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. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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