MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jul 18 2019, 8:39 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEES
Rebecca Berfanger                                         Christopher J. Martindale
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kirsten Kemp,                                             July 18, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-SC-2587
        v.                                                Appeal from the Marion Small
                                                          Claims Court
Robert E. Lee and Dartina                                 The Honorable Myron E.
James,                                                    Hockman, Judge
Appellees-Plaintiffs.                                     Trial Court Cause No.
                                                          49K01-1802-SC-934



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019                     Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kirsten Kemp (Kemp), appeals the small claims court’s

      decision, awarding damages to Appellees-Plaintiffs, Dartina James (James) and

      Robert E. Lee (Lee) (Collectively, Appellees), following Kemp’s abandonment

      of the rented premises.


[2]   We affirm.


                                                   ISSUES
[3]   Kemp presents this court with two issues on appeal, which we restate as:


          (1) Whether Kemp was constructively evicted from the rented premises; and

          (2) Whether the small claims court abused its discretion by awarding

              damages in the amount of two months’ rent.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 1, 2016, James rented the premises located at 4817 East 17th Street, in

      Indianapolis, Indiana, to Kemp for one year, until July 1, 2017. As stated in

      the lease agreement, the amount of rent to be paid was set at $625.00 per

      month; Kemp did not pay a security deposit, nor did she pay a pet deposit. At

      all times during these proceedings, Tina James (Tina), the mother of James,

      acted as the property manager. Prior to moving to the rented premises, Kemp

      had lived in other properties managed by Tina for several years. On July 1,

      2017, the lease expired and the tenancy became monthly. Within a month of

      the expiration of the lease, around August 2017, Tina approached Kemp

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 2 of 10
      requesting her to sign another one-year lease. Kemp refused, due to concerns

      with the maintenance of the property, including an improperly functioning

      toilet and kitchen sink.


[5]   On March 30, 2017, Lee acquired the rented premises by quitclaim deed. On

      February 2, 2018, Lee and Kemp had a meeting to discuss the possibility of a

      lease renewal and the payment of the February rent. While Kemp was

      amenable to a lease renewal, Kemp’s boyfriend, who resided with her in the

      rented premises, took back the offered $625.00 for the February rent. Kemp’s

      boyfriend held onto the money and wanted to get the plumbing issues,

      including the dysfunctional toilet, fixed first. Kemp never signed a new lease

      agreement, nor did she pay the February rent.


[6]   Four days later, on February 6, 2018, Kemp sent a text message to Lee

      indicating that she “will be out of the house at 4817 by” March 1, 2018.

      (Transcript p. 28). On February 8, 2018, Kemp signed a lease for a different

      rental property and started to move out of the rented premises. Because Kemp

      was “not in the property [in] March and February,” she did not pay rent for

      those months. (Tr. p. 8). Kemp started to reside at her new rental property on

      February 16, 2018, and on February 19, 2018, Tina changed the locks on the

      vacated rented premises.


[7]   On February 12, 2018, James filed a notice of claim for possession of real estate

      against Kemp, alleging nonpayment of rent and pet fees in the small claims

      court. On February 26, 2018, James filed a motion to vacate the eviction


      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 3 of 10
      hearing, but requested a damages hearing instead as Kemp had vacated the

      rented premises. On March 13, 2018, the small claims court conducted an

      eviction hearing, determined that Kemp had previously vacated the rented

      premises, added Lee as a plaintiff, and scheduled a hearing on damages. On

      July 18, 2018, Kemp filed a counterclaim, alleging that she had been

      constructively evicted due to the malfunctioning toilet and the changing of the

      door locks by Tina on February 19, 2018. On July 30, 2018, the small claims

      court conducted a hearing on Appellees’ damages claim and Kemp’s

      counterclaim. That same day, the small claims court issued a judgment in favor

      of Appellees in the amount of $1,250.00 in rent due, $300.00 in attorney’s fees,

      and post-judgment interest. The small claims court rejected Kemp’s

      counterclaim, stating that


              you moved out after you received notice. That’s not constructive
              eviction. And also like I said you lived there through these same
              damages, through [] same problems from day one almost you
              said. And so after all this period of time, that you have lived
              there, a year and a half. Maybe a little more. You’ve come up to
              say well now I’ve decided that I can’t live here, I am being
              constructively evicted. And that seems to coincide with when
              you got notice.


      (Tr. p. 55). On August 29, 2018, Kemp filed a motion to correct error, which

      was denied by the small claims court on September 26, 2018.


[8]   Kemp now appeals. Additional facts will be provided if necessary.




      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 4 of 10
                              DISCUSSION AND DECISION
                                             I. Standard of Review


[9]   “Judgments in small claims actions are ‘subject to review as prescribed by

      relevant Indiana rules and statutes.’” Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d

      648, 657 (Ind. Ct. App. 2013) (quoting Ind. Small Claims Rule 11(A)). Indiana

      has specific rules for small claims cases, but the Indiana Rules of Trial

      Procedure will generally apply “unless the particular rule in question is

      inconsistent with something in the small claims rules.” Herren v. Dishman, 1

      N.E.3d 697, 702 (Ind. Ct. App. 2013). In accordance with Trial Rule 52(A),

      the findings or judgments rendered in a bench trial must be upheld unless

      clearly erroneous. Deference to the small claims court is essential as the “trials

      are designed to speedily dispense justice by applying substantive law between

      the parties in an informal setting.” Id. (quoting Vance v. Lozano, 981 N.E.2d

      554, 557 (Ind. Ct. App. 2012)). This court considers the evidence and related

      inferences in a light most favorable to the judgment, presuming that the small

      claims court applied the law correctly and giving due regard to the court’s

      opportunity to judge the credibility of the witnesses. Eagle Aircraft, Inc. 983

      N.E.2d at 657. “However, this deferential standard does not apply to the

      substantive rules of law, which are reviewed de novo just as they are in appeals

      from a court of general jurisdiction.” Id. (internal quotation marks omitted).

      The burden of proof in a small claims civil suit is the same as it would be had

      the case been filed in a general trial court. Herren, 1 N.E.3d at 702.



      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 5 of 10
                                            II. Constructive Eviction


[10]   Kemp contends that the small claims court abused its discretion by rejecting her

       claim that she was constructively evicted from the rented premises due to a

       malfunctioning toilet which deprived her of the beneficial use of the residence.


[11]   Constructive eviction is a breach by a lessor “so direct and positive, and

       substantial and permanent in character as to operate as a material and effectual

       exclusion of the tenant from the beneficial enjoyment of some part of the leased

       premises.” Sigsbee v. Swathwood, 419 N.E.2d 789, 793 (Ind. Ct. App. 1981); see

       also Village Commons, LLC v. Marion Cty. Prosecutor’s Office, 882 N.E.2d 210, 217

       (Ind. Ct. App. 2008) (“[C]onstructive eviction occurs when an interference with

       possession [is] so serious that it deprives the lessee of the beneficial enjoyment

       of the leased premises.”), reh’g denied, trans. denied. When this occurs, the tenant

       has a “right of election to quit, and avoid the lease and rent, or abide the wrong,

       and seek his remedy in an action for the trespass.” Talbott v. English, 59 N.E.

       857, 860 (Ind. 1901). In addition, “[i]mposed upon the lessee is the further

       limitation that the abandonment must occur within a reasonable time after the

       lessor has committed the act or omission considered to be the constructive

       eviction.” Sigsbee, 419 N.E.2d at 794. “Within a reasonable time means within

       a reasonable time under the circumstances of the case. That is, certain

       circumstances extend the time deemed to be reasonable.” Id. “Generally,

       whether the abandonment was made within a reasonable time is a question of

       fact for the trier thereof.” Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 6 of 10
[12]   In her verified counterclaim, Kemp stated that “[s]tarting on the first day, [she]

       lived at the property[], the toilet was not functioning properly.” (Appellant’s

       App. Vol. II, p. 19). “Anyone who used the toilet would need to pour a bucket

       of water down the toilet and the water would continuously run in the back of

       the toilet.” (Appellant’s App. Vol. II, p. 19). In an effort to solve the issue,

       Kemp offered to hire a plumber to fix the toilet and then have the amount of the

       plumber’s invoice deducted from her rent. Tina refused the offer “and said that

       she would take care of it.” (Appellant’s App. Vol. II, p. 19). Kemp notified

       Tina of the continuing issue “several times” but nothing happened.

       (Appellant’s App. Vol. II, p. 19).


[13]   During the hearing, Kemp confirmed the averments made in her counterclaim.

       She added that the toilet issues got progressively worse over time and despite

       contacting Tina “to come fix it,” Kemp never had a working toilet in the

       residence. (Tr. p. 32). Ultimately, Kemp “realized that [she was] never going

       to get [the] toilet fixed and so [she] just finally got the opportunity to move and

       left.” (Tr. p. 35). Kemp vacated the rented premises in February 2018—

       nineteen months after she moved in.


[14]   While the malfunctioning toilet is a serious deprivation of the beneficial

       enjoyment of the residence, we cannot say that nineteen months is a reasonable

       amount of time to abandon the house. See Sigsbee, 419 N.E.2d at 793-94. See,

       e.g., American National Bank & Trust Co. v. Sound City, U.S.A., Inc., 385 N.E.2d

       144 (Ill. Ct. App. 1979) (delay of three months excused for reliance upon

       lessor’s promise to repair). Even taking into account Tina’s promises to fix the

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 7 of 10
       toilet and the existence of a prior landlord-tenant relationship between the

       parties, these circumstances cannot “extend the time deemed to be reasonable”

       to nineteen months to live in a residence with the health hazard of non-

       functioning toilet facilities. See id. Therefore, we affirm the small claims court’s

       denial of Kemp’s counterclaim for constructive eviction.


                                                   III. Damages


[15]   Next, Kemp argues that Tina’s changing of the locks of the rented premises on

       February 19, 2018, resulted in an actual eviction and was a violation of Indiana

       Code section 32-31-5-6(c). As a result, she maintains that the judgment in the

       amount of $1,250.00 for the lost rent of February and March is erroneous.


[16]   Indiana Code section 32-31-5-6(c) provides that


               Except as authorized by judicial order, a landlord may not deny
               or interfere with a tenant’s access to or possession of the tenant’s
               dwelling unit by commission of any act, including the following:


               (1) Changing the locks or adding a device to exclude the tenant
                   from the dwelling unit.


       However, the statute also clearly specifies that this section “does not apply if the

       dwelling unit has been abandoned.” See I.C. § 32-31-5-6(a). Abandonment is

       defined as the failure to pay the rent due under the rental agreement or “the

       circumstances are such that a reasonable person would conclude that the

       tenants have surrendered possession of the dwelling unit.” See I.C. § 32-31-5-

       6(b). Here, Kemp testified that she texted Lee on February 6, 2018, notifying

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 8 of 10
       him that she would move out of the rented premises by March 1, 2019. She

       explained that by February 16, 2018, she was living in her new residence. She

       also never paid rent for February and March of 2018. Accordingly, as she

       abandoned the rented premises prior to February 19, 2018, she cannot now

       claim to have been actually evicted when Tina changed the locks on the rented

       premises.


[17]   Once a tenancy becomes month to month, Indiana Code section 32-31-1-4

       establishes that the tenancy can be terminated upon one month’s notice. It is

       undisputed that Kemp notified Lee on February 6, 2018 by text message of her

       intent to vacate the rented premises by March 1, 2018. Accordingly, pursuant

       to the statute, if she wanted to vacate the premises by March 1, 2018, Kemp

       should have provided notice at the latest by February 1, 2018—which she failed

       to do. As she informed Lee on February 6, 2018, the earliest she could move

       out of the rented premises was one month later, on March 6, 2018. Mindful of

       our deferential standard of review, the small claims court could reasonably find

       that Kemp had deprived Lee of the opportunity to repair the premises and find

       a new tenant by March 1, 2018. Accordingly, we cannot find the small claims

       court’s damage award of two months’ rent to be erroneous.


                                             CONCLUSION
[18]   Based on the foregoing, we hold that Kemp was not constructively evicted from

       the rented premises due to a malfunctioning toilet and the small claims court’s

       damage award was not erroneous.


       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 9 of 10
[19]   Affirmed.


[20]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2587 | July 18, 2019   Page 10 of 10
