Jessica Kishpaugh v. John Odegard and Miriam Odegard , 17 N.E.3d 363 ( 2014 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
STEVEN W. KINCAID DONALD F. FOLEY
Kincaid & Kincaid PC MARIE CASTETTER
Noblesville, Indiana Foley & Abbott
Indianapolis, Indiana
Sep 23 2014, 9:40 am
IN THE
COURT OF APPEALS OF INDIANA
JESSICA KISHPAUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1312-CT-1040
)
JOHN ODEGARD and MIRIAM ODEGARD, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
Cause No. 49D05-1007-CT-32733
September 23, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Jessica Kishpaugh (Kishpaugh), appeals the Judgment of the
trial court, awarding $85,889.36 to Appellees-Plaintiffs, John (John) and Miriam (Miriam)
Odegard (collectively, the Odegards).
We affirm and remand.
ISSUES
Kishpaugh raises seven issues on appeal, which we consolidate and restate as the
following four issues:
(1) Whether the trial court erred in holding Kishpaugh civilly liable for theft;
(2) Whether the trial court had subject-matter jurisdiction to declare that its order of
treble damages is non-dischargeable in bankruptcy;
(3) Whether the trial court erred in determining that Kishpaugh breached the
Residential Lease (Lease); and
(4) Whether the trial court erred in determining that Kishpaugh violated her
obligations as a tenant under Indiana Code section 32-31-7-6 (Tenant Statute).
Although not raised in their brief as an issue on cross-appeal, the Odegards have
filed a Petition for Appellate Attorney Fees.
FACTS AND PROCEDURAL HISTORY
Kishpaugh and the Odegards met in the summer of 2007 when Kishpaugh
responded to the Odegards’ online advertisement for a babysitter. Over the next two years,
Kishpaugh provided occasional childcare services for the Odegards’ three children and
2
helped Miriam with other household tasks on an as-needed basis. During this time,
Kishpaugh and Miriam developed a friendship, and the Odegards trusted Kishpaugh in
their home and with their children.
In June of 2009, John—who is employed as an international product manager for a
large, multinational corporation with its North American headquarters located in
Indianapolis, Indiana—received a one-year job assignment in Mannheim, Germany. After
it was decided that the entire family would relocate to Germany for one year, the Odegards
made arrangements for caretakers to maintain and safeguard their property in Indiana.
Aware that Kishpaugh’s lease was about to end, Miriam asked Kishpaugh if she would be
interested in renting their Indianapolis home during their absence. On August 21, 2009,
the Odegards and Kishpaugh executed the Lease, under which Kishpaugh agreed to rent
the Odegards’ home from October of 2009 through August of 2010 for a monthly rate of
$300. In addition to maintaining their house and yard, the Odegards instructed Kishpaugh
to forward their mail and to drive their minivan around the block once a week to keep it in
good working order.
In early September 2009, a few weeks prior to the Odegards’ departure, Kishpaugh
moved into the Odegards’ home. With assistance from Miriam, Kishpaugh moved her
possessions into the guest bedroom and stored some of her belongings in the adjacent walk-
in attic. At the end of September, the Odegards left for Germany.
Because of the temporary nature of their relocation, the Odegards left their furniture
and most of their personal possessions in their Indianapolis home. Even the family dog,
Abby (Abby), stayed behind. Pursuant to the Lease, Kishpaugh agreed to “care for” Abby,
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including “feeding, water[ing], walking, administering all medicines, transportation for
any vet visits, and any other care necessary.” (Appellant’s App. p. 33). At some point
during the fall of 2009, Kishpaugh sent an email message to the Odegards explaining that
she was having a problem with Abby urinating in the living room and that she had
“clean[ed] it up to the best of what I could do.” (Transcript p. 251). In response, Miriam
advised Kishpaugh to put Abby in her crate before leaving the house. Then, in January of
2010, Indianapolis neighbors contacted the Odegards to inform them that Abby had been
left outside and was barking.
On March 25, 2010, the Odegards discovered an unauthorized charge on their bank
statement. According to the bank’s customer claims department, Miriam’s debit card had
been used the previous day to purchase $2,716.40 worth of jewelry in Egypt. Prior to
leaving Indianapolis, Miriam placed a duplicate debit card in a ceramic breadbox in her
kitchen in the event of an emergency or that she lost her original card. After realizing that
their account had been depleted, Miriam contacted Kishpaugh and asked her to check the
breadbox for the debit card. Kishpaugh informed Miriam that she found a corporate credit
card in John’s name and a gift card, but the duplicate debit card was missing. The bank
refunded the fraudulent charges to the Odegards’ account, and while it was never
conclusively established how Miriam’s card had been compromised, the Odegards were
suspicious of the fact that Kishpaugh’s ex-husband has Egyptian ties.
In mid-April of 2010, Miriam notified Kishpaugh that John would be returning to
Indianapolis for a few days for business meetings. At this time, Miriam learned that
Kishpaugh had been sleeping in the master bedroom since November 2009, but Kishpaugh
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explained that she would return to the guest bedroom during John’s stay. Even though
John stayed at the house, he did not want to encroach upon Kishpaugh’s space. As such,
he left the house early, returned late, and ate all of his meals elsewhere. In addition to his
limited presence in the home, John’s jet lag and recent onset of shingles symptoms deterred
him from conducting a thorough inspection of the property. Besides noting an unusual
odor, John had no other immediate concerns about the house. However, John did observe
that the garage door had been damaged, appearing as though a vehicle had been backed
into it, and that the minivan’s tire had been replaced with a spare. John did not discuss
these issues with Kishpaugh. Instead, after John returned to Germany, Miriam questioned
Kishpaugh about the damages. Regarding the garage door, Kishpaugh stated, “Umm...[I]
thought that was something you guys did…[I] noticed it shortly after you left!”
(Appellant’s App. p. 78 (ellipses in original)). As to the minivan’s tire, Kishpaugh
explained that “[a] friend of mine was following me, after she helped me go get my rental
car…so she was driving…the curb in the sub[]division got hit…no major speed just got
hit.” (Appellant’s App. p. 76 (ellipses in original)).
Prior to leaving Indianapolis, the Odegards had arranged for their neighbor, Chip
Miller (Chip), to maintain their property in Brown County, Indiana. Every four to six
weeks thereafter, Chip informed Kishpaugh that he would be stopping by the house to
retrieve the Odegards’ Jeep and chainsaw for his trip to Brown County. In May of 2010,
Chip discovered that the Odegards’ chainsaw was missing from their garage. That same
day, Chip also observed that the Odegards’ minivan was gone despite the fact that
Kishpaugh was at the house. When Chip asked Kishpaugh if she knew the chainsaw’s
5
whereabouts, Kishpaugh answered, “I don’t know what you’re talking about. I’ve never
seen a chain[]saw.” (Tr. p. 91). Chip relayed his concerns about the missing chainsaw and
minivan to the Odegards. Also around this time, the Odegards learned that Kishpaugh had
not taken Abby to the veterinarian, so Chip took Abby for her check-up and shots. Miriam
subsequently arranged for Abby to be boarded at a kennel until their return from Germany
at a cost of $300.
On May 8, 2010, Kishpaugh notified the Odegards that she had encountered “some
major financial problems” and could no longer afford to pay $300 in rent. (Appellant’s
App. p. 74). Kishpaugh requested a reduction of the rent to $150 or, in the alternative, an
early Lease termination so that she could move in with her parents. On May 20, 2010, the
Odegards informed Kishpaugh that they could not accept a lower rent and agreed to release
her from the Lease. With the assistance of her parents, Kishpaugh moved her possessions
out of the Odegards’ home, and on May 31, 2010, she officially vacated the premises. At
the Odegards’ request, Chip arranged to collect the house keys from Kishpaugh. When
Kishpaugh did not appear at the designated meet time, Chip used the keyless entry code to
access the house through the garage and found that Kishpaugh had left the keys on the
kitchen counter.
Concerned about their dog and their property, the Odegards left Germany and
returned to Indianapolis on June 12, 2010—more than two months earlier than they had
planned. An inspection of their house and yard quickly verified the Odegards’ concerns.
Although the front yard had been mowed, the grass in the back yard was three feet high,
and a section of the wooden fence was “badly charred.” (Tr. p. 72). The carpet in the
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sunroom had cigarette burns. Inside, the house was filthy and smelled strongly of cigarette
smoke and urine. Throughout the house, the carpet was saturated with dog urine and other
“strange stain[s].” (Tr. p. 65). The microwave handle and two lamps were broken. In the
guest bedroom, the Odegards found a cigarette package and cigarette burns in the carpet.
There were gouges and scuff marks on the walls, and several pieces of furniture were
likewise damaged. The mattresses in both the guest and master bedrooms were saturated
with urine. Even in the children’s bedrooms, the carpet was stained, there was a cigarette
burn in an upholstered cushion, and a wire had been fed through a newly-drilled hole in
the closet ceiling to equip the room for cable television.
The Odegards also noted significant damage to their minivan. During his brief trip
to Indianapolis a few months earlier, John had taken the damaged tire to be repaired. Now,
however, the Odegards realized that the speakers in the minivan were blown, the carpet
was ripped, there were cigarette burns in the dash, and there were dents and scratches on
the exterior. Kishpaugh’s permission to use the minivan was limited to a weekly drive
around the block and the one occasion that she needed to pick up a rental vehicle; yet, the
odometer indicated that the minivan was driven 7,000 miles during the Odegards’ absence.
In addition to the damages to their home and minivan, the Odegards also discovered that
some of their personal property was missing. Along with the previously identified missing
debit card and chainsaw, Miriam’s Ohio State University class ring, valued at $400; a
diamond and sapphire ring, valued at $300; a vacuum cleaner, valued at $220; John’s rare
coin collection, valued at $18,639.04; and three other jars of coins had been removed from
the home.
7
Neighbors informed the Odegards that during their time abroad, a PT Cruiser had
regularly been parked in the driveway. The PT Cruiser belonged to Kishpaugh’s friend,
Asia Cox (Asia). After the Odegards also found mail addressed to Asia in their mailbox,
a job application, and homework that Asia left on their printer, the Odegards realized that
Asia had been living in their home with Kishpaugh.
On June 16, 2010, the Odegards reported the damage and theft of their property to
the Indianapolis Metropolitan Police Department. Police officers were able to locate and
recover the Odegards’ chainsaw from a pawn shop where Asia’s sister was employed. On
July 26, 2010, the Odegards filed a Complaint, which they amended on March 28, 2012,
alleging that Kishpaugh was liable for damages arising from her breach of the Lease, theft,
violation of the Tenant Statute, and criminal mischief. On February 24, 2012, Kishpaugh
filed a motion for partial summary judgment on the issue of theft, which the trial court
denied on April 10, 2012.
On September 5, 2013, the trial court conducted a bench trial. At the close of the
Odegards’ case-in-chief, Kishpaugh moved for an involuntary dismissal pursuant to
Indiana Trial Rule 41(B), which the trial court denied.1 On October 18, 2013, the trial
court entered its Judgment and, at Kishpaugh’s request, issued specific findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52(A). The trial court ruled in favor of
Kishpaugh on the issue of criminal mischief, finding the Odegards had not met their burden
1
During the bench trial, Kishpaugh actually moved for a directed verdict (judgment on the evidence) at
the close of the Odegards’ case-in-chief. See Ind. Trial Rule 50. However, because the cause was not tried
before a jury, it must be treated as a motion for involuntary dismissal under Indiana Trial Rule 41. See
Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 985 (Ind. Ct. App. 1999), trans. denied.
8
of proof; however, the trial court ordered Kishpaugh to pay the Odegards a total of
$85,889.36 for damages related to Kishpaugh’s breach of the Lease, theft, and violation of
the Tenant Statute. On November 12, 2013, Kishpaugh filed a motion to correct error,
which the trial court denied on December 6, 2013.
Kishpaugh now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
At Kishpaugh’s request, the trial court entered findings of fact and conclusions
thereon. Pursuant to Indiana Trial Rule 52(A), our court will not set aside the trial court’s
factual findings or its judgment “unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.” When a trial
court issues specific findings and conclusions, our standard of review is two-tiered: first,
we consider whether the evidence supports the findings; second, we determine whether
those findings support the trial court’s judgment. MCS LaserTec, Inc. v. Kaminski, 829
N.E.2d 29, 34 (Ind. Ct. App. 2005). We will construe the trial court’s findings liberally in
a favor of the judgment and will find clear error only if “a review of the record leaves us
firmly convinced that a mistake has been made.” Id. The judgment is clearly erroneous if
“the findings of fact and conclusions thereon do not support it, and we will disturb the
judgment only when there is no evidence supporting the findings or the findings fail to
support the judgment.” Id. We do not reweigh evidence or assess the credibility of
witnesses, and we consider all of the evidence in a light most favorable to the trial court’s
judgment. Id.9
II. Theft
Kishpaugh claims that the trial court’s Judgment is clearly erroneous because the
findings of fact and conclusions thereon are insufficient to support a determination that she
committed theft. Pursuant to the Indiana Crime Victims Relief Act (Relief Act), an
individual who “suffers a pecuniary loss as a result of a [theft] may bring a civil action
against the person who caused the loss.” Ind. Code § 34-24-3-1. A person commits theft
when he or she “knowingly or intentionally exerts unauthorized control over property of
another person, with intent to deprive the other person of any part of its value or use.” I.C.
§ 35-43-4-2(a). Although the Relief Act provides that crime victims may recover three
times the amount of their actual damages (treble damages), the costs of the action, and
reasonable attorney fees, the amount of any award is ultimately left to the discretion of the
trial court. MCS LaserTec, Inc., 829 N.E.2d at 35. Because this is a civil—rather than a
criminal—action, the Odegards “must merely prove commission of the crime by a
preponderance of the evidence.” Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 667 (Ind.
Ct. App. 2011).
In this case, the trial court concluded that
[c]ircumstantial evidence supports a reasonable inference that . . . Kishpaugh
was guilty of theft as a princip[al] or an accomplice where she was not
authorized by the Odegards to exert control over the property in the manner
she did, she had access to the property while the Odegards were in Germany,
and the property was missing upon the Odegards[’] return.
(Appellant’s App. p. 8). As a result, the trial court determined the Odegards were entitled
to treble damages for their pecuniary loss resulting from Kishpaugh’s theft. Upon the
Odegards’ request for only two—rather than three—times the amount of their actual
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damages, the trial court awarded $39,118.08 in actual damages and $25,592.75 for attorney
fees, totaling $64,710.84.2
A. Gap in Possession
Kishpaugh contends that the trial court’s “findings regarding the important issue of
when the Odegards returned home” are clearly erroneous. (Appellant’s Br. p. 8). The
uncontroverted evidence establishes that the Odegards returned to Indianapolis on June 12,
2010. However, one of the trial court’s findings states that the Odegards “permanently
returned to their home” on May 31, 2010. (Appellant’s App. p. 5). According to
Kishpaugh, this error is significant because it “fail[s] to recognize the gap in time between
when . . . Kishpaugh surrendered her leasehold interest and left the premises on May 31 st
and the time that the Odegards personally arrived back at the house on June 12th.”
(Appellant’s Br. p. 9). During the bench trial, Kishpaugh maintained that any and all theft
and property damage must have occurred during this twelve-day gap.
Although we agree with Kishpaugh that the trial court’s finding is technically
inaccurate, we decline to find such error to be fatal to the Judgment. The trial court also
found that “Kishpaugh occupied and had exclusive control of the Odegards’ home between
October 1, 2009 and May 31, 2010.” (Appellant’s App. p. 5). From this finding, and
considering the trial court’s Judgment, we can reasonably infer that the trial court found
that the Odegards’ property was damaged and stolen during the timeframe that Kishpaugh
2
We note that the sum total of the actual damages and attorney fees is actually $64,710.83. Unsurprisingly,
neither party has challenged the one-cent discrepancy in the trial court’s calculation.
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had exclusive possession of the premises—i.e., prior to May 31, 2010. Thus, the trial
court’s erroneous finding does not warrant reversal.
B. Circumstantial Evidence
Kishpaugh also contends that the trial court’s conclusion that there is sufficient
circumstantial evidence to prove theft is clearly erroneous because the trial court “did not
make any findings regarding the manner in which [Kishpaugh] actually committed such
alleged theft[,] . . . what items she allegedly stole, when such items were stolen[,] or even
with whom she allegedly acted.” (Appellant’s Br. p. 10). In turn, the Odegards argue that
the “pattern of property being taken from the Odegard home as well as damage to the
Odegard[s’] property[,] . . . along with . . . Kishpaugh’s financial need, . . . access to such
property, . . . opportunity[,] and motive” sufficiently establish Kishpaugh’s guilt.
(Appellees’ Br. p. 10).
It is well established that “[a] judgment based on circumstantial evidence will be
sustained if the circumstantial evidence alone supports a reasonable inference of guilt.”
Buntin v. State, 838 N.E.2d 1187, 1189-90 (Ind. Ct. App. 2005). Whereas “[d]irect
evidence immediately establishes the main fact to be proved[,] circumstantial evidence
immediately establishes collateral facts from which the main fact may be inferred.”
Nichols v. State, 591 N.E.2d 134, 136 (Ind. 1992). “‘It is not necessary that the court find
the circumstantial evidence excludes every reasonable hypothesis of innocence. It need
only be demonstrated that inferences may reasonably be drawn which support the finding
of guilt.’” Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004) (quoting Metzler v. State,
540 N.E.2d 606, 609 (Ind. 1989)).
12
In support of its conclusion that Kishpaugh committed the theft, the trial court made
the following findings:
16. When the Odegards left for Germany[,] the following personal
property was at the residence: Miriam Odegard’s Ohio State class ring and
a diamond and sapphire ring located in the master bedroom; a Debit Credit
Card in Miriam Odegard’s name located in the office portion of the kitchen;
a vacuum cleaner; a chainsaw located in the garage[;] contents of jars of coins
located in the master bedroom, kitchen and laundry room; and John
Odegard’s coin collection hidden in a wine box in the walk-in attic.
****
18. Ms. Kishpaugh [accessed] the bread box where the Debit Credit Card
was located . . . prior to and after the card’s unauthorized use in Egypt. Ms.
Kishpaugh testified that she was the only person who went in the attic.
19. Upon returning home, the Odegards found the remainder of the
personal property described above missing.
(Appellant’s App. p. 7). In addition to the trial court’s findings, which demonstrate that
Kishpaugh had exclusive control over the premises when the property disappeared and that
she had rifled through the specific areas where the stolen items were stored, we find
additional circumstantial evidence in the record supports the trial court’s conclusion.
Miriam’s two rings were stolen from her jewelry box in the master bedroom.
Despite the Odegards’ understanding that Kishpaugh would be sleeping in the guest
bedroom, Kishpaugh moved into the master bedroom a few months after the Odegards left
for Germany. Kishpaugh testified that she removed the Odegards’ clothing from their
dresser drawers and bureaus in order to make space for her own wardrobe, stowing the
Odegards’ items in the closet. Given her apparent comfort with rummaging through the
intimate spaces of others, it is not unreasonable to infer that she likewise searched through
Miriam’s jewelry box. Also, Kishpaugh’s testimony that she used the Odegards’ vacuum
13
on one occasion but, because it was broken, used her own vacuum thereafter places the
vacuum in Kishpaugh’s exclusive control at the time it was stolen. Similarly, John’s rare
coin collection was stored inside a nondescript cardboard box in the attic. With the
Odegards’ permission, Kishpaugh had stored some of her furniture and other boxes in the
attic. Kishpaugh explained that she accessed the attic on multiple occasions to retrieve
seasonal clothing and also to search for the Odegards’ Christmas decorations.
The Odegards’ stolen possessions were not overtly valuable, and they were stored
out of sight. Thus, the perpetrator had to probe through the house for items that would not
be readily identified as missing—undoubtedly a time-consuming process. Furthermore,
the items that were stolen were of a nature that they could be easily pawned or exchanged
for cash. In fact, the chainsaw was actually recovered from a pawn shop, and it is
undisputed that the chainsaw was sold to that pawn shop during Kishpaugh’s tenancy. The
evidence indicates that Kishpaugh was struggling financially; she could no longer afford
to pay rent, and she testified that her unemployment compensation benefits had run out. It
is thus reasonable to infer that Kishpaugh pilfered the items that were at her immediate
disposal in order to meet her financial needs.
Kishpaugh also argues that the Odegards failed to satisfy their burden of proof as to
each element of theft. According to Kishpaugh, the trial court’s “conclusion was expressed
in such amorphous and general terms[] [that] it appears that the [t]rial [c]ourt either
effectively imposed a strict liability standard on . . . Kishpaugh concerning any property
later found missing, or that the [t]rial [c]ourt actually placed the burden of proof on . . .
Kishpaugh to prove her innocence.” (Appellant’s Br. p. 17). The Odegards were required
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to prove by a preponderance of the evidence that Kishpaugh knowingly or intentionally
exerted unauthorized control over their property with the intent to deprive them of its value
or use. I.C. § 35-43-4-2(a). Preponderance of the evidence “simply means the ‘greater
weight of the evidence.’” Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 361 (Ind.
1982) (quoting Great Atl. & Pac. Tea Co. v. Custin, 13 N.E.2d 542, 545 (Ind. 1938), reh’g
denied).
In this case, the bulk of the evidence consisted of the parties’ testimony. As such,
the evidence was certainly subject to conflicting inferences, but our sole concern on review
is to determine “whether the inferences supporting the judgment were reasonable, not
whether there were other ‘more reasonable’ inferences that could have been made.” Brink
v. State, 837 N.E.2d 192, 197 (Ind. Ct. App. 2005) (quoting Thompson, 804 N.E.2d at
1150), trans. denied. Our court does not interfere with the trial court’s role in weighing
the evidence and assessing the credibility of witnesses, and, here, the trial court’s decision
essentially turned on a determination of which party offered more reliable testimony. We
find that it was entirely reasonable for the trial court to credit the Odegards’ testimony over
that of Kishpaugh, especially in light of Kishpaugh’s incriminatory admission that she had
been collecting unemployment compensation benefits from the State of Indiana while
failing to report other income. Accordingly, we agree with the trial court that the greater
weight of the evidence establishes that while Kishpaugh was supposed to be acting as a
custodian for the Odegards’ home and belongings, she instead exerted unauthorized control
15
over their property. As a result, she must pay the Odegards treble damages for depriving
them of the value of their property.3
III. Treble Damages as Non-Dischargeable Debt
Kishpaugh next claims that the trial court lacked the “jurisdiction to determine
whether or not any obligation imposed from [her] alleged theft is dischargeable in
bankruptcy.” (Appellant’s Br. p. 21). Although the record does not indicate that
Kishpaugh has filed or intends to file for bankruptcy, the trial court concluded that theft is
“within the exceptions for discharge in bankruptcy under 11 U.S.C. § 523(a)(4).”
(Appellant’s App. p. 9). Pursuant to the United States Bankruptcy Code, an individual
debtor may not discharge any debt “for fraud or defalcation while acting in a fiduciary
capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4) (emphasis added).
The United States Supreme Court has determined that the dischargeability of a debt
is “an issue that Congress intended the bankruptcy courts, rather than the state courts, to
decide.” Klingman v. Levinson, 831 F.2d 1292, 1294 (7th Cir. 1987) (citing Brown v.
Felsen, 442 U.S. 127, 136 (1979)). Nevertheless, Kishpaugh acknowledges that “in limited
and very specific instances[,]” a state court has “concurrent jurisdiction with federal courts
to determine what debts constitute non-dischargeable debts.” (Appellant’s Br. pp. 21-22).
3
Having found sufficient evidence to support Kishpaugh’s liability for theft as a principal, we do not
address her argument that the evidence and findings are insufficient to establish accomplice liability. In
addition, Kishpaugh has raised three other claims—that the trial court erred by denying her motion for
involuntary dismissal, her motion for partial summary judgment, and her motion to correct error. However,
because Kishpaugh did not support any of these three arguments with cogent reasoning or citations to
authority, we find that Kishpaugh has waived these claims for appellate review. Ind. Appellate Rule
46(A)(8)(a)-(b). It is not sufficient for the argument section that an appellant simply recites facts and makes
conclusory statements without analysis or authoritative support.
16
See Carey v. Carey, 733 N.E.2d 14, 16 (Ind. Ct. App. 2000). However, because the trial
court’s challenged conclusion does not concern “‘maintenance and support’ under 11
U.S.C. § 523(a)(5),” Kishpaugh maintains that only a bankruptcy court can decide whether
her obligation to pay the Odegards’ treble damages is a non-dischargeable debt.
(Appellant’s Br. p. 22). On the other hand, the Odegards argue that the trial court did not
commit reversible error because bankruptcy courts may “be guided by considerations of a
state court[] and law in its determination.” (Appellees’ Br. p. 11).
Notwithstanding the bankruptcy court’s exclusive jurisdiction, a state court’s
findings may “have collateral estoppel application in any subsequent nondischargeability
proceeding.” In re Guy, 101 B.R. 961, 974 (N.D. Ind. 1988). The Seventh Circuit Court
of Appeals has resolved that “[w]here a state court determines factual questions using the
same standards as the bankruptcy court would use, collateral estoppel should be applied to
. . . bar relitigation of an issue determined by a state court.” Klingman, 831 F.2d at 1295.
Collateral estoppel requires:
1) the issue sought to be precluded must be the same as that involved in the
prior action, 2) the issue must have been actually litigated, 3) the
determination of the issue must have been essential to the final judgment,
and 4) the party against whom estoppel is invoked must be fully represented
in the prior action.
Id.We do not now decide whether collateral estoppel applies to the trial court’s
conclusion. Rather, it is the role of the bankruptcy court to review the record and analyze
whether the state law elements of Kishpaugh’s theft also satisfy the larceny prong for a
non-dischargeable debt under 11 U.S.C. § 523(a)(4). See In re Luedtke, 429 B.R. 241, 251-
17
52 (N.D. Ind. 2010). Accordingly, unless a bankruptcy court rules that the trial court’s
Judgment has preclusive effect, the trial court’s conclusion that Kishpaugh’s treble
damages are a non-dischargeable debt is inconsequential. Because the trial court’s
conclusion is not binding, we agree with the Odegards that its inclusion in the Judgment
does not amount to reversible error.
IV. Breach of the Lease
Kishpaugh claims that the trial court erred in its conclusion that “[t]he Odegards are
entitled to compensatory losses and damages to their mini[]van, boarding of Abby, and
damages and repairs to the interior of their home, as well as attorney[] fees” resulting from
Kishpaugh’s breach of the Lease. (Appellant’s App. p. 8). In particular, Kishpaugh
contends that the evidence does not establish that she “proximately or actually caused” any
damage to the Odegards’ home or minivan. (Appellant’s Br. p. 23). For the cigarette
smoke and urine odors, as well as damages to the walls, carpet, furniture, appliances,
garage door, and minivan, the trial court ordered Kishpaugh to pay the Odegards $12,510
in actual damages and $8,668.52 in attorney fees, for a total award of $21,178.52.
In a breach of contract claim, the plaintiff bears the burden of proving (1) that a
contract existed; (2) that the defendant breached said contract; and (3) that the plaintiff
sustained damages as a result of the breach. Collins v. McKinney, 871 N.E.2d 363, 370
(Ind. Ct. App. 2007). In part, the Lease stipulated:
[Kishpaugh] shall, at [Kishpaugh’s] expense maintain the Premises and
furnishings in clean and satisfactory condition, and shall return them to the
[Odegards] in that condition at the expiration of this Lease.
****
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[Kishpaugh] will occupy and use the Premises for [Kishpaugh’s] private
residence and for no other purpose. The Premises will be occupied by no
more than [two] person(s). No roomers, lodgers, or boarders shall be
permitted to occupy the Premises with [Kishpaugh] and no guest(s) shall be
allowed to occupy the Premises for more than three (3) days in any given
month without the prior written consent of [the Odegards].
****
[Kishpaugh] agrees to care for all [of the Odegards’] pets. This includes
feeding, water, walking, administering all medicines, transportation for any
vet visits, and any other care necessary. All pets must stay on the property,
unless on a leash. [Kishpaugh] agrees to work with any trainer, as [the
Odegards] deem[] necessary.
(Appellant’s App. pp. 31, 33). The trial court determined that Kishpaugh had breached the
Lease because “she soiled the mattresses, left cigarette burns on the carpets, caused marks
on the walls, put holes in the walls, allowed the family pet, Abby, to defecate on the carpets,
allowed guests to occupy the Premises, and drove and caused damage to the Odegard[s’]
mini[]van.” (Appellant’s App. p. 8).
In asserting that she did not breach the Lease because the damages were sustained
after she moved out, Kishpaugh relies on her own testimony during the bench trial that she
cleaned the house prior to moving out, as well as the testimony of her mother, who stated
that “it was obvious that [the house] was clean” at the time she helped move Kishpaugh’s
furniture out of the attic. (Tr. p. 291). The Odegards, however, testified as to the clean
condition of their home, yard, and minivan at the time they left for Germany and also
presented evidence depicting the extensive damages that were awaiting them upon their
return to Indianapolis. The Odegards further presented evidence indicating that Kishpaugh
had permitted Asia to live in their house and to drive (and damage) their minivan. The
Odegards also explained that they had not previously experienced difficulties with Abby
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barking while outdoors or urinating in the house, but Kishpaugh’s lack of attention to
Abby’s needs required them to board her in a kennel for one month.
Kishpaugh’s argument is essentially a request that we disregard the trial court’s role
in weighing evidence and evaluating the witnesses’ credibility by giving credence to her
version of events. This we will not do. Moreover, we find that the evidence and reasonable
inferences support the finding that Kishpaugh breached the Lease. The trial court heard
the evidence that neither John nor Chip detected the damages when they were inside the
house during Kishpaugh’s occupancy, but the trial court also heard evidence that neither
of them inspected the premises. Contrary to Kishpaugh’s contention that the carpet was
soiled before she even moved in, the Odegards presented documentation to show that, prior
to leaving for Germany, they had their carpets professionally cleaned. Kishpaugh claimed
that, except for the one occasion that she had permission to use the minivan to pick up a
rental car, she only drove the minivan once a week around the neighborhood. Again, the
Odegards refuted this testimony by submitting a receipt for an oil change which indicated
that, just prior to the Odegards’ departure, the minivan’s odometer reading was 7,000 miles
less than after they returned. Given these fallacies in Kishpaugh’s claims, we find that it
was reasonable for the trial court to discredit Kishpaugh’s testimony that none of the other
damages existed at the time she moved out.
Like the trial court, we are unpersuaded by Kishpaugh’s defense strategy that
someone else must have entered the house and caused all of the damage between May 31,
2010 and June 12, 2010. Kishpaugh testified that she locked the door when she left, and
there is no evidence that anybody forcefully entered the home or that the home security
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system was triggered. Of course, it might be possible for someone to break into a house in
order to install cable television in a little girl’s bedroom and use the carpet as an ashtray,
but the collective evidence in this case reveals that Kishpaugh and/or her guest(s) trashed
the Odegards’ home. We therefore conclude that there is sufficient evidence that
Kishpaugh breached the Lease by failing to return the house in a clean and satisfactory
condition, permitting unauthorized roomers, and failing to care for Abby.
V. Violation of Indiana Code Section 32-31-7-6
Lastly, Kishpaugh claims that the trial court erred by concluding that she had
violated her obligations as a tenant.4 The Tenant Statute provides that “[a]t the termination
of a tenant’s occupancy, the tenant shall deliver the rental premises to the landlord in a
clean and proper condition, excepting ordinary wear and tear expected in the normal course
of habitation of a dwelling unit.” I.C. § 32-31-7-6. If a tenant violates this duty, Indiana
Code section 32-31-7-7(f) affords the prevailing landlord the right to recover actual
damages, attorney fees and costs; injunctive relief; and/or “[a]ny other remedy appropriate
under the circumstances.”
Based on our search for any existing case law concerning the Tenant Statute, it
appears that Kishpaugh has presented an issue of first impression. Where a statute has not
previously been construed, our court endeavors to ascertain and give effect to the intent of
the legislature. Gee v. Green Tree Servicing, LLC, 934 N.E.2d 1260, 1262 (Ind. Ct. App.
4
Although the trial court determined that Kishpaugh’s statutory violation warranted an award of actual
damages, attorney fees, and costs, the trial court did not order any “additional damages” for this claim.
(Appellant’s App. p. 9).
21
2010). Thus, we look to the express language of the statute and the rules of statutory
construction, reviewing the statute in its entirety under the presumption that “the legislature
intended logical application of the language used in the statute, so as to avoid unjust or
absurd results.” Id. (quoting State v. Prater, 922 N.E.2d 746, 748 (Ind. Ct. App. 2010)).
In addition to reiterating her earlier assertion that she is not liable for any damages
that were incurred during the twelve-day period between the termination of her occupancy
and the Odegards’ return to Indianapolis, Kishpaugh also argues that there is insufficient
evidence to support the trial court’s conclusion that she violated her statutory tenant
obligations. Kishpaugh primarily relies on her own self-serving testimony as evidence that
the Odegards’ home “was actually cleaner when I left than when I arrived.” (Tr. p. 262).
We find that Kishpaugh’s argument ultimately amounts to a request to reweigh evidence
and reassess witness credibility, which we decline to do.
Furthermore, Kishpaugh concedes that she broke the lamps and the microwave
handle and that Abby frequently urinated in the living room. However, she insists that
these incidents “are normal events that are likely to happen over the course of several
months.” (Appellant’s Br. p. 25). If the evidence indicated that the extent of the damage
consisted of a few scuffs on the walls and some carpet stains, we would likely find
Kishpaugh’s argument to be more persuasive. However, such is not the case.
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. I.C. § 32-31-7-6. “Ordinary” is defined as “of a kind to
be expected in the normal order of events”—that is, “routine” or “usual.” MERRIAM-
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WEBSTER, http://www.merriam-webster.com/dictionary/ordinary (last visited Sept. 4,
2014). 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.” I.C. § 32-31-7-6.
VI. Appellate Attorney Fees
On August 12, 2014, the Odegards filed their Petition for Appellate Attorney Fees.
On August 18, 2014, Kishpaugh filed her objection thereto, asserting, in part, that her
appeal is neither frivolous nor in bad faith as is required for an award of appellate attorney
fees under Indiana Appellate Rule 66(E). Notwithstanding any frivolity in Kishpaugh’s
appeal, we find that the Odegards are entitled to appellate attorney fees based on general
principles of contract law. See Gershin v. Demming, 685 N.E.2d 1125, 1131 (Ind. Ct. App.
1997).
“When a contract provision provides that attorney fees are recoverable, appellate
attorney fees may also be awarded.” Humphries v. Ables, 789 N.E.2d 1025, 1036 (Ind. Ct.
App. 2003). The Lease stipulates that in the event of default by Kishpaugh, Kishpaugh
“shall pay all costs and expenses, including attorney fees, incurred by [the Odegards] in
connection with [their] exercise of any rights or remedies [they] may have under this Lease
because of default.” (Appellant’s App. p. 32 (emphasis added)). An “Event of Default” is
defined in the Lease to include a violation of “any other term, condition or covenant of this
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Lease.” (Appellant’s App. p. 32). 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. (Appellant’s App. p. 31). Moreover, our
court has also previously held that a plaintiff who prevails under the Relief Act is entitled
to appellate attorney fees. Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004, 1008 (Ind. Ct.
App. 2009). Accordingly, we remand to the trial court for a determination of reasonable
appellate attorney fees.
CONCLUSION
Based on the foregoing, we 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. In addition, we grant the Odegards’ Petition
for Appellate Attorney Fees and remand to the trial court to determine the amount.
Affirmed and remanded.
MATHIAS, J. and CRONE, J. concur
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