ILNews

Prosecutor's office allowed to file counterclaim

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Marion County Prosecutor's Office was allowed to vacate property it leased after repeated water leaks because the landlords constructively and actually evicted the office from the property, the Indiana Court of Appeals affirmed March 4.

At issue in Village Commons, LLC and Rynalco, Inc. v. The Marion County Prosecutor's Office and Carl Brizzi, No. 49A05-0704-CV-195, is whether the exclusive-remedy provision in the lease between Village Commons and Rynalco (landlords), and the prosecutor's office barred the office from asserting it was evicted by acts or omissions of Village Commons; whether the trial court's findings that the prosecutor's office was actually evicted and constructively evicted were erroneous; and whether a provision limiting the prosecutor's office's time to sue barred its defenses and counterclaims.

In 1999, then-Prosecutor Scott Newman executed a lease between Lombard Associate Limited Partnership and the Marion County Prosecutor's Office to lease the basement of the Victoria Centre in Indianapolis. Later, Village Commons and Rynalco purchased the building and became the new landlords.

The prosecutor's office used the space for its Grand Jury Division offices and evidence storage. Two years later, the office started experiencing numerous water leaks. Because of costs, the landlords decided not to re-pour a concrete sidewalk above the offices to help prevent leaks or to repair drywall. Boxes of evidence had been destroyed and the phones went out as a result of the leaks. The water leaks continued into 2002. In October 2002, the landlords sent a letter to the office suggesting the Grand Jury Division move the evidence it was storing and other materials away from the part of the building that was vulnerable to water damage.

On Jan. 30, 2003, the Grand Jury Division vacated the office and relocated. That was also the last month the office paid rent to the landlords. In February 2004, the landlords brought a complaint against the prosecutor's office, alleging it breached the lease and sought damages provided under the lease. The prosecutor's office counterclaimed with a wrongful-eviction theory, arguing it had been constructively evicted in August 2002.

A bench trial ruled the prosecutor's office's defense and counterclaims were not barred by the lease's exclusive-remedy provisions, which said the office could sue for injunctive relief or recover damages resulting from a breach, but it isn't entitled to terminate the lease or withhold rent. The trial court also found the office to be "actually" evicted in October 2002 and "constructively" evicted in January 2003, and the landlords didn't mitigate its damages reasonably. The prosecutor's office was awarded more than $7,000 and costs on its wrongful-eviction counterclaim.

The Court of Appeals concluded the exclusive-remedy provision only limited the prosecutor's office's ability to terminate the lease, not the landlords' ability, so any occurrence by the landlords that actually or constructively evicts the prosecutor's office ends the office's liability to pay rent.

It was the landlords' own act or admission - not properly fixing the water leaks and preventing water damage - that resulted in the prosecutor's office not having to pay future rent, wrote Judge Patricia Riley.

The appellate court agreed that the office was actually evicted in October 2002, when the landlords asked the office to stop using part of the space that was most vulnerable to the water leaks, and that the office was constructively evicted in January 2003 because of repeated water leaks that went unfixed. The evidence at the trial court supports the finding that the prosecutor's office was deprived of a material part of the leased premises because of the water issues, which resulted in the actual eviction, wrote Judge Riley.

Finally, the Court of Appeals affirmed that the prosecutor's office was allowed to bring a counterclaim and assert the defense it had been evicted. The landlords argued the prosecutor's office was barred from claims after one year of the date of inaction or event. This provision in the contract bars the prosecutor's office from initiating an action more than a year later; however, it was the landlords who initiated this action, so the prosecutor's office's defense and counterclaim are not barred by the lease, she wrote.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  2. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

  3. Lots of potential "good boys" right in the heart of our nation .... "Nashville, TN has gained a reputation as a new “Ellis Island,” a magnet for immigrants from around the world. The number of foreign-born residents in the area has grown from 2 percent to almost 12 percent." Some 30 percent of students in Metro schools live in homes in which English is not the primary language. In 2012 Nashville had the fastest-growing immigrant population of any American city. It is the home of the nation’s largest Kurdish population, as well as sizable numbers from other countries such as Somalia, Sudan, Egypt, Eretria and Bhutan. Nashville has traditionally had a sizable and prominent African-American community, which accounts for nearly 16 percent of its population." http://www.tennessean.com/story/opinion/contributors/2015/05/17/nashville-welcoming-immigrants/27479183/ SMILE & CELEBRATE DIVERSITY!

  4. This story linked below about FBI shooting an unarmed Chechen suspect in his apartment six times in the chest and once in the back of the head, is unrelated. IT has NOTHING to do with Tsaernayev. And the agent was cleared of wrongdoing, even though the story says nothing of the other agents there with him at the time. Maybe the unarmed suspect was making a move for a butter knife on the table before they began punching him full of holes. Sad but of course, wholly unrelated....nothing to see here, keep moving http://www.npr.org/sections/thetwo-way/2014/03/21/292441681/reports-fbi-agent-who-killed-chechen-during-boston-bombing-probe-is-cleared

  5. Oh, bsides these troubled youts, maybe a few ex-contractors they had to relocate after Russia crushed the Western instigated insurgency, that's all. Nice boys. But when they go wrong, they need to be silenced. http://www.reuters.com/article/2009/09/24/us-russia-chechnya-cia-idUSTRE58N5S120090924

ADVERTISEMENT