Delmar P. Kuchaes v. Public Storage, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 21 2016, 7:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Delmar P. Kuchaes Jeffrey J. Mortier
Whiteland, Indiana Maggie L. Smith
Blake N. Shelby
Frost Brown Todd LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Delmar P. Kuchaes, December 21, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1603-PL-546
v. Appeal from the
Marion Superior Court
Public Storage, Inc., The Honorable
Appellee-Defendant. James A. Joven, Judge
Trial Court Cause No.
49D13-1203-PL-12284
Kirsch, Judge.
[1] Delmar P. Kuchaes (“Kuchaes”) appeals the trial court’s order granting
summary judgment in favor of Public Storage, Inc. (“Public Storage”) and
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denying his motion for partial summary judgment. This case arose when
Kuchaes failed to pay rent on his storage unit that he rented from Public
Storage. Pursuant to statute and the agreement signed by the parties, Public
Storage sent Kuchaes notice that, unless he paid the full amount due within
thirty days, the contents of the storage unit would be sold at a public auction.
Kuchaes never paid the amount owed on his account, and Public Storage sold
the property. Kuchaes raises the following issues for our review:
I. Whether the trial court properly granted Public Storage’s
motion for summary judgment because Public Storage complied
with the requirements contained in Indiana Code section 26-3-8-
12(c);
II. Whether Indiana Code section 26-3-8-14 is applicable in the
present case;
III. Whether Kuchaes waived any argument based on
commercial reasonableness and good faith by failing to raise
those issues during the summary judgment proceedings; and
IV. Whether Public Storage assumed a duty by creating an
internal checklist for employees concerning lien procedures and
committed negligence when selling Kuchaes’s property because
the internal checklist was not followed.
[2] We affirm.
Facts and Procedural History
[3] On June 10, 2009, Kuchaes and Public Storage entered into a rental agreement
(“the Agreement”) for the rental of a storage unit at Public Storage’s facility in
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Marion County, Indiana for the storage of Kuchaes’s personal property. The
Agreement provided, “Renter shall pay Owner as a monthly rent, without
deduction, prior notice, demand or billing statement, the sum noted above (plus
any applicable tax imposed by any taxing authority) in advance on the first day
of each month.” Appellant’s App. at 26. The Agreement also included language,
contained in paragraph 6, and appearing in bold and all capital letters, that
granted Public Storage a contractual lien on all personal property stored in the
unit and stated that, upon a renter’s default, Public Storage “shall have all of the
remedies of a lien holder available under Indiana law, including without
limitation, the right to take possession of said personal property.” Id. at 27.
This paragraph also granted Public Storage “the right to sell that personal
property at a private sale or public auction and apply the proceeds thereof to the
debt of the renter.” Id. This paragraph ends with a space for the renter to initial
and affirmatively acknowledge that “he understands and agrees to the
provisions of the paragraph.” Id. Kuchaes initialed the paragraph, and he
likewise initialized the end of the Agreement, acknowledging that he had read,
was familiar with, and agreed to all of the provisions of the Agreement. Id. at
28.
[4] After entering into the Agreement, Kuchaes paid his rent for the first few
months, but failed to pay his rent on October 1 and then again on November 1,
2009. Public Storage attempted to contact Kuchaes by letter and phone on five
different occasions about his failure to pay rent. The letters were sent to the
address listed on the Agreement and were returned as “unable to forward.” Id.
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at 76-77. The phone calls resulted in messages that were not returned, and an
alternate number that Kuchaes had given was disconnected. On November 17,
2009, Kuchaes paid his rental arrearage for October and November, but failed
to pay the late fees associated with the unpaid rent. He also provided Public
Storage with written notice of a new mailing address and new email address,
but no new phone number. Public Storage tried to contact Kuchaes three times
between November 17 and December 1, 2009 regarding the unpaid late fees,
but Kuchaes did not respond to messages left.
[5] On December 1, 2009, Kuchaes again failed to pay his rent. Public Storage
attempted to contact him eight times in December about the arrearages. On
January 1, 2010, Kuchaes again failed to pay his rent, and Public Storage tried
to contact him seven different times in January regarding his arrearages for
January and December rents and the late fees from October and November.
On January 15, 2010, a “Notice of Lien” was mailed to Kuchaes, and the
contents of his storage unit were set to go to auction on March 2, 2010 if the
arrearages were not paid. Id. at 73, 76. Kuchaes contacted Public Storage on
January 28, 2010 and told Public Storage that he had paid his rent in December
and January and that he would come in the next day with the receipt to prove
it. Kuchaes never went to Public Storage or provided proof that he had paid his
rent as claimed. Kuchaes later admitted that he never made any rent payments
after November 13, 2009. Suppl. App. at 19.
[6] Kuchaes again failed to pay his rent on February 1, 2010. Public Storage tried
to contact Kuchaes at the beginning of February, but was unable to reach him
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until February 15. At that time, Kuchaes told Public Storage that he had
mailed his rent check the previous Friday and that, if it was not received by the
next day, Public Storage should call him back. Public Storage never received a
check.
[7] On February 22, 2010, Public Storage sent Kuchaes another “Notice of
Enforcement of Owner’s Lien – Notice of Sale” (“the Notice”). Appellant’s App.
at 143. The Notice informed Kuchaes that, unless he paid the full amount due
within thirty days, the lien would be enforced and his property would be sold at
public auction on March 26, 2010. Id. The Notice was sent to Kuchaes via
regular mail and certified mail, and Kuchaes received the Notice via regular
mail. Suppl. App. at 19. The post office eventually returned the certified mail
copy on March 22, 2010 as unclaimed. Id. at 75. Kuchaes never responded to
the Notice, never paid his outstanding balance, and then failed to pay his rent
on March 1, 2010, which meant that, at that time, Kuchaes owed late fees from
October and November, 2009 and rent from December, January, February, and
March, resulting in a default that exceeded 150 days.
[8] Public Storage continued to try to reach Kuchaes by phone eleven different
times between February 22, 2010 and March 26, 2010, but did not succeed in
reaching him. Id. On March 15, 2010, Public Storage advertised the sale of
Kuchaes’s property in the newspaper. Kuchaes failed to pay his outstanding
balance by March 24, 2010, which was thirty days after the Notice was sent,
and the contents of Kuchaes’s storage unit were sold at a public auction on
March 26, 2010. After paying the outstanding balance owed by Kuchaes,
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$64.32 remained from the proceeds of the sale, and that amount was forwarded
to Kuchaes after the auction. Kuchaes made contact with Public Storage a
week after the auction. On April 8, 2010, Public Storage, on behalf of Kuchaes,
made contact with the person who bid on Kuchaes’s property, and the bidder
indicated that he still had some of the boxes from the storage unit and agreed to
drop them off at Public Storage for Kuchaes to pick up.
[9] On March 26, 2012, Kuchaes filed a complaint against Public Storage for
breach of contract, negligence, and intentional tort and asking for punitive
damages. On July 31, 2014, Public Storage filed a motion for summary
judgment on all of Kuchaes’s claims. Kuchaes filed a cross-motion for partial
summary judgment. Thirty-four days after Public Storage filed its motion for
summary judgment, on September 3, 2014, the trial court granted Public
Storage’s motion in its entirety. The next day, the trial court received several
filings from Kuchaes, including a brief in opposition to Public Storage’s
summary judgment, a designation of evidence, and a request for a hearing on
all pending motions. Although these filings were considered filed as of
September 2, 1014, they were not actually received until September 4, the day
after the trial court ruled on the motions. Kuchaes filed an appeal, and a panel
of this court reversed, finding that the trial court acted prematurely. The case
was remanded with instructions for the trial court to conduct a hearing on the
summary judgment motions and to consider all of the parties’ timely-filed
materials. On remand, a hearing was held, and the trial court entered summary
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judgment in favor of Public Storage. Kuchaes filed a motion to correct error,
which the trial court denied. Kuchaes now appeals.
Discussion and Decision
[10] When reviewing the grant of summary judgment, our standard of review is the
same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d
1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of
Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in
the shoes of the trial court and apply a de novo standard of review. Id. (citing
Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our
review of a summary judgment motion is limited to those materials designated
to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d
461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate
only where the designated evidence shows there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on
the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view
the pleadings and designated materials in the light most favorable to the non-
moving party. Id. Additionally, all facts and reasonable inferences from those
facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.
Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.
denied).
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[11] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. FLM, 973
N.E.2d at 1173. Where a trial court enters specific findings and conclusions,
they offer insight into the rationale for the trial court’s judgment and facilitate
appellate review, but are not binding upon this court. Id. We will affirm upon
any theory or basis supported by the designated materials. Id. When a trial
court grants summary judgment, we carefully scrutinize that determination to
ensure that a party was not improperly prevented from having his or her day in
court. Id.
I. Proper Effectuation and Enforcement of Lien
[12] Kuchaes argues that the trial court erroneously granted summary judgment in
favor of Public Storage. He contends that Public Storage did not properly
effectuate and enforce the lien on his property because the notice sent to him on
February 22, 2010 did not comply with Indiana Code section 26-3-8-12.
Specifically, Kuchaes alleges that the notice was not sent by registered or
certified mail, the language used in the notice is different from that in the
statute, and the notice of public sale was advertised prematurely.
[13] Indiana Code chapter 26-3-8 deals with Self-Service Storage Facilities, and
section 26-3-8-11 states that the owner of a self-service storage facility has a lien
on the personal property in the storage facility for rent and other charges
accrued under the rental agreement and that the lien attaches on the date the
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property is placed in the storage facility. Ind. Code § 26-3-8-11(a), (c). The
section also provides that every rental agreement must contain language, in
bold type, notifying the renter “of the existence of the lien and of the method by
which the owner may enforce the lien under this chapter.” Ind.Code § 26-3-8-
11(c).
[14] Here, paragraph 6 of the Agreement contained this pertinent information in
bold and all capital letters and notified Kuchaes that Public Storage had a lien
on all of the personal property he stored in the unit he rented and that, in the
event of his default, Public Storage had “all of the remedies of a lienholder
available under Indiana law, including without limitation, the right to take
possession of said personal property” and “the right to sell that personal
property at a private sale or public auction and apply the proceeds thereof to the
debt of the renter.” Appellant’s App. at 27. Kuchaes, who is an attorney who
practiced law for almost forty years, initialed paragraph 6, acknowledging that
he understood and agreed to the provisions in the paragraph. Id. He also
initialed a later paragraph in the Agreement acknowledging that he was familiar
with, and agreed to, all of the provisions in the Agreement. Id. at 28. “Under
Indiana law, a person is presumed to understand the documents which he or
she signs and cannot be released from the terms of a contract due to his or her
failure to read the documents.” Robert’s Hair Designers, Inc. v. Pearson, 780
N.E.2d 858, 869 (Ind. Ct. App. 2002). We, therefore, conclude that the lien
was properly effectuated.
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[15] Pursuant to the Agreement, Kuchaes was required to pay rent for his storage
unit monthly, on the first of every month. He did so for several months, but
failed to pay his rent in both October and November, 2009. Kuchaes later paid
the balance of his missed rent for October and November but never paid the late
fees that had accrued. He again failed to pay his rent for the months of
December, January, February, and March. As of February 2010, Kuchaes
owed late fees from October and November 2009 and rent for December 2009
and January and February 2010, which was a default of over 150 days.
[16] Indiana Code section 26-3-8-12 provides, in pertinent part, the proper procedure
to enforce a lien effectuated under section 26-3-8-11:
(a) After a renter has been in default continuously for thirty (30)
days, an owner may begin enforcement of the owner’s lien under
this chapter.
....
(c) An owner enforcing the owner’s lien shall send the renter, by
registered or certified mail (return receipt requested) addressed to
the last known address of the renter, a written notice that
includes:
(1) an itemized statement of the owner’s claim showing the
amount due at the time of the notice and the date when the
amount became due;
(2) a demand for payment of the amount due before a specified
time at least thirty (30) days after the date of the mailing of the
notice;
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(3) a statement that the contents of the renter’s rented space are
subject to the owner’s lien;
....
(6) the name, street address, and telephone number of the owner
or of any other person the renter may contact to respond to the
notice; and
(7) a conspicuous statement that unless the owner’s claim is paid
within the time stated under subdivision (2), the personal
property will be advertised for sale, or will be otherwise disposed
of, at a specified place and time, which must be at least ninety
(90) days after the renter’s default.
(d) Any sale or other disposition of the personal property to
enforce the owner’s lien must conform to the notice given under
subsection (c)(7).
[17] On February 22, 2010, Public Storage sent Kuchaes, via regular mail and
certified mail, the Notice, which informed him of the lien that Public Storage
had on his personal property. Appellant’s App. at 143. At that time, Kuchaes
had been in default of the Agreement for at least thirty days pursuant to the
statute; he had actually been in default for his failure to pay late fees for almost
150 days and in default for failure to pay rent for almost ninety days. The
Notice stated that, unless Kuchaes paid the balance due on his account within
thirty days, or by March 24, 2010, the lien would be enforced through the sale
of his personal property at a public auction on March 26, 2010. Id. The date of
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the auction was well past the ninety days after the renter’s default that was
required under Indiana Code section 26-3-8-12(c)(7).
[18] The Notice contained all of the information required under subsection (c), and
any slight variance of language from the statutory language did not change the
fact that the required pertinent language was included in the Notice. Public
Storage sent the Notice to Kuchaes via both regular mail and certified mail, and
Kuchaes admitted that he received the Notice through regular mail. Appellant’s
App. at 61-62; Suppl. App. at 19. The copy sent by certified mail was returned to
Public Storage by the post office as unclaimed on March 22, 2010. Appellant’s
App. at 75. Despite receiving the Notice, Kuchaes never responded and never
paid his outstanding balance before March 24, 2010. Public Storage, pursuant
to statute, sold the contents of Kuchaes’s storage unit at a public auction on
March 26, 2010. We conclude that Public Storage complied with the
requirements of Indiana Code section 26-3-8-12, and the trial court properly
granted summary judgment to Public Storage.
II. Indiana Code section 26-3-8-14
[19] Kuchaes next contends that the trial court erred when it granted summary
judgment because the manner in which Public Storage advertised the public
auction of Kuchaes’s property did not meet the requirements of Indiana Code
section 26-3-8-14. He claims that Public Storage’s March 15, 2010
advertisement violated section 26-3-8-14 because the sale was advertised prior
to the March 24, 2010 deadline. Kuchaes asserts that, pursuant to the statute,
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Public Storage could not advertise the public sale of his property until thirty
days after the Notice was sent on February 22, 2010, which would have been
March 24, and therefore, the sale could not have occurred until ten days after
that date of publication pursuant to the statute.
[20] Although Kuchaes argues that Public Storage’s advertisement of the public sale
violated Indiana Code section 26-3-8-14, that statutory section did not apply to
the present case. That section only applies when the storage facility does not
dispose of the renter’s property pursuant to the procedures in section 26-3-8-
12(c)(7). Section 26-3-8-14 states, in pertinent part:
(a) After the expiration of the time stated in the owner’s notice
under section 12(c)(2) of this chapter, if the personal property has not
been otherwise disposed of in a manner described in section 12(c)(7)(A)(ii)
or 12(c)(7)(B) of this chapter, an owner enforcing the owner’s lien
shall prepare for a sale of the personal property under this
section.
Ind. Code § 26-3-8-14 (emphasis added). In the present case, Public Storage
disposed of Kuchaes’s property in accordance with section 26-3-8-12(c)(7);
accordingly, section 26-3-8-14 was not applicable. Therefore, the requirements
set forth in section 26-3-8-14 had no bearing on this case, and Kuchaes’s
arguments concerning that section have no merit.
III. Commercial Reasonableness and Good Faith
[21] Kuchaes argues that the trial court erred in granting summary judgment in
favor of Public Storage because the sale of his property was not conducted in a
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commercially reasonable manner or in good faith. He claims that Public
Storage was required to hold the sale of his property in a commercially
reasonable manner pursuant to Indiana Code section 26-1-7-210(a) and that
whether the sale was conducted in such a manner depended on the
circumstances of the case and, therefore, raised a question of fact. Kuchaes also
contends that Public Storage was required to act in good faith in its dealings
with him pursuant to Indiana Code section 26-1-7-203 and that whether that
was done was a question of fact. He, thus, asserts that summary judgment was
not proper as to these two issues.
[22] Initially, we note that Kuchaes did not raise his arguments as to whether the
sale of his property was conducted in a commercially reasonable manner or
done in good faith to the trial court in the summary judgment proceedings.
“Issues not raised before the trial court on summary judgment cannot be argued
for the first time on appeal and are therefore waived.” Yoost v. Zalcberg, 925
N.E.2d 763, 770 (Ind. Ct. App. 2010), trans. denied. Kuchaes has, therefore,
waived any argument that the sale was not performed in a commercially
reasonable manner or that Public Storage did not act in good faith.1
1
Kuchaes, in his reply brief, contends that he did not have the burden to raise his commercially reasonable
argument during the summary judgment proceedings because he was not the party moving for summary
judgment. Kuchaes is correct that “[t]he initial burden is on the summary-judgment movant to demonstrate
the absence of any genuine issue of fact as to a determinative issue,” and that at that “point the burden shifts
to the non-movant to come forward with contrary evidence showing an issue for the trier of fact.” Gaff v.
Ind.-Purdue Univ. Fort Wayne, 51 N.E.3d 1163, 1165 (Ind. 2016). However, in the present case, Public Storage
moved for summary judgment and argued there was no genuine issue of material fact that it properly
effectuated and enforced its lien on Kuchaes’s property pursuant to Indiana Code section 26-3-8-12, which it
supported with designated evidence. Appellant’s App. at 35-44. Even if Kuchaes did not have the initial
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[23] Waiver notwithstanding, Kuchaes’s contention is without merit. He asserts
that Public Storage was required to conduct the sale of his personal property in
a commercially reasonable manner pursuant to Indiana Code section 26-1-7-
210(a). “This Article is a consolidation and revision of the Uniform Warehouse
Receipts Act and the Uniform Bills of Lading Act.” Ind. Code § 26-1-7-101,
UCC cmt. However, Kuchaes is not covered by this more general statutory
scheme, but instead by the more specific statutory scheme covering “Self-
Service Storage Facilities” located in chapter 26-3-8. This statutory chapter
applies to “any real property designed and used for the renting of space under a
rental agreement that provides a renter access to rented space for the storage
and retrieval of personal property.” Ind. Code § 26-3-8-9. Although section 26-
1-7-210 contained a requirement of commercially reasonable sale, the Self-
Service Storage Facilities statutory scheme does not. When language is used in
one section of a statute but omitted from others, courts indulge a general
presumption that the legislature acted intentionally and purposely in so doing.
Andrianova v. Ind. Family & Soc. Servs. Admin., 799 N.E.2d 5, 16 (Ind. Ct. App.
2003). We, therefore, conclude that the trial court correctly found that the
commercially reasonable standard did not apply to Public Storage.
[24] Likewise, the same is true with Kuchaes’s assertion that Indiana Code section
26-1-1-203 applied to the relationship between he and Public Storage. Section
burden to raise the commercially reasonable issue, he later filed a motion for partial summary judgment, in
which he had the burden to demonstrate the absence of any genuine issue of fact as to a determinative issue;
however, he did not raise the issue at that point either.
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26-1-1-203 states, “Every contract or duty within I.C. 26-1 imposes an
obligation of good faith in its performance or enforcement.” Again, we note
that Kuchaes is not covered by this more general statutory scheme, but instead
by the more specific statutory scheme covering “Self-Service Storage Facilities”
located in chapter 26-3-8. The language in section 26-1-1-203 does not appear
in chapter 26-3-8. Therefore, because such language was used in one section of
a statute but omitted from others, we presume that the legislature acted
intentionally and purposely in so doing. Andrianova, 799 N.E.2d at 16. The
trial court properly entered summary judgment in favor of Public Storage.
IV. Internal Checklist
[25] Kuchaes claims that the trial court erred in granting summary judgment in
favor of Public Storage because Public Storage promulgated an internal
checklist that detailed procedures its employees were to follow in enforcing a
lien against renters. He asserts that, by creating this checklist, Public Storage
assumed a duty to its renters to make sure that its employees complied with the
procedures contained in the checklist when foreclosing a lien. Kuchaes,
therefore, argues that whether Public Storage assumed this duty and the extent
of that duty were questions of fact, and summary judgement should not have
been granted.
[26] “Whether a duty exists and the extent of the duty owed is a matter of contract
interpretation, and we determine the intent of the parties as determined by the
language of the contract.” Hale v. R.R. Donnelley & Sons, 729 N.E.2d 1025, 1028
(Ind. Ct. App. 2000), trans. denied. “If a contract affirmatively evinces an intent
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to assume a duty of care, actionable negligence may be predicated upon the
contractual duty.” Id. In the present case, there is nothing in the Agreement
that referenced or incorporated the internal checklist into the contractual
agreement between Public Storage and Kuchaes. Therefore, as shown in the
language of the Agreement, the internal checklist was not evidence of a duty
assumed by Public Storage because it was not included in the Agreement. The
Agreement set out Public Storage’s obligations to Kuchaes, which included
compliance with “all applicable law in force at the time the agreement.” Geller
v. Kinney, 980 N.E.2d 390, 397 (Ind. Ct. App. 2012). Therefore, Public Storage
was obligated to comply with the applicable law in its Agreement with
Kuchaes, but was not obligated under the Agreement to comply with its
internal checklist. The trial court did not err in granting summary judgment in
favor of Public Storage and in denying Kuchaes’s motion for partial summary
judgment.2
[27] Affirmed.
May, J., and Crone, J., concur.
2
Kuchaes also argues that his damages should not be limited to $5,000 per the limitations of liability
provision in the Agreement. Because we conclude today that the trial court did not err in granting summary
judgment in favor of Public Storage, we find this argument to be moot.
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