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Tenant who trashed house loses appeal, owes attorney fees

September 23, 2014

A former babysitter entrusted to live in a family’s home while they were away for a year and care for their pet dog in exchange for paying $300 monthly rent instead trashed the place. The ex-tenant appealed an $85,889 judgment against her but now has more bills to pay.

Jessica Kishpaugh also must pay the appellate legal fees of the couple from whom she rented the house, the Court of Appeals ruled Tuesday in Jessica Kishpaugh v. John Odegard and Miriam Odegard, 49A02-1312-CT-1040.

“(W)e conclude that the trial court did not err in concluding that Kishpaugh committed theft, breached the Lease, and violated the Tenant Statute. Although the trial court lacked jurisdiction to declare that the theft damages are a non-dischargeable debt in bankruptcy, we conclude that the trial court’s inclusion of this conclusion in its Judgment is harmless error,” Judge Patricia Riley wrote for the panel. “In addition, we grant the Odegards’ Petition for Appellate Attorney Fees and remand to the trial court to determine the amount.”

“While the Tenant Statute certainly excludes ‘ordinary wear and tear’ from the gamut of a tenant’s potential liability, it does not operate as a license for the tenant to destroy the landlord’s property,” Riley wrote.

“Here, the totality of the evidence demonstrates that there was substantial damage throughout the Odegards’ home, yard, and even to their minivan. ‘Ordinary’ use of a leased space does not result in cigarette burns in the carpet and vehicle, a scorched fence,
urine-soaked carpet and mattresses, a damaged garage door, and more. Therefore, we find that the evidence supports the trial court’s determination that Kishpaugh failed to deliver the Odegards’ property ‘in a clean and proper condition.’

"... Because Kishpaugh clearly defaulted in her obligation to maintain and return the house 'in [a] clean and satisfactory condition,' the Odegards are entitled to recover their appellate attorney fees," the panel ruled.
 

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