Syed Umar Husainy, Appellant-Defendant-Counterclaimant/Cross-Appellee,
Granite Management, LLC, and Jaffa Varsity 1, LLC, Appellees-Plaintiffs-Counterclaim Defendants/Cross-Appellants
from the Tippecanoe Superior Court, The Honorable Michael A.
Morrissey, Special Judge, Trial Court Cause No.
Attorney for Appellant Duran L. Keller Keller Law Lafayette,
Attorney for Appellees Joseph R. Delehanty Gutwein Law
Syed Umar Husainy leased an apartment in a building that was
managed by Granite Management, LLC ("Granite"), and
owned by Jaffa Varsity 1, LLC ("Jaffa"). Granite
sued Husainy, seeking eviction for alleged nonpayment of
rent/breach of contract. Husainy countersued Granite and
filed third-party claims against Jaffa, alleging breach of
the covenant of quiet enjoyment and violations of a statute
that requires a landlord to maintain basic levels of
habitability. After a trial, the jury found against Granite
on its breach of contract claim. The jury found in favor of
Husainy on his breach of covenant claim and also found in
favor of Husainy on his statutory claim, which entitled him
to seek attorney's fees. Husainy requested nearly $60,
000 in fees, and the trial court awarded him $2000. Granite
and Jaffa (collectively "Appellees") filed a motion
to correct error, asserting that the jury's verdicts for
Husainy were not supported by the evidence. The trial court
granted the motion in part and vacated the jury's verdict
on the breach of covenant claim, but denied the motion in
part as to the statutory claim.
Husainy now appeals, arguing that the trial court erred in
granting Appellees' motion to correct error on his breach
of covenant claim and in awarding him only $2000 in
attorney's fees. He also argues that the trial judge was
biased. On cross-appeal, Appellees argue that the trial court
erred in denying their motion to correct error on
Husainy's statutory claim. We affirm the denial of
Appellees' motion to correct error on Husainy's
statutory claim, reverse the grant of Appellees' motion
to correct error on Husainy's breach of covenant claim,
and reverse the award of attorney's fees as inadequate
and remand for further proceedings on that issue. We also
hold that Husainy has waived his bias claim.
and Procedural History
Husainy started leasing his third-floor apartment in the
Varsity Building in West Lafayette in 2007. On March 16,
2016, he signed an agreement for a lease term of May 31,
2016, through May 31, 2017. The agreement states that Granite
is the landlord and bears the preprinted name of a Granite
representative, who did not sign the document. The agreement
states that Husainy's monthly rent is $725 and that his
"[security] deposit of $605 carries over." Ex. Vol.
at 24. Husainy was charged a monthly parking fee of $25
pursuant to a separate parking lease.
On January 23, 2017, Granite filed a notice of claim against
Husainy in small claims court, seeking eviction for alleged
nonpayment of rent, maintenance charges, and late fees in the
amount of $1280.50. On February 3, 2017, Husainy filed a jury
trial demand, a counterclaim against Granite, and a
third-party complaint against Jaffa. By agreement of the
parties, the case was transferred to the plenary docket. In
March 2017, Husainy filed a motion for change of judge, and
the parties agreed to the selection of a special judge.
Husainy vacated his apartment at the end of his lease term in
May 2017 but did not receive his security deposit because it
had been applied against his outstanding unpaid balance of
Ultimately, the following claims were set for trial: (1)
Granite's claim against Husainy for nonpayment of
rent/breach of contract; (2) Husainy's claim against
Appellees for breach of the covenant of quiet enjoyment; (3)
Husainy's claim against Appellees for an alleged
violation of Indiana Code Section 32-31-8-5, which requires a
landlord to maintain basic levels of habitability; and (4)
Husainy's claim against Appellees for an alleged
violation of Indiana Code Section 32-31-3-12, which requires
a landlord to return a tenant's security deposit and
timely provide an itemized list of any deductions. A two-day
jury trial began on August 22, 2018. Appellees presented
evidence that in November 2016 the Varsity Building's
septic pit had two overflows, which they attributed to
plumbing clogs caused by Husainy flushing cleaning wipes down
his toilet; Husainy was charged for removal of the clogs but
refused to pay. Husainy took the stand and denied flushing
wipes down his toilet. He also testified that he experienced
several "issues" with the building, including
"no heat […] at times[, ]" pipe leaks that
"covered" the hallway and stairwell landings with
half an inch of water, and interruptions of both cold and hot
water service, which compelled him to purchase bottled water
and shower at a college recreational center and at
friends' homes. Tr. Vol. 4 at 184, 190.
During closing argument, Husainy's counsel asserted that
because Granite's representative did not sign the lease
agreement, there was no contract and therefore no breach of
contract by Husainy or breach of the covenant of quiet
enjoyment by Appellees. Regarding Appellees' alleged
violation of Section 32-31-8-5, Husainy's counsel
initially asked for "$50" to reimburse Husainy for
the bottled water but then stated, "[Husainy's]
asking you to ask for a dollar. I think I asked for 50 but
you guys get to determine what it's worth to go through
that sort of stuff." Tr. Vol. 5 at 6, 10. Regarding
Appellees' alleged violation of Section 32-31-3-12,
Husainy's counsel argued that the statute "says you
have to give this person their money back, unless they have
caused these damages. And if you're wrong, this person
gets their security deposit back." Id. at 7.
The jury found against Granite on its breach of contract
claim. The jury found in favor of Husainy on his breach of
covenant claim and awarded him $4500 in damages. The jury
also found in favor of Husainy on his Section 32-31-8-5
claim, which entitled him to seek attorney's fees
pursuant to Section 32-31-8-6, and awarded him $605 in
Appellees filed a motion to correct error pursuant to Indiana
Trial Rules 50 and 59, asserting that the jury's verdicts
in favor of Husainy's claims were not supported by the
evidence. Husainy requested $59, 020.67 in attorney's
fees. After a hearing, the trial court granted Appellees'
motion in part and vacated the jury's verdict on the
breach of covenant claim, but denied the motion in part as to
the Section 32-31-8-5 claim. The court also awarded Husainy
$2000 in attorney's fees. Husainy appealed, and Appellees
cross-appealed. Additional facts will be provided below.
1 - The trial court abused its discretion in granting
Appellees' motion to correct error on Husainy's
breach of the covenant of quiet enjoyment claim.
We first address Husainy's contention that the trial
court erred in granting Appellees' motion to correct
error on his breach of covenant claim. "We review a
trial court's ruling on a motion to correct error for an
abuse of discretion." Sch. City of Hammond Dist. v.
Rueth, 71 N.E.3d 33, 40 (Ind.Ct.App. 2017), trans.
denied. A trial court abuses its discretion if its
"action is against the logic and effect of the facts and
circumstances before it and the inferences which may be drawn
therefrom." Id. (quoting Cox v.
Matthews, 901 N.E.2d 14, 21 (Ind.Ct.App. 2009),
"Indiana's trial rules allow a party to move for
judgment on the evidence in a motion to correct error."
Id. (citing Ind. Trial Rule 50(A)(4)). "When
considering a motion to correct error, if the court
'determines that prejudicial or harmful error has been
committed,' it 'shall take such action as will cure
the error.'" Id. (quoting Ind. Trial Rule
59(J)). Trial Rule 50(A) provides,
Where all or some of the issues in a case tried before a jury
or an advisory jury are not supported by sufficient evidence
or a verdict thereon is clearly erroneous as contrary to the
evidence because the evidence is insufficient to support it,
the court shall withdraw such issues from the jury and enter
judgment thereon or shall enter judgment thereon
notwithstanding a verdict.
trial court considers a motion for judgment on the evidence
following a jury verdict, the court "may not weigh the
evidence and 'must view only the evidence favorable to
the non-moving party and the reasonable inferences to be
drawn from that evidence.'" Rueth, 71
N.E.3d at 41 (quoting Huff v. Travelers Indem. Co.,
266 Ind. 414, 421, 363 N.E.2d 985, 990 (1977)). "The
trial court may enter judgment only if there is no
substantial evidence or reasonable inference to be adduced
therefrom to support an essential element of the claim, i.e.,
the evidence must point unerringly to a conclusion not
reached by the jury." Id. (quoting
Huff, 266 Ind. at 421, 363 N.E.2d at 990) (italics
in Rueth omitted). "If there is relevant
evidence that supports the verdict, a motion for judgment on
the evidence is improper because the final determination must
be left to the fact-finder." Id.
Determining whether evidence is sufficient to survive a
motion for judgment on the evidence "requires both a
quantitative and a qualitative analysis." Purcell v.
Old Nat'l Bank, 972 N.E.2d 835, 840 (Ind. 2012)
(quoting Am. Optical Co. v. Weidenhammer, 457 N.E.2d
181, 184 (Ind. 1983)). "Evidence fails quantitatively
only if it is wholly absent; that is, only if there is no
evidence to support the conclusion." Id.
"If some evidence exists, a court must then proceed to
the qualitative analysis to determine whether the evidence is
substantial enough to support a reasonable inference in favor
of the non-moving party." Id. Evidence fails
qualitatively "when it cannot be said, with reason, that
the intended inference may logically be drawn therefrom; and
this may occur either because of an absence of credibility of
a witness or because the intended inference may not be drawn
therefrom without undue speculation." Id.
(quoting Am. Optical, 457 N.E.2d at 184).
Among other things, the covenant of quiet enjoyment
"protect[s] the possessory interests of the lessee in
the beneficial use and enjoyment of the demised
property." Sigsbee v. Swathwood, 419 N.E.2d
789, 797 n.8 (Ind.Ct.App. 1981) (citing, inter alia, Nate
v. Galloway, 408 N.E.2d 1317 (Ind.Ct.App. 1980)).
Contrary to what Appellees suggest, "eviction is not a
prerequisite for a recovery of damages based on the
landlord's breach" of the covenant. Nate,
408 N.E.2d at 1321. Indeed, as the Nate court
observed, "[i]t is not fair or logical to allow the
timid tenant, who easily succumbs to the landlord's
intimidation and vacates the premises, to recover damages,
and yet deny damages to the stalwart tenant who is aware of
his legal rights and refuses to be intimidated or driven from
his home." Id. at 1322.
Husainy alleged that Appellees breached the covenant of quiet
enjoyment by "fail[ing] to maintain the premises in good
and proper order." Appellant's App. Vol. 2 at 114.
The trial court gave the following final instruction to the
jury on the elements of Husainy's claim:
To recover damages from Granite and/or Jaffa, Husainy must
prove all of the following by the greater weight of the
1. The parties entered into a contract;
2. Husainy performed his part of the contract;
3. Granite and/or Jaffa failed to perform its part of the
4. Granite's and or Jaffa's breach damaged Husainy;
5. Granite's and/or Jaffa's breach was a responsible
causes [sic] of those damages.
Id. at 42. The verdict form indicates that the jury
found Appellees liable and assessed damages in the sum of
$4500, of which $0 were "also included in damages
assessed in favor of Husainy" and against Appellees on
his Section 32-31-8-5 claim. Id. at 35. In its order
on Appellees' motion to correct error, the trial court
found "that the jury verdict is not supported by the
evidence. Husainy presented no evidence of actual damages and
further, counsel for Husainy in final argument, argued that
Husainy was merely inconvenienced by certain maintenance
issues during his occupancy." Appealed Order at 1.
"Damages are particularly a jury determination."
Prange v. Martin, 629 N.E.2d 915,
922 (Ind.Ct.App. 1994), trans. denied. "No
particular degree of mathematical certainty is required in
awarding damages." Greives v. Greenwood, 550
N.E.2d 334, 339 (Ind.Ct.App. 1990). "We will not deem a
verdict to be the result of improper considerations, unless
it cannot be explained on any other reasonable ground."
Prange, 629 N.E.2d at 922. "Our inability to
look into the minds of jurors and determine how they computed
an award is, to a large extent, the reason behind the rule
that a verdict will be upheld if the award falls within the
bounds of the evidence." Weinberger v. Boyer,
956 N.E.2d 1095, 1113 (Ind.Ct.App. 2011), trans.
denied (2012). "[I]f there is any evidence in the
record which supports the amount of the award, even if it is
variable or conflicting, the award will not be
disturbed." Prange, 629 N.E.2d at 922.
Appellees observe that Husainy's claim "was based
upon a contractual relationship" and assert that
"rules for the recovery of damages under contract
applies [sic]." Appellees' Br. at 27, 28. Appellees
further assert that "[t]he measure of damages in a
breach of contract case is the loss actually suffered by the
breach." Id. at 28 (citing Colonial
Discount Corp. v. Berkhardt, 435 N.E.2d 65, 66
(Ind.Ct.App. 1982)). One legal treatise states that in cases
where an interference with quiet enjoyment is not an
eviction, "actual damages are measured by the difference
between the value of what the lessee should have received and
the value of what he or she did receive." 49 Am. Jur. 2d
Landlord and Tenant § 486 (Aug. 2019 update).
Pursuant to the lease agreement, Granite was responsible for
furnishing water and gas. Ex. Vol. at 15. Husainy testified
about frequent interruptions of cold and/or hot water
service,  which compelled him to purchase bottled
water in bulk at the gas station and shower at a college
recreational center and at friends' homes, as well as
multiple heating outages during cold weather. He supported
this testimony with email correspondence between him and
Granite representatives regarding these problems. Husainy
testified that a case of bottled water would cost
"about" $5 or $6, "depending on the water[,
]" and that he had to make such purchases "over 10
times, 20 times probably, maybe more." Tr. Vol. 4 at
188. The jury awarded Husainy damages equivalent to six
months' rent, including his parking fee ($750 × 6 =
$4500). Given the numerous interruptions of and difficulties
with the building's water and heating service, we cannot
conclude that the jury's damages award falls outside the
bounds of the evidence presented at trial. Accordingly, we
conclude that the trial court abused its discretion in
granting Appellees' motion to correct error on
Husainy's breach of quiet enjoyment claim. We therefore
reverse and remand with instructions to reinstate the
jury's verdict on that claim.
2 - The trial court did not abuse its discretion in denying
Appellees' motion to correct error on Husainy's
Section 32-31-8-5 claim.
Next, we address Appellees' contention that the trial
court abused its discretion in denying their motion to
correct error on Husainy's claim based on ...