Tag Archive | "Court of Appeals"

Landlord Held Liable in Suit by Occupant

Prepared By Richard A. Mann & Todd Small

On September 28, 2017, the Indiana Court of Appeals, in Richter v. Laurenz Place, LLC, reversed the trial court’s judgment for the Defendant landlord. The Plaintiff, Kristopher Richter, sued his previous landlord, Laurenz Place, after his former co-tenant sued Richter for his portion of damages owed to Laurenz Place. In the suit, Richter claimed as a tenant he should have received notice of the alleged damages to the rental property, that he disputed some of the alleged damages, and that he was wrongfully denied access to the rental property.

There were two lease agreements. The first lease was signed on April 28, 2012 by the co-tenant only, and not Richter. However, Richter was listed as an authorized occupant in the lease signed April 28, 2012. The second lease was signed April 30, 2013 (herein “Second Lease”). The Second Lease was signed and initialed by both the co-tenant and Richter. After Richter and the co-tenant vacated the apartment, Laurenz Place sent the co-tenant an itemized list of damages, but refused to provide Richter a copy, despite his request.

The Court of Appeals restated the issue on appeal as “whether the trial court erred by determining Richter was not a ‘tenant’ within the meaning of the landlord-tenant provision of the Indiana Code.” A tenant is defined by the Indiana Code as “an individual who occupies a rental unit: (1) for residential purposes; (2) with the landlord’s consent; and (3) for consideration that is agreed upon by both parties.” Ind. Code § 32-31-3-10.   The Court of Appeals noted that the two lease agreements listed Richter as an authorized occupant, Richter signed and initialed the Second Lease, and Richter also signed the Clubhouse Addendum attached to the Second Lease as “Leaseholder.” The Court of Appeals also referenced the testimony and exhibits provided by Richter that he paid rent. One of the exhibits was a receipt from Laurenz Place with Richter’s name typewritten in the “Bill To” and “Customer Name” lines.

The Court of Appeals stated that there was no dispute that Richter occupied the rental property for “residential purposes.” They also found that it was “plain that [Richter]” occupied the rental premises with Laurenz Place’s consent. The third element for Richter to be a tenant under Indiana law is “consideration for this occupancy agreed upon by both parties.” The Court of Appeals “construing the leases between the parties strictly against Laurenz Place and doing so in the context of the other evidence at trial” found that “it is apparent that there was an agreement on monthly rent and the like.” Therefore, the Court of Appeals found that the trial court was clearly erroneous when they determined Richter was not a tenant. As such, Richter was entitled to certain rights under Indiana Code sections 32-31-3-12, 32-31-3-14 and 32-31-5-6.

The trial court was reversed and the case was remanded for the trial court to consider the costs incurred by Richter as a result of the landlord’s failure to afford him the rights as a tenant, as well as to determine the attorney’s fees to which Richter was entitled.

Conclusion:
Landlords and Tenants should review this case, their lease, their conduct, and decide how to proceed. Landlords should consider granting all rights to whomever is an authorized occupant as the Landlord can be held responsible for damages, attorney fees, and may be waiving their right to recover.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Mann Law, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition consecutively from 2009 – 2017.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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COA Says Adoption Order Erroneously Issued by Trial Court

Case: In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erroneously issued an adoption order when it dispensed with the statutorily required background check, and did not consolidate a pending paternity action involving the same children with the adoption proceeding.

HELD: An adoption court is required to consolidate any paternity cases involving the child before ruling on the adoption petition.

FACTS AND PROCEDURAL HISTORY:
Father and Biological Mother had three children together, out of wedlock. Father’s paternity was established in 2012; as part of that proceeding, Father did not know Biological Mother’s address, so she was served by publication and did not attend the hearing. The paternity matter awarded Father physical and legal custody of the children, as well as a child support and parenting time order for Biological Mother.

Biological Mother would go on to have limited involvement with the children, seeing them roughly once a month when they were at her mother’s home. She also gave them birthday presents.

Father remarried in 2009, and, in 2015, his wife, Adoptive Mother, filed a verified petition to adopt the children. Biological Mother learned of this, and filed both an objection in the adoption court, and a motion to set aside the paternity order in the paternity court – citing lack of personal jurisdiction over her.

After a hearing, the adoption court granted Adoptive Mother’s petition to adopt the children, concluding that Biological Mother’s consent was unnecessary because she failed to support the children in a meaningful way for over a year. Biological Mother appealed.

The Court of Appeals had various issues with how this adoption was handled, but found one to be dispositive: Ind. Code 31-9-2-22.5 requires a particular background check for any would-be adoptive parent. The Court concluded that the limited check in this case did not substantially comply with the statute and, because the underlying policy for the background check is the safety of the children, Father’s argument that Biological Mother invited this error was unpersuasive.

The Court also decided, in a matter of first impression, that any paternity case involving a child must be consolidated into an adoption proceeding involving the child. When an adoption case and paternity case involving the same child are pending at the same time, the adoption court acquires exclusive jurisdiction. If the paternity matter were not consolidated into the adoption matter, then the adoption could be granted and then closed, leaving the paternity matter open but in limbo because of its lost jurisdiction over the child. If the adoption court always consolidates the paternity matter into it, it can issue consistent orders that resolve both adoption and paternity.

The trial court’s adoption order was reversed, and remanded with instructions to consolidate the paternity matter and to undertake a statutorily compliant background check.

To view the text of this opinion in its entirety, click here:
In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O.

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

Court of Appeals Affirms Mother is Unemployed with Just Cause

Case: Tracy K. Barber v. Amy Henry
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court did not abuse its discretion when it concluded that Mother, who scaled back and then eventually quit working as a physician in order to care for her special needs children, should not be imputed to more than minimum wage for child support purposes.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had Child in 1999. The parties shared joint legal custody, with Mother providing primary physical custody subject to Father’s “liberal visitation.” Mother re-married, and her children – including Child – and the child of her new husband had various developmental challenges, such as autism and ADHD.

Mother had worked as a physician, but began working less and less to spend more time at home dealing with the children’s needs, therapy appointments, and eventually some home schooling. Mother’s husband was a full-time physician, providing Mother the easier financial option of working less. By late 2014, Mother quit working altogether, partly a result of an incident at Father’s house which left Child charged with a juvenile incident, after which Child was placed on house arrest and suicide watch.  One of Child’s probation requirements was no contact with Father.

In 2015, litigation between Mother and Father erupted on various issues, most relevant to this appeal being a child support recalculation. After a hearing, the trial court calculated child support with Mother at minimum wage, finding that Mother’s departure from the workforce was not unreasonable and not devised to avoid child support. Father appealed.

The Court of Appeals reviewed the case law on imputation of income, noting that “[i]t is not our function . . . to approve or disapprove of the lifestyle of [parents] or their career choices and the means by which they choose to discharge their obligations in general.”  The Court’s “review of the record leaves us convinced that Mother is unemployed with just cause.” [Notably, the opinion did not seem to address in detail Father’s central gravamen on appeal, which was not that Mother should be imputed income based upon Mother’s own potential income, but instead a Gilpin-type imputation to Mother based upon the financial resources shared with her by her new husband that allowed Mother the option not to work.]

The trial court’s calculation of child support was affirmed.

To view the text of this opinion in its entirety, click here: Tracy K. Barber v. Amy Henry

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

COA Affirms Trial Court Decision for Alternating Annual Custody

Case:In re the Marriage of R.E.F. v. A.M.A. f/k/a A.M.F. (mem. dec.)
by Mike Kohlhaas, Bingham Greenebaum Doll

I typically do not circulate memorandum decisions, but I considered this case to be interesting and notable. The Court of Appeals affirmed a trial court’s order that each parent would have sole legal custody on an alternating annual basis. The Court of Appeals rejected Father’s argument that the arrangement constituted in impermissible automatic change in custody, such as in Bojrab. The Court distinguished the instant case as being an automatic and scheduled change of custody, and not one that was dependent upon a future change in factual circumstances (e.g., if one parent decides to move out of state in the future.)

To view the text of this opinion in its entirety, click here: In re the Marriage of R.E.F. v. A.M.A. f/k/a A.M.F. (mem. dec.)

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments