*1 munity range re- for similar services. See Code slightly the established of above of naturally 2- Responsibility, DR placement values. Such would Professional 106(B)(3); in valuating similar see also U.S. Financ- also be our standard Aircraft Oscar, Jankovich, (1980) awards, ing, significant such as an Inc. v. medal, hold Olympic N.E.2d 287. We thus counsel for Ca- Trophy, or an Heisman pelses attorney ap- fees the honor de- is entitled to on recipient retains where trophy peal hearing remand for a where she spite trophy, loss but of present being accounting can a more detailed of merely symbol achieve- replaceable a surro- her fees and the thereof. perhaps ment and reasonableness is gate. A amount of sentiment certain Affirmed, modified, and remanded for objects to the in the value these inherent hearing fees. on owner, must based on and each case con- we must refrain from YOUNG, own facts. But CONOVER, P.J., J., and con- estimates of sidering all but reasonable cur. of sentiment. We believe that element case, Capels’s figure just was $750
this ring each
such a value of reasonable therein. there-
the sentiment included judgment modify
fore affirm the
award. Attorney Fees KAHF, Kahf, Mayssun Monzer Mohamed Kuziez, Kuziez, Kuziez, Mysa A Samar a motion this Capelses filed Minor, Kuziez, By Her Mohamed N. attorney by appel fees incurred court for Friend, Jaghlit, A. Next Mohamed expenses. late The statute under which Minor, By Jaghlit, A Mohamed Suaad brought, 34-4-30-1 indeed this suit was IC Kin, Appellants Jaghlit, A. Her Next recovery of provides for (Plaintiffs), action; “(2) the costs of the and attorney’s a reasonable fee.” APARTMENTS, CHARLESTON SOUTH law, this By virtue of case we believe that Partnership, A Walter E. Jus Limited statutory provision for “reasonable” attor- Justus, tus, Proper L. and Zona Justus ney encompasses fees. See appellate fees (De Inc., ty Management, Appellees Inc., Son, Templeton v. Klain & Sam fendants), (in Ind., N.E.2d 89 mechanics statute, attorneys fees” lien “reasonable fees). appellate for the includes Counsel Inc., Company, Re Justus Construction Capelses filed of what she be- an affidavit Inc., Company, Revel neau Electric charges for various lieved to be reasonable Inc., Phelps Dodge In Companies, appeal, this duties undertaken defend Inc., dustries, Non-Participating Appel data. Campins has not contested said (Defendants). lees However, find to be we do not this affidavit No. 2-682A152. as amount described a “well-documented” opinion in Parrish v. Terre Haute in our Indiana, Appeals Court Bank, (1982)Ind.App., 438 N.E.2d Savings Second District. case, up- In that pending. transfer April 1984. fees, appellate petition for which held a supported by affidavits with detailed was attesting an affidavit
time sheets customary in com- hourly rate was Procedure, 8.3(A)(7); Appellate Rule Indiana Contrary her motion counsel’s assertion fees, Hospital Licensing Pavilion judgment Council v. Women’s appellate court’s trial Bend, Inc., (1981) Ind.App., fees. includes no award for trial There Thus, only Capelses for the this counsel an award for costs. Failure address Campins. appellate fees from appeal entitled to is a waiver thereof. Ind.Rules issue
FACTS undisputed The facts are as follows: On 13, 1975, August entered into a apartment premises lease of the located at Drive, Indianapolis. Larman lease named Charleston South as the lessor premises, accompanying and an doc- “Regulations ument entitled for Tenants” Zubek, Kunz, Gregory S. Halbert W. provided managed apartment that JPM Bade, Kunz, Earl A. Kunz & Abduallah apart- complex. On June while the Townsend, Hovde, Townsend, Townsend, & their occupied ment was Montross, Indianapolis, appellants Guests, a fire out and the resi- five broke (plaintiffs). destroyed. dence was *4 Vobach, Locke, Reynolds, H. William filed, complaints Seven were each com- Weisell, Boyd Indianapolis, appellee for & plaint alleging the same basic facts and (defendant) Apartments South. recovery. theories of Charleston South Justuses, partners, and its were named McDowell, Mark A. Richard R. Sidebot- owner/lessors, as the and JPM was named Hill, McDowell, tom, Indianapo- Fulwider & management company. parties All as the lis, (defendants) E. appellees for Walter alleged for two million were liable over L. Justus and Zona Justus. personal property damage in and dollars Norris, II, Choplin, Richard L. John M. personal injury claims. The theories of the Schroeder, Norris, Choplin A. Peter & negligence, ipsa in complaints sounded res Johnson, (defend- Indianapolis, appellee for loquitur, implied warranty and breach of ant) Property Management, Inc. Justus habitability.3 Although alleged gen- it was fire erally that the was caused defective BUCHANAN, Judge. Chief heating systems, publish- electrical and deposition plaintiffs’ expert and ed argument parties’ contentions at oral CASE SUMMARY theorized that the fire was caused This is a consolidated action1 which apart- latent electrical defect inside the Kahf, plaintiff-appellants Mayssun et al. ment. (Tenants Guests) appeal from summa- and ry judgment defendant-appel- favor fire, which, according The to the com- Apartments lees Charleston South2 (and, plaints, physical injury caused serious (Charleston South), E. and Walter Justus death) case, apart- in one to several of the (the Justuses), L. and Justus Zona Justus occupants, beginning ment’s (JPM). Property Management, Inc. Ten- drama carried over of an extended which genuine ants and Guests claim issues years litigation. Although into Charles- status, fact exist as to landlord material originally it ton South admitted that was status, estoppel deny manager premises, lessor of status, status, estoppel deny manager when, later, surprised years were over two negligence. liability for permitted to Charleston South was amend answer, In this amended part, part, answer.
We affirm
reverse
Charleston South denied that it owned the
remand.
Procedure,
5(B).
parties
appeal), including
Appellate
another man-
Rule
to this
1. Ind.Rules
agement company,
alleged building contrac-
mistakenly
Apartments South was
2. Charleston
tor,
alleged
and installer of
subcontractor
Apartments.”
sued as "Charleston South
system,
alleged
electrical
and the
manufacturer
wiring
system
of the electrical
devices used
alleged
complaints also
similar claims
3. The
in construction.
(who
defendants
are not
several other
n
well, they filed with the court the
theory
it
as
building
denied that
exe-
apartment
following
Tenants.
exhibits:
a lease with
cuted
plaintiffs’
at-
answer,
1. An affidavit from
upon the
amended
Based
summary
torney stating that he had been un-
South moved
summary judgment motion
any public
The
find
record of an
judgment.
able to
following pertinent exhibits
contained
assignment of the Charleston South
upon by the
also relied
Justus-
which
Associ-
name to Charleston
business
relief:
for the same
in their motion
es
ates.
assignment, dated
A document of
1.
An
from Monzer Kahf
affidavit
[Ten-
in which Charles-
November
testifying
to his belief
ant]
in-
assigned its leasehold
ton South
was his landlord.
Charleston South
to an
subject property
terest
Copies of the front side of four
partnership, Charles-
limited
Indiana
checks, signed by Kahf
out
and made
(The
stat-
document
ton Associates.
or “Charles-
to “Charleston South”
had
leasehold interest
ed that said
during
apts.”
the rental
ton South
Justus, by Le-
assigned to Mr.
been
period.
Realty, in 1970 and that Mr.
land
assigned it to
had in turn
Justus
plaintiffs
also asserted reliance
year).
later that
Charleston South
their lease
stated that Charleston
which
at 130.
Record
the lessor.
South was
*5
deed,
Novem-
A
also dated
2.
Meanwhile,
sought summary judg-
JPM
9, 1973, in which Charleston
ber
grounds. Although appar-
ment on similar
improvements,
conveyed “all
South
managed
conceding that it had
ently
land,”
excluding
underlying
during
part of
apartment complex
the first
at
Associates. Record
to Charleston
lease,
it had
Tenants’
JPM asserted
132.
management
April
on
1976—
ceased
testifying
Affidavits
the Justuses
prior
sup-
the fire.
In
one month
over
asserting
transfers and
to the above
assertion,
presented affi-
JPM
port of this
that,
transfers, Charleston
after the
vice-presi-
and the
from its officer
davits
in,
part
and no in-
“had no
South
attesting to a
Companies
dent of Revel
in,
way
any owner-
any
in
volvement
responsibilities
management
of
transfer
interest,
interest,
ship
possessor
Companies April
on
from JPM to Revel
interest, commercial activi-
leasehold
Guests,
with the
and
armed
1976. Tenants
interest,
any other
ty,
or
landlord
management
as the
which listed JPM
lease
way in
any
the activi-
involvement
estopped to
argued
JPM was
company,
renting” Tenants’
out in
ties carried
deny responsibility.
According to the affida-
apartment.
summary judg-
court entered
The trial
vits,
transferred
South
Charleston
South, finding
of Charleston
ment
favor
right
do
in its name
business
Record at
Associates.
material facts that
to Charleston
uncontroverted
“as
E. Justice
the defendants Walter
[sic]
were and are
Zona L. Justice
[sic]
Thus, according
South and
to Charleston
of an Indiana General
only partners
Justuses,
sued the
plaintiffs
had
Apart-
Partnership known as Charleston
had
South
wrong parties —Charleston
South,
Partnership
premises
had
ments
that such
having any interest
ceased
inception
ownership
of
or
years prior to
with the
almost two
no involvement
and,
lease.
...
premises
Tenants’
operation
Partnership had divest-
that such
fact,
and Guests did
response,
the own-
any involvement in
ed
Asserting that fac-
pleadings.
their
rest on
itself
apartment
ership
operation
such
just
remained as to
who
questions
tual
complex ...
apartment
estoppel
presenting
the landlord
more than
years
two and a
issue
attempt
is waived as is their
assign
half
before
the incidents....”
liability to Charleston South and JPM be
cause of some connection between them
(emphasis
Record at 209-10
supplied). A
alleged
and the
apartment
builders
finding
judgment
similar
was entered
complex, Justus
(al
Construction Company
in favor of the
Simply stating
Justuses.
ego
ter
theory).
genuine
Corp.
that no
See Fleetwood
issue of
material fact exist-
Mirich, (1980)
ed,
38;
the trial court
summary
also entered
Of
judgment
Sheehan, (1976)
Ind.App. 491,
favor
JPM.
futt
1. Does a controversy factual exist as demonstrated that Charleston to whether Charleston South was sought to retract its admission of lessor Tenants’ landlord? responsibility and substitute a any denial of 2. Could Charleston South be liable for dealings with Tenants. Record at 101-02. negligence, even if it petition Attached to the was a certificate was not the at the time of attesting to service mail the Ten Tenants’ lease? ants’ attorneys. and Guests’ The next en 3. Does controversy a factual exist as try petition shows the grant to amend was to whether Charleston South should ed the trial May court on 1981—over deny landlord status? filing seven weeks after the petition. 4. Does a exist as Record at 104. We must conclude that to whether JPM manager was the Tenants and Guests have waived their apartment complex at the time of right challenge the court’s action in al *6 the fire? lowing the amendment they because did 5. Could JPM be liable for object to petition Charleston South’s negligence, even if it was not the until day granted. the it was Record after manager complex of the at the time at 107. This is not a case in which the of the fire? complaining party had no in time which to 6. Does a controversy exist as object nor one in which a claim is made of to whether JPM should be no notice or insufficient notice. Tenants deny manager to status? duty-bound and Guests were register to any objection proceeding further, Before to pro Charleston South’s it is nec essary posed to accentuate amendment negative. the Some trial court before action; First, party issues we need not took neglects address. al who to “[a] though alleged Tenants and avail himself objection Guests a theo of a valid pro to a ry ipsa loquitor ceeding of res in complaints, their and stands or participates there there is no such content in their motions to until an adverse result is reached must appellate correct error and brief which consequences.” are bear the Enderle v. Shar negligence limited to theories of man, (1981) and breach Ind.App., 686, 422 N.E.2d implied warranty habitability. This See also Co., v. Travelers Indem. Huff 4. Each pertaining ordinary issue to Charleston South will course of the business ... or with the against also be relevant to the claims authority copartners”, the Justus- of ... Ind.Code 23-4-1- potential liability es. The (1982), of the Justuses will partners 13 and individual "are liable separately not be discussed [jointly from severally that of everything and for [so] partnership chargeable South because the is lia partnership.” to the IC 23-4-1- injury by "any 15(a). ble for wrongful loss or caused (1956) Long, See also Miller v. 126 Ind. any partner 482, act acting 348, or omission of App. 131 N.E.2d trans. denied.
729
(objection
proper only
pleadings, deposi-
(1975)
when
Ind.App., 328 N.E.2d
tions,
interrogatories,
answers
and ad-
made at trial
petition to amend must be
file, together
any
on
with
affida-
level),
missions
grounds,
vacated
other
court
985;
testimony,
genuine
vits
disclose that no
414,
(1977)
Op-
363 N.E.2d
Ind.
any
fact
issue as to
material
exists and that
(1961)
Ind.App.
Craft,
penheimer v.
moving party
judgment
is entitled
as
(in
trans. denied
Carrell, supra;
of law.
matter
Boswell
objection
before or
sufficient
absence
(1980)
Ind.App., 401
Lyon,
N.E.2d
granted,
motion
amend was
court
after
And even if the facts are
trans. denied.
presume amendment was authoriz-
would
dispute, summary judgment
not in
is still
ed).
inappropriate
information before
conflicting
court reveals
inferences to be
DECISION
Carrell, supra.
drawn from those facts.
a factual
ONE—Does
ISSUE
reviewing grants
summary
judgment,
as
exist
to whether Charleston
applicable
the same standards
use
landlord?
was Tenants’
liberally
all
trial courts and must
construe
PARTIES’ CONTENTIONS—Tenants
in favor of the nonmovant
evidence
sup-
affidavits
maintain
any doubt
of a
resolve
as to
existence
motion
sum-
porting Charleston South’s
genuine
proponent
issue
comply
mary judgment did
T.R.
City
Logansport,
motion.
Jones v.
56(E)
erroneously
trial
and that the
court
credibility
weighed
of the affiants.
ascertaining
.
method
says that
its affidavits
Charleston South
exists is
whether a material factual issue
trial
fully
compliance
with the
rules
alleged
complaint
Facts
as follows:
conclusively
that said affidavits
estab-
except
as true
to the extent that
are taken
never
Charleston South had
been
lished
pleadings, depo
they
negated by other
are
Tenants’ landlord.
sitions,
interrogatories, affida
answers to
properly
trial
CONCLUSION—The
vits,
presented by the
other evidence
portions of Charleston South’s
considered
moving party.
Tanasigevich
Estate of
affidavits and other evidence
submitted
Hammond,
City
of
Such a statement subject property and conveyed est all need remind Tenants and Guests that improvements statement, property to the to a requires not a limited rule but a partnership showing competency. answering an named Charleston Associates. analogous question, Properly portions this court held that has considered of the Justus- explicit an affidavit need not contain an es’ affidavits affirmed those transfers and personal knowledge recital of its con- when added Charleston South had also parts tents demonstrate that the material right do transferred the to business in its thereof are statements within the affiant’s to name Charleston Associates. personal knowledge. In re Garden & Turf Guests, response, did (1982) Supply Corp., Ind.App., 440 N.E.2d challenge the validity of instruments of denied; trans. French Hickman conveyance and transfer submitted Moving Storage, & Instead, they presented Charleston South. Justuses’ affidavits affidavits and which in way exhibits no knowledge show that the affiants have contradicted these documents. A tenant’s development about the and construction of testifying affidavit his belief Apartments complex, the Charleston South Charleston South was his landlord does not hard-pressed imagine and we are who conflict with Charleston South’s evidence competent testify would be more about transfer; copies of the face of checks the dealings of Charleston than its South signed by a tenant and made out partners, sole Walter and Zona Justus. again only support South Charleston a sub- hardly The trial court could err in consider- jective belief that cashed ing the on this affidavits basis. accepted and thereby pay- checks rent however, agree, We do that certain ments. portions of the Justuses’ should affidavits not have been considered. Statements in Similarly, Tenants and Guests did an “verily affidavit as what the affiant present contradicting evidence the Jus- satisfy requirement believes” do “not [the] testimony of tuses’ a business-name trans personally that an affidavit state matters plaintiffs’ fer. The affidavit from at belief, known because no matter how sin stating torney he had unable been to find cere, equivalent knowledge.” is not Cel any public assignment record of an Forister, ina Mut. Ind. Ins. Co. name South’s business does not
App., So, in evalu contradict a assign statement that ating disregard these affidavits we state place. ment took The assumed business ments made on basis belief.6 statute, (1982), name 23-15-1-1 Ind.Code "analyzed produc- requires recording
Having so the evidence certificate stat support ing ed Charleston South in of its the assumed name or names to be used *8 motion, summary judgment “protect conclude in to public order from fraud adequate pre- imposition by preventing there was more than an corporate a improper using language Such statements do not mandate a of the affidavits was rele- disregard total all only of contents of the affidavits. surrounding vant to the confusion required ignore The trial court was misnaming plaintiffs’ of Charleston South. See Celina, improper portions supra; thereof. See note 2 Because the misnomer is not an infra. French, addition, supra. In we decline to ad- appeal, issue in this we need consider that propriety dress the of a “to the statement made portion of the Justuses’ affidavits. knowledge. portion best of’ the Justuses'
731 upon Tenants, duty no which with it had concealing identity,” Parker entity from Servs., can be Inc., (1979) suit based. Farm v. Rod Johnson 192, 1129, 190, 384 N.E.2d Indiana law CONCLUSION—Under as it provide 1131, does the statute nowhere stands, sounding suits now landlord-tenant recording necessary is a condi a that such negligence implied of and breach war- a valid precedent business-name tion ranty habitability upon must be based stated, recording Differently transfer. contract, privity so Charleston South assign validity of the affect the does not prior of negli- cannot be for acts liable the transferee and ment as between gence. like It is irrelevant. The more
transferor. transparent is a There lure to ly noncompliance is to work an effect of prior Tenants’ and assertion Guests' parties of third under estoppel in favor conceivably negligence could have Corp. v. conditions. See Sheraton certain proximately injuries thereby their caused Co., (1974) Ind. Packing Kingsford creating inappropriate question a factual 470, N.E.2d 852. So we conclude App. However, judgment. such an summary for failure to com Associate’s that Charleston argument proposi ignores the well-settled does ply 23-15-1-1 not contradict with IC negligence tion that an essential element of evidence a transfer Charleston South’s duty. is of a Unfortu claims the breach Associ name to Charleston of its business Guests, for nately Great ates. Wilson, & Tea Co. v. Atlantic Pacific trans. de complaints’ That leaves us with the nied, clear that under this court made Indi naming Tenants’ allegations and lease liability, duty no premises ana law on Certainly, as the lessor. Charleston South imposed upon not in control one entity Tenants contracted some may not be dis premises. Atlantic Great Apartments “Charleston called itself plaintiffs tinguished the basis that But it is our view that the defend South.” liability upon impose sought therein South, herein, estab ant Charleston has analysis later prior tenant. As our party not the that it was with whom lished demonstrates, principle involved is case Although it is understanda Tenants dealt. sug Atlantic facts than the Great broader Tenants relied their lease ble that gest: later, although, as will be discussed the transfer of triggering “The factor is be well Charleston South who lacks possession and control. One status, ques no material deny its landlord property nor- possession and control respect fact existed with wheth tions of for inju- liable mally held should be at the er South was longer position in a no ries which he is question This has Tenants’ lease. time of prevent.” been resolved. Moore, (1982)Ind.App., 441 Zimmerman v. Charleston South . TWO—Could ISSUE Thus, the Great Atlantic N.E.2d negligence, even acts liable as a barrier cases stand and Zimmerman time of not the landlord at the it was negligence claim to Tenants’ and Guests’ lease? Tenants’ privity is because Charleston South required. CONTENTIONS—Tenants PARTIES’ concepts privity deciding have argue that that in builder- We are aware sounding has case, supreme no to their claim abol- application vendor our they privity requirement. also to recent Barnes tort/negligence; cite ished the Co., (1976) Ind. involving the Supreme Court cases & Indiana v. MacBrown recognized “an implied of habita- the court builder-vendor privi- implied warranty of fitness for habitation argument that bility support of an subsequent pur- [extending] required. to second ty should not *9 dwelling when a latent that, of house having chasers never contracted asserts [a] 732 228, only recognize decisively 342 Indiana case to appears.” later Id. at
defect
implied warranty
habitability flowing
of
development in
N.E.2d at 620. It is this
tenants,8
essentially
from landlords to
was
hope
the law to which
Guests
Breezewood,
In
a contract case.
the ten-
implied
to hitch their claim for breach of
plaintiff-land-
ants defended
the
habitability.7
warranty of
by asserting
lord’s suit for rent due
a coun-
that, as an intermediate
It is our view
implied warranty
terclaim for breach of the
court,
step
should not take the
appellate
habitability. The first district affirmed
of
by
The
Tenants and Guests.
advocated
judgment on the tenants’
the trial court
Court, Barnes, supra,
in
Supreme
Indiana
counterclaim, concluding “that the seeds of
requirement in
privity
fit to
the
saw
abolish
abolishing
the modern trend
caveat lessee
supreme
cases.
It is the
builder-vendor
treating
a lease as a contractual
rela-
ours,
similarly
province, abol-
court’s
tionship have been sown
Indiana.” Id.
privity requirement
in a landlord-
ish the
(emphasis supplied).
at 675
Other indica-
although there can
setting.
tenant
And
warranty
tions that breach of the
is a con-
pro-
dispute
little
that the factual scenarios
may
tractual claim
be found in the court’s
types of
are somewhat
by
duced
both
cases
imposing
duty
rationale for
a
the
similar,
there are several factors
we believe
damages:
The landlord’s breach
award
warranting
approach
a conservative
on our
was occasioned
his violation of numer-
part.
were,
housing
provisions
ous
code
which
development
implied
The historical
law,
(contract),
incorporated into the lease
warranty
habitability in
landlord-tenant
damages
a
and the award of
followed basic
warranty
demonstrates that
the
is
law
contract-law calculation of the value as
Indeed,
concepts
grounded in
of contract.
rental)
promised (agreed
minus the value
single
important reason
probably the
most
Thus,
that,
as received.9
it is clear
as the
warranty’s development
the
for the
was
stands,
are
law
bound
convey
recognition that a lease was not a
principles including
concept
contract
(as
theorized),
had
earlier
ance
been
privity.
Realty
contract.
Javins v. First Nat’l
See
Finally,
a distinction
we observe
between
369,
(1970)
U.S.App.D.C.
428
Corp.,
and the
the builder-vendor cases
1071,
denied,
925, 91
F.2d
cert.
400 U.S.
is
our
cases which
sufficient
warrant
186,
Lessar,
185;
27 L.Ed.2d
S.Ct.
setting
caution
this area.
Prospec
Landlord/Tenant Relation
supreme
faced in
with which
tive: From
to Contract and Back
Status
Barnes,
imposed liability
supra,
on a
(1961).
Years,
in 900
9 Kansas L.Rev.
is,
certainly
builder —that
one who
had
Therefore,
it is
natural that a contrac
knowledge
premises
of latent
defects in
privity
imposed
tual notion like
would be
that he
created the
was the one who
flaws.
upon warranty
habitability
suits.
this court
it declined to
As
stated when
addition,
expand
implied warranty concept
that Breezewood
we observe
Maltbie, (1980)
Management
purchase
Ind.
of a used home from a non-build-
Co.
denied,
er, policy
supporting
considerations
the im-
App.,
N.E.2d
trans.
368;
that,
might
privity
App.,
speculate
re-
Shriner v. Union Fed. Sav.
once the
7.One
warranty
Ass’n, (1955)
respect
quirement
is abolished with
& Loan
claims,
habitability
concept
privity
out-
trans. denied.
the Great Atlantic and Zimmerman
lined in
similarly
That is to
cases will be
undermined.
Society
Propagation
8. See Welborn v.
essentially
warranty
say,
contractual
once
Faith, (1980)
(as-
733
estoppel theory may
warranty are
strate that
an
position
particularly
of a
such
apply to a
like this one.10
against
liability
ease
strong when the one
whom
the defect and is in a
sought
created
Sheraton,
In
the third district
position to bear the cost of
better economic
support
this
with facts
court was faced
repairs.
Shockey,
Ind.
See Vetor
ing
imposition
equitable estoppel: A
the
Although
App.,
a landlord
hotel was
and called the Shera
constructed
may
position
in a
economic
to
well be
better
Operating
Motor
Corpo
ton
Inn. Sheraton
tenant, may
his
risk than is
he
not
bear the
(Sheraton)
opera
ration
was the exclusive
having
the
position
the
created
hotel,
tor of the
establishment was
distinction,
think, supports
defect. This
actually
company.
owned
an investment
Barnes, supra,
that
does
our conclusion
company
Sheraton and the investment
were
departure
inescapably
to
from
lead
separate
appearances,
all
entities. For
re
requirements
landlord-tenant
privity
however,
impression
gave
Sheraton
in Indiana.
lations
period
that it was
For a
the hotel owner.
a factual
ISSUE THREE—Does
controver-
plaintiff packing
years,
of about three
to
sy exist as
whether Charleston
company
foodstuffs to the hotel
furnished
estopped
deny land-
South should be
to
“representatives”
and dealt
Shera
lord status?
failed
Finally,
pay
ton.
the hotel
when
it,
several
were billed to
invoices which
PARTIES’ CONTENTIONS—Tenants
packing
brought
suit
company
that, because
Guests contend
Sheraton,
found
and the trial court
Shera
knowingly permitted
South
name to be
ton liable
incurred
debts
apartment
used in connection with
com-
contending
appealed,
hotel. Sheraton
estopped
deny
plex, it should be
that,
it was not the owner of the hotel
responsibility.
responds
Charleston South
operating agree
of its
under
terms
estoppel
should not lie because it en-
ment,
owner,
company,
as
investment
gaged
misrepre-
in no affirmative
There
was liable. Sheraton lost.
was am
pe-
it should
sentation and because
ple
the trial
evidence from which
court
nalized for Charleston Associates’ failure
have
that Sheraton
could
determined
the assumed business name
comply with
liability.
to deny
Sheraton know
statute.
permitted
used in
ingly
its name to be
ex-
factual
CONCLUSION—A
separate
entity
course
business
is es-
ists as to whether Charleston South
(and
actively
entity
also
assisted
topped
deny landlord status.
Sheraton),
plain
and the
appear identical to
reasonably
company
relied
packing
tiff
general,
party
when one
allows
prej
to its
representations
Sheraton’s
masquerade
first
party to
as the
another
udice.
unknowing
arise to
party,
liability
estoppel
equitable
The elements of
per-
do business with the
parties
third
who
thereby described:
Although
applying
cases
this rule
mittee.
that there existed a
must be shown
normally deal with
situations
“[I]t
representation
false
or concealment of
interdependent businesses
which several
separate
material
made with actual or con-
corpo
front of
facts
present a fictitious
existence,
knowledge of the true state of
see,
structive
e.g.,
rate
Merriman v. Stan
facts;
must be
Co., (1968)
representation
made
Ind.App.
Grocery
dard
knowledge
denied;
or rea-
to one who is without
trans.
Auto
N.E.2d
Clark
knowledge of
the true
sonable means
Fyffe,
Co. v.
it;
rely upon
intent that he
facts with the
Corp.
the facts of Sheraton
rely
must
Co.,
party
or act
supra, demon-
second
Packing
Kingsford
closely
justify
"alter-ego”
presented
an
interrelated as
no evidence
to the trial
There was
theory
suggesting
estoppel.
issue as to
Charles
whether
were so
ton
and Charleston Associates
*11
upon
name;
representation
such
did
an
his dam-
not file
assumed business
age.”
therefore, Tenants could not discover their
However,
true
this
means.
476,
Id. at
C.The
Intent To Cause Reliance
Knowing Representation
A.The
Element
Element
question
This
is
for
similarly
the trier-of-
undisputed
It
is
that Charleston
fact. Charleston
intent
South’s
knowingly
South
name
allowed its
to be
inferred if
silence
its
was of such a charac-
used
Charleston Associates
the leas
person
ter as
induce
a reasonable
ing business. The Justuses transferred the
it
believe that was
to be
meant
acted on or
right
to do business in the Charleston
South
Charleston
should have known
name,
South
part
but
South
Charleston
probable
that it was both natural and
nership
name,
continued under
same
upon.
would
silence
be relied
Shera-
Further,
representation
too.
certainly
ton,
480-81,
at
supra
B.The Lack Element Of attempted have not to amend their com- plaint to add A factual either or substitute exists as to wheth- Charles- ton as er Tenants Associates a defendant. Facts were without knowl- could edge conceivably exist under an knowledge reasonable means which amended back, complaint 15(C); their was not land- would relate see T.R. hand, lord. one parties appar- Parsley Waverly, Ind.App., On the v. ently concede that Charleston Associates N.E.2d province it is not our summary judgment. question. oppose a motion upon that opinion express Celina, estoppel, the E supra; elements of Hirschauer C & Shoe the other Like Inc., Jobbers, (1982) Ind.App., must be resolved element 436 N.E.2d prejudice 107; Coghill Badger, trial court. 405, trans. denied. For exam- questions of fact Having concluded that Hirschauer, supra, portion of an ple, in estoppel Tenants’ and Guests’ exist as to it offered a improper because affidavit the trial court’s must reverse theory, we *12 of law that the defendant had conclusion on this basis. Sufficient
judgment premises. Similarly, cer- “control” of the conflicting inferences exist questions and and Gatch tain statements the Shotts issue. a trial on this which warrant affidavits must be excluded: a factual FOUR—Does ISSUE 21,1976, was the man- to whether JPM April exist as “That on Charleston Asso- complex at the ager apartment ciates, the agents employees, relin- and the fire? time of power to quished right, duty all manage, operate or the Charles- maintain PARTIES’ CONTENTIONS—Tenants Apartments ton South. affidavits JPM maintain that Guests Inc.) sup- (Justus Management, Property summary judgment
port its motion for That, 20,1976, April Proper- Justus after 56(E) the T.R. and that comply not with did Inc., Management, right, duty had no ty trial court demonstrat- before the evidence respect proper- the obligation with to or to JPM controversy as when ed a factual Apartments South or ty at Charleston apartment the its connection with ceased management thereof. respect to the with that, por- responds even complex. JPM ignored, no fac- are tions of the affidavits Property Management, [Tjhat Justus controversy exists. tual Inc., fact, duty power no or right, had Properly por- considered CONCLUSION— the manage, operate maintain or to demon- submitted affidavits tions of JPM’s apartments.” above-mentioned that JPM was not involved strate Shotts, (empha- at 157 record Affidavit of complex apartment at management of the supplied). sis fire. the time of the April knowledge after “That to affiant’s challenge to Again are faced with we 20, 1976, Management, Property Justus considering propriety of affidavits sub- the Inc., obligation or right, duty had no court. As discussed mitted to the trial respect property to the at Charles- earlier, One, it is of no moment see Issue respect or with Apartments South ton and Shotts did the of Gatch that affidavits management thereof.” affiants affirmatively state that Gatch, (empha- record at 160 Affidavit testify. Having exam- competent to were improper conclusions supplied). sis Such affidavits, are convinced ined the by the considered not have been should JPM, Gatch, the Shotts, an officer of court, them from and we will exclude trial Companies, are vice-president of Revel our review. testify the business competent about companies. however, dealings of those opinion, that It is our following from Gatch three statements however, portions of the agree, summary judg support entry Shotts considered not have been should affidavits this issue:11 ment on in affidavits trial court. Statements 21, 1976, Compa Rével April “That on conclusory facts or conclu- setting forth nies, Inc., management of took over support cannot be used sions of law personal do not meet opinion upon these statements knowledge requirement express an 11. We decline to 56(E), the state- of T.R. "to the best of’ propriety made of statements support knowledge” out in text are sufficient ments set knowledge or "to Gatch’s summary judgment. entry argue. the trial court’s Assuming, as Tenants and Guests Gatch. Apartments replacing implied warranty and breach of of habita- Property Management, Justus Inc.” bility privity. must be based on Issue See Therefore, Two. because JPM was not Gatch, at 160. record Affidavit of management fire, at the time suit 21, 1976, April Compa- “That on Revel against privity JPM is barred because no nies, Inc., management assumed existed at the time of Tenants’ and Guests’ premises Apart- known as Charleston injuries. ments South....
ISSUE SIX—Do facts material to the claim
alleged
That at the time of the
fire on
deny manager
JPM is
1, 1976,
Inc.,
Companies,
June
Revel
in controversy?
status remain
manager
Apart-
of the Charleston
PARTIES’ CONTENTIONS—Tenants and
ments South....”
pose
estoppel argument
similar
Shotts,
at
record
157. These
Affidavit of
South;
one made
disputed by
statements
is, they argue
that because JPM know-
*13
although
and Guests. And
ingly permitted someone else to use its
point
Companies’
Guests
to Revel
answers
managerial
name
connection with
duties
interrogatories
in order to demonstrate a
estopped
JPM should
deny responsi-
be
conflict,
those
were not
answers
bility.
argument
JPM counters with the
before the trial court when it entertained
prejudice,
that
an essential element of es-
summary judgment
JPM’s
motion: Summa-
toppel, has not been shown.
ry judgment
was entered
favor of JPM
7, 1981,
arguably
on December
and the
CONCLUSION—Because Tenants
conflicting
interrogatories
answers to
Companies
Guests have named Revel
as a
20,
January
not filed until
1982. Error
party
suit,
they
defendant
to this
have
cannot be based
evidence not before
failed to
establish even
as to
the trial court
it ruled
when
on the summa-
question
prejudice; therefore,
JPM
ry judgment
Wood,
Weenig
motion.
v.
deny manager
is not
status.
235,
Ind.App.
Furthermore,
trans. denied.
Tenants’ and
Prejudice
necessary ingre
is a
attempt
place
Guests’
that evidence be-
estoppel
Sheraton,
dient for an
claim.
su
by attaching
fore the court
the document pra; Individual Members
the Mishawa
to their motion to correct error did not
Dep’t
Mishawaka, (1976)
City
ka Fire
comply
newly
regarding
rules
dis-
In the
point
absence of
it
prejudice resulting
to some
from
can
be concluded
the statements
their reliance.
fail to
see how Tenants
true;
made
are
affidavit
JPM was not
any
Guests have sustained
such dam
management company
at the time of
age.
prejudice
The only
asserted
Ten
Thus,
summary judgment
the June
fire.
ants and Guests is that the statute of limi
proper
was
on this issue.
tations has run on their claim.
may
This
pri-
ISSUE FIVE—Could JPM be liable for
so,
Companies,
but Revel
only sug
negligence
or acts of
even if it was not
gested defendant
to be substituted for
manager
complex
of the
at the
JPM,
already party
to this suit. Where
time of the fire?
is the harm? Tenants
may
and Guests
continue with their
negligence
claims of
CONCLUSION—We need not address the
implied
parties’
warranty
breach
contentions on this issue because
habita
already
bility against
Companies,
we have
determined that Tenants’
Revel
and the
resting
negligence
and Guests’ claims
statute of limitations is not an issue. Sum-
(2nd Dist.1980) Ind.App.,
mary judgment
appropriate
Shockey
on this Vetor v.
In premises may party still be a to this tions of fact material to Charleston South’s status, status, management litigation, join any implication I do not JPM’s plaintiffs precluded asserting from potential estoppel of JPM remain. are law, addition, implied Tenants’ as' a matter of their claims for breach of habitability. and Guests’ suit not be based negligence, privity, until absent guidance from our su- there is further Questions court. of fact do exist as
preme Charleston South should be es-
to whether status;
topped deny its landlord there-
fore, go are entitled to Tenants and Guests question. this
to trial on of the costs herein shall be One-sixth MOORE, Randy Appellant, S. borne the Justuses and Charleston South, of said costs will and five-sixths assessed Guests. REVIEW BOARD OF the INDIANA EM Judgment part affirmed in and reversed DIVISION, PLOYMENT SECURITY part; cause remanded. *14 Skinner, Adams, H. David L. William Hutson, and Paul M. as members of MILLER, (sitting by designation), con- J. constituting the Review Board and as curs. Employment Security of the Indiana Division, Plastics, Wrap and Transil SULLIVAN, J., opinion. concurs with Appellees. SULLIVAN, Judge, concurring. No. 2-1183A402. slight a caveat as I concur but would add Indiana, Appeals Court of appellees None of the to Issue Two. Third District. shown to have been the builder of the Accordingly, cir- premises. under these April cumstances, impose lia- I would not strict bility liability by way or other of a breach habitability. implied liability opinion today as to
venture no a is not
from a builder-lessor to tenant who premis-
the first tenant to have leased if It seems to me that case law
es. liable to a
Indiana holds builder-vendor vendee, (Barnes
subsequent v. MacBrown Co., (1976) 264 Ind. Inc. 619) liability flows from a similar subsequent tenant.
builder-landlord respect no
I also venture view liability from a lessor who is not
possible for a defect which to a tenant builder assumption prior to his of the land-
existed relationship
lord the landlord had knowl- duty
edge of the defect or had the its existence. See
opportunity discover