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King v. Conley

Court of Appeals of Indiana

November 21, 2017

Robin King, Appellant,
v.
Rebecca Conley, Appellee.

         Appeal from the Hendricks Circuit Court The Honorable Daniel F. Zielinski, Judge Trial Court Cause No. 32C01-1606-PL-69.

          ATTORNEYS FOR APPELLANT Bryan L. Ciyou Darlene R. Seymour Ciyou & Dixon, P.C. Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Gregory E. Steuerwald Graham T. Youngs Steuerwald, Hannon & Witham, LLP Danville, Indiana

          Brown, Judge

         [¶1] Robin King appeals from an order of the trial court which denied her motion for eviction of Rebecca Conley and granted Conley's request for specific performance. King raises one issue which we revise and restate as whether the trial court's order is clearly erroneous. Conley requests appellate attorney fees. We affirm and remand for determination of appellate attorney fees.

         Facts and Procedural History

         [¶2] In the summer of 2015, Vince Wall, a real estate broker, assisted Conley in

finding a home and located the residential property owned by King. King and Conley entered into two agreements dated December 16, 2015, specifically, a lease agreement (the "Lease") and an Option to Purchase Real Estate (the "Option Agreement") pursuant to which King granted Conley an exclusive and irrevocable option (the "Option") to purchase the residential home and real estate.[1] Conley paid King $13, 000 pursuant to the Option Agreement.

         [¶3] The Lease provided that Conley, as the tenant, agreed to lease the residential property from King, as the landlord, for a term commencing on December 19, 2015, ending on December 18, 2016. Paragraph 4 of the Lease, which was titled "alterations and maintenance of lease premises, " provided in part:

Tenant shall not cause or permit any alterations, additions or changes to the Leased Premises without first obtaining the written consent of Landlord. All approved alterations, additions or changes to the Leased Premises shall be made by Tenant in accordance with all applicable laws and shall become the property of Landlord. Tenant shall be responsible for maintaining the interior and exterior of the house, and the ground of the premises, including minor and routine repairs. . . .

         Defendant's Exhibit A. Paragraph 11 of the Lease defined Events of Default. Paragraph 15 of the Lease provided in part that King and her agents would be permitted to inspect and examine the leased premises "at all reasonable times" and that King would have the right to make any repairs to the premises she may deem necessary. Id.

         [¶4] The Option Agreement provided, "[i]n consideration of the non-refundable payment of Thirteen Thousand dollars ($13, 000) (the 'Option Money'), and for other good and valuable consideration, [King] does hereby grant to [Conley] the exclusive and irrevocable option [(the 'Option')] to purchase the residential home and real estate . . . ." Defendant's Exhibit B. Conley's right to exercise the Option commenced on December 19, 2015, and terminated on December 18, 2016. The Lease and Option Agreement provided that, if Conley was in default under the Lease, King could terminate the Option Agreement. Both the Lease and Option Agreement provided for attorney fees.

         [¶5] On March 17, 2016, Conley reported a leak to King and provided the code to the garage so that King could access the house, and King noticed water in the sump was gone. King made a statement to Wall that the problem might have been caused by Conley, the statement concerned Conley, and Conley decided that King was not permitted to enter the house unless another person was present. Ultimately, King or contractors were given access on March 18th and 22nd and the sump pump was replaced. Conley changed the lock on the front door on or after March 20th.

         [¶6] In a letter dated March 25, 2016, Conley notified King that she was exercising her Option to purchase the property pursuant to the Option Agreement. In a letter to Conley dated March 30, 2016, King stated that Conley had painted the majority of the ground level interior walls, replaced door lock(s) on the house, and removed at least three hosta plants from the yard without written consent in violation of Paragraph 4 of the Lease, and denied King access to the property on several dates from March 18 to 25, 2016, in violation of Paragraph 15 of the Lease. The letter stated that Conley was required to correct the violations within fifteen days and also offered to waive the violation corrections if Conley agreed to exercise the Option on or before the deadline for the corrections, the closing would occur within thirty days, and the property would be sold in an "as is" condition and that no repairs would be made to the property.

         [¶7] In June 2016, King filed a complaint alleging that Conley was in breach of the Lease and had painted certain interior walls, changed the door locks, and denied King access. On August 15, 2016, Wall and King walked through the rooms of the house together so that King could inspect the home and take photographs. When they had finished, Wall asked King if she was satisfied with the property, King replied affirmatively, Wall then asked if the visit resolved her request to have access, and King again replied affirmatively and stated "well I guess I can go ahead and drop everything, uh because I have been granted access." Transcript at 29.

         [¶8] On August 19, 2016, King filed a motion for eviction which alleged that Conley was in breach of the Lease and requested a hearing. Conley filed an answer, affirmative defenses, and a counterclaim for specific performance of the Option. In her counterclaim, Conley alleged that she had exercised the Option, that she had applied for and obtained the financing necessary to close as shown in an attached exhibit, and requested specific performance requiring King to close the transaction and attorney fees.

         [¶9] On November 9, 2016, the court held a hearing and heard the testimony of King, Conley, and Wall and admitted the parties' agreements and letters to each other as well as text messages between King and Conley. King testified that Conley continued to pay rent and had never missed a monthly payment. On November 30, 2016, the court issued its Findings of Fact, Conclusions of Law, and Order. It found:

2. The parties entered into a written Lease Agreement on December 16, 2015, wherein [King] leased to [Conley] certain real estate and improvements . . . (herein "Property"), for a term commencing on December 19, 2015 and ending on December 18, 2016.
3. At the same time, the parties executed an [Option Agreement] in which [Conley] made a non-refundable payment of $13, 000 for the option to purchase the Property subject to certain written terms and conditions. The Lease and ...

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