                                                                               FILED
                                                                           Jun 28 2018, 8:49 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT
Andrew J. Borland
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dorfman Property Management,                               June 28, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           06A01-1711-SC-2623
        v.                                                 Appeal from the Boone Superior
                                                           Court
Tameka Edwards,                                            The Honorable Bruce E. Petit,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           06D02-1704-SC-281



Bailey, Judge.




Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018                           Page 1 of 8
                                            Case Summary
[1]   Dorfman Property Management (“Dorfman”) appeals a small claims judgment

      ordering that Dorfman return to its former tenant, Tameka Edwards

      (“Edwards”), a portion of her security deposit. Dorfman presents the sole issue

      of whether the judgment is clearly erroneous because Edwards was charged for

      less than all costs incurred by Dorfman, specifically, those for professional

      housecleaning and repainting. We affirm.



                             Facts and Procedural History
[2]   On February 26, 2016, Edwards and Dorfman executed a one-year lease for a

      house in Whitestown, Indiana (“the Lease”). The house was to be occupied by

      Edwards and her three children. Edwards agreed to pay monthly rent of

      $1,250.00 and she tendered a $2,500.00 security deposit to Dorfman. The

      Lease specified that the “amount necessary to have the carpet professionally

      cleaned” would be deducted from the security deposit, as would amounts

      “reasonably required” to reimburse Dorfman for cleaning and repair in “all

      rooms in which Tenant shall have damaged or irreparably marked the walls.”

      (Def. Ex. B. Para. 9.)


[3]   Upon move-in, Edwards asked that certain exterior damages be repaired. With

      that matter unresolved, more serious habitability issues arose. A sewer backup

      occurred at the rental property and Dorfman attempted to charge Edwards for

      the maintenance response. Edwards obtained not-for-profit legal assistance;


      Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018   Page 2 of 8
      after their intervention on Edwards’s behalf, Dorfman ceased demanding

      payment from Edwards related to the sewer backup. Thereafter, the air

      conditioning in the home stopped functioning. Edwards again obtained legal

      assistance and the air conditioning unit was repaired.


[4]   At the end of the Lease, Edwards gave notice of her intent to vacate the

      premises and provided a forwarding address in Georgia. Dorfman mailed

      Edwards a “Move Out/Deposit Report”1 assessing the following amounts:


               Carpet Cleaning                      $937.30
               Housecleaning                         225.00
               Painting/Wall Repair                  987.50
               Door Tracks                            74.00
               Mini-blinds                            45.00
               Broken screens                         70.00
               Dishwasher wheel                       45.00
               Driveway Oil Stain                     50.00
               Microwave Repair                       95.00
               Toilet Seats/Lightbulbs                70.00
               Sewer Bill                            230.22




      1
        The parties treated this report as an itemization compliant with Indiana Code Section 32-31-3-12. This
      statute provides in relevant part:
              Upon termination of a rental agreement, a landlord shall return to the tenant the security deposit
      minus any amount applied to:
               (1) the payment of accrued rent
               (2) the amount of damages that the landlord has suffered or will reasonably suffer by reason of the
                   tenant’s noncompliance with law or the rental agreement; and
               (3) unpaid utility or sewer charges that the tenant is obligated to pay under the rental agreement;
      all as itemized by the landlord with the amount due in a written notice that is delivered to the tenant not
      more than forty-five (45) days after termination of the rental agreement and delivery of possession.




      Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018                             Page 3 of 8
      (Def. Ex. C.) Because the aggregate amount of $2,829.02 exceeded the security

      deposit, Dorfman demanded payment from Edwards in the amount of $329.02.


[5]   Edwards sued Dorfman in small claims court to recover her security deposit.

      On August 15, 2017, the trial court conducted a hearing at which Edwards and

      Dorfman’s Office/Maintenance Manager, Kari McAtee (“McAtee”), testified.

      Edwards and McAtee each submitted photographs for the trial court’s review.

      Edwards testified that she had cleaned the house and patched any nail holes.

      She claimed that she had personally taken the photographs she submitted into

      evidence. McAtee testified that she had never been inside the house rented by

      Edwards, but that a leasing agent or real estate agent had photographed the

      house. McAtee’s testimony consisted of her description of what those

      photographs depicted. McAtee testified that the photographs depicted scuff

      marks, dirty walls and baseboards, hair and dirt, a black mark on a wall, a

      missing dishwasher wheel, and an unclean door.


[6]   The trial court issued an order on October 18, 2017. The trial court’s order

      stated that it had found the photographs tendered by Edwards “to be

      particularly persuasive” and that the property had been “well-maintained” by

      Edwards. (Appealed Order at 4.) The order also stated that “cleaning could

      have been a bit more thorough” but there was a lack of “actual damage” to the

      rental property beyond ordinary wear and tear for which a landlord would

      expect to be responsible as a “cost of doing business.” Id. at 4-5. Dorfman was

      permitted to deduct from the deposit: professional carpet cleaning fee of



      Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018   Page 4 of 8
      $937.30,2 an unpaid sewer bill of $230.22, replacement cost for door tracks of

      $74.00, and replacement cost for mini-blinds of $45.00. Dorfman was ordered

      to refund $1,213.48 to Edwards.


[7]   Dorfman now appeals, contending that explicit terms of the Lease entitled

      Dorfman to retain sums for professional cleaning and repainting of the entire

      house.



                                  Discussion and Decision
[8]   We review a small claims court’s judgment for clear error. Bokori v. Martinoski,

      70 N.E.3d 441, 443 (Ind. Ct. App. 2017). A 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. Lae v. Householder, 789 N.E.2d 481, 483 (Ind.

      2003). Here, Edwards did not file an appellee’s brief, “and thus we may reverse

      upon a prima facie showing of reversible error – but even so, we still may not

      reweigh evidence or reassess witness credibility.” Bokori, 70 N.E.3d at 444.


[9]   Dorfman invites our de novo review of the Lease. The interpretation of a

      contract is a pure question of law. Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648,




      2
       The Lease specifically provided for payment of this item, regardless of the move-out condition of the carpet.
      Edwards did not specifically challenge the reasonableness of the amount, $937.30, which the trial court
      characterized as “not an insignificant sum.” Appealed Order at 5.

      Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018                           Page 5 of 8
       657 (Ind. Ct. App. 2013). When a contract is clear and unambiguous, the

       language will be given its plain meaning. Id.


[10]   Dorfman directs our attention to certain language of Paragraph 9 of the Lease,

       applicable to cleaning and repainting:


               The following conditions must be met to qualify for a full-refund:
               h. The property has been thoroughly cleaned and delivered in the
               same move in condition upon vacating. …


               Landlord shall be entitled to deduct from the security deposit any
               amounts in addition to the carpet cleaning fee as shall be
               reasonably required to reimburse Landlord for a complete
               cleaning, repair, and repainting of any and all rooms in which
               Tenant shall have damaged or irreparably marked the walls,
               including holes created to hang pictures, etc. Such cleaning,
               repair and repainting shall not be deemed to be ordinary “wear
               and tear.”


       (Def. Ex. C.)


[11]   Dorfman claims entitlement to the full costs of professional cleaning and

       painting, asserting, “an order was issued in contravention of the contract” when

       “the trial court added its own interpretation to the written agreement.”

       Appellant’s Brief at 11. According to Dorfman, the trial court misdirected its

       focus to whether “cleaning could have been a bit more thorough” as opposed to

       a requisite “thorough cleaning” and also focused on “actual damage” or

       “irreparable damage” rather than “[the fact] that expenses were incurred to

       repair [marks and patched spots on the walls].” Appellant’s Brief at 10-11.


       Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018     Page 6 of 8
[12]   Dorfman argues:


               Essentially, the lease requires the tenant to patch holes and return
               the walls to move in condition. The Trial Court may not have
               liked this condition, but it is a part of the valid contract between
               the parties and it is explicit. In this case, the tenant either had to
               refrain from marking or putting holes in the walls or she had to
               repair the holes and marks she made. She did neither. Under the
               language of the lease, she is liable for the cost to the landlord
               Dorfman to do so. The Trial Court’s Order to the contrary
               should be reversed.


       Appellant’s Brief at 12.


[13]   Distilled to its essence, Dorfman’s argument is that: (1) the Lease requires a

       tenant to leave the premises in move-in condition; and (2) should Dorfman

       identify any scuffing, mark, dirt, or nail hole, the Lease requires the tenant to

       fully reimburse costs of professionally cleaning and repainting the entire room

       or rooms containing scuffing, a mark, dirt, or nail hole. In taking this position,

       Dorfman ignores the reasonableness requirements of the Lease and a landlord’s

       obligations under Indiana Code Section 32-31-3-12. That said, the trial court

       was not tasked with resolving an ambiguity in the Lease but rather with

       applying the terms of the Lease in the face of conflicting evidence. Dorfman

       ignores the evidence favorable to the judgment.


[14]   Edwards testified that she had left the leased house in a clean and undamaged

       condition. Her evidentiary photographs, taken by her personally, were those

       found by the trial court to be “particularly persuasive.” (Appealed Order at 4.)

       As for the photographs taken by a real estate agent or leasing agent and

       Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018     Page 7 of 8
       introduced into evidence by Dorfman, Edwards denied that they fairly depicted

       the condition of her rental house at her move-out. According to Edwards, they

       either showed a different rental property or conditions attributable to someone

       other than herself. Finally, the trial court questioned Edwards concerning an

       “allegation of nail holes poorly repaired” and Edwards responded she had left

       her nail holes patched and any inadequately repaired areas were “not hers.”

       (Tr. Vol. II, pgs. 41-42.) The trial court, as the fact-finder, credited Edwards’s

       testimony and documentary evidence. We will not reweigh the evidence or

       assess credibility of any witness. Bokori, 70 N.E.3d at 444.



                                                Conclusion
[15]   Dorfman has not shown that the trial court clearly erred in ordering that

       Dorfman return to Edwards a portion of her security deposit.


[16]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 06A01-1711-SC-2623 | June 28, 2018   Page 8 of 8
