MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                      Feb 14 2019, 8:49 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
Demettress Burnett
Crown Point, Indiana



                                             IN THE

    COURT OF APPEALS OF INDIANA

Demettress Burnett,                                       February 14, 2019
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-SC-365
                                                          Appeal from the Lake Superior
        v.                                                Court
                                                          The Hon. Michael N. Pagano,
                                                          Magistrate
David Davis and Mari Davis,
                                                          Trial Court Cause No.
Appellees-Defendants.                                     45D09-1710-SC-2712




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019               Page 1 of 10
                                           Case Summary
[1]   Demettress Burnett appeals from a $270 judgment entered in her favor in her

      small-claims action against David and Mari Davis to recover the entire $1500

      security deposit she made when she rented a residence from them and for

      various other damages. Burnett claims that the trial court erred in allowing the

      Davises to file an untimely counterclaim and that its judgment was clearly

      erroneous in several respects. Because we conclude that Burnett has waived

      any challenge she might have had to the counterclaim and that the trial court’s

      judgment was not clearly erroneous, we affirm.


                            Facts and Procedural History
[2]   In 2017, Burnett was renting a Lake County residence from the Davises for a

      monthly rent of $1500. On July 11, 2017, the Davises sent a letter to Burnett,

      informing her that her lease would not be renewed and reminding her that her

      lease terminated on August 31, 2017. On August 25, 2017, Burnett informed

      the Davises that she would not be able to move out until September 8, 2017,

      and indicated that she believed that she would owe $50 per day in rent for each

      day she stayed past the expiration of the lease. On August 28, 2017, the

      Davises responded that Burnett’s request to hold over was approved but did not

      address the matter of rent. As it happens, a holdover provision in Burnett’s

      lease provided that she would be liable for the entire month’s rent for September

      of 2017. Burnett stayed in the residence until September 9 or 10, 2017, and

      paid the Davises $450 in rent for September.




      Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019   Page 2 of 10
[3]   On October 5, 2017, the Davises prepared an invoice for Burnett for over $1800

      in various charges. On or about November 9, 2017, Burnett filed a small-claims

      action against the Davises, seeking (1) the return of her $1500 security deposit,

      (2) $1575 as compensation for periods where part of the residence had allegedly

      been unusable, (3) approximately $1300 for medical bills caused by allegedly

      poor conditions, (4) approximately $800 in moving expenses, (5) approximately

      $280 for work missed to attend court, and (6) $400 for money spent on eating

      out due to the alleged presence of vermin and an allegedly malfunctioning

      stove. On November 17, 2017, the Davises prepared a second invoice,

      including approximately $1500 in charges for various items (including $25 for

      installing bulbs and a glass globe on a lighting fixture and $155 for a garage-

      door remote control and two keys which were not returned) and $1050 for back

      rent.

[4]   On November 29, 2017, trial was held in Burnett’s small-claims action against

      the Davises. Although the Davises apparently did not provide Burnett with the

      second invoice until the day of trial, she did not request a continuance to further

      investigate its contents. Following trial, the trial court issued the following

      order of judgment:

              This matter arises out of a now-terminated written lease agreement
              for the residence located at 10744 Pike, Winfield, IN. Tenant
              brings suit for the return of her security deposit, inter alia.
              Landlord claims more is owed than the security deposit.
              As to damages, the court would first note that damages must be
              reasonable. Furthermore, damages cannot be sought for pre
              existing [sic] conditions or for items that were not the fault of a
              tenant. Moreover, a Landlord cannot pursue damages for

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019   Page 3 of 10
         “normal wear and tear.” Normal wear and tear is defined as “the
         gradual deterioration of the condition of an object, which results
         from its appropriate use over time.” Miller v. Geels, 643 N.E.2d
         922, 927 (Ind. Ct. App. 1994). However, the accumulation of dirt
         and debris does not constitute normal wear and tear. Id.
         Additionally, the security deposit must be applied to any amount
         owed by a tenant to a landlord; it is illegal for a security deposit to
         be “forfeit” without actual proof of indebtedness. See [sic] Ind.
         Code § 32-31-3-12. Finally, Landlord has the burden of proof as
         to deductions from a security deposit; however, Tenant has the
         burden of proof on her claims regarding the condition of the
         property/failure to repair/remedy any issues therewith. See [sic]
         Kempf v. Himsel, 121 Ind. App. 488; 98 N.E.2d 200 (1951). With
         these principles in mind, the court rules that Landlord is entitled to
         the following damages and tenant is entitled to the following
         credits; items not listed were either not sufficiently proven or are
         not compensable under Indiana law.[1]
                  Rent for September 2017:                      1050.00
                  Glass Globe install[:]                        25.00
                  Remotes and Keys:                             155.00




1
   The record indicates that the Davises failed to provide an itemized list of damages and the estimated cost of
repair for each damaged item within forty-five days after the termination of occupancy, as required by
Indiana Code section 32-31-3-14. Although Burnett vacated the residence on September 9 or 10, 2017, the
trial court found that her occupancy ended as of September 30, 2017, which makes November 14, 2017, the
forty-fifth day after termination of occupancy. The second invoice was dated November 17, 2017, at least
three days late, and the invoice was as many as fifteen days late if it was, in fact, provided to Burnett for the
first time at the November 29 hearing. Pursuant to Indiana Code sections 32-31-3-13(1) and 32-31-3-14, then,
the Davises’ claims for physical harm to the residence were not recoverable because they were not timely
claimed. See Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind. 2009). Also, it seems clear that the trial court concluded that
the Davises failed to carry their burden of proof on their claim for “Clean Up.”
That leaves the charges the trial court did allow, namely, $25 for installation of a glass globe left on the
counter and $155 for Burnett’s failure to return a garage-door remote control and two keys. These two items
were not damaged items which required repair and, as such, did not constitute physical harm to the premises,
falling under the category of “other damages” pursuant to Klotz. Consequently, they are recoverable even
after the forty-five-day notice period and may be charged against the security deposit. See id. In summary,
the trial court awarded the Davises damages for the only two items that were recoverable under the security
deposits statute and rejected their other property-damage claims.



Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019                    Page 4 of 10
                       Sec. Dep.[:]                               -1500.00
                       Total:                                     -270.00
              Accordingly, Landlord owes Tenant $270.00. Judgment shall
              enter accordingly.
      Appellant’s Br. p. 23.


                                 Discussion and Decision
[5]   Before addressing Burnett’s claims, we would like to note several significant

      deficiencies in her submissions to this court. Indiana Rule of Appellate

      Procedure 46(A)(8) provides, in part, as follows:

              (8) Argument. This section shall contain the appellant’s
              contentions why the trial court or Administrative Agency
              committed reversible error.
                  (a) The argument must contain the contentions of the
                  appellant on the issues presented, supported by cogent
                  reasoning. Each contention must be supported by citations to
                  the authorities, statutes, and the Appendix or parts of the
                  Record on Appeal relied on, in accordance with Rule 22.
                  (b) The argument must include for each issue a concise
                  statement of the applicable standard of review; this statement
                  may appear in the discussion of each issue or under a separate
                  heading placed before the discussion of the issues. In
                  addition, the argument must include a brief statement of the
                  procedural and substantive facts necessary for consideration
                  of the issues presented on appeal, including a statement of
                  how the issues relevant to the appeal were raised and resolved
                  by any Administrative Agency or trial court.




      Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019   Page 5 of 10
[6]   Among other significant deficiencies in Burnett’s “Appellant’s Brief,”2 her

      argument contains no citations to any statutory or case law 3 and no statements

      regarding the applicable standard(s) of review. Moreover, the vast majority of

      factual assertions in Burnett’s argument are unsupported by citations to the

      record. Suffice it to say that Burnett’s failure to file a conforming Appellant’s

      Brief has hindered our evaluation of this appeal. That said, our preference for

      addressing claims on the merits is well-established, see, e.g., Rexroad v. Greenwood

      Motor Lines, Inc., 36 N.E.3d 1181, 1183 (Ind. Ct. App. 2015) (“[W]here possible,

      we prefer to address cases on their merits.”), and we choose to directly address

      Burnett’s claims nonetheless.

[7]   Burnett contends that the trial court improperly allowed the Davises to file a

      counterclaim the day of trial in violation of the Indiana Rules for Small Claims

      and that its judgment is clearly erroneous. At the outset, we note that the

      Davises have not filed an Appellees’ Brief in this matter, and when the

      appellees do not file a brief, we need not undertake the burden of developing an

      argument for them. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.

      2006). Rather, we will reverse the trial court’s judgment if the appellant

      presents a case of prima facie error. Id. “Prima facie error in this context is




      2
        Burnett has also failed to provide a compliant table of authorities, statement of issues, statement of the case,
      statement of facts, or summary of argument. Ind. Appellate Rule 46(A).
      3
        The only citations to any legal authority in Burnett’s brief appear in the “Statement of the case[,]” in which
      she includes Indiana Small Claims Rule 5, which governs counterclaims in small-claims actions, and Indiana
      Trial Rule 59, which governs motions to correct error.



      Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019                     Page 6 of 10
      defined as, at first sight, on first appearance, or on the face of it.” Id. (quotation

      omitted). Where an appellant does not meet this burden, we will affirm. Id.

                                           I. Counterclaim
[8]   Burnett claims that the trial court erred in allowing the Davises to file an

      improper counterclaim the day of trial by submitting their second invoice,

      which included for the first time, inter alia, a charge for $1050 in back rent for

      September of 2017. Indiana Small Claims Rule 5(A) provides, in part, as

      follows:

              If the defendant has any claim against the plaintiff, the defendant
              may bring or mail a statement of such claim to the small claims
              court within such time as will allow the court to mail a copy to the
              plaintiff and be received by the plaintiff at least seven (7) calendar
              days prior to the trial. If such counterclaim is not received within
              this time the plaintiff may request a continuance pursuant to S.C.
              9.
[9]   We shall assume, without deciding, that the second invoice was a counterclaim

      pursuant to the Small Claims Rules and that it was not provided to the trial

      court or Burnett in a timely fashion. Burnett, however, failed to avail herself of

      the only remedy available to her by not requesting a continuance and has

      thereby waived any appellate challenge to the allegedly improper counterclaim.

      See, e.g., Patel v. State, 533 N.E.2d 580, 585 (Ind. 1989) (“The failure to request a

      continuance where it may be the appropriate remedy constitutes a waiver of

      any error pertaining to non-compliance with a discovery order.”).




      Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019   Page 7 of 10
                       II. Whether the Trial Court’s Judgment
                              Was Clearly Erroneous
[10]           Our standard of review in small-claims cases is well settled. Small-
               claims court judgments are “subject to review as prescribed by
               relevant Indiana rules and statutes.” Ind. Small Claims Rule
               11(A). Under Indiana Trial Rule 52(A), the clearly erroneous
               standard applies to appellate review of facts determined in a bench
               trial with due regard given to the opportunity of the trial court to
               assess witness credibility. This deferential standard of review is
               particularly important in small-claims actions, where trials are
               designed to speedily dispense justice by applying substantive law
               between the parties in an informal setting. Berryhill v. Parkview
               Hosp., 962 N.E.2d 685, 689 (Ind. Ct. App. 2012). But this
               deferential standard does not apply to the substantive rules of law,
               which are reviewed de novo just as they are in appeals from a
               court of general jurisdiction. Id.
               The parties in small-claims court bear the same burdens of proof as
               they would in a regular civil action on the same issues. Ind. Small
               Claims Rule 4(A). It is incumbent upon the party who bears the
               burden of proof to demonstrate that it is entitled to the recovery
               sought. Berryhill, 962 N.E.2d at 689. We consider evidence in the
               light most favorable to the judgment, together with all reasonable
               inferences to be drawn therefrom. Id. We will reverse a judgment
               only if the evidence leads to but one conclusion and the trial court
               reached the opposite conclusion. Id.
       Vance v. Lozano, 981 N.E.2d 554, 557–58 (Ind. Ct. App. 2012).

[11]   Burnett claims that the trial court’s judgment was clearly erroneous in several

       respects, including (1) awarding the Davises $1050 in back rent; (2) finding her

       liable for keys and a garage-door remote control; and (3) failing to award her

       damages for allegedly unsafe conditions in the residence, including extreme

       heat and cold, vermin, a malfunctioning stove, and a carbon monoxide leak.



       Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019   Page 8 of 10
                                               A. Back Rent
[12]   Burnett contends that the trial court erroneously awarded the Davises $1050 in

       back rent for September of 2017 because the parties had agreed that she would

       only pay rent for the days she actually occupied the residence. Burnett claims

       that the Davises’ approval of her request to hold over in the residence also

       represented an agreement that she would only have to pay prorated rent

       because it did not explicitly dispute her stated belief to that effect. We are,

       however, required to view all evidence in a light most favorable to the judgment

       and consequently note that the Davises approval of Burnett’s request to hold

       over did not address the matter of rent, much less explicitly agree with Burnett’s

       stated belief. The Davises also introduced undisputed evidence that the lease’s

       holdover provision required Burnett to pay rent for all of September 2017, even

       though she only stayed until the ninth or tenth. While we acknowledge that

       there is some evidence suggesting that an agreement was made to accept

       prorated rent, the evidence certainly does not all lead to that one conclusion.

       Burnett has failed to establish that the trial court erred in finding her liable for

       $1050 in back rent.

                                   B. Charges Against Burnett
[13]   Burnett also claims that the trial court erred in charging her $155 for two keys

       and a garage-door remote control. Burnett does not dispute that there is

       evidence that she did not return the items. Burnett, however, claims that she

       attempted on several occasions to return the items and that replacements would

       cost far less than $155. To the extent that Burnett’s claims are supported by



       Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019   Page 9 of 10
       evidence presented at trial, however, the trial court was under no obligation to

       credit this evidence and apparently did not. Burnett’s argument is an invitation

       to reweigh the evidence, which we will not do. See Vance, 981 N.E.2d at 557.

                 C. Claims Against the Davises that Were Denied
[14]   Finally, Burnett claims that the trial court erred in failing to award her damages

       for alleged unsafe conditions in the residence, including extreme heat and cold,

       vermin, a malfunctioning stove, and a carbon monoxide leak. Again, the only

       evidence supporting these claims was presented by Burnett, which evidence the

       trial court was not required to credit. As with Burnett’s other claims, this one

       amounts to nothing more than an invitation to reweigh the evidence. See id. In

       conclusion, Burnett has failed to establish that the trial court’s judgment is

       clearly erroneous.

[15]   The judgment of the trial court is affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-SC-365 | February 14, 2019   Page 10 of 10
