MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Mar 14 2017, 8:36 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE AMBER N. James P. Cavanaugh, III YOST Cavanaugh Law Katherine J. Noel Indianapolis, Indiana Jacob D. Winkler Noel Law Kokomo, Indiana ATTORNEY FOR APPELLEE GRETCHEN L. POEHLER Christopher P. Meyer Law Offices of the Liberty Mutual Group Merrillville, Indiana ATTORNEY FOR APPELLEE MANDY SHEARER Carolyn A.M. Burbrink Nationwide Mutual Insurance Company Trial Division Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA
Indiana Farmers Mutual March 14, 2017 Insurance Company, Court of Appeals Case No. 79A02-1606-CT-1407 Appellant-Plaintiff, Appeal from the Tippecanoe Superior Court v. The Honorable Randy J. Williams, Judge
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 1 of 17 Amber N. Yost, Gretchen L. Trial Court Cause No. 79D01-1011- CT-91 Poehler, Mandy Shearer, and Anne K. Nania, Appellees-Defendants.
Bradford, Judge.
Case Summary [1] In 2005, Appellees-Defendants Amber N. Yost, Gretchen L. Poehler n/k/a
Broman (“Poehler”), Mandy Shearer, and Anne K. Nania (collectively, “the
Appellees”) and Amber Scott signed leases (“the Leases”) for, and were living
in, the two units of a West Lafayette duplex owned by Kay Lee, LLC. At the
time, Appellant-Plaintiff Indiana Farmers Mutual Insurance Company was Kay
Lee’s liability carrier. In May of 2006, a fire occurred in the duplex, causing
more than $100,000.00 damage to both units and common areas.
[2] Indiana Farmers paid on Kay Lee’s claim arising out of the fire and, in 2010,
brought a subrogation suit against Scott and the Appellees, alleging negligence
and breach of the Leases. All but Poehler, whose surname had by this time
changed to Broman, returned service and made appearances. In 2012, Yost
filed a motion to dismiss, which motion the trial court granted as to both
counts. In 2014, Scott was dismissed from the lawsuit by stipulation.
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 2 of 17 [3] In 2015, Indiana Farmers served an alias summons on Poehler, who appeared
and filed a motion to dismiss for failure to prosecute. Shearer and Nania
moved for summary judgment on the basis that no genuine issue of material
fact existed as to the question of whether they had breached the Leases. The
trial court granted Poehler’s motion to dismiss and Shearer and Nania’s motion
for summary judgment. Indiana Farmers claims that all of the trial court’s
orders dismissing the various claims against the Appellees were erroneous. We
agree with Indiana Farmers that the trial court erred in dismissing the
negligence and contract claims against Yost, and remand for further
proceedings. We affirm the trial court’s judgment in all other respects.
Facts and Procedural History [4] On or about July 26, 2005, Kay Lee entered into the Leases for both halves of a
duplex in West Lafayette: with Scott and Poehler for unit 422-1 and with Yost,
Shearer, and Nania for unit 422-2. On or about May 9, 2006, a fire occurred in
the duplex which caused damage to both units and common areas totaling
more than $100,000.00.
[5] Indiana Farmers, who was Kay Lee’s insurer, paid on the claim and, on
November 18, 2010, filed suit against Scott and the Appellees for negligence
and breach of the Leases they executed with Kay Lee. On November 23, 2010,
summonses were issued for Scott and the Appellees. By December 10, 2010,
Scott, Yost, Shearer, and Nania had returned service and, by January 3, 2011,
had all entered appearances.
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 3 of 17 [6] On February 21, 2012, Yost moved to dismiss or, in the alternative, for
judgment on the pleadings. Yost argued that Indiana Farmers’ negligence
claim was not filed within the applicable statute of limitations (an argument she
would later abandon) and its contract claim must fail for a lack of privity with
the Lease between her and Kay Lee. On July 2, 2012, the trial court issued an
order on Yost’s motion, concluding that Indiana Farmers’ negligence claim was
filed within the relevant statute of limitations but that Indiana Farmers’ lacked
privity with the Lease between Yost and Kay Lee. The trial court dismissed
both of Indiana Farmers’ claims against Yost. On August 1, 2012, Indiana
Farmers filed a motion to correct error,1 which the trial court denied on August
20, 2012. On September 19, 2012, Indiana Farmers moved to have the matter
certified for interlocutory appeal, which motion the trial court denied on
October 12, 2012. On December 4, 2014, a joint stipulation was entered
dismissing Scott as a party with prejudice, apparently because she was no
longer living in the duplex when the fire occurred.
[7] On November 4, 2015, Indiana Farmers moved for a status conference and for
the trial court to reconsider its refusal to certify its ruling granting Yost’s motion
to dismiss for interlocutory appeal. On November 6, 2015, Indiana Farmers
issued an alias summons on Poehler, whose surname was now Broman;
Poehler filed an appearance on December 10, 2015.
1 Indiana Farmers acknowledges that a motion to correct error was not appropriate at that point because the trial court’s order on Yost’s motion was not a final, appealable order.
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 4 of 17 [8] Meanwhile, on December 9, 2015, Shearer moved for summary judgment on
the basis that the Leases did not specifically allow Indiana Farmers to collect its
subrogated damages in this case. Nania eventually joined Shearer’s summary
judgment motion. On January 11, 2016, Poehler moved to dismiss on the basis
that Indiana Farmers had not properly served her and had failed to state a claim
upon which relief could be granted in any event. On April 26, 2016, the trial
court held a hearing on pending motions. On May 26, 2016, trial court granted
Nania and Shearer’s motion for summary judgment and Poehler’s motion to
dismiss.
[9] Indiana Farmers contends that the trial court’s order dismissing both claims
against Yost was clearly erroneous as the ground cited did not apply to its
negligence claim, Indiana Farmers was not required to be in privity with the
Leases in order to maintain its subrogation claims against the Appellees, the
Leases permit recovery of Indiana Farmers’ subrogated damages because they
prohibit waste by tenants and require the tenants to return the property in good
condition, and the trial court erred in granting Poehler’s motion to dismiss.
[10] Yost argues that even if the trial court incorrectly dismissed Indiana Farmers’
claims against her for the reason cited, the record still supported the dismissal;
Indiana Farmers lacked the necessary privity to bring a contract suit against her;
and there is no indication that Yost breached her Lease in any event. Poehler
argues that the trial court properly dismissed Indiana Farmers’ claims against
her because she was not timely served and because the Lease attached to the
complaint was the one executed by Yost, Shearer, and Nania for unit 422-2 and
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 5 of 17 not the one she executed for unit 422-1. Shearer argues that the trial court
properly granted summary judgment in her favor because Indiana Farmers
failed to designate evidence sufficient to sustain a finding that she breached her
Lease.
Discussion and Decision I. Whether the Trial Court Abused its Discretion in Granting Poehler’s Motion to Dismiss [11] Although it is not entirely clear, the trial court apparently dismissed Indiana
Farmers’ claims against Poehler for failure to prosecute pursuant to Indiana
Trial Rule 41(E), which provides as follows:
(E) Failure to prosecute civil actions or comply with rules. Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff’s costs if the plaintiff shall not show sufficient cause at or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.
[12] Specifically, Poehler argues dismissal was proper on the basis that Indiana
Farmers provided her with deficient service.
The Indiana rules, like the federal rules, have an appropriate mechanism in Ind. Rules of Procedure, Trial Rule 41 for
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 6 of 17 dismissing a complaint for failure to diligently prosecute an action and, consequently, adequate protection against unreasonable delay in serving process. The failure to diligently prosecute a case includes the failure to exercise due diligence in securing service of process. T.R. 41(E) provides if there has been a failure to comply with the rules or if no action has been taken on a case for 60 or more days the trial court on its own motion or upon motion of a party shall order a hearing for the purpose of dismissing the case.… The nondiligent party, at or before the hearing, has an opportunity to show cause as to why his claim should not be dismissed for failure to prosecute. If the court in its discretion determines due diligence was not exercised, dismissal of the cause of action ensues.
Geiger & Peters, Inc. v. Am. Fletcher Nat. Bank & Trust Co., 428 N.E.2d 1279, 1282-
83 (Ind. Ct. App. 1981) (some citations and footnote omitted).
[13] Indiana Farmers filed suit in this case in November of 2010, and, despite no
response, appearance, or any other indication that Poehler was even aware of
the lawsuit, made no further attempt at service until November of 2015. We
have little trouble concluding that Indiana Farmers’ delay of over five years is
presumptively unreasonable. Consequently, the burden fell on Indiana Farmers
to show cause why its lack of diligence should be excused, which burden the
trial court apparently concluded2 that Indiana Farmers did not carry.
2 Poehler also argued below that Indiana Farmers’ complaint should be dismissed as to her as Indiana Farmers only attached the Lease signed by Yost, Shearer, and Nania. At the April 26, 2016, hearing, however, the trial court said the following regarding this argument: “I’m not really excited about that argument in terms of dismissing the case, so.” Tr. pp. 48-49.
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 7 of 17 [14] Indeed, Indiana Farmers did not (and does not) argue that it was diligent in
attempting to secure service on Poehler, only that Rule 41(E) does not apply
under the circumstances of this case. We find Indiana Farmers’ arguments to
be unpersuasive. Indiana Farmers’ first argument is that Rule 41(E)’s
provisions do not apply to only one defendant out of many in a lawsuit. In
other words, the claims against one defendant cannot be dismissed when the
same claims are being diligently pursued against other defendants. There is,
however, no basis for this in the Rule’s language, and Indiana Farmers has not
provided us with case law that supports the proposition.
[15] Indiana Farmers’ second argument is that dismissal on Rule 41(E) grounds is
not appropriate because, despite a significant delay, it had resumed active
prosecution against Poehler. To support this argument, Indiana Farmers relies
on the Indiana Supreme Court’s opinion in State v. McClaine, 261 Ind. 60, 300
N.E.2d 342 (1973):
A motion to dismiss for want of prosecution should not be granted if the plaintiff resumes diligent prosecution of his claim, even though, at some prior period of time, he has been guilty of gross negligence. The burden is clearly on the defendant to timely file a motion to dismiss pursuant to TR. 41(E). That is to say, the defendant must file his motion after the sixty-day period has expired and before the plaintiff resumes prosecution. The defendants in this case moved to dismiss after the plaintiff filed its request for trial and thereby failed to meet the requirements of TR. 41(E).
Id. at 63, 300 N.E.2d at 344 (some citations omitted).
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 8 of 17 [16] McClaine, however, is easily distinguished: The opinion makes it clear that the
defendant in that case was properly served and aware of the lawsuit against it,
as it answered the State’s complaint. Id. at 61, 300 N.E.2d at 343. In this case,
there is no indication in the record that Poehler had any knowledge of Indiana
Farmers’ lawsuit before November of 2015, roughly five years after it had been
filed. We are at a loss to understand how we could require a defendant to file a
Rule 41(E) motion to dismiss a case of which she is not even aware. Indiana
Farmers’ reliance on McClaine is unavailing. Indiana Farmers has failed to
establish that the trial court abused its discretion in granting Poehler’s motion to
dismiss.3
II. Whether the Trial Court Abused its Discretion in Granting Yost’s Motion to Dismiss We review the trial court’s grant or denial of such a motion to dismiss [for failure to state a claim upon which relief can be granted] pursuant to Trial Rule 12(B)(6) de novo. Snyder v. Town of Yorktown, 20 N.E.3d 545, 550 (Ind. Ct. App. 2014) (citing Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010)), trans. denied. A motion to dismiss under Trial Rule 12(B)(6) “‘tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.’” Veolia Water Indpls., LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 4 (Ind. 2014) (quoting Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006)), clarified on reh’g, 12 N.E.3d 240.
3 Because we decide this issue on Trial Rule 41(E) grounds, we need not address Poehler’s argument that Indiana Farmers’ case against her should have been dismissed because Indiana Farmers failed to attach the Lease she actually signed to its complaint.
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 9 of 17 When evaluating the trial court’s grant or denial of a Trial Rule 12(B)(6) motion, we accept as true the facts alleged in the complaint, and only consider the pleadings in the light most favorable to the plaintiff and draw every reasonable inference in favor of the non-moving party. Snyder, 20 N.E.3d at 550. We will affirm a dismissal under Trial Rule 12(B)(6) only if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id. (citing LBM Realty, LLC v. Mannia, 981 N.E.2d 569, 577 (Ind. Ct. App. 2012)).
Lockhart v. State, 38 N.E.3d 215, 217 (Ind. Ct. App. 2015).
A. Negligence [17] Indiana Farmers contends that the trial court erroneously dismissed its
negligence claim against Yost. Indiana Farmers notes that the trial court
specifically concluded that Indiana Farmers’ negligence claim was filed within
the applicable statute of limitations and that the ground upon which its contract
claim was dismissed, even if valid, has nothing to do with its negligence claim.
We agree with Indiana Farmers. The trial court specifically found that Indiana
Farmers’ negligence claim was filed within the applicable statute of limitations,
which was the only argument made by Yost before withdrawing it.
[18] Yost argues that the trial court was within its discretion to dismiss Indiana
Farmers’ negligence claim because the record contained independent bases for
dismissal. Yost cites the arguments advanced in Shearer’s and Scott’s motions
to dismiss, served on June 7 and July 29, 2011, respectively, and in which
motions Yost orally joined. Shearer and Scott both argued that dismissal of
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 10 of 17 Indiana Farmers’ claims was appropriate due to failure to comply with
discovery orders pursuant to Trial Rule 37(B)(2)(c) and failure to prosecute
pursuant to Trial Rule 41(E). Yost, however, does not identify any rule
violations specific to her, only identifying alleged rule violations as they relate
to Shearer. Yost has failed to identify an independent ground that would
support the trial court’s dismissal of Indiana Farmers’ negligence claim against
her.
B. Breach of Contract [19] Yost argues that Indiana Farmers failed to state a claim upon which relief could
be granted based on the Lease because Indiana Farmers lacks privity with the
Lease. Indiana Farmers contends that, as Kay Lee’s subrogee, it stands in Kay
Lee’s shoes and may assert Kay Lee’s rights pursuant to the Lease.
[20] It is true that “[g]enerally, only those who are parties to a contract or those in
privity with a party have the right to enforce the contract.” Mislenkov v. Accurate
Metal Detinning, Inc., 743 N.E.2d 286, 289 (Ind. Ct. App. 2001). That said,
subrogation is a doctrine of equity well-established in Indiana which “applies
whenever a party, not acting as a volunteer, pays the debt of another that, in
good conscience, should have been paid by the one primarily liable.” Erie Ins.
Co. v. George, 681 N.E.2d 183, 186 (Ind. 1997).
When a claim based on subrogation is recognized, “a court substitutes another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the right of the creditor in relation to the debt.” It is settled that “[s]ubrogation
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 11 of 17 confers no greater right than the subrogor had at the time the surety or indemnitor became subrogated. The subrog[ee] insurer stands in the same position as the subrogor, for one cannot acquire by subrogation what another, whose rights he claims, did not have.” The ultimate purpose of the doctrine, as with other equitable principles such as contribution, is to prevent unjust enrichment.
[21] Id. (internal citations omitted). See also Bank of N.Y. v. Nally, 820 N.E.2d 644,
651 (Ind. 2005) (“Subrogation arises from the discharge of a debt and permits
the party paying off a creditor to succeed to the creditor’s rights in relation to
the debt.”); Harrison v. State Farm Mut. Auto. Ins. Co., 164 Ind. App. 569, 573,
330 N.E.2d 126, 129 (1975) (“The right of subrogation is purely derivative as
the insurer succeeds only to the rights of the insured, and no new cause of
action is created. In other words, the concept of subrogation merely gives the
insurer the right to prosecute the cause of action which the insured possessed
against anyone legally responsible for the latter’s harm.”) (citation omitted).
[22] Here, Indiana Farmers is attempting to do nothing more than pursue whatever
causes of action that Kay Lee might have against Yost (and the other
Appellees) arising out of the duplex fire. As mentioned, the doctrine of
subrogation exists to prevent unjust enrichment, and preventing Indiana
Farmers from recovering on a claim that Kay Lee would have recovered on—
after Indiana Farmers paid out on Kay Lee’s behalf—strikes us as unjust,
whether that claim sounds in tort or contact. In any event, Yost points to no
case that creates an exception to the doctrine of subrogation for rights arising
out of contract, and our research has uncovered none. Indiana Farmers is not
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 12 of 17 prevented from pursuing claims against Yost arising out of her Lease for a lack
of privity. We conclude that the trial court erred in dismissing Indiana
Farmers’ contract claim against Yost.
III. Whether the Trial Court Erred in Granting Shearer and Nania’s Motion for Summary Judgment [23] The trial court apparently granted summary judgment in favor of Shearer and
Nania on the basis that Indiana Farmers had not established that there was a
genuine issue of material fact as to whether Shearer or Nania had actually
breached their Lease.4
When reviewing a grant or denial of a motion for summary judgment our standard of review is the same as it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The moving party “bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. In determining whether summary judgment is proper, the reviewing court considers only the
4 At some point, it seems that Indiana Farmers either abandoned the negligence claim against Shearer or it was dismissed. The record contains some indications that Shearer was out of town when the fire occurred in the duplex and that it did not start in her room. In any event, when Shearer argued to the trial court that the negligence action against her had been abandoned, Indiana Farmers did not contradict her. Moreover, although only Shearer makes this argument on appeal, her summary judgment motion below was joined by Nania. Because we have already concluded that a lack of privity does not bar the contract claims against Yost, Shearer, and Nania, we must address whether there are genuine issues of material fact as to breach as to Shearer and Nania.
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 13 of 17 evidentiary matter the parties have specifically designated to the trial court. See Ind. Trial R. 56(C), (H). We construe all factual inferences in the non-moving party’s favor and resolve all doubts as to the existence of a material issue against the moving party. Plonski, 930 N.E.2d at 5. The fact that the parties have filed cross-motions for summary judgment does not alter our standard for review, as we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Hardy v. Hardy, 963 N.E.2d 470, 473 (Ind. 2012).
Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
[24] Indiana Farmers argues that summary judgment against Shearer and Nania was
inappropriate because there exist genuine issues of material fact as to their
potential liability pursuant to provisions prohibiting “waste” and their
obligation to return the property in clean and good condition, apart from
reasonable wear.
[25] The Lease provides, in part, as follows:
The Tenant agrees to mow yards and to maintain the leased premises, yards, decks, porches, and approaches in a clean, safe, sightly and healthful condition at Tenant’s own expense. Tenant will keep all walks and approaches free from litter, snow and ice. No trash shall be stored in hallways or outside of entry doors. Tenant shall pay all charges for service and repair to kitchen and bathroom appliances and fixtures resulting from neglect by Tenant. Tenant will not commit waste or misuse of the property, and will return the premises to Landlord upon expiration, or other termination of the Lease for whatever reason, clean and in good condition, with the exception of reasonable wear occurring during the term of the Lease.
Appellant’s App. Vol. IV p. 85 (emphasis added). Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 14 of 17 A. Waste [26] Indiana Farmers contends that there is a genuine issue of material fact that
Shearer and Nania committed “waste” in breach of their Lease. Waste has
been defined in Indiana as “the destruction, misuse, alteration, or neglect of the
premises by one lawfully in possession to the prejudice of an estate or interest
therein of another.” Beiger Heritage Corp. v. Kilbey, 676 N.E.2d 784, 787 (Ind.
Ct. App. 1997) (citation omitted), trans. denied. Indiana Farmers acknowledges
that either an affirmative act or neglect on the part of at least one of the
Appellees is necessary to establish that waste occurred. Despite Indiana
Farmers’ contention that the fire at the duplex must have been caused by one of
the tenants’ negligence, it has designated no evidence tending to show this. The
only designated material indicating that one of the tenants caused the damage
through negligence is contained in Indiana Farmers’ complaint, and allegations
of negligence, without more, are not evidence. Indiana Farmers’ allegations of
negligence are insufficient to generate a genuine issue of material fact on the
question of waste.
B. Return in Good Condition [27] Indiana Farmers also argues that there is a genuine issue of material fact as to
whether Shearer and Nania violated their obligation to return the property in
good condition, with the exception of reasonable damage. Indiana Farmers
argues that if the property was damaged beyond reasonable wear when returned
to Kay Lee, the burden is on Shearer and Nania to show why they should not
be held liable. Although there is some non-binding authority to that effect, see
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 15 of 17 Henry H. Cross Co. v. Rice, 45 F.2d 940, 943 (7th Cir. 1930) (“It has been
returned, but in a worse condition than it was when appellant received it,
natural wear and decay excepted. In such event it was appellant’s duty to show
that it is not liable therefor, and it has not done so.”), we think the better rule is
to require the landlord to establish liability, not require the tenant to establish
the lack of it.
The provision for returning the premises in as good condition as received, ordinary wear and tear excepted, was a rule of common law and is usually understood to mean no more or less when inserted in contemporary contracts. It includes that usual deterioration which results from the day to day use of the premises and from lapse of time. Scott v. Prazma, Wyo., 555 P.2d 571, 579. It does not cover a deterioration resulting from negligence. International & G. N. R. R. Co. v. Young, (Tex. Civ. App.) 72 S.W. 68.
Raybestos-Manhattan, Inc. v. Friedman, 275 S.E.2d 817, 819 (Ga. Ct. App. 1981)
(emphasis added). A reasonable inference to be drawn from the emphasized
language above is that it is the landlord’s burden to establish that excessive
damage to leased property was caused by the tenant’s negligence, not the
tenant’s burden to disprove it.
[28] This result is also consistent with Indiana’s well-established rule that “[w]hen
there is ambiguity in a contract, it is construed against its drafter.” MPACT
Const. Grp., LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 910 (Ind.
2004). Because the Lease does not make clear whose burden it is to establish
that the leased property was not in “good” condition upon return, or that any
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 16 of 17 wear was “unreasonable,” the rule supports a conclusion that the burden be put
on the landlord to establish the facts necessary to support tenant liability. As
mentioned, Indiana Farmers has not designated evidence that would, if true,
carry its burden to show that the damage to the duplex is the result of
negligence, recklessness, or intentional acts on the part of Shearer and Nania.
Consequently, the trial court did not err in entering summary judgment in favor
of Shearer and Nania.
Conclusion [29] We conclude that the trial court did not abuse its discretion in dismissing
Indiana Farmers’ claims against Poehler for failure to prosecute. We further
conclude that the trial court erred in dismissing Indiana Farmers’ negligence
and contract claims against Yost, and we remand for further proceedings on
those claims. Finally, we conclude that the trial court did not err in entering
summary judgment in favor of Shearer and Nania on Indiana Farmers’ contract
claims.
[30] The judgment of the trial court is affirmed in part, reversed in part, and
remanded for further proceedings.
Vaidik, C.J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CT-1407 | March 14, 2017 Page 17 of 17