damages to the rental property.
The Landlord and the Tenant entered into a lease agreement for $650.00 per month in rent plus a $650.00 security deposit. ' The Tenant failed to pay her rent on October 1, 2004. On October 11, 2004, the Landlord gave the Tenant a five-day written notice of eviction. On October 13, 2004, the Tenant sent a letter tо the Landlord stating that she would not vacate the premises for thirty days. In that letter, the Tenant provided the Landlord with the address where the Tenant would be living after vacating the leased premises. On October 18, 2004, the Landlord filed a notice of claim and affidavit for possession of real property.
*1210 On November 1, 2004, a hearing was held and the court ordered the Tenant to vacate the premises. The Tenant vacated the premises on November 8, 2004. When the Tenant vacated the leased premises there was some wear and tear to the residence.
On March 28, 2005, a bench trial was held on the Landlord's notice of claim and on the Tenant's counter-claim for the refund of her security deposit. On April 12, 2005, the court entered judgment in favor of the Landlord for $3,000.00 plus costs. The court found for the Tenant on her counterclaim in the amount of her security deposit, $650.00 plus attorneys fees of $400.00. The court then set off the judgments leaving the Landlord with a $1,950.00 award.
The Tenant filed a notice of appeаl on April 28, 2005. The Landlord filed a motion for proceedings supplemental on May 12, 2005. On June 6, 2005, the Tenant filed a motion to stay proceedings pending appeal.
STANDARD OF REVIEW
The Landlord has not filed an ap-pellee's brief in this matter. When an appelleе does not submit a brief, an appellant may prevail by making a prima facie case of error, a less stringent standard. Lewis v. Rex Metal Craft, Inc.,
The Tenant lost, in part, below. When reviewing an appeal from a negative judgment we must determine whether the judgment is contrary to law. Mileusnich v. Novogroder Co., Inc.,
TERMINATION OF RENTAL AGREEMENT & SECURITY DEPOSITS
When discussing the landlord-tenant statute regarding return of security deposits, nоw codified at Ind.Code § 32-31-3-15, a panel of this court stated as follows:
The landlord must provide a tenant with written notice of the damages within forty-five days of the termination of the rental agreement and delivery of possession. The tenant must provide the landlord with a mailing address in which to deliver this notice. If the landlord fails to comply the tenant is entitled to return of the entire security deposit and reasonable attorney fees.. .The failure to comply with the notice of damages requirement constitutes an agreement by the landlord that no damages are due.
Mileusnich,
The undisputed facts show that the Tenant provided the Landlord with her futurе address onee she vacated the leased premises. The Tenant was ordered to vacate the premises аnd did so on November 8, 2004. The Landlord admitted at the bench trial that an itemized list of damages was not tendered to the Tenant within forty-fivе days of the termination of occupancy by the Tenant. Therefore, the *1211 trial court correctly determined that the Tеnant was entitled to the return of the full security deposit, $650.00, and attorney fees of $400.00. Ind.Code § 32-31-3-15 establishes that the failure by a landlord to provide the itemized notice of damages under Ind.Code § 32-81-8-14 constitutes an agreement that no damages are due, and that the full security deposit must be returned.
However, the trial court erred by offsetting the award of the security deposit and attorney fees, by the damages proven by the Landlord. The Landlord was required to comply with Ind.Code § 32-81-3-15 by itemizing and estimating repairs of damаge, and tendering the list and any remaining security deposit within forty-five days of the termination of occupancy by the Tenant. This notiсe requirement must be met before the Landlord can recover not only those damages recoverable under Ind.Code § 32-31-3-18 regarding the use of the security deposit, to cover actual damages, rent arrearages, or utility or sewer charges, but also the "other damages" referred to in Ind.Code § 32-31-3-12(c).
The Landlord's compliance with the statutory notice requirement preserves his right to recover the "other damages" to which he is entitled. See Miller v. Geels, 643 N.B.2d 922, 925 (Ind.Ct.App.1994). The matter of the security deposit refund, i#f any, should be resolved first, and is a prerequisite for pursuing claims for other damages in excess of the security deрosit, or not addressed in Ind.Code § 82-81-3-13. If the required notice is not given, the landlord has implicitly agreed that there are no other dаmages to collect. Miller,
In the present case, onee the Landlord admitted that the notice of damages had nоt been tendered to the Tenant, the Landlord was required by statute to remit the full security deposit, and was foreclosed from seeking to recover for other damages in excess of the amount and type covered by the security deposit.
CONCLUSION
The triаl court correctly found that the Landlord's non-compliance with the notice of damages statute entitled the Tenant to a full refund of the security deposit plus attorney's fees. However, the trial court erred by allowing the Landlord to recovеr for damages covered by the security deposit and in excess of the security deposit. Non-compliance with the notice of damages statute precludes recovery of other damages by the Landlord.
Affirmed in part, reversed and remanded in part.