*1 KLOTZ, Appellant-Plaintiff, Stan Chrissy Kornmann,
Sarah HOYT
Appellees-Defendants.
No. 18A02-0707-CV-556. Appeals
Court Indiana.
Feb. Karnes, Dennis, Wenger
David J. & Ab- rell, P.C., Muncie, IN, Attorney Appel- lant. Wilson, Muncie, IN,
Alan K. Attorney Appellee Hoyt. Sarah OPINION BAKER, Judge. Chief disputes Tenant-landlord are all too Here, undisputedly common. two tenants stopped paying rent after the first one and lease, one-half months of their did a sub- stantial amount of damage to the inside of residence, and abandoned the resi- dence without informing the landlord or leaving their respective forwarding ad- contractually dresses. The tenants are ob- ligated, by virtue of their binding valid and lease, repay the back due rent and late notwithstanding fees compli- *2 that, pay- no further rent govern- 2006. After statutory requirements with anee Apparently, were made. the ten- security deposits. ments handling ing event, along land- each And, get find that the ants were unable to with any in other, got repeated fights, all relevant into and caused did lord herein reports generated. At numerous be statutes. aban- point, Hoyt some and Kornmann appeals Klotz Stan Appellant-plaintiff Residence, though they per- left doned complaint of his the trial court’s dismissal including their furni- possessions, sonal appellees-defen- against for breach of lease ture, behind. It is that neither Chrissy Kornmann.1 Hoyt and dants Sarah writing they in tenant notified Klotz that the trial court errone- Klotz contends though Hoyt vacating premises, were that he was not entitled ously concluded Klotz that testified that informed she she allegedly rent and because p.Tr. intended to leave and not to return. an itemized list of dam- failed to 38. There is no evidence that Klotz was Hoyt Kornmann within the ages to and informed that Kornmann had also aban- Find- forty-five-day statutory timeframe. the Residence. doned required that Klotz was not to be timeframe 8, 2006, attempted Klotz On November and payments to back due rent entitled writing notify Hoyt and Kornmann that, and the purpose for the begin proceedings his intention to eviction he did with the deposit, because, among things, other had judgment reverse the relevant payments failed to make rent since with instruc- of the trial court and remand response received no August 2006. Klotz favor in judgment to enter Klotz’s tions January 29, Klotz to his letters. On $6,000. the amount of seeking pos- filed a complaint immediate and
session of the Residence FACTS amount On approximately February the trial court evicted Residence) (the property Klotz owns them to Hoyt and Kornmann and ordered 5, 2006, Hoyt and Korn- Muncie. On June on that p.m. vacate the Residence 6:00 (the Lease), pursu- mann executed a lease 20, 2007, Hoyt day. on Also they agreed ant to to rent Resi- of her dam- petition filed a for the return Lease commenced dence from Klotz. The remain- age deposit personal property and on July on and terminated June arguing in the inas- Hoyt and Among things, 2007. other forty-five days had much as more than monthly rent in pay Kornmann and she passed since she had been evicted daily amount of and a fee $600 $10 an itemized list from had not received was made payment for late rent until the statute, she was enti- Klotz as would be acknowledged tled to the return of her for the jointly severally liable obli- court set a personal property. executing Upon under the Lease. gations damages for. hearing on back rent and paid and Kornmann March security deposit. a $600 the Resi- timely recovering possession After made a rent and Kornmann inspect- July dence on for the month of
payment premises and secured estimates August rent due in ed the paid one-half of the appellee’s brief. 1. Kornmann did not file Davis, damage (Ind.Ct.App. done the tenants.
repairing Menard, Inc., 2005); Blasko v. repair had to Among thing, trim, drywall, siding, replace (Ind.Ct.App.2005). damaged windows, certain areas of repaint broken *3 Hoyt and Kornmann admitted that carpet. He and clean they Specifically, the Lease. breached damages totaled testified those they acknowledged their failure to make $2,848.94. pay Klotz also had to the ten- any payments August after rent 2006 and At the March ants’ overdue electric bill. they damaging admitted the Residence. provided Hoyt and hearing, Klotz Lease, undisputedly Pursuant to the an Kornmann with an itemization of the dam- binding they valid and contract into which age to the Residence. freely, Hoyt Kornmann un entered and hearing, At the Klotz testified that questionably owe Klotz rent the amount in the and Kornmann owed rent amount of $6,300 $2,270 and late fees that totaled $2,270. $6,300 and late fees of The total damages at hearing. time of Klotz, damages sought by including back complied Whether or not Klotz with statu rent, fees, nearly late totals tory provisions regarding security depos $12,000, jurisdictional which exceeds the herein, though, as we conclude its— $6,000 amount of claims court.2 small entitled, pursuant did—he is to the Thus, damages to waive over payments to be reimbursed for the rent and above and late The fees. statute secu they and Kornmann admitted that rity deposits back due rent includes as pay August had failed to rent after type damage that must be itemized and they notify Klotz had failed to when sent to the tenants before the landlord can they premises, they vacated the and that subtract the from the depos sum provide 32-31-3-12(a). had failed to him with their re- § it. But Ind.Code They spective forwarding addresses. also way statute in hampers affects or damaging admitted the Residence and tes- ability right to sue the ten tified that the Residence was not uninhab- ants for the rent that are contractual any itable and that had not had prob- See I.C. ly § obligated pay. 32-31-3- 12(c) (“[t]his lems with Klotz as their landlord. On preclude section does not 13, April the trial court entered an recovering landlord or tenant from summarily dismissing entitled”). order Klotz’s claim damages to which either is We Molter, ordering Klotz to return the acknowledge Durf deposit. appeals. now (Ind.Ct.App.2005), in which the court held that a landlord’s failure to AND
DISCUSSION DECISION provide his tenant with an itemized list of underlying damages precluded recovering facts this case are not him from dispute. damages” Inasmuch as we are called the “other referred to in Indiana 32-31-3-12(c). upon pure questions to answer of law and Code section Given the statute, interpret apply language we will re- clear explic which view the trial court’s order de novo. Hill itly excepts damages” “other from the no- 33-29-2-4(b) (providing 2. See Ind.Code waive the excess of claim that exceeds six jurisdiction ($6,000) that the small claims docket has bring thousand dollars in order to over civil actions "in which the amount jurisdiction within the of the small claims sought ... is not more than six thousand docket”). ($6,000)” plaintiff “may dollars security deposits, prescribed by notice and amount tice subsection. holding. And even disagree with the Durf so, attempt involved a landlord’s Indiana Code section 32-31-3-14 further Durf greater in an amount recover requires the landlord to mail to the tenant physical than harm list of itemized claimed for to the the tenant. An property done security deposit may be used not made that under such argument could be forty-five days more than after termi- circumstances, re- the landlord should be occupancy. Finally, nation of Indiana quired provide the tenant with an item- Code section 32-31-3-15 states that list of for which he seeks to ized “failure a landlord to notice of *4 merely seeking A to recover. damages under section 14 of this chapter rent, however, recover back should be by agreement the landlord that to a list of itemized dam- due, and the landlord ages property, to the which is irrelevant to immediately must remit to the tenant the contractually by the amount of rent owed security full deposit.” that the tenant. We cannot conclude the Assuming argument’s sake that a Assembly General intended such result parents’ addresses, the tenants’ to occur. were contained were suffi trigger cient to period, Here, therefore, find that Klotz was begin did not to run until full entitled to recover the amount of rent “after termination of the rental agreement by the tenants. Inasmuch as back owed delivery possession.” of I.C. 32-31- $6,600— due rent and late fees total over 3-12(a). “Or, put precisely, more jurisdictional limitation on agreement termination of the rental occurs plus security the amount of the de- $6000 by after surrender the tenant and accep posit find that the trial court should —we tance of surrender the landlord.” Lae judgment have entered in Klotz’s favor in Householder, (Ind. $6,000 notwithstanding any the amount of 2003). statutory compliance concerns about re- garding security deposit. Here, Hoyt suggests that the rental agreement terminated when was said, That will address the rele sent her letter November 2006 inform- handling vant statutes planned her that he to seek eviction. security deposits. Indiana Code section agree. We cannot It is evident that termi- 31—3—12(a)provides upon termi 32— nation, surrender, and acceptance occurred agreement, nation of a rental the landlord February on is which when shall return to tenant evicting Hoyt trial court entered its order sums, deposit specified minus certain premises. and Kornmann from the Al- though Hoyt argues effectively that Klotz as itemized the landlord [a]ll with terminated the lease in November when he the amount due in a written notice that informing sent her letter her he than is delivered to the tenant not more begin proceedings, intended to eviction (45) forty-five days after termination of aptly notes that delivery the rental possession. Hoyt posses- The landlord is not liable waited until the immediate February 20, until tenant chapter sup- hearing under this sion on plies writing request with a hire counsel and file her first mailing return of depos- address which to deliver her [Klotz] trial, perfect- damages prior ... ized list of timing
it. This would seem ly tendering pos- if her appropriate requested could have a continuance so that session of the real estate coincided with she could have factored the information by the trial granting possession strategy. into her trial There is no evi- court on but would suggesting in the record dence extremely if the Lease ter- seem belated did, fact, request a continuance. Conse- earlier triggered mination was some comply- cannot fault Klotz for quently, we event. the letter the law. Reply p. Br. 7. It is that as of judgment of the trial court is re- Klotz “did not know versed and remanded instructions to anyone way one or the other” whether was awarding enter order living in the inasmuch as still ” Ap- was furniture in there.... “[t]here FRIEDLANDER, J., concurs.
pellant’s App. p. 45. did Consequently, not enter the Residence until authorized to ROBB, J., concurs in with opinion. result above, by court our do so order. As noted *5 explicitly held that Supreme Court has ROBB, Judge, concurring in result. agreement termination of a rental occurs in by I concur the result reached the (1) (2) by after surrender the tenant majority agree because I that the lease acceptance of surrender the landlord. was terminated on Lae, 789 N.E.2d at or not 484. Whether 20, 2007, and that provided item the tenants had surrendered the Resi- damages forty-five days ized list of within prior given dence to 20—and However, of this termination. I am con many personal pos- that left behind allowing cerned that a to sessions, furniture, including we observe day hearing this notice on the of a contra skeptical that we are that the tenants had purpose require venes the the notice at that point surrendered time—it is ment, which is “to inform the that tenant that Klotz accept did not sur- keeping the landlord is the until receiving render the eviction order on reason, for what as well as to allow that provided that date. Klotz the itemized list opportunity challenge tenant an to the 16, damages to the tenants on March deposit being costs for which the is used.” 2007, forty-five-day well within the time- Saulka, Props. v. Pinnacle 693 N.E.2d frame. 101, (Ind.Ct.App.1998), 104 trans. denied. Hoyt points out March that a tactic process Such also raises due con damages hearing, was the date of the ar- cerns, as the tenants were not of the aware guing provided that Klotz should have her specific damages claiming Klotz was until However, prior that list to time. day hearing. of the See FTC v. Nat’l authority sup- she offers no citation to Co., Lead 352 U.S. 77 S.Ct. 1 port argument forty-five-day of an that the (1957) (“It goes say L.Ed.2d 438 without timeframe altered the trial is somehow that requirements hearing of a fair court’s schedule. We decline to rewrite opposing include notice of the claims of the statutes, provi- which do not contain them.”); party opportunity and an to meet shortening sions limit Holovachka, Sec. Comm’n Ind. v. 234 upcoming hearing when there is an or (1955) Moreover, Ind. N.E.2d although agree trial. that (“The right hearing right to a practice the better would have been for includes to provided charges.”). have with the item- to know and meet As forty-five days, ment within he would be complied with the statute had not precluded recovering from other hearing, the tenants day until including unpaid paym rent and late that correctly believed would have Householder, Lae ents.4 See v. statutory defense under Indiana had a (Ind.2003) (“Failure to day until the section 32-31-3-15 Code supply refund the itemized list results Still, agree I with the ma- hearing.3 damages a claim for waiver liberty that are not at jority’s reasoning liability exposes to for the and therefore concur to rewrite fees.”); attorney Village tenant’s Starks v. the result reached. Apartments, Green 417-18 However, agree I am with the unable (Ind.Ct.App.2006) (recognizing that “a failure majority’s holding that statutory landlord must with the requirement with the notice preserve notice in order to its a landlord from recover- preclude does not to recover the right damages damages Respectfully, for back rent. entitled,” holding is holding contrary is I believe that such where a landlord fails to with the law. statutory and case requirements, notice it is “foreclosed from section 32-31-3-15 indi Indiana Code rent”); recovering unpaid Durf, 839 pro a landlord to cates “[f]ailure (“If N.E.2d at 1211 notice is under section 14 of vide notice given, implicitly the landlord has agreement by the chapter there are no other due, and the landlord that no collect.”); Davis, Hill immedi landlord must remit to tenant (Ind.Ct.App.2005) (holding land *6 security ately deposit.” the full See also lord’s failure to with notice re Molter, 1208, v. 839 N.E.2d 1210 recovery quirement precluded unpaid Durf (“The (Ind.Ct.App.2005) failure to bills); utility Realty rent and Deckard & requirement with the notice of 1319, Lykins, Dev. v. 1321 688 N.E.2d (Ind.Ct.App.1997) (holding where due.”) (quoting Mi that no the notice landlord fails Co., Inc., Novogroder leusnich v. 643 prohibited landlord is requirement, “the 937, “The (Ind.Ct.App.1994)). 941 a claim for ‘other dam making from notice must be met before'the ages’ and must return the entire only Landlord can recover not those dam tenant”), denied; deposit to the trans. Du (Ind.Ct. § ages Ross, recoverable under Ind.Code 32-31- v. 599 N.E.2d chon (“A of the the use App.1992) attempt pur landlord can actual rent ar- deposit, to cover damages’ only a claim for ‘other if it sue utility rearages, charges, or or sewer but security deposit returns the tenant’s within damages’ notice.”); to in statutory also the ‘other referred days provides or 32-31-3-12(c).” Meadows, § Id. There Brighton Ind.Code v. Skiver fore, if majority, (holding unlike the I conclude that (Ind.Ct.App.1992) comply- provide [the Klotz failed to with the statute because the “did not claimed him to an itemized state- list of requiring tenant] Ind.Code 32- in the record that the statute. See 3. There is indication Pea, 7-5-17; requested tenants a continuance. Raider v. (Ind.Ct.App.1993). prohibited from 4. The tenant and landlord are requirements contracting out of unpaid under section in this case the
rent, may now collect [the landlord] added)). (emphasis amount” BOOK, Appellant-Defendant,
Kevin Indiana, Appellee-Plaintiff.
STATE
No. 49A05-0707-CR-385. Appeals
Court of of Indiana. 25, 2008.
Feb. April
Transfer Denied