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FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ROBERT R. FAULKNER Evansville, Indiana

ATTORNEY FOR APPELLEE: ROBERT P. CARITHERS Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
THOMAS E. STARKS and HERMAN C. PRICE, ) ) Appellants, ) ) vs. ) ) VILLAGE GREEN APARTMENTS, ) ) Appellee. )

No. 82A01-0510-CV-461

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Mary Margaret Lloyd, Judge Cause No. 82D03-0403-CC-1206

September 28, 2006

OPINION - FOR PUBLICATION

FRIEDLANDER, Judge

Thomas E. Starks and Herman C. Price (Lessees) appeal a grant of summary judgment in favor of Village Green Apartments (Village Green) and the denial of their cross-motion for summary judgment in Village Green's lawsuit to recover damages stemming from the breach of an apartment lease. Lessees present the following restated issues for review: 1. Did the trial court err in basing its ruling on briefs submitted by Village Green that had been stricken pursuant to Lessees' motion? Did the trial court err in granting Village Green's motion for summary judgment and in denying Lessees' cross-motion for summary judgment?

2.

We reverse and remand with instructions. The facts favorable to the nonmoving party are that Thomas D. Starks and Jeremy C. Price (hereinafter collectively referred to as "the sons") were going to attend college in Evansville, Indiana in the 1998-99 school year. Their fathers, the appellants in this action, rented an apartment for them at the Village Green Apartments. The lease was signed by Lessees and their sons on June 6, 1998. It is a uniform Village Green Apartments lease agreement, appearing on Village Green Apartments stationary. states, in pertinent part: RESIDENTIAL LEASE This lease is entered into on June 4, 1998, by and between THOMAS E. STARKS HERMAN CURTIS PRICE It

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as Resident(s), and Village Green Apartments, as Lessor, on the apartment located at 18-2612 EFFINGHAM DR. Evansville, Indiana 47715 Resident(s) covenant and agree that, unless an additional child be born to Resident(s) during tenancy, only the following persons will occupy the premises in addition to the Resident(s) listed above: THOMAS D. STARKS JEREMY C. PRICE

The initial term of this lease shall commence on June 6, 1998 and end on June 30, 1999. Appellant's Appendix at 10. Thomas E. Starks and Henry Curtis Price placed their initials above the dates listed with respect to the duration of the lease. The lease called for a security deposit of $300, a first month's rent of $412, and $494 monthly rent for the remainder of the lease period. In conjunction with the lease application, Lessees

completed a form, expressly "considered part of the lease agreement," id. at 21, that listed their current addresses. Lessees also signed, on June 6, 1998, a "Cablevision Addendum" whereby they agreed to pay $20 for the first month's cable television bill, and $24 per month for cable television thereafter. Those fees were included in the total rent listed above. The sons apparently occupied the apartment for a short time, but vacated sometime in August 1998 and apparently returned to their fathers' respective houses. Rent on the apartment was paid through September 1998, but not thereafter. In October 1998, the

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sons both returned to Evansville and saw what they interpreted as indications the apartment was occupied by someone else. On October 22, 1998, Village Green sent a security deposit notice addressed to "Thomas Starks" to the address of the rental unit Lessees had rented. Id. In it, Village Green claimed Lessees had breached the lease and therefore owed $4320.50 in damages, including $4230 in unpaid rent for the balance of the lease period, $300 in "forfeit deposit

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