                                                                             FILED
                                                                        Sep 08 2017, 5:47 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Clifford T. Rubenstein                                     Kevin S. Smith
      Rifkin Blanck & Rubenstein, P.C.                           Brent A. Borg
      Carmel, Indiana                                            Church Church Hittle + Antrim
                                                                 Fishers, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Robert Muldowney,                                          September 8, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 29A02-1610-SC-2439
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      Lincoln Park, LLC and,                                     The Honorable Wayne A.
      Robert Versprille,                                         Sturtevant, Judge
      Appellees-Plaintiffs.                                      Trial Court Cause No.
                                                                 29D05-1609-SC-7598



      Barnes, Judge.


                                              Case Summary
[1]   Robert Muldowney appeals the trial court’s grant of judgment in favor of

      Lincoln Park, LLC, and Robert Versprille. We dismiss and remand.




      Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017               Page 1 of 12
                                                       Issue
[2]   The issue Muldowney raises is whether Versprille provided adequate notice for

      the termination of Muldowney’s lease of a rental property from Lincoln Park.

      We also address an issue raised by Lincoln Park and Versprille, namely,

      whether the trial court conducted an adequate hearing on their eviction suit.


                                                       Facts
[3]   Due to the abbreviated hearing held by the trial court, there are few undisputed

      facts to relate about this case. Muldowney rented a residence in Noblesville

      from Lincoln Park; Versprille owns and operates Lincoln Park. The lease

      began in July 2015, for $500 per month, and originally was set to expire on

      June 30, 2016. Lincoln Park and Versprille do not dispute that they accepted

      an additional month’s rental payment from Muldowney for July 2016.

      Muldowney remained in possession of the premises beyond July 31, 2016. On

      September 2, 2016, Versprille filed a pro se complaint for immediate possession

      of the rental property and rent due in the amount of $1000. The complaint was

      docketed as a small claims action. The complaint alleged that Muldowney had

      been notified on May 28, 2016, that his lease would not be renewed and made

      no mention of the July 2016 rent payment.


[4]   On September 21, 2016, the trial court held a hearing on the complaint.

      Muldowney was represented by counsel, and Versprille appeared pro se. At the

      outset of the hearing, counsel for Muldowney orally moved to dismiss the

      complaint. Counsel argued that the original one-year lease converted into a


      Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017   Page 2 of 12
      month-to-month lease when Versprille accepted rent from Muldowney for July

      2016, and that Muldowney had tendered rent to Versprille for August 2016 but

      Versprille had refused to accept it; therefore, counsel argued, Muldowney had

      not breached the month-to-month lease in August 2016. Additionally, counsel

      argued that the eviction complaint itself was not proper notice of Versprille’s

      intent to terminate the month-to-month lease, and even if it was, it would not

      be effective until the end of October 2016, according to a written opinion issued

      by the Indiana Attorney General. Versprille spoke only once during the

      hearing, to say that Muldowney had been “very disruptive” and that, “[i]t’s not

      about the dollars, it’s about having him removed from the premises.” Tr. Vol.

      II p. 7. During the hearing, no one was sworn in to testify and no exhibits were

      entered into evidence. Regardless, after hearing the argument of Muldowney’s

      counsel and the one brief statement of Versprille, the trial court ruled, “I’m

      going to find that the eviction should be granted for termination of the month-

      to-month tenancy effective as of October 2nd.” Id. It then scheduled a damages

      hearing for the end of November 2016. Muldowney filed a motion to correct

      error, which the trial court denied. Muldowney now appeals.


                                                    Analysis
[5]   Generally, we review small claims judgments for clear error, with due regard

      given to the trial court’s opportunity to assess witness credibility. Trinity Homes,

      LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). This deferential standard of

      review does not apply to questions of law, which are reviewed de novo. Id. at

      1068. Additionally, if a small claims case turns solely upon documentary

      Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017   Page 3 of 12
      evidence, we review the judgment de novo, similar to summary judgment

      rulings. Id.


[6]   We acknowledge that small claims trials should be informal, “with the sole

      objective of dispensing speedy justice between the parties according to the rules

      of substantive law, and shall not be bound by the statutory provisions or rules of

      practice, procedure, pleadings or evidence except provisions relating to

      privileged communications and offers of compromise.” Ind. Small Claims Rule

      8(A). However, such informality does not mean that all rules of procedure may

      be blatantly disregarded. Potts v. Castillo, 460 N.E.2d 996, 998 (Ind. Ct. App.

      1984). Each party to a small claims action still has the burden of proof for a

      claim or counterclaim and is responsible for bringing evidence to court that is

      sufficient to sustain that burden. Park Jefferson Apartments v. Storage Rentals, 738

      N.E.2d 685, 688 (Ind. Ct. App. 2000). Furthermore, all testimony in a small

      claims trial must be given under oath or affirmation. S.C.R. 8(B).


[7]   Here, the trial court’s informality went too far. It did not allow either party the

      opportunity to present documentary evidence or sworn testimony in support of

      their respective positions. Rather, it appears to have based its judgment strictly

      upon the facts alleged in the complaint and unsworn statements of

      Muldowney’s counsel and Versprille. We do not even have a copy of the

      original lease before us. Also, it should have been apparent, based on counsel’s

      motion to dismiss and supporting argument, that the facts of the case were not

      straightforward and that each party should have been allowed to present



      Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017   Page 4 of 12
      evidence to support its claims before the trial court spontaneously ruled against

      Muldowney.


[8]   We might be able to overlook this disregard of basic procedure if the trial

      court’s judgment was unquestionably correct, even if all the facts were as

      Muldowney alleged regarding a month-to-month lease. But we cannot reach

      that conclusion. Muldowney contends that his occupancy of the residence after

      June 30, 2016, was a month-to-month tenancy under the express language of

      the lease (which, again, is not in the record). Also, he directs us to Indiana

      Code Section 32-31-1-2, which states, “A general tenancy in which the premises

      are occupied by the express or constructive consent of the landlord is

      considered to be a tenancy from month to month. . . .”


[9]   Muldowney and Lincoln Hills and Versprille agree that if Muldowney was

      occupying the residence under a month-to-month lease after the completion of

      the original one-year lease, Indiana Code Section 32-31-1-4 applies, which

      states:

                (a) This section applies to a tenancy of not more than three (3)
                months which, by express or implied agreement of the parties,
                extends from one (1) period to another.


                (b) Notice to the tenant equal to the interval between the periods
                is sufficient to determine a tenancy described in subsection (a).


      Lincoln Hills and Versprille argue that the complaint for eviction constituted

      “notice” under this statute, and because it was filed on September 2, 2016,


      Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017   Page 5 of 12
       Muldowney had to leave the premises by October 2, 2016—one month later,

       equivalent to the month-to-month length of the tenancy. Muldowney counters

       that the complaint itself could not have constituted notice of intent to terminate

       the lease, and even if it did, it could not have taken effect until October 31,

       2016.


[10]   It is difficult to characterize the eviction complaint itself as providing the notice

       of termination of lease as contemplated by statute. That is because, in order to

       file that complaint, Muldowney would already have to have been in breach of

       the lease and illegally in possession of the property when it was filed. In other

       words, because according to Muldowney he had not previously been notified

       that the month-to-month lease was being terminated, he had not yet breached

       that lease when the complaint was filed. See Ind. Code § 32-30-2-4 (providing

       that action for ejectment and possession of premises must allege “[t]hat the

       defendant unlawfully keeps the plaintiff from possession of the premises.”). 1


[11]   Also, even if the eviction complaint served as notice of termination of the

       month-to-month lease, it is unclear whether it could have taken effect before

       October 31, 2016. Lincoln Hills and Versprille cite Fields v. Conforti, 868 N.E.2d

       507, 515 (Ind. Ct. App. 2007), for the proposition that “[a] month-to-month

       tenancy may be terminated or the rent may be changed by the landlord giving a




       1
        Indiana Code Section 32-30-3-1 also allows a plaintiff to seek ejection of a defendant from real estate if the
       plaintiff files an affidavit stating, in part, that “[t]he defendant has unlawfully retained possession of the
       property described in the complaint.” Lincoln Hills and Versprille’s complaint was not accompanied by an
       affidavit.

       Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017                        Page 6 of 12
       one-month notice to the tenant.” The issues in Fields, however, were whether

       the landlord could hold the lessee liable for a sublessee’s failure to vacate the

       premises; whether the landlord could increase the rent during the sublessee’s

       holdover tenancy; and whether the original one-year tenancy had converted

       into a subsequent one-year tenancy or a month-to-month tenancy. Id. at 514-

       15. The issue of the effective date of the increase in rent was not analyzed by

       us. Lincoln Hills and Versprille also cite Barber v. Echo Lake Mobile Home Cmty.,

       759 N.E.2d 253, 255 (Ind. Ct. App. 2001), in which we stated, “A month-to-

       month tenancy may be terminated by one party giving one-month notice to the

       other party.” Again, however, we did not have to address the precise time

       period regarding notice of termination of a month-to-month lease, as the parties

       did not dispute that issue; the primary issue in Barber was whether the landlord

       could terminate the lease without cause. Id. at 256.


[12]   Both Fields and Barber cited Spieser v. Addis, 411 N.E.2d 439 (Ind. Ct. App.

       1980). In that case, the landlord gave notice of intent to terminate a month-to-

       month lease on April 30, 1977, to be effective June 1, 1977. Id. at 441. The

       notice in Spieser is consistent with Muldowney’s position—that is, the notice

       given during one month was effective at the end of the following month, not

       precisely one month later. Muldowney’s position also is consistent with the

       Restatement (Second) of Property on this point. Specifically, the Restatement

       provides:


               f. Notice of Termination. The lease may specify the time before
               the end of the designated period that notice must be given by

       Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017   Page 7 of 12
               either party to terminate the lease as of the end of the period. If
               no such notice of termination is given, the lease will continue for
               another period. . . . if the date stated in the notice for
               termination is not the end of a period or is too short a time before
               the end of a period, the notice will be effective to terminate the
               lease at the earliest possible date after the date stated.


       Illustrations to this rule explain:

               5. On February 1, L and T enter into a month to month tenancy
               to begin on that date. The lease specifies that notice must be
               given by the party desiring to terminate the lease at least two
               weeks before the end of the period. On June 20 T decides he
               wants to terminate the lease. The earliest date on which he can
               terminate the lease is July 31.


               6. On March 1, L and T enter into a month to month tenancy to
               begin on that date. No provision for notice is made. In order to
               terminate T's tenancy on November 30, L must give T notice no
               later than 11:59 p. m. on October 31. A notice given on
               November 1 will not run for one full period before the monthly
               tenancy renews itself immediately after 11:59 p. m. on November
               30. However, the November 1 notice is effective to terminate the
               lease on December 31 even though it specified November 30 as
               the date of termination.


       As noted by Muldowney, in 1978, the Indiana Attorney General seemed to

       endorse the Restatement position regarding notice of termination of a month-to-

       month lease. See Ind. Op. Atty. Gen. 61 (1978). Other jurisdictions also have

       adopted this view. See, e.g., Sage v. Rogers, 848 P.2d 1034, 1039 (Mont. 1993).


[13]   Perhaps recognizing that they may not be successful on this argument on

       appeal, Lincoln Hills and Versprille make two alternative arguments: that after

       Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017   Page 8 of 12
       the expiration of the original lease, Muldowney was not a month-to-month

       tenant, but either a tenant by sufferance or a tenant for a specified period of

       time (i.e., one month). In either situation, a landlord is not required to provide

       any notice of intent to terminate a lease. See I.C. § 32-31-1-8(1), (4). However,

       in support of its claims that Muldowney was a tenant by sufferance or for a

       specified period of time only, Lincoln Hills and Versprille rely on facts not in

       the record before us regarding the circumstances of Muldowney’s continuing to

       live in the rental after the end of the original lease. Muldowney has moved to

       strike those parts of Lincoln Hills and Versprille’s brief relating these extra-

       record facts.


[14]   Lincoln Hills and Versprille acknowledge the general rule that facts outside the

       record cannot be considered by this court on appeal. See Schaefer v. Kumar, 804

       N.E.2d 184, 187 n.3 (Ind. Ct. App. 2004), trans. denied. They argue in part for

       an exception to this rule for small claims actions, based on the informality of

       small claims trials, and ask that we consider their proffered extra-record facts.

       However, such informality does not extend to appeals from a small claims

       judgment; the appellate rules are the same regardless of the type of action

       below. See Potts, 460 N.E.2d at 998.


[15]   Alternatively, Lincoln Hills and Versprille move to remand this case to the trial

       court for further consideration pursuant to Indiana Appellate Rule 37, so they

       have an opportunity to present evidence on their alternative theories. Rule 37

       provides:



       Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017   Page 9 of 12
                A. Content of Motion. At any time after the Court on Appeal
                obtains jurisdiction, any party may file a motion requesting that
                the appeal be dismissed without prejudice or temporarily stayed
                and the case remanded to the trial court or Administrative
                Agency for further proceedings. The motion must be verified
                and demonstrate that remand will promote judicial economy or
                is otherwise necessary for the administration of justice.


                B. Effect of Remand. The Court on Appeal may dismiss the
                appeal without prejudice, and remand the case to the trial court,
                or remand the case while retaining jurisdiction, with or without
                limitation on the trial court’s authority. Unless the order
                specifically provides otherwise, the trial court or Administrative
                Agency shall obtain unlimited authority on remand.


       Muldowney argues against such action, asserting that Versprille should have

       insisted on presenting evidence despite the trial court’s spontaneous ruling in

       his and Lincoln Hills’s favor. Under the circumstances here, we disagree.


[16]   Our supreme court has disapproved of trial courts conducting “summary”

       proceedings unless the court establishes on the record affirmative agreement

       from represented parties’ attorneys that the proceedings will be conducted

       summarily, and affirmative agreement by both represented clients or pro se

       litigants to summary proceedings. See Bogner v. Bogner, 29 N.E.3d 733, 743

       (Ind. 2015).2 The trial court here did not obtain anyone’s consent before




       2
         Bogner also requires an “opportunity for both parties to add any other relevant information regarding the
       issues in dispute before the summary proceeding is concluded or to affirm the arguments made by counsel;”
       and “an advisement in advance of the hearing that either party is free to object to the form of the proceeding
       and request a full evidentiary hearing, upon which formal rules of evidence and procedure will be observed.”
       Bogner, 29 N.E.3d at 743. Obviously, the last requirement regarding an opportunity for an evidentiary

       Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017                     Page 10 of 12
       summarily ruling in Lincoln Hills and Versprille’s favor. Although small claims

       hearings are to be informal, neither are they normally to be “summary” in the

       sense of entirely dispensing with the presentation of evidence in support of a

       claim. The manner in which the trial court acted here deprived Lincoln Hills

       and Versprille of the chance to present evidence to meet its burden of proof

       against Muldowney.


[17]   We conclude that we should remand this case for further proceedings and the

       conducting of a proper, if informal, evidentiary hearing. See Iltzsch v. State, 981

       N.E.2d 55, 57 (Ind. 2015) (remanding to allow State to present evidence

       supporting restitution request where defendant did not object to fact of

       restitution and State presented insufficient evidence to support restitution

       amount); Essany v. Bower, 790 N.E.2d 148, 153 (Ind. Ct. App. 2003) (remanding

       for trial court to conduct new hearing on protective order request where trial

       court did not permit petitioner to testify or to cross-examine defendant). We

       acknowledge that this case may be moot in one sense, as Muldowney seems to

       concede he had to move out of the Lincoln Hills residence by October 31, 2016.

       However, a different move-out date may affect a calculation of damages, and

       Lincoln Hills and Versprille make no argument that the case is moot.




       hearing where all the rules of evidence and procedure will be observed would be inapplicable in a small
       claims case.

       Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017                    Page 11 of 12
                                                     Conclusion
[18]   We elect to dismiss this appeal without prejudice. We remand for the trial

       court to conduct an evidentiary hearing on Lincoln Hills and Versprille’s

       complaint and to thereafter rule on it accordingly. Then, either party may

       initiate a new appeal if they so desire.3


[19]   Dismissed and remanded.


       Baker, J., and Crone, J., concur.




       3
        Our dismissal of this appeal without prejudice, with the opportunity for the parties to file new briefs in a
       new appeal, renders Muldowney’s motion to strike portions of Lincoln Hills and Versprille’s brief moot.

       Court of Appeals of Indiana | Opinion 29A02-1610-SC-2439 | September 8, 2017                       Page 12 of 12
