      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be                                  Jul 18 2016, 9:08 am

      regarded as precedent or cited before any                                  CLERK
                                                                             Indiana Supreme Court
      court except for the purpose of establishing                              Court of Appeals
                                                                                  and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      William Perry McCall, III
      Mosley Bertrand and McCall
      Jeffersonville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Pinnacle Properties                                       July 18, 2016
      Development Group, LLC,                                   Court of Appeals Case No.
      Appellant-Defendant,                                      10A01-1512-SC-2143
                                                                Appeal from the Clark Circuit
              v.                                                Court
                                                                The Honorable Kenneth R.
      Sarah Oliver,                                             Abbott, Magistrate
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                10C03-1508-SC-1373



      Mathias, Judge.


[1]   Pinnacle Properties Development Group, LLC (“Pinnacle”) brought a small

      claims action against Sarah Oliver (“Oliver”), alleging that Oliver had failed to

      pay rent pursuant to a lease agreement executed by the parties. Pinnacle sought

      as damages the unpaid rent and unpaid utility bill and also sought possession of
      Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016           Page 1 of 8
      the apartment. The trial court entered judgment in favor of Oliver, and Pinnacle

      appeals, presenting one dispositive issue: whether the trial court erred by failing

      to follow the terms of the lease agreement.


[2]   We affirm.

                                     Facts and Procedural History

[3]   In 2014, Pinnacle and Oliver entered into a residential lease agreement (“the

      Lease”) for Oliver to rent a unit at an apartment complex on Tenth Street in

      Jeffersonville, Indiana. In July 2015, the area around Jeffersonville received

      heavy rainfall that resulted in flooding. The flooding damaged several air

      conditioning units, including the unit providing cooling to Oliver’s apartment.

      As a result, Oliver was without air conditioning in her apartment from July 12,

      2015 until August 12, 2015. Due to the summer heat, the temperatures in the

      apartment reached dangerous1 levels. In fact, Oliver testified that the

      temperature in the apartment got as high as 85° Fahrenheit at night, and it was

      “way hotter upstairs.” Tr. p. 21. This required Oliver and her four-year-old son

      to stay at her parents’ home.

[4]   Oliver repeatedly telephoned the Pinnacle’s property manager to inform them

      that the air conditioning was not working and to check on the status of the




      1
        See https://www.ready.gov/heat (noting dangers of high temperatures, especially for young children and
      the elderly).

      Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016           Page 2 of 8
      repairs. The air conditioning was not fixed until one month later, on August 12,

      2015.

[5]   Oliver had paid her July rent at the end of June, as was her habit. She paid by

      money order, as she always did. Oliver, however, did not pay her rent for

      August due to the fact that she was unable to reside in her apartment. She then

      paid her September rent as usual. It is unclear whether Pinnacle applied the

      September rent payment to the August rent it believes was due or the September

      rent. Either way, Pinnacle claims that Oliver owed one month’s rent.


[6]   Pinnacle filed a notice of claim against Oliver seeking $475 in rent owed for the

      month of August, plus $63.23 for an unpaid water and sewage bill, for a total of

      $538.23.2 Pinnacle also sought to evict Oliver. At the September 22, 2015 small

      claims trial, Pinnacle’s agent also claimed that Oliver owed $42 in late fees

      and/or $35 for an “NSF fee.” Tr. p. 8. Oliver admitted that she had not paid

      rent in August but claimed that she did so because her apartment was

      uninhabitable for one month. Oliver also testified that she always paid by

      money order and therefore could not have presented a check with insufficient

      funds. At the end of the hearing, the trial court took the matter under

      advisement.




      2
        At the small claims hearing, Pinnacle’s agent was unclear regarding whether Pinnacle sought to recover
      unpaid rent for one month or for both August and September. Compare Tr. p. 6 (Pinnacle’s agent testifying
      that Oliver owed August rent) with Tr. p. 9 (Pinnacle’s agent agreeing with the statement of Pinnacle’s
      counsel that it was seeking rent for August and September).

      Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016             Page 3 of 8
[7]   The following day, the trial court entered an order which provided in relevant

      part:

              Defendant had a legal right to withhold rent for the month of
              August, 2015 pursuant to Paragraph 9D of the Residential Lease
              Agreement and Indiana Code 32-31-8-5, as she was without air
              conditioning for approximately 30 days during the middle of the
              summer.

              IT IS, THEREFORE, ORDERED that Plaintiff’s request for
              damages and eviction are denied.


      Appellant’s Br. p. 16. Obviously displeased with this result, Pinnacle filed a

      motion to correct error on October 23, 2015. The trial court denied Pinnacle’s

      motion to correct error on October 30, 2015, with an order stating in relevant

      part:


              Comes now the Court, pursuant to the Motion To Correct Error
              filed by the Plaintiff and NOW Denies said Motion. Said denial
              is based upon the following findings that the Court deemed
              compelling based upon the testimony:
              1) On September 23, 2015, the Court entered a Judgment[.]
                                                 ***
              2) The testimony that the Court deemed compelling was:
                  A) that the air conditioning unit of the Defendant was
                  damaged during extensive flooding on July 12, 2015 and was
                  repaired as of August 12, 2015.
                  B) that the Plaintiff had paid her July, 2015 rent;
                  C) on or about July 12, 2015, the Defendant notified the
                  Plaintiff that her air conditioning unit was not operable.



      Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016   Page 4 of 8
              Because the Defendant was without air conditioning for 19 days
              in July, her July rent should have been abated for 19 days.
              Because it was not habitable for 12 days in August, she was also
              entitled to a rent abatement for 12 days. This totaled 31 days in
              rent abatement, thus, substantiating the Defendant’s refusal to
              pay the August rent.
              4) The Court’s rationale for not awarding the Plaintiff the rent
              that it was seeking was based upon rationale that the Plaintiff
              was legally not entitled to the rent under the terms of the Lease
              (Paragraph 9) AS WELL AS Indiana Code 32-31-8-5.
              5) While the Plaintiff argues that the Court committed error
              because the Defendant had not filed a counterclaim under
              Indiana Code 32-31-8-5. Such argument is ill-founded as the
              Court has not granted affirmative relief to the Defendant. It has
              only used the statute and the terms of the Lease Agreement as a
              rationale either for declaring that rent was not due pursuant to
              the terms of the Lease Agreement or for granting a set-off of any
              alleged rent default.

      Appellant’s Br. pp. 17-18. Pinnacle now appeals.


                                        Discussion and Decision

[8]   Pinnacle argues that the trial court erred by concluding that the trial court

      ignored the language of the Lease requiring Oliver to give written notice of any

      damage to her apartment unit that would render it uninhabitable. Because she

      did not, Pinnacle claims, the portions of the Lease permitting Oliver’s rent to

      abate due to habitability issues was never triggered.


[9]   To consider this claim requires us to consider the language of the Lease.

      However, Pinnacle has not provided this court with a copy of the Lease on

      appeal. In fact, Pinnacle has wholly failed to file either an Exhibits Volume or

      Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016   Page 5 of 8
       an Appendix. The only record before us consists of the transcript of the small

       claims trial.

[10]   Indiana Appellate Rule 49(A) clearly provides that “The appellant shall file its

       Appendix with its appellant’s brief.” (emphasis added). “The purpose of an

       Appendix in civil appeals . . . is to present the Court with copies of only those

       parts of the Record on Appeal that are necessary for the Court to decide the

       issues presented.” Ind. Appellate Rule 50(A). Furthermore, the appellant’s

       Appendix is required to contain copies of certain documents, if they exist,

       including:


               (a) the chronological case summary for the trial court or
               Administrative Agency;
               (b) the appealed judgment or order, including any written
               opinion, memorandum of decision, or findings of fact and
               conclusions thereon relating to the issues raised on appeal;
                                                   ***
               (f) pleadings and other documents from the Clerk's Record in
               chronological order that are necessary for resolution of the issues
               raised on appeal;
               (g) any other short excerpts from the Record on Appeal, in
               chronological order, such as essential portions of a contract or
               pertinent pictures, that are important to a consideration of the
               issues raised on appeal;
               (h) any record material relied on in the brief unless the material is
               already included in the Transcript[.]

       App. Rule 50(A)(2).




       Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016   Page 6 of 8
[11]   In the present case, Pinnacle bases its first claim wholly on the language of the

       Lease, a lease that is nowhere in the record before us. It is well settled that the

       duty of presenting a record adequate for intelligent appellate review of the

       issues raised by the appellant falls upon the appellant. Bambi’s Roofing, Inc. v.

       Moriarty, 859 N.E.2d 347, 352 (Ind. Ct. App. 2006) (citing Lasater v. Lasater, 809

       N.E.2d 380, 389 (Ind. Ct. App. 2004)).

[12]   Without a copy of the Lease before us, we are unable to conclude that the trial

       court erred in interpreting the Lease. For this reason, we must affirm the

       judgment of the trial court. See Yoquelet v. Marshall Cnty., 811 N.E.2d 826, 830

       (Ind. Ct. App. 2004) (affirming trial court’s grant of summary judgment in favor

       of defendant where appellant-plaintiffs failed to file an appendix containing the

       evidence designated to the trial court).3 Moreover, this court has held that the

       failure to include the relevant materials in an Appendix in a civil case is

       grounds for dismissal of the appeal. See Hughes v. King, 808 N.E.2d 146, 148

       (Ind. Ct. App. 2004) (dismissing civil appeal from summary judgment where




       3
         The author of this opinion dissented in Yoquelet. However, Yoquelet has since been cited with approval in
       numerous cases. See Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 999 (Ind. Ct. App. 2015);
       Haskin v. City of Madison, 999 N.E.2d 1047, 1051 n.2 (Ind. Ct. App. 2013); In re Garrard, 985 N.E.2d 1097,
       1103 (Ind. Ct. App. 2013); Ace Foster Care & Pediatric Home Nursing Agency v. Ind. FSSA, 865 N.E.2d 677, 681
       n.2 (Ind. Ct. App. 2007); Nolan v. Taylor, 864 N.E.2d 419, 422 n.8 (Ind. Ct. App. 2007) ; Bambi’s Roofing, Inc.
       v. Moriarty, 859 N.E.2d 347, 352 (Ind. Ct. App. 2006); City of Fort Wayne v. Pierce Mfg., Inc., 853 N.E.2d 508,
       509 (Ind. Ct. App. 2006); Potter v. Houston, 847 N.E.2d 241, 250 (Ind. Ct. App. 2006); Sims v. Town of New
       Chicago, 842 N.E.2d 830, 831 (Ind. Ct. App. 2006); Kelly v. Levandoski, 825 N.E.2d 850, 856 (Ind. Ct. App.
       2005). The author of this opinion follows Yoquelet on the grounds of stare decisis.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016                Page 7 of 8
       appellant’s Appendix contained only the trial court’s order and contained none

       of the materials designated to the trial court).4

[13]   Because we lack an adequate record, we are unable to conclude that the trial

       court erred in interpreting the Lease. See Yoquelet, 811 N.E.2d at 830.

       Furthermore, the trial court denied Pinnacle’s claim on two separate,

       independent grounds: the language of the Lease and Indiana Code section 32-

       31-8-5. Because we affirm the trial court on the former grounds, it is not

       necessary for us to address the latter grounds.5 We therefore affirm the

       judgment of the trial court.


[14]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       4
         We acknowledge that, pursuant to Appellate Rule 49(B), the “failure to include an item in an Appendix
       shall not waive any issue or argument.” Here, Pinnacle did not simply fail to include an item in an Appendix;
       it wholly failed to file an Appendix. We also recognize that our supreme court has held, in the context of
       criminal appeals, that “[t]he better practice for an appellate court to follow in criminal appeals where an
       Appendix is not filed or where an Appendix is missing documents required by rule is to order compliance
       with the rules within a reasonable period of time, such as thirty days.” Yoquelet, 811 N.E.2d at 830. (quoting
       Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001)). However, the holding in Johnson is limited to criminal
       cases. See Yoquelet, 811 N.E.2d at 830.
       5
         Moreover, one of Pinnacle’s arguments regarding Indiana Code section 32-31-8-5 is that Oliver never filed a
       claim or counterclaim under this section. Again, we are unable to review this claim without an Appellant’s
       Appendix, and under the facts and circumstances before us, we are unsympathetic to the claim. Oliver’s
       claim could be viewed as a set-off, which a party need not plead. See Henderson v. Sneath Oil Co., 638 N.E.2d
       798, 801-02 (Ind. Ct. App. 1994) (holding that trial court had discretion to consideration accounts with
       positive credits when arriving at the amount owed by the defendant even though defendant did not initiate a
       counter-claim or move to amend the pleadings).

       Court of Appeals of Indiana | Memorandum Decision 10A01-1512-SC-2143 | July 18, 2016              Page 8 of 8
