Fathollah Partow v. Countryside Homeowners Association, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 27, 2015
• Docket: 29A02-1410-SC-730
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 27 2015, 8:25 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Fathollah Partow Robert D. Roache, II Westfield, Indiana Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

Fathollah Partow, October 27, 2015 Appellant-Defendant, Court of Appeals Case No. 29A02-1410-SC-730 v. Appeal from the Hamilton Superior Court Countryside Homeowners The Honorable William P. Association, Inc., Greenaway, Magistrate Appellee-Plaintiff Trial Court Cause No. 29D04-1404-SC-3778

Crone, Judge.

Case Summary [1] Fathollah Partow, pro se, appeals the small claims judgment entered against

him in favor of Countryside Homeowners Association, Inc. (“Countryside

HOA”). Partow owns a townhome within a Westfield neighborhood under the

Court of Appeals of Indiana | Memorandum Decision 29A02-1410-SC-730 | October 27, 2015 Page 1 of 4 direction of Countryside HOA. Partow failed to pay the 2013 and 2014

homeowner’s association assessments due on the property. Thereafter,

Countryside HOA filed a small claims action against Partow seeking damages

for the unpaid assessments for 2013 and 2014, late fees, administrative fees, and

attorney’s fees.

[2] A bench trial was held on September 17, 2014. Partow appeared pro se and

Countryside HOA appeared by counsel. Countryside HOA submitted copies of

the neighborhood declarations and covenants, as well as its policies for

determining and collecting annual assessments from homeowners. Countryside

HOA also provided evidence of Partow’s unpaid assessments and fees, and the

attorney’s fees Countryside HOA had incurred in the collection process.

Partow admitted that he failed to pay the 2013 and 2014 assessments but argued

that Countryside HOA was just trying to “destroy” him and that Countryside

HOA should have let him pay his delinquent assessments in monthly

installments of $35. Tr. at 24. At the conclusion of the bench trial, the court

awarded Countryside HOA $1912.75 in damages.

Discussion and Decision [3] Partow appeals the judgment of a small claims court. Judgments in small

claims actions are “subject to review as prescribed by relevant Indiana rules and

statutes.” Ind. Small Claims Rule 11(A). On appeal, we review for clear error

and we will presume that the trial court correctly applied the law. Hutchison v.

Trilogy Health Servs., LLC, 2 N.E.3d 802, 805 (Ind. Ct. App. 2014). We will not

reweigh the evidence or determine the credibility of witnesses, but will consider Court of Appeals of Indiana | Memorandum Decision 29A02-1410-SC-730 | October 27, 2015 Page 2 of 4 only the evidence that supports the judgment and the reasonable inferences to

be drawn therefrom. Id. We are particularly deferential to the trial court in

small claims actions because the trials are informal with the sole objective of

dispensing speedy justice between the parties according to the substantive rules

of law. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006).

[4] “It is a cardinal rule of appellate review that the appellant bears the burden of

showing reversible error by the record, as all presumptions are in favor of the

trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468

(Ind. Ct. App. 2006). We note that Partow proceeded pro se below and has

also chosen to proceed pro se in this appeal. It is well settled that “a litigant

who chooses to proceed pro se will be held to the same rules of procedure as

trained legal counsel and must be prepared to accept the consequences of his

action.” Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). “While

we prefer to decide cases on their merits, we will deem alleged errors waived

where an appellant’s noncompliance with the rules of appellate procedure is so

substantial it impedes our appellate consideration of the errors.” Id.

[5] Here, Partow’s noncompliance with our appellate rules has substantially

impeded our review. Although he has failed to comply with a number of

appellate rules, we will concentrate on the most egregious violation. Indiana

Appellate Rule 46(A)(8)(a) requires the appellant’s contentions to be supported

by cogent reasoning and “citations to the authorities, statutes, and the

Appendix or parts of the Record on appeal relied on ….” Partow’s brief

essentially consists of a list of bald assertions, unsupported by cogent reasoning,

Court of Appeals of Indiana | Memorandum Decision 29A02-1410-SC-730 | October 27, 2015 Page 3 of 4 without a single citation to legal authority, the appendix, or any part of the

record on appeal. It is not our burden to search the record, research relevant

authorities, and brief his case for him. If we were to address his arguments as

he has presented them, “we would be forced to abdicate our role as an impartial

tribunal and would instead become an advocate for one of the parties. This,

clearly, we cannot do.” Shepherd, 819 N.E.2d at 463. Partow has waived our

review of his contentions for lack of cogent argument. See id.

[6] Waiver notwithstanding, we are able to discern that the crux of Partow’s

argument is simply a request for us to reweigh the evidence in his favor, a task

not within our prerogative on appeal. See Hutchison, 2 N.E.3d at 805. The

judgment of the trial court is affirmed.

[7] Affirmed.

May, J., and Bradford, J., concur.

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