MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Jan 27 2016, 8:56 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Aaron E. Haith                                           James A. Smith
Indianapolis, Indiana                                    Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tywann T. Gray,                                          January 27, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1506-PL-657
        v.                                               Appeal from the Marion Superior
                                                         Court
Evergreen Finance, LLC,                                  The Honorable Gary L. Miller,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         49D03-1504-PL-13221



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1506-PL-657 | January 27, 2016     Page 1 of 4
[1]   Tywann Gray appeals the trial court’s order ruling in favor of Evergreen

      Finance, LLC (Evergreen), on Evergreen’s complaint against Gray for

      ejectment and damages. Finding no error, we affirm and remand for further

      proceedings.


                                                     Facts
[2]   In February 2015, Evergreen purchased commercial property on Old

      Allisonville Road in Indianapolis. At that time, Gray operated a barbershop on

      the premises. Gray had been operating the barbershop in that location for

      approximately four years, but a written lease between Gray and the former

      owner had never been executed. Gray paid monthly rent to Evergreen in the

      amount of $450 for March and April 2015. He has not paid rent since April 7,

      2015.


[3]   On April 16, 2015, Evergreen sent Gray a notice ordering him to vacate the

      premises within thirty days. Evergreen noted that Gray was past due on rent

      and demanded that he pay the past due rent immediately.


[4]   On April 22, 2015, Evergreen filed a complaint for ejectment and damages

      against Gray, seeking to have him evicted from the property. On April 23,

      2015, Gray’s attorney sent a letter to Evergreen proposing a five-year lease term

      and a rent schedule. Evergreen never responded to that letter. The trial court

      held a hearing on June 2, 2015, and then ruled in favor of Evergreen, ordering

      Gray to vacate the premises within twenty-one days and setting a damages

      hearing for a future date. Gray now appeals.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-PL-657 | January 27, 2016   Page 2 of 4
                                   Discussion and Decision
[5]   The trial court’s order was a general judgment, meaning that we must

      determine whether the trial court correctly applied the law to the case, and if so,

      whether there is any evidence supporting the judgment. Baxendale v. Raich, 878

      N.E.2d 1252 (Ind. 2008). We will affirm if there is any such evidence, and will

      neither reweigh the evidence nor assess witness credibility in making our

      determination. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).


[6]   At the outset, we note that it is undisputed that at the time of the ejectment

      hearing, Gray had not paid rent for at least two months—May and June 2015—

      and an inference can be drawn from the record that he had also failed to make a

      full rent payment for April. We need not even address Gray’s arguments as a

      result. Unless the parties agreed otherwise—and there is no contention here

      that they did so—a landlord is statutorily entitled to terminate a lease with at

      least ten days’ notice if the tenant has failed to pay rent. Ind. Code § 32-31-1-6.

      Even if we accepted Gray’s argument that the parties had a five-year lease,

      which we do not, he would still be subject to eviction as a result of his failure to

      pay rent.


[7]   That reality notwithstanding, we note that the parties did not have a written

      five-year lease. Evergreen never accepted Gray’s proposed lease terms. As

      such, Gray had a month-to-month tenancy. I.C. § 32-31-1-2. Month-to-month

      tenancies may be terminated without cause, upon thirty days’ notice. Barber v.

      Echo Lake Mobile Home Cmty., 759 N.E.2d 253, 255-56 (Ind. Ct. App. 2001); I.C.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-PL-657 | January 27, 2016   Page 3 of 4
       § 32-31-1-4. Thus, even if Gray had been current with his rent, which he was

       not, he was subject to ejectment without cause.


[8]    Finally, Gray argues that the doctrine of part performance entitles him to relief

       in this cause. We disagree. The doctrine of part performance requires that

       there must first be an oral agreement between the parties (that was then

       partially performed by one of the parties). E & L Rental Equip., Inc. v. Wade

       Constr., Inc., 752 N.E.2d 655, 660 (Ind. Ct. App. 2001). Here, there is no

       evidence of a meeting of the minds in this case regarding a proposed rent

       schedule or any periodic tenancy for any length of time. Therefore, this

       argument is unavailing. We find no error in the ruling of the trial court, and

       remand for calculation of damages.


[9]    Evergreen has asked that it be awarded appellate attorney fees pursuant to

       Indiana Appellate Rule 66(E). Rule 66(E) provides that if an appeal is

       “frivolous or in bad faith,” we may award damages, including attorney fees.

       While we see no evidence of bad faith in the litigation of this appeal, we

       acknowledge that it very closely approaches the line of frivolity. We decline to

       find that it crosses that line, however, and deny the request for appellate

       attorney fees.


[10]   The judgment of the trial court is affirmed.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-PL-657 | January 27, 2016   Page 4 of 4
