      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    FILED
      regarded as precedent or cited before any                            Aug 31 2016, 8:16 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
      William Perry McCall, III
      Mosley Bertrand and McCall
      Jeffersonville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Pinnacle Properties                                      August 31, 2016
      Development Group, LLC,                                  Court of Appeals Case No.
      Appellant-Plaintiff,                                     10A04-1512-SC-2146
                                                               Appeal from the
              v.                                               Clark Circuit Court
                                                               The Honorable
      Christina Jackson and                                    Kenneth R. Abbott, Magistrate
      James Jackson,                                           Trial Court Cause No.
      Appellees-Defendants.                                    10C03-1508-SC-1325




      Kirsch, Judge.


[1]   Pinnacle Properties Development Group, LLC (“Pinnacle”) appeals the small

      claims court’s judgment that granted Pinnacle’s claim for eviction against

      Christina and James Jackson (“the Jacksons”), but denied Pinnacle’s claim for


      Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016       Page 1 of 13
      damages. Pinnacle raises two issues that we consolidate and restate as:

      whether the small claims court’s decision that the Jacksons did not owe

      Pinnacle damages for carpet removal or for two months of rent was contrary to

      law.


[2]   We affirm.


                                    Facts and Procedural History
[3]   The facts most favorable to the judgment are as follows. In September 2013,

      the Jacksons entered into a residential lease agreement (“the Lease”) with

      Pinnacle for the lease of a home in Jeffersonville, Indiana.1 The Jacksons

      agreed to pay $966.40 per month, which amount included monthly sewer and

      pet fees. Pinnacle Ex. 5.


[4]   As is relevant to this action, the Jacksons paid their July 2015 rent in full at the

      first of the month pursuant to the Lease. In the early morning hours of Sunday,

      July 12, the Jeffersonville area received significant rainfall, and the Jacksons’

      basement flooded, resulting in “four inches of water all through the bottom of

      the house.” Tr. at 18. The Jacksons called Pinnacle’s 24-hour emergency

      maintenance line but were not able to get through to speak to anyone.

      However, the Jacksons had the cell phone number of the leasing agent, so they

      contacted her. Based on their conversations with the leasing agent, the




      1
       The record before us reflects that Pinnacle did not own the property, but, rather, served as a landlord for the
      property.

      Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016             Page 2 of 13
      Jacksons began to pull up the carpet. Sometime during the day on Sunday,

      July 12, Ed Baker (“Baker”), a Pinnacle maintenance person, arrived at their

      home, and he told the Jacksons to put the furniture on bricks to get the items up

      out of the water, but Baker did not otherwise work on the flood situation or

      instruct them what to do or not to do. That day or the next, another Pinnacle

      maintenance person came to the Jacksons’ home with a Rug Doctor to try to

      remove the water, but “[i]t wasn’t doing any good. The water was so deep.”

      Id. at 23.


[5]   Ultimately, over the course of that Sunday and Monday, the Jacksons removed

      the carpet from the basement. Id. Thereafter, no one from Pinnacle came to

      assess or repair the paneling or dry wall in the Jacksons’ basement, and

      Pinnacle did not replace the flooring in the basement. The Jacksons did not pay

      their August rent, and on August 19, Pinnacle filed a small claims eviction and

      damages action against Jackson “for failure to pay rent, sewer fees and damage

      to carpet.” Appellant’s Br. at 1.


[6]   The small claims court conducted a trial of the matter in September 2015. Bob

      McEwen (“McEwen”), the Customer Service Director for Pinnacle, testified.

      He stated that, pursuant to the Jacksons’ phone call to Pinnacle’s “emergency

      pager” on Sunday July 12, McEwen dispatched Baker to the home and that

      Baker arrived that same day. Tr. at 8. McEwen testified that Pinnacle’s

      standard operating procedure in the case of flooding at its properties is to pull

      back any wet carpet, extract the water, and blow the area dry, but that the

      Jacksons removed the carpet without Pinnacle’s permission and contrary to the

      Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 3 of 13
      terms of the Lease. McEwen testified that, pursuant to a quote that had been

      obtained by the homeowner, it was going to cost $1,374.57 to replace the

      carpet. McEwen was asked about the age of the Jacksons’ basement carpet, but

      he did not know when it was installed, other than it was already in the home

      when he started working for Pinnacle two years prior.


[7]   James Jackson (“James”) testified that when the home flooded, they called the

      24-hour service number, but “didn’t get [any] answer,” so they contacted the

      leasing agent. Tr. at 17. James explained that the leasing agent “got a hold of

      [McEwen]” and then she called the Jacksons back, telling them that McEwen

      told her that the Jacksons should “go ahead and remove the carpet” because it

      was not salvageable “and if we didn’t[,] it was going to destroy the rest of the

      house.” Id. James agreed that Baker arrived at some point on Sunday, “But . .

      . the only thing he showed up to do was to tell me that [McEwen] told him to

      go get bricks and put my furniture up on bricks[.]” Id. at 28.


[8]   Although Pinnacle told the Jacksons that the carpet would be replaced, no

      replacement flooring was put into the home. James explained, “They were

      debating on what type of flooring to put in the basement. . . . [I]t went on and

      on, the next thing I know I receive eviction papers.” Id. at 21. James stated

      that Pinnacle also did not address issues with buckling dry wall or paneling.

      Living in the home at the time period in question was James, his wife, a

      sixteen-year-old daughter, and a 16-month-old grandchild. Due to the lower

      level’s condition, they “moved everything” from the lower level and were living

      upstairs. Id.

      Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 4 of 13
[9]    With regard to Pinnacle’s request for eviction, James testified that he and his

       family were willing to move from the residence, and intended to do so, but their

       next residence was not available for at least two weeks from the date of trial,

       September 15, 2015. With regard to Pinnacle’s claim for unpaid rent, James

       asked the small claims court to find that his July rent, which had been paid in

       full, should be applied to cover both July and August rent. James referred the

       court to a provision in the Lease stating that if any part of the house is

       uninhabitable by an act of God, then the rent should be pro-rated, proposing

       that because the Jacksons could not use the lower level of the home from July

       12 to the date of trial in September, their rent should be reduced by fifty-percent

       for July and August.2 James stated that the Jacksons offered to pay Pinnacle

       half of their September rent, under the same reasoning, but Pinnacle refused the

       offer.


[10]   With regard to Pinnacle’s request for damages for removal of the carpet, James

       testified, “I don’t understand how they can say that I owe for the carpet when




       2
           It appears that James was referring to paragraph 9(D) of the Lease, which states, in part:

                  [I]f the Leased Premises is damaged by flood . . . or other destructive act of God such that
                  the Leased Premises is uninhabitable for any length of time, Landlord shall have ninety
                  (90) days from receipt of notice from Tenant within which to repair and restore the
                  Leased Premises without terminating this lease[.] . . . If a part of the Leased Premises
                  shall be damaged as mentioned above, but not so as to render the entire Leased Premises
                  uninhabitable, the Monthly Rent shall abate in proportion to that part of the Leased
                  Premises which is uninhabitable.


           Pinnacle Ex. 5.



       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016               Page 5 of 13
       they’re the ones that told me to remove the carpet,” and “I wouldn’t have done

       that if I hadn’t [] been instructed.” Id. at 19-20. He reiterated,


               [N]ow it’s like they’ve turned the tables on me and saying that I
               wasn’t told to remove the carpet, in which I was. I wouldn’t
               have took that upon myself as a renter to rip up all the carpet
               downstairs. I was trying to save their property and save my
               home. I liked where I live.


       Id. at 30. James testified that, after the flood, he received emails from McEwen

       concerning McEwen’s communications with the homeowner about the

       flooding and the carpet removal. As for the age and condition of the carpet,

       James said it was “old” and “matted down” when the Jacksons had moved into

       the home two years prior, in September 2013. Id. at 26. James described that

       he and those helping him with the carpet removal “had to scrape [] parts of the

       padding up . . . it had been wore down so bad.” Id.


[11]   The small claims court took the matter under advisement, issuing a Judgment

       and Writ of possession a week later that granted possession of the residence to

       Pinnacle on September 30, 2015, but denied Pinnacle’s request for damages

       from the Jacksons. Pinnacle filed a motion to correct error, and the small

       claims court issued an order denying Pinnacle’s motion. Pinnacle now appeals.


                                      Discussion and Decision
[12]   Pinnacle claims that the trial court committed reversible error when it denied its

       claims for unpaid rent for August and September and for damages stemming

       from the carpet removal. It is well settled that trial of a small claims action

       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 6 of 13
       shall be informal, with the sole objective of dispensing speedy justice between

       the parties according to the rules of substantive law. LTL Truck Serv., LLC v.

       Safeguard, Inc., 817 N.E.2d 664, 668 (Ind. Ct. App. 2004). Nevertheless, the

       parties in a small claims court bear the same burdens of proof as they would in

       a regular civil action on the same issues. Id. In this case, Pinnacle had the

       burden of proof on each of its claims. Because the small claims court’s decision

       with regard to damages for unpaid rent and carpet removal was not in

       Pinnacle’s favor, Pinnacle is appealing from a negative judgment. On appeal,

       we will not reverse a negative judgment unless it is contrary to law. Id. at 667.

       To determine whether the judgment is contrary to law, we consider the

       evidence in the light most favorable to the appellee, together with all the

       reasonable inferences to be drawn therefrom. Id. A judgment will be reversed

       only if the evidence leads to but one conclusion and the trial court reached the

       opposite conclusion. Id.


[13]   As a preliminary matter, we observe that the Jacksons did not file an appellees’

       brief. Where an appellee fails to file a brief, we do not undertake to develop

       arguments on that party’s behalf; rather, we may reverse upon a prima facie

       showing of reversible error. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind.

       2008). Prima facie error is error “at first sight, on first appearance, or on the

       face [of] it.” Id.


[14]   We also observe that Pinnacle has not filed an appellate appendix. Indiana

       Appellate Rule 49(A) states that “[t]he appellant shall file its Appendix on or

       before the date on which the appellant’s brief is filed.” (Emphasis added.)

       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 7 of 13
       Indiana Appellate Rule 50(A)(1) reads, “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.” In

       addition to the chronological case summary, appealed order, pleadings, and

       various other documents, Appellate Rule 50(A)(2) requires that the appendix

       include “other documents from the Clerk’s Record in chronological order that

       are necessary for resolution of the issues raised on appeal[.]” Failure to file an

       appendix could result in dismissal. Yoquelet v. Marshall Cnty., 811 N.E.2d 826,

       830 n.5 (Ind. Ct. App. 2004) (citing Hughes v. King, 808 N.E.2d 146, 148 (Ind.

       Ct. App. 2004)). However, at least in the context of criminal cases, “[T]he

       failure to file an Appendix is not necessarily automatic cause for dismissal.”

       Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001). Here, although the record

       before us does not include Pinnacle’s complaint or chronological case

       summary, among other things, we do have in the record before us the Lease

       and the small claims court’s original judgment, as well as its order denying

       Pinnacle’s motion to correct error. Pinnacle also submitted the transcript of the

       small claims court hearing. Therefore, we will address the merits of Pinnacle’s

       appeal.


[15]   Pinnacle contends that the small claims court erred by not finding that the

       Jacksons breached the Lease by (1) failing to pay rent in August and September,

       and (2) removing the carpet. With regard to the rent, Pinnacle’s position is that

       the Lease clearly provided that the Jacksons owed $996.40 at the beginning of

       each month, their nonpayment constituted breach of the Lease, and that no


       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 8 of 13
       provision of the Lease excused their nonpayment. With regard to damages for

       the carpet removal, Pinnacle asserts that the small claims court erred by not

       requiring the Jacksons to pay $1,347.57 in damages for removing the carpet,

       which amount constituted the cost to replace it pursuant to a quote obtained by

       the property’s owner.


[16]   As concerns the carpet, Pinnacle argues that the terms of the Lease did not

       permit any alterations, additions, or changes upon any part of the leased

       premises without first obtaining written consent from Pinnacle and that the

       Jacksons did not receive such prior authorization.3 Pinnacle asserts that the

       Jacksons’ removal of the carpet was “in direct conflict” with its standard

       protocol for handling flooded flooring, and the Jacksons, having removed the

       carpet without authorization, became responsible under the terms of the Lease

       for replacement costs.4 Appellant’s Br. at 7.




       3
        Pinnacle refers to Paragraph 9(A) of the Lease, which provides, in part: “Occupants shall not cause or
       permit any alternations, additions, or changes of or upon any part of the Leased Premises without first
       obtaining the express written consent of Landlord.” Pinnacle Ex. 5.
       4
         We note that, in support of its argument that the Jacksons are responsible for the costs to replace the carpet,
       Pinnacle also cites to Paragraph 15(B) of the Lease. Appellant’s Br. at 7. Paragraph 15 concerns Tenant’s
       agreement to return possession of the Leased Premises in good and clean condition and in the same
       condition as it was received by Tenant, except for normal and reasonable wear and tear. Subsection (B) of
       Paragraph 15 provides: “[I]f any part of a finished flooring or carpet in a room must be replaced to satisfy the
       above requirements, then the entire finished flooring or carpet in that room must be replaced . . . and all such
       costs are Tenant’s responsibility and expense.” Pinnacle Ex. 5. In this case, the carpet removal had nothing to
       do with the Jacksons’ use of, or failure to care for, the carpeting, and we find that Paragraph 15 of the Lease
       is inapplicable to the analysis.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016              Page 9 of 13
[17]   In its order denying Pinnacle’s motion to correct error, the small claims court

       found in pertinent part as follows:


               1) The Defendant had a lease which required a monthly payment
               of rent and sewer charges in the amount of $996.00. The
               Defendants had rented the house from the Plaintiff since
               September 2013;


               2) A severe flood took place at the leased premises on July 12,
               2015, causing a large amount of flooding in the basement of the
               house.


               3) As a result of the flooding the Defendants removed the
               carpeting from the basement. This was based upon the condition
               of the carpeting, the large amount of water that needed to be
               removed, and the instruction of the Leasing Agent that the
               carpeting should be removed;


               4) Although the Plaintiff sought full replacement cost of the
               carpeting, the Plaintiff’s only witness stated that the carpet was at
               least two years old. When asked by the Court if the carpet could
               be as old as ten years, he could not admit or deny due to his lack
               of knowledge. However, he did state that there had been two
               prior floods in the basement. The Defendant stated that the
               carpeting was very old and in bad shape.


               5) The Defendant had paid the full July rent prior to the flooding
               which had made the basement unlivable. As of the date of the
               hearing, nothing had been done to repair the walls or to install
               new flooring.


               6) The Defendants refused to pay rent in August based upon the
               rationale that under paragraph 9 of the lease, the property was
               50% uninhabitable. Thus, the rent paid in July should be for 50%

       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 10 of 13
               of July rent and 50% of August rent. The Defendants offered
               50% of September rent, but the Plaintiff refused to accept the rent
               and would not respond to his attempts to communicate.


               7) Despite repeated requests by the Defendants to have a leak in
               the bathroom of the rental premises repaired, the Plaintiff failed
               to respond, causing the Defendants to use self-help to capture the
               water each day.


               8) The efforts made by the Defendants and the payments were
               reasonable and proportionate given the Plaintiff’s failure to act
               timely.


       Appellant’s Br. 11-12.


[18]   The evidence presented at the trial supports the small claims court’s decision.

       James stated that when he could not get through to anyone at Pinnacle on the

       emergency maintenance line, he called the leasing agent, who, after speaking to

       McEwen, instructed the Jacksons to remove the carpet because it could not be

       salvaged and that to leave it in the home would damage the rest of house.

       James testified several times that he removed the carpet because he was told to

       do so. We note that, contrary to Pinnacle’s suggestion that the carpet was

       “completely removed” when Baker arrived, Appellant’s Br. at 2, McEwen

       testified at trial that James “was starting to” remove the carpet by the time

       Baker arrived. Tr. at 9. Indeed, James’s testimony was that the carpet was

       removed “Sunday or Monday.” Id. at 23. James also testified that he received

       emails from McEwen after the flood, in which McEwen shared Pinnacle’s

       communication with the home’s owner about the flood, the carpet removal,

       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 11 of 13
       and plans to replace it. The small claims court’s determination to not award

       damages to Pinnacle for the carpet removal reflected its determination that the

       Jacksons removed the carpet pursuant to Pinnacle’s directive and did not owe

       Pinnacle for its replacement cost.


[19]   With regard to the rent, James testified that after they got the carpet out and

       dried the floors, Pinnacle did not send anyone to the home to assess or dry the

       walls in the basement, nor did Pinnacle replace the carpet with any flooring.

       According to James, the Jacksons could not live in the lower level of the house

       after the flood due to its condition and that his family “moved everything” up

       from the basement and only had use of the upstairs of the residence. Tr. at 21.

       The Jacksons offered payment for half of September’s rent, but Pinnacle refused

       it. The small claims court’s decision reflected its determination that the

       Jacksons did not have use of the lower level of their home from at least July 12

       to September 15, the date of the small claims trial, and accordingly, were

       entitled to a pro-rata reduction in their rent for the time in question. Pinnacle

       suggests on appeal that the Jacksons “were subjected to a flooded basement for

       only one or two days during which they did not have use of the basement,” and

       thus, at most, the Jacksons may have been entitled to “to a one day abatement,

       but no more than a two day abatement of the monthly rental” pursuant to

       paragraph 9(D) of the Lease. Appellant’s Br. at 5. This, however, is a request for

       us to reweigh the evidence and assess witness credibility, which we cannot do.

       Pinnacle has not met its burden to show that the small claims court’s judgment

       was contrary to law.


       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 12 of 13
[20]   Affirmed.


[21]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2146 | August 31, 2016   Page 13 of 13
