ILNews

Question over landlord’s actions divide Indiana Court of Appeals

Marilyn Odendahl
September 19, 2013
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The Indiana Court of Appeals split over what duties a landlord has to re-lease a commercial space when the current tenant is behind on payments.

Fernando Tudela leased space in an Evansville shopping center from Silco LLC. He quickly fell behind in his payments and eventually Silco filed a complaint for breach of the lease agreement, ejectment, foreclosure of mortgage and conversion.

After the trial court granted summary judgment to Silco, Tudela raised multiple issues on appeal.

In Lily, Inc. d/b/a Weinbach Caferteria and Fernando Tudela v Silco, LLC, 82A05-1209-PL-459, the Court of Appeals affirmed in part the trial court’s order granting summary judgment to Silco. It also reversed and remanded for consideration issues related to attorney fees, mitigation of damages and accounting.

Tudela asserted that Silco did not try to find a new tenant. Specifically, the landlord designated no evidence that it made any effort to re-let the premises and therefore failed to use reasonable diligence to mitigate damages.

Silco countered that Tudela’s deposition was improperly designated and he presented no evidence of his claims.

The Court of Appeals observed that Tudela did designate his deposition and pointed to specific portions in his response to Silco’s motion for summary judgment. Silco also designated portions of Tudela’s deposition.

Writing for the majority, Judge Elaine Brown concluded that based on the designated evidence there is a “genuine issue of fact as to whether Silco failed to use reasonable diligence to mitigate damages.”

Judge Patricia Riley concurred with the COA’s affirmation of the trial court in granting summary judgment to Silco. However, she found no material issues of fact remaining based on the designated evidence as to both attorneys and mitigation of damages.

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  1. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. I agree. My husband has almost the exact same situation. Age states and all.

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  4. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  5. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

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