Weida v. City of West Lafayette

896 N.E.2d 1218, 2008 Ind. App. LEXIS 2587, 2008 WL 5062733
CourtIndiana Court of Appeals
DecidedDecember 2, 2008
Docket79A04-0802-CV-90
StatusPublished
Cited by5 cases

This text of 896 N.E.2d 1218 (Weida v. City of West Lafayette) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weida v. City of West Lafayette, 896 N.E.2d 1218, 2008 Ind. App. LEXIS 2587, 2008 WL 5062733 (Ind. Ct. App. 2008).

Opinion

*1220 OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants, Jerry M. Weida (Jerry) and Patti A. Weida (Patti) (collectively, the Weidas), appeal the trial court’s Findings of Fact and Conclusions of Law entered following a bench trial in favor of Appellee-Plaintiff, City of West Lafayette, Indiana (the City), on the City’s allegation that the Weidas’ five-bedroom rental house was overoccupied during the 2005-06 Purdue school year. 1

We affirm in part and reverse in part.

ISSUES

The Weidas raise six issues on appeal, which we consolidate and restate as the following four issues:

(1) Whether the trial court erred by concluding that the Weidas permitted or allowed the overoccupancy of their rental house;
(2) Whether the trial court properly admitted the testimony of the City’s witnesses, whose testimony was induced by the City’s promise of post-trial consideration if they testified truthfully at trial;
(3) Whether the trial court erred by ruling on claims pending in other actions and other courts; and
(4) Whether the trial court’s award of costs was contrary to law.

FACTS AND PROCEDURAL HISTORY

At all times relevant to this lawsuit, the Weidas owned 112 Sylvia Street in West Lafayette, Indiana, and used the property as rental housing. They advertised the property online as a five-bedroom house renting for $300.00 per bedroom, for a total of $1,500.00 rent for the 2005-2006 lease term. Pursuant to the Weidas’ rental certificate for the house and according to a sticker prominently placed next to the front door of 112 Sylvia Street, a maximum of three unrelated persons were allowed to occupy the residence.

On November 11, 2004, Melissa Wood (Wood) completed a rental application for the property, listing five people to occupy the property. Specifically, the rental application listed, besides Wood, Kelly Underwood (Underwood), Kelly Cichocki (Ci-chocki), Jill Schuler (Schuler), and her sister, Danielle Schuler (Danielle) as potential future tenants. The application shows that Cichoeki’s name is crossed out and a “No” is written next to it. (City’s Exh. 34). That same day, the Weidas entered into a lease agreement for 112 Sylvia Street with Wood, Underwood, Schuler, and Danielle for a lease term of August 8, 2005 until August 7, 2006. The lease expressly incorporated the City’s limitation of occupancy to three unrelated persons. In addition, the occupancy affidavit included the signatures of Wood, Underwood, Schuler, and Danielle, listing them as the occupants of the property. However, evidence at trial established that Danielle never signed the occupancy affidavit. The trial court noted in its findings that while someone else had signed Danielle’s name on the affidavit, all likely persons deny doing so.

The record reflects that Schuler occupied the property from August 6, 2005 to November 26, 2005. Cichocki occupied the property from August 10, 2005 to November 26, 2005. Underwood occupied the property from August 12, 2005 to August 2006. Wood occupied the property from August 8, 2005 to May 5, 2006. Drazena *1221 Grce (Grce) occupied the property from August 18, 2005 to May 1, 2006. Kelly Krauss (Krauss) occupied the property from January 9, 2006 to May 5, 2006. Megan Retondo (Retondo) occupied the property from January 9, 2006 to April 9, 2006. These tenants are not related to one another by blood or marriage. Evidence reflects that Danielle never lived at 112 Sylvia Street.

In the fall of 2005, the names of Schuler, Danielle, Wood, Underwood, Cichocki, and Grce were posted under the lid on the mailbox of the residence and could be observed from the open lid of the mailbox. On October 27, 2005, Patti sent a notice of violation to 112 Sylvia Street, stating that the tenants were in violation of their lease due to overoccupancy. Patti conducted no follow up after the notice was sent and the Weidas did not require any of the occupants to vacate the property. Also, on several occasions during the fall semester employees or other agents of the Weidas performed maintenance at the residence on Sylvia Street.

In November of 2005, Schuler approached the Weidas requesting permission to sublease to Grce and to remove her name from the lease. Thereafter, on November 26, 2005, Schuler moved out of the property. Though she was not listed on the lease, on December 1, 2005, Grce paid $1,425.00 to the Weidas for December rent on the 112 Sylvia Street residence. In addition, that same day, Grce picked up a form at the Weida Apartments office to sublease the property, along with a rental application for the property. Beginning in January 2006, the Weidas received monthly rent payments for the residence in increments of $300.00, or one-fifth of the $1,500.00 total rent, including payments from individuals whose names were not on the property’s lease or occupancy affidavit. In particular, the Weidas’ payment ledger reflects $300.00 checks from Krauss and Retondo for rent, as well as a $90.00 cash payment from Grce for late fees relating to the January 2006 rent payment.

On March 9, 2006, the Weidas received a request from the City for an updated occupancy affidavit for the property. When they received the request, the Weidas never inquired with the occupants of 112 Sylvia Street whether the occupancy affidavit signed by Wood, Underwood, and Schuler on November 11, 2004 was still accurate. They never required the tenants to complete an updated occupancy affidavit or conducted a personal investigation. That same day, the Weidas submitted the original occupancy affidavit, listing Wood, Underwood, Schuler, and Danielle as occupants of the property, to the City.

On March 23, 2006, City Inspector Curtis Cunningham (City Inspector Cunningham) noticed a vehicle parked illegally off the drive at the residence of 112 Sylvia Street. He stopped at the property to inquire. He observed five names on the open lid of the mailbox: Retondo, Krauss, Wood, Underwood, and Grce. Upon returning to the office, he confirmed that three of these names were not included on the occupancy affidavit submitted for 112 Sylvia Street.

On April 10, 2006, the City filed its Complaint, which was subsequently amended on July 28, 2006, against the Weidas, Wood, Underwood, Grce, Krauss, and Retondo. In its four-count Amended Complaint, the City first demanded injunc-tive relief against all defendants for permitting or allowing over occupation of the property located at 112 Sylvia Street in violation of Section 117.08(d) of the City Ordinance. In Count 2, the City sought fines against all defendants pursuant to Section 117.20(e) of the City Ordinance. Under Count 3 of its Amended Complaint, the City sought fines against the Weidas *1222 for submitting an incorrect occupancy affidavit for the property in violation of Section 117.05 of the City Ordinance; and Count 4 demanded fines from the Weidas for submitting false information to the City pursuant to Section 117.20(b) of the City Ordinance.

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Bluebook (online)
896 N.E.2d 1218, 2008 Ind. App. LEXIS 2587, 2008 WL 5062733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weida-v-city-of-west-lafayette-indctapp-2008.