Edwin Blinn Jr. v. Rachel Marie Fern (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2017
• Docket: 27A05-1701-SC-49
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2017, 9:56 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT Morris Kelsay Marion, Indiana

IN THE COURT OF APPEALS OF INDIANA

Edwin Blinn Jr., May 25, 2017 Appellant-Plaintiff, Court of Appeals Case No. 27A05-1701-SC-49 v. Appeal from the Grant Superior Court Rachel Marie Fern, The Honorable Warren Haas, Appellee-Defendant Judge Trial Court Cause No. 27D03-1609-SC-936

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A05-1701-SC-49 | May 25, 2017 Page 1 of 4 [1] Edwin Blinn, Jr., is a landlord who filed a complaint to evict one of his tenants,

Rachel Marie Fern, for failure to pay rent. The trial court awarded Blinn

possession effective October 3, 2016. After Blinn took possession, his property

manager, Katie Blinn, attempted to re-rent the vacant apartment. She put

weekly ads in the newspaper for three weeks but had not yet found a new tenant

at the time of the damages hearing.

[2] At the October 20, 2016, damages hearing, Blinn requested a continuance

because he had not yet found a new tenant; therefore, he was unable to provide

a final calculation of the previous tenant’s unpaid rent. 1 The trial court

questioned Katie and learned that Blinn owns and rents approximately seventy-

five apartments in the community. Katie also agreed that the vacant apartment

“should go quickly” because it was their only vacant one-bedroom apartment at

that time. Tr. Vol. II p. 6.

[3] The trial court denied the motion to continue the damages hearing for the

following reasons:

Mr. Blinn has many many many apartments, and he has the ability to put people in apartments. And he chooses which ones go into which apartments. So, I think it’s unfair for the people who are getting no benefit what so ever from paying rent to have very long before the at least the bleeding stops.

1 Fern’s lease expired on December 18, 2016.

Court of Appeals of Indiana | Memorandum Decision 27A05-1701-SC-49 | May 25, 2017 Page 2 of 4 Id. The trial court awarded damages in the amount of $2,851, which included

past due rent up to the date of the hearing. Blinn filed a motion to correct error,

which the trial court denied, reasoning as follows:

Landlord picks and chooses who occupies one or another of his 75 apartments. He was able to re-rent 4 or 5 of his apartments at [one location] and another 5 or 6 in his other apartments in the three weeks prior to October 20, 2016. Landlord would have little incentive to rent Tenant’s apartment, if he were given 60 additional days, as requested, to re-rent Tenant’s apartment. Katie Blinn testified that Tenant’s apartment is a one bedroom unit and should be rented quickly.

Appealed Order p. 2. Blinn now appeals.

[4] 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, the tenant 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.

[5] After an eviction or tenant default, “[a] landlord is required to use such

diligence as would be exercised by a reasonably prudent person under similar

circumstances to relet the premises.” Merkor Mgmt. v. McCuan, 728 N.E.2d 209,

Court of Appeals of Indiana | Memorandum Decision 27A05-1701-SC-49 | May 25, 2017 Page 3 of 4 212 (Ind. Ct. App. 2000). The trial court here found, based on its assessment of

the evidence and the parties, that if Blinn used reasonable diligence, the

apartment would be re-rented quickly. Indeed, Blinn’s sole witness testified

precisely that. Tr. Vol. II p. 6. The implication underlying the trial court’s

ruling is a conclusion that if Blinn had been given more time, he would not

have used reasonable diligence to find a new tenant. We decline to second-

guess this assessment, as we do not have the benefit of observing the parties or

the witness first hand.

[6] Indiana Small Claims Rule 9(A) states that “[e]ither party may be granted a

continuance for good cause shown.” In this case, the trial court found that

Blinn did not establish good cause. Nothing in this record leads us to believe a

reversal of that decision is warranted.

[7] The judgment of the trial court is affirmed.

Barnes, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A05-1701-SC-49 | May 25, 2017 Page 4 of 4