FOR PUBLICATION


                                                       FILED
                                                    Oct 05 2012, 9:21 am
ATTORNEYS FOR APPELLANT:

SCOTT A. TANNER                                             CLERK
                                                          of the supreme court,
                                                          court of appeals and
DONALD W. MCINNIS                                                tax court


Tanner Law Group
Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

HEARTLAND CROSSING FOUNDATION,              )
INC.,                                       )
                                            )
     Appellant-Plaintiff,                   )
                                            )
            vs.                             )   No. 55A01-1203-SC-119
                                            )
CHRIS M. DOTLICH,                           )
                                            )
     Appellee-Defendant.                    )


                  APPEAL FROM THE MORGAN SUPERIOR COURT
                      The Honorable Jane Spencer Craney, Judge
                     The Honorable Brian H. Williams, Magistrate
                          Cause No. 55D03-1110-SC-1539


                                  October 5, 2012

                            OPINION - FOR PUBLICATION

BAILEY, Judge
                                     Case Summary

       Appellant-Plaintiff Heartland Crossing Foundation, Inc. (“Heartland”) appeals the

small claims court’s judgment in favor of pro-se Appellee-Defendant Chris Dotlich

(“Dotlich”) on Heartland’s breach of contract claim. Heartland presents one issue for our

review: whether the small claims court’s judgment for Dotlich was clearly erroneous.

       We affirm.

                             Facts and Procedural History

       On April 9, 2003, Dotlich took title to his property at 13227 North Becks Grove

Court, Camby, Indiana (“the Property”). The Property is part of the Commons at Heartland

Crossing subdivision in Morgan County, Indiana (“Heartland Crossing”), and is subject to

the Master Declaration of Covenants, Conditions, Easements and Restrictions of Heartland

Crossing (“the Declaration”). (App. at 13.) Heartland is a homeowner’s association that

administers Heartland Crossing, and enforces the Declaration. Under the terms of the

Declaration, Dotlich assented to pay homeowner’s association dues (“dues”), “late charges

from the date first due and payable, all costs of collection, reasonable attorney’s fees and

paraprofessional fees actually incurred, and any other amounts provided or permitted by

law[.]” (App. at 18.) Dotlich owed dues of $182.50 semiannually, payable to Heartland on

January 1 and May 1 of each year. (Tr. at 5; App. at 37.)

       When Dotlich paid his dues late on several occasions, Heartland on several occasions

charged him late fees equal to almost 33% of each dues payment, a flat-rate attorneys’ fee

equal to almost 50% of each dues payment, and a $50 “administrative fee.” (App. at 36-37.)


                                             2
Dotlich fell further behind on his payments, and the late fees, attorneys’ fees, and

administrative fees accumulated. Id.

        On October 4, 2011, Heartland filed a complaint against Dotlich in the Morgan

Superior Court alleging breach of contract, and seeking payment of the $50 administrative

fee, additional attorneys’ fees of $795.10, and court costs. The trial court conducted a bench

trial on March 7, 2012, and on March 14, 2012, it entered a judgment for Dotlich on

Heartland’s contract claim. Heartland filed this appeal on March 20, 2012.

                                     Discussion and Decision

                                         Standard of Review

        Initially, we observe that Dotlich did not file an appellee’s brief. Under such a

circumstance, we do not undertake to develop an argument on his behalf, and we may reverse

upon Heartland’s prima facie showing of reversible error. Carter v. Grace Whitney Props.,

939 N.E.2d 630, 633 (Ind. Ct. App. 2010) (internal quotations and citations omitted). In this

context, prima facie error means “at first sight, on first appearance, or on the face [of] it.” Id.

at 633-34 (internal quotations and citations omitted).

        The claim was tried before the bench in small claims court, and the trial court issued

findings of fact and conclusions of law pursuant to Indiana Trial Rule 52.1 Our standard of

review in small claims cases is particularly deferential in order to preserve the speedy and

informal process for small claims. City of Dunkirk Water & Sewage Dep’t v. Hall, 657


1
  Judgments in small claims actions are “‘subject to review as prescribed by relevant Indiana rules and
statutes.’” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006) (quoting Ind. Small Claims
Rule 11(A)).

                                                    3
N.E.2d 115, 116 (Ind. 1995). In reviewing a bench trial, we will not set aside the findings or

judgment unless clearly erroneous. Indiana Trial Rule 52(A); Trinity Homes, LLC v. Fang,

848 N.E.2d 1065, 1068 (Ind. 2006). The small claims court is the sole judge of the evidence

and the credibility of witnesses, and on appeal we neither reweigh the evidence nor assess the

credibility of the witnesses. City of Dunkirk Water & Sewage Dep’t, 657 N.E.2d at 116. If

the court rules against the party with the burden of proof, as here, it enters a negative

judgment that we may not reverse for insufficient evidence unless “the evidence is without

conflict and leads to but one conclusion, but the court reached a different conclusion.” Eppl

v. DiGiacomo, 946 N.E.2d 646, 649 (Ind. Ct. App. 2011).


                                           Analysis

       Here, the small claims court denied Heartland’s recovery of the $50 administrative fee

after finding it was not a cost actually incurred by Heartland, was without basis, and was

“nothing more than an abusive junk fee.” (App. at 4.) Additionally, the trial court denied

Heartland’s recovery of additional attorneys’ fees of $795.10 and court costs after finding the

attorneys’ fees and court costs were based solely on the $50 administrative fee, to which

Heartland was not entitled.

       The evidence most favorable to the judgment discloses that Heartland had a history of

assessing repetitive and cumulative fees during each effort to collect late dues, including late

fees equal to almost 33% of each dues payment, a flat-rate attorneys’ fee equal to almost 50%

of each dues payment, and a $50 administrative fee. (App. at 36-37.) While Section 10.6 of

the Declaration allows for assessment of dues, “late charges from the date first due and

                                               4
payable, all costs of collection, reasonable attorney’s fees and paraprofessional fees actually

incurred, and any other amounts provided or permitted by law[,]” the text of the Declaration

contains no provision explicitly allowing assessment of an “administrative fee.” (App. at

18.) Because this is a contract,2 and we construe contracts strictly against Heartland, the

drafter,3 we, like the small claims court, decline to read into the Declaration an

“administrative fee” provision.

        Furthermore, as of the time of the trial, the only fee Dotlich had yet to pay was the $50

administrative fee. (Tr. at 9.) The evidence most favorable to the judgment discloses that

Heartland, by recovering late fees and attorneys’ fees from Dotlich, already recovered the

“costs of collection” and “reasonable attorney’s fees and paraprofessional fees actually

incurred[.]” (App. at 18.) Therefore, under the terms of the Declaration, nothing remains for

Heartland to recover. Because Heartland’s request for attorneys’ fees of $795.10 and court

costs hinges solely on the baseless $50 administrative fee, Heartland can recover neither

additional attorneys’ fees nor court costs. To the extent Heartland argues that sufficient

evidence exists to support a finding in its favor, it asks us to reweigh the evidence, which we

cannot do. City of Dunkirk Water & Sewage Dep’t, 657 N.E.2d at 116.

                                               Conclusion

        The evidence most favorable to the judgment supports the trial court’s conclusion that

2
  A restrictive covenant is an express contract between grantor and grantee that restrains the grantee’s use
of his land. Villas W. II of Willowridge Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278
(Ind. 2008), cert. denied.
3
 Any ambiguity in a contract is construed against its drafter. Smith Barney v. StoneMor Operating LLC,
953 N.E.2d 554, 558 (Ind. Ct. App. 2011), aff’d on rehearing, 959 N.E.2d 309 (Ind. Ct. App. 2011), trans.
denied.

                                                      5
Dotlich does not owe Heartland the $50 “administrative fee,” costs, or $795.10 in attorneys’

fees. Therefore, the trial court’s judgment for Dotlich is not clearly erroneous.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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