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Prosecutor's office allowed to file counterclaim

Jennifer Nelson
January 1, 2008
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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.
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  1. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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