Question over landlord’s actions divide Indiana Court of Appeals

Marilyn Odendahl
September 19, 2013
Back to TopCommentsE-mailPrintBookmark and Share

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.


Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.