      MEMORANDUM DECISION
                                                                                 FILED
      Pursuant to Ind. Appellate Rule 65(D), this                           Sep 28 2017, 8:10 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                         CLERK
                                                                             Indiana Supreme Court
      purpose of establishing the defense of res judicata,                      Court of Appeals
                                                                                  and Tax Court
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Kristopher G. Richter                                     Marcellus M. Lebbin
      South Bend, Indiana                                       Trevor Q. Gasper
                                                                Hilary R. Johnson
                                                                May Oberfell Lorber
                                                                Mishawaka, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kristopher G. Richter,                                   September 28, 2017

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               71A04-1610-SC-2526
              v.                                               Appeal from the St. Joseph Superior
                                                               Court.
                                                               The Honorable Paul E. Singleton,
      Laurenz Place, LLC,                                      Magistrate.
      Appellee-Defendant.                                      Trial Court Cause No.
                                                               71D02-1606-SC-5542




      Shepard, Senior Judge

[1]   Appellant Kristopher G. Richter appeals the trial court’s judgment against him

      in his small claims action against his landlord, Laurenz Place, LLC.

      Concluding that Richter was a tenant under the landlord-tenant statutes, we

      reverse and remand with instructions to consider the costs he bore as a result of


      Court of Appeals of Indiana | Memorandum Decision 71A04-1610-SC-2526 | September 28, 2017      Page 1 of 7
      his landlord’s failure to afford him the statutory protections to which he was

      entitled under Indiana law.


                               Facts and Procedural History
[2]   On April 28, 2012, Kaylie Sexton entered into a lease agreement for an

      apartment with Park Jefferson Realty, LLC, the predecessor of Laurenz Place,

      LLC. On April 30, 2013, a second lease was executed with Park Jefferson.

      This lease was signed and initialed by both Kaylie Sexton and Kristopher

      Richter.


[3]   On January 1, 2016, the leasehold having expired, Sexton and Richter moved

      out. Thereafter, Laurenz Place conducted a routine inspection of the apartment

      to assess damages. Following the inspection, it sent an itemized bill for

      damages to Sexton, but not to Richter. Richter attempted to obtain an

      itemization of the damages, but Laurenz Place would not release the

      information to him. Unable to obtain a copy of the itemized charges, Richter

      hired counsel to do so.


[4]   After receiving the notice of damages from Laurenz Place, Sexton sued Richter.

      She won a judgment against him for a portion of the amount. Sexton’s lawsuit

      prompted Richter to bring the current action against Laurenz Place, in which he

      (1) claimed that he was a tenant and therefore should have received notice of

      the alleged damages, (2) disputed some of the damages, and (3) asserted he was

      wrongly denied access to the apartment in December 2015. He requested



      Court of Appeals of Indiana | Memorandum Decision 71A04-1610-SC-2526 | September 28, 2017   Page 2 of 7
      money damages, filing fee, attorney fees, and transcript fees. After a bench

      trial, the court entered judgment against Richter.


                                                     Issue
[5]   Richter enumerates six issues for our review. We consolidate and restate the

      dispositive issue as: whether the trial court erred by determining Richter was

      not a “tenant” within the meaning of the landlord-tenant provision of the

      Indiana Code.




                                   Discussion and Decision
[6]   Implicit in the small claims court’s judgment, and the crux of this case, is the

      determination that Richter was not a tenant of Laurenz Place. Small claims

      court judgments are “subject to review as prescribed by relevant Indiana rules

      and statutes.” Ind. Small Claims Rule 11(A). Pursuant to Trial Rule 52(A), we

      review the facts determined in a bench trial under the clearly erroneous

      standard of review, with due regard given to the opportunity of the trial court to

      assess witness credibility. Hamilton v. Schaefer Lake Lot Owners Ass’n, Inc., 59

      N.E.3d 1051 (Ind. Ct. App. 2016). This deferential standard of review is

      particularly important in small claims actions where trials are informal and

      where the sole objective is to dispense speedy justice between the parties

      according to the rules of substantive law. Morton v. Ivacic, 898 N.E.2d 1196

      (Ind. 2008); Ind. Small Claims Rule 8(A).




      Court of Appeals of Indiana | Memorandum Decision 71A04-1610-SC-2526 | September 28, 2017   Page 3 of 7
[7]    For the purposes of landlord-tenant relations, Indiana Code section 32-31-3-10

       (2002) defines the term “tenant” as “an individual who occupies a rental unit:

       (1) for residential purposes; (2) with the landlord’s consent; and (3) for

       consideration that is agreed upon by both parties.”


[8]    The evidence at trial showed that a one-year lease, executed on April 28, 2012,

       was signed and initialed only by Sexton. The first page of the lease designates

       Sexton as “Resident” and Richter as an authorized occupant. Ex. 1, p. 1. On

       the last page of the lease, Sexton signed as “Resident.” Id. at 3. On the

       Clubhouse Addendum to the lease, Sexton signed as “Leaseholder” and was

       noted as having been issued one club membership card. Id. at 4.


[9]    A subsequent lease was executed on April 30, 2013, with the word “Renewal”

       handwritten at the top of the first page. Id. at 9. Although the first page of this

       lease also identifies Sexton as “Resident” and Richter as an authorized

       occupant, each page of the lease was initialed by both Sexton and Richter, and

       both of them signed the last page of the lease under the “Resident” column. Id.

       at 9-11. In addition, both Sexton and Richter signed the Clubhouse Addendum

       to the 2013 lease as “Leaseholder” and both received club membership cards.

       Id. at 12.


[10]   In as much as Laurenz Place provided the contract for Richter to sign and

       initial, the lease terms and their meaning for purposes of resolving later disputes

       are strictly construed against the party who drafted and furnished the

       agreement. Vertucci v. NHP Mgmt. Co., 701 N.E.2d 604 (Ind. Ct. App. 1998).


       Court of Appeals of Indiana | Memorandum Decision 71A04-1610-SC-2526 | September 28, 2017   Page 4 of 7
[11]   Other evidence at trial reflected on whether Richter was a “tenant” under

       section 32-31-3-10.


[12]   Richter testified that the previous management company with whom he signed

       the lease explained to him that he was indeed a leaseholder. He further testified

       that he paid rent, and he presented evidence of other payments to the landlord.

       For instance, Plaintiff’s Exhibit 5 is a receipt from Laurenz Place with his name

       typewritten in both the “Bill To” and “Customer Name” lines. The receipt

       notes that on July 31, 2015, and August 26, 2015, Richter paid door

       replacement charges for the apartment.


[13]   To be a “tenant” under the pertinent section of the Code, Richter must have

       occupied the premises “for residential purposes.” On that, there is no dispute.

       Second, he must have occupied with the landlord’s consent. It is plain that he

       did. Third, there must have been consideration for this occupancy agreed upon

       by both parties. Construing the leases between the parties strictly against

       Laurenz Place and doing so in the context of the other evidence at trial, it is

       apparent that there was an agreement on monthly rent and the like.

       Accordingly, it was clearly erroneous to determine that Richter was not a

       “tenant” as that term is defined in Indiana Code section 32-31-3-10. He was.


[14]   The tenant rights Richter held as a tenant are set forth in Indiana Code sections

       32-31-3-12 and -14 (2002) and 32-31-5-6 (2007). Section 32-31-3-12 requires

       that, upon termination of a lease, the landlord must return to the tenant(s) the

       security deposit less any amount applied to the payment of accrued rent,


       Court of Appeals of Indiana | Memorandum Decision 71A04-1610-SC-2526 | September 28, 2017   Page 5 of 7
       damages, and unpaid utility charges. It further requires that any damages be

       specifically itemized in a written notice as mandated by section 14. If the

       landlord fails to comply with these requirements, the tenant(s) may recover all

       of the security deposit and a reasonable attorney fee. Section 32-31-3-14

       requires that, within forty-five days after termination of occupancy, a landlord

       must mail to the tenant(s) an itemized list of damages claimed.


[15]   In addition, Indiana Code section 32-31-5-6 prohibits a landlord from

       interfering with a tenant’s access to or possession of the tenant’s apartment.


[16]   Relying on its contention that Richter was merely an occupant and not a

       tenant, Laurenz Place does not dispute that it did not send him an itemized list

       of damages and that it denied him access to the apartment. See Appellee’s Br.

       p. 7, Tr. pp. 32-33, Ex. 3, 9; Appellee’s Br. pp. 6, 15, Tr. pp. 25-26. However,

       we conclude today that Richter was a tenant who should have been afforded all
                                             1
       of the corresponding rights.




       1
        In his brief to this Court, Richter also asserts a claim of negligence against Laurenz Place and alleges error
       with the trial court’s pre-trial denial of his motion to consolidate. The negligence claim was not included in
       Richter’s Notice of Claim, and neither of these claims were presented at trial; they are thus waived. See
       Commitment of T.S. v. Logansport State Hosp., 959 N.E.2d 855 (Ind. Ct. App. 2011) (stating long-held rule that
       party may not present argument or issue to appellate court that was not raised in trial court), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1610-SC-2526 | September 28, 2017            Page 6 of 7
                                                Conclusion
[17]   For the reasons stated, we conclude that under this lease Richter was a tenant,

       as that term is defined in Indiana Code section 32-31-3-10, yet he was not

       afforded the corresponding statutory rights.


[18]   Reversed and remanded with instructions to consider the costs experienced by

       Richter as a result of Laurenz Place’s failure to afford him the rights to which

       he was entitled as a tenant, enter judgment against Laurenz Place for that

       amount, and determine the amount of attorney fees this failure cost Richter.


       Vaidik, C.J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1610-SC-2526 | September 28, 2017   Page 7 of 7
