      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                    FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
                                                                           Mar 09 2018, 9:02 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Paul D. Ludwig                                           Michael L. Carmin
      Indianapolis, Indiana                                    Bloomington, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Brenda A. Kyle,                                          March 9, 2018
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               53A01-1709-SC-2070
              v.                                               Appeal from the Monroe Circuit
                                                               Court
      Cedarview Management,                                    The Honorable Valeri Haughton,
      Appellee-Defendant                                       Judge
                                                               Trial Court Cause No.
                                                               53C08-1611-SC-2467



      Altice, Judge.


                                               Case Summary


[1]   Brenda Kyle appeals from the trial court’s judgment in favor of Cedarview

      Management Corporation (Cedarview) on Kyle’s small claims action. On


      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018          Page 1 of 8
      appeal, Kyle raises a number of arguments, which we consolidate and restate as

      follows: Was the trial court’s judgment clearly erroneous?


[2]   We affirm.


                                       Facts & Procedural History


[3]   In December 2013, Kyle purchased a Bloomington salon business from Disque

      Incorporated (Disque). In conjunction with the sale, Disque and Kyle entered

      into a sublease agreement with respect to the business premises, which Disque

      leased through Cedarview. The sublease was to commence on January 1, 2014,

      and expire at the end of Disque’s lease term on August 31, 2014. As required

      by the terms of both the sublease agreement and Disque’s original lease, the

      sublease agreement was submitted to Cedarview for its approval. Upon

      receiving the sublease agreement, Cedarview initially requested a security

      desposit from Kyle, but later waived that requirement and accepted Kyle as a

      sublessee. As the result of an oversight, Cedarview did not sign the sublease

      agreement, but Cedarview provided Kyle with keys to the premises and helped

      her promote her grand opening in January 2014. Kyle reimbursed Disque for

      the rent it paid for January 2014, and Kyle paid rent directly to Cedarview

      through ACH withdrawal for the months of February and March 2014.


[4]   On March 4, 2014, Kyle met with Cedarview representatives Suzanne

      O’Connell and Jana Voyles to discuss Kyle’s interest in entering into a new

      lease at the expiration of the term of the sublease, as well as some complaints

      Kyle had about Disque. During the meeting, Kyle made comments about the

      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018   Page 2 of 8
      building that O’Connell believed to be untruthful and disparaging. O’Connell

      became angry and told Kyle that if she was going to lie about the building,

      Cedarview did not want her as a tenant. The meeting then ended without

      further discussion. No one from Cedarview took any action to interfere with

      the operation of Kyle’s business or eject her from the premises.


[5]   Unbeknownst to Cedarview, Kyle began the process of vacating the property

      within days of the March 4 meeting. Cedarview learned that the space was

      vacant around March 12, 2014, when it sent a building-wide email to all tenants

      regarding HVAC maintenance and Kyle responded that she was no longer a

      tenant. Kyle had not notified Cedarview of her intent to vacate prior to that

      date, and she had not returned the keys to the leased premises. Only after

      receiving notice that Kyle had already vacated the premises did Cedarview

      demand the return of the keys.


[6]   Over two-and-a-half years later, on November 21, 2016, Kyle filed a pro se small

      claims notice against O’Connell and Cedarview, which was later amended to

      remove O’Connell as a defendant.1 The amended notice alleged that

      Cedarview “took money under false pretense” and that “[t]here was never a

      valid contract.” Appellant’s Appendix at 11. The case proceeded to a bench trial

      on September 1, 2017, at the conclusion of which the trial court took the matter




      1
       The original notice of claim also named Tenth & College Management. The role of Tenth & College in this
      matter is not clear from the record, and it was not named as a defendant in the amended notice of claim.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018         Page 3 of 8
      under advisement. On September 5, 2017, the trial court entered judgment in

      Cedarview’s favor. Kyle now appeals.


                                          Discussion & Decision


[7]   Kyle appeals from the trial court’s ruling on her small claims action.


              Judgments in small claims actions 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 ‘informal, with the sole objective
              of dispensing speedy justice between the parties according to the
              rules of substantive law.’” City of Dunkirk Water & Sewage Dep’t v.
              Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting S.C.R. 8(A)).


      Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006). The

      applicable clearly erroneous standard turns on whether the party is appealing a

      negative judgment or an adverse judgment. Baird v. ASA Collections, 910 N.E.2d

      780, 785 (Ind. Ct. App. 2009). A negative judgment is one entered against a

      party who, like Kyle, bore the burden of proof at trial. See id. A party

      appealing a negative judgment will prevail only upon establishing that the

      judgment is contrary to law, i.e., when the evidence is without conflict and all

      reasonable inferences to be drawn therefrom lead to only one conclusion, but

      the trial court reached a different conclusion. Id. In determining whether a

      negative judgment is clearly erroneous, we will consider only the evidence most


      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018   Page 4 of 8
      favorable to the prevailing party, without reweighing the evidence or judging

      the credibility of the witnesses.2 Garling v. Ind. Dep’t of Natural Res., 756 N.E.2d

      1029, 1032 (Ind. Ct. App. 2001), trans. denied.


[8]   Kyle argues that she is entitled to the return of the rent she paid to Cedarview.

      The first theory of recovery asserted in her appellate brief is constructive

      eviction. Constructive eviction has been defined as a breach by the lessor “so

      direct and positive, and so substantial and permanent in character as to operate

      as a material and effectual exclusion of the tenant from the beneficial enjoyment

      of some part of the leased premises.” Sigsbee v. Swathwood, 419 N.E.2d 789, 793

      (Ind. Ct. App. 1981) (quoting Talbott v. English, 59 N.E. 857, 860 (Ind. 1901)).

      A lessee who has been constructively evicted has the option to quit the premises

      and avoid the lease and rent, or to maintain possession and seek a remedy for

      trespass. Id. at 794.


[9]   Assuming arguendo that a tenant who has been constructively evicted might in

      some cases be entitled to the return of rent monies paid while the tenant

      retained possession of the property, Kyle’s constructive eviction claim is utterly

      without merit. In support of her claim, Kyle attempts to rely on Cedarview’s

      failure to sign the sublease agreement and O’Connell’s statement during the

      March 4, 2014 meeting that if Kyle was going to lie about the building,

      Cedarview did not want her as a tenant. This evidence falls far short of what is



      2
       We remind Kyle’s counsel of his duty under the appellate rules to recite the facts in accordance with the
      applicable standard of review. Ind. App. R. 46(A)(6).

      Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018               Page 5 of 8
       necessary to establish constructive eviction. Although it is undisputed that

       Cedarview did not sign the sublease agreement, O’Connell testified that this

       was the result of mere oversight. Further, the evidence established that

       Cedarview gave Kyle possession of the premises, helped her promote her

       business, and accepted rent payments from her. In other words, both Kyle and

       Cedarview proceeded as if Kyle had an enforceable sublease. Further, the

       evidence favorable to the judgment establishes that Kyle never brought

       Cedarview’s failure to sign the sublease to Cedarview’s attention or gave it the

       opportunity to correct the oversight. Most importantly, Kyle has not explained

       how Cedarview’s failure to sign the sublease interfered with her use of the

       property.


[10]   The same can be said regarding O’Connell’s statement during the March 4,

       2014 meeting. Notably, O’Connell’s statement was made in the context of

       discussing Kyle’s wish to enter into a new lease at the expiration of her

       sublease. The most reasonable interpretation of O’Connell’s statement is that if

       Kyle continued to make false and disparaging comments about the building,

       Cedarview would not be interested in extending Kyle’s tenancy beyond the

       term of her sublease. In any event, there is no suggestion that Cedarview ever

       told Kyle to leave the premises or took any action to interfere with her use of

       the property. In sum, the evidence presented at trial overwhelmingly supports a

       conclusion that Kyle was not constructively evicted.


[11]   Kyle next argues that “Cedarview’s conduct amounted to receipt of Kyle’s

       money under false pretenses or misrepresentation.” Appellant’s Brief at 9. The

       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018   Page 6 of 8
       only authority Kyle provides in support of this proposition is a single case

       citation, which sets out the general definition of misrepresentation. Kyle goes

       on to suggest that Cedarview tricked her into paying rent without a valid

       sublease3 and then told her they wanted her out of the building. Kyle’s

       argument in this regard completely disregards the applicable standard of review,

       and we will not indulge her blatant request to reweigh the evidence and judge

       the credibility of witnesses.


[12]   Finally, Kyle argues that Cedarview has been unjustly enriched. See Neibert v.

       Perdomo, 54 N.E.3d 1046, 1051 (Ind. Ct. App. 2016) (explaining that “[t]o

       recover for unjust enrichment, the plaintiff must show that (1) he rendered a

       measurable benefit to the defendant at the defendant’s express or implied

       request; (2) he expected payment from the defendant; and (3) allowing the

       defendant to retain the benefit without restitution would be unjust”). This

       argument is also premised on Kyle’s assertion that Cedarview tricked her into

       paying rent without a valid sublease, which we have already rejected.

       Moreover, it is undisputed that Kyle had possession of the premises during the

       months she paid rent. Kyle’s unjust enrichment claim is wholly unsupported by

       the evidence. For all of these reasons, we conclude that the trial court’s




       3
        This argument is predicated in large part on Kyle’s argument that Disque did not have a valid lease, which
       Kyle claims would preclude her from having a valid sublease. Because Kyle did not raise this argument
       before the trial court, it is not available to her on appeal. See Ind. Bureau of Motor Vehicles v. Gurtner, 27
       N.E.3d 306, 311 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018                Page 7 of 8
       judgment in Cedarview’s favor was amply supported by the evidence and not

       clearly erroneous.


[13]   Judgment affirmed.


[14]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1709-SC-2070 | March 9, 2018   Page 8 of 8
