MEMORANDUM DECISION                                                            FILED
                                                                          Feb 14 2017, 9:36 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          CLERK
                                                                           Indiana Supreme Court
regarded as precedent or cited before any                                     Court of Appeals
                                                                                and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
George Sistevaris                                        Wm. Joseph Carlin, Jr.
The Law Office of George Sistevaris                      Auburn, Indiana
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Coventry Court Townhomes,                                February 14, 2017
Appellant,                                               Court of Appeals Case No.
                                                         02A04-1607-SC-1640
        v.                                               Appeal from the Allen Superior
                                                         Court
Brittany D. Bigger,
                                                         The Honorable Thomas P. Boyer,
Appellee.                                                Magistrate
                                                         Trial Court Cause No.
                                                         02D03-1511-SC-17925



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017            Page 1 of 8
                                             Case Summary
[1]   Coventry Court Townhomes (“Coventry”) appeals the trial court’s judgment in

      favor of an ex-tenant, Brittany Bigger. We affirm.


                                                     Issue
[2]   The restated issue before us is whether the trial court’s judgment absolving

      Bigger of responsibility for rent and other expenses incurred by an ex-roommate

      is supported by its findings.


                                                     Facts
[3]   On August 3, 2013, Bigger and Jennifer Ledsome jointly executed a lease to

      reside in an apartment at the Coventry complex in Fort Wayne. The lease

      provided in part:


              This lease agreement shall automatically renew for successive
              twelve (12) month terms (1 year) unless either party gives at least
              60 days prior written notice to the other at least 60 days before
              the end of the then current term. If Tenant intends to move at
              the end of the initial lease term or any subsequent term, Tenant
              must give Landlord at least 60 days prior written notice of
              tenant’s intention to vacate. Tenant hereby initials
              acknowledging complete agreement with these terms.


      App. p. 8. Bigger initialed this provision. The lease also provided that all

      signatories to the lease were jointly and severally liable under it.


[4]   Not long after moving in together, Bigger and Ledsome’s relationship

      deteriorated due to Ledsome’s boyfriend and drug use. At one point Ledsome

      Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017   Page 2 of 8
      threatened Bigger with physical harm and locked her out of the apartment. In

      November 2013, Bigger met with a leasing agent for Coventry, Nicky Williams,

      and discussed the troubles she was having with Ledsome, but Coventry offered

      no assistance to Bigger. Bigger told Williams during this meeting that she

      intended to move out of the apartment. Bigger did in fact permanently move

      out on or about December 3, 2013, while Ledsome continued to live there.


[5]   The lease automatically renewed for one year on August 31, 2014. In

      December 2014, Coventry filed an eviction action against Bigger and Ledsome.

      Bigger appeared at the eviction hearing, and she was told that Ledsome had

      paid the delinquent rent and the case was being dismissed. Bigger spoke with

      Williams on the phone shortly thereafter. Williams told Bigger that Coventry

      had prepared a new lease agreement to be signed only by Ledsome. However,

      Ledsome never signed this lease.


[6]   On August 31, 2015, the lease again automatically renewed for one year. On

      November 9, 2015, Coventry filed a small claims eviction action against both

      Bigger and Ledsome after rent was unpaid for October and November 2015.

      The action sought damages and attorney fees for the maximum small claims

      amount of $6,000. Default judgment was entered against Bigger and Ledsome

      jointly. Bigger moved to set aside the default judgment as to her; the trial court

      granted that motion. Ultimately, after conducting a hearing on the matter, the

      trial court ruled that Bigger had no obligation under the lease with Coventry

      after August 31, 2015. Thus, it held that Ledsome alone was liable for $6,000



      Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017   Page 3 of 8
      in damages to Coventry and that Bigger had no such liability. Coventry filed a

      motion to correct error, which the trial court denied. Coventry now appeals.


                                                  Analysis
[7]   Coventry asserts the trial court erred in finding Bigger no longer had any

      liability under the lease at the time Ledsome stopped paying rent. Specifically,

      although Coventry concedes that Bigger provided oral notice that she was

      vacating the apartment, Coventry argues this failed to comply with the lease’s

      requirement that any notice to vacate had to be in writing.


[8]   The trial court here entered findings with its order but no conclusions thereon.

      There was no written request for findings under Indiana Trial Rule 52(A)

      reflected in the CCS. As discussed below, we do not have a transcript of the

      hearing and so do not know whether such findings were requested orally. It

      would appear, given the lack of conclusions, that the findings were entered sua

      sponte.


[9]   Where findings are entered with a judgment sua sponte, the findings control

      only as to issues those specific findings cover. Samples v. Wilson, 12 N.E.3d 946,

      949-50 (Ind. Ct. App. 2014). A general judgment standard applies as to any

      issues upon which there are no findings, and we may affirm on any legal theory

      supported by the evidence adduced at trial. Id. at 950. When reviewing sua

      sponte findings, we review whether the evidence supports the findings and

      whether the findings support the judgment. Id. Findings will be set aside only

      when clearly erroneous, that is, when the record contains no facts or inferences

      Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017   Page 4 of 8
       supporting them. Id. “A judgment is clearly erroneous when a review of the

       record leaves us with a firm conviction that a mistake has been made.” Id.


[10]   Coventry has filed neither a transcript nor a certified statement of the evidence

       with this court. Indiana Appellate Rule 9(F)(5) requires, in part, that an

       appellant must request and designate:

               all portions of the Transcript necessary to present fairly and
               decide the issues on appeal. If the appellant intends to urge on
               appeal that a finding of fact or conclusion thereon is unsupported
               by the evidence or is contrary to the evidence, the Notice of
               Appeal shall request a Transcript of all the evidence.


       If an appellant fails to request and submit a transcript to this court, it results in a

       waiver of any claimed errors that depend upon review of the evidence. In re

       Walker, 665 N.E.2d 586, 588 (Ind. 1996); Lifeline Youth & Family Servs., Inc. v.

       Installed Bldg. Prods., Inc., 996 N.E.2d 808, 814-15 (Ind. Ct. App. 2013).


[11]   We are cognizant that the small claims hearing in this case apparently was not

       recorded and cannot be transcribed. In such a case, an appellant should request

       a certified statement of the evidence under Indiana Appellate Rule 31. Failure

       to do so results in waiver of any issue that requires review of the evidence or

       testimony presented at the hearing. See Meisberger v. Bishop, 15 N.E.3d 653, 659

       (Ind. Ct. App. 2013). Without a transcript or certified statement of the

       evidence, we may only review pure questions of law. See id. This may include

       a review of whether a trial court’s stated findings of fact support its judgment,

       accepting the findings as correct. See Walker, 665 N.E.2d at 589.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017   Page 5 of 8
[12]   Although the trial court here did enter findings of fact, because those findings

       appear to have been entered sua sponte, we cannot necessarily presume that

       there was not other evidence presented at trial, not mentioned in the findings,

       that could have supported the trial court’s judgment. Regardless, we conclude

       the trial court’s findings do support its judgment in favor of Bigger. The trial

       court did not specify the legal basis for its judgment; however, we may affirm

       on any basis supported by the findings or record. We conclude the findings

       support the conclusion that the lease between Bigger and Coventry was

       terminated by surrender and acceptance prior to Ledsome’s failure to pay rent.


[13]   When a lessor accepts a tenant’s surrender of leased premises, the lessee will

       not be liable for rent accruing thereafter. Grueninger Travel Serv. of Ft. Wayne,

       Indiana, Inc. v. Lake Cty. Trust Co., 413 N.E.2d 1034, 1038 (Ind. Ct. App. 1980).

       A tenant’s mere act of vacating the premises and returning keys to the landlord

       will not suffice to constitute surrender and acceptance, particularly if the

       landlord “has manifested a clear intention to hold the tenant liable under its

       lease agreement.” Id. A surrender and acceptance may be either express or

       created by operation of law. Id. An express surrender and acceptance generally

       must be in writing between the parties and supported by consideration. Id. “A

       surrender will arise by operation of law when the parties to a lease do some act

       so inconsistent with the subsisting relation of landlord and tenant as to imply

       they have both agreed to consider the surrender as effectual.” Id. “To

       constitute a surrender by operation of law, there must be some decisive,

       unequivocal act by the landlord which manifests the lessor’s acceptance of the


       Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017   Page 6 of 8
       surrender.” Id. Whether there has been a surrender and acceptance by

       operation of law is dependent on the facts and circumstances of each case. Id.


[14]   Here, in 2013, Bigger informed a representative of Coventry—Williams—of the

       difficulties she was having with Ledsome. After Coventry offered no assistance

       to Bigger in resolving those difficulties, she informed Williams of her intent to

       vacate the premises, and she did in fact do so shortly thereafter. Coventry did

       seek to hold Bigger liable in an eviction action filed over a year later in

       December 2014 and, thus, at that time Coventry may not have yet accepted

       Bigger’s surrender of the premises. After that eviction action was resolved,

       however, Bigger again spoke with Williams; Williams then informed Bigger

       that Coventry had prepared a lease of the apartment for Ledsome only to sign.

       This action indicated Coventry’s acceptance of the fact that Bigger had vacated

       and surrendered the premises and manifested Coventry’s intention that Bigger

       would no longer be bound by the lease. The fact that Ledsome never did sign

       this new lease was beyond Bigger’s control. At the time Ledsome began failing

       to pay rent in October and November 2015, there had been, by operation of

       law, a surrender of the premises by Bigger and acceptance of that surrender by

       Coventry. As such, the trial court correctly concluded Bigger was not liable for

       that unpaid rent or otherwise obligated under the lease.


[15]   Bigger argues several alternative legal theories for affirming the trial court’s

       judgment, such as reformation, waiver, or constructive eviction. We need not

       delve into those alternative theories. Additionally, we emphasize that to the

       extent there are any doubts as to whether there is a sufficient factual basis to

       Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017   Page 7 of 8
       support the trial court’s judgment, any such doubt must be resolved against

       Coventry given its failure to provide this court with an evidentiary record to

       review.


                                                 Conclusion
[16]   The trial court’s findings sufficiently establish that Bigger surrendered

       Coventry’s premises and that Coventry accepted that surrender before Ledsome

       breached the lease. Even if the findings did not support that particular legal

       theory, Coventry’s failure to provide this court with an evidentiary record to

       review precludes our reversal of the judgment in Bigger’s favor. We affirm.


[17]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1607-SC-1640| February 14, 2017   Page 8 of 8
