Tywann T. Gray v. Evergreen Finance, LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 27, 2016
• Docket: 49A05-1506-PL-657
• Status: Published

Opinion

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