Pinnacle Properties Development Group, LLC v. Raul Sanchez (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2016
• Docket: 10A04-1512-SC-2276
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jun 30 2016, 8:11 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court 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.

ATTORNEY FOR APPELLANT William Perry McCall Mosley Bertrand & McCall Jeffersonville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Pinnacle Properties June 30, 2016 Development Group, LLC, Court of Appeals Case No. Appellant-Plaintiff, 10A04-1512-SC-2276 Appeal from the Clark Circuit v. Court The Honorable Kenneth R. Raul Sanchez, Abbott, Magistrate Appellee-Defendant. Trial Court Cause No. 10C03-1509-SC-1489

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2276 | June 30, 2016 Page 1 of 5 STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Pinnacle Properties Development Group, LLC (Pinnacle

Properties), appeals the small claims court’s judgment, denying Pinnacle

Properties’ claim for unpaid rent and eviction against Appellee-Defendant, Raul

Sanchez (Sanchez).

[2] We dismiss.

ISSUES

[3] Pinnacle Properties raises two issues, which we restate as follows:

(1) Whether the small claims court abused its discretion when it failed to

apply the terms of the residential lease agreement; and

(2) Whether the small claims court committed a reversible error when it did

not allow Pinnacle Properties to submit additional testimony after the

court conducted a viewing of the residence.

FACTS AND PROCEDURAL HISTORY

[4] On September 21, 2015, Pinnacle Properties filed its Complaint and request for

eviction against Sanchez for unpaid rent in the months of August, September,

and October 2015. Apparently, “[o]n or about June 12, 2015, there was a

substantial rainfall in the local area which caused substantial flooding in the

area, and [Sanchez’] apartment in particular[.]” (Appellant’s Br. p. 10). As a

Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2276 | June 30, 2016 Page 2 of 5 result of the flooding, Sanchez “was unable to live in the apartment for a

substantial period of time.” (Appellant’s Br. p. 10). On October 13, 2015, the

small claims court conducted a hearing on Pinnacle Properties’ Complaint.

After hearing the parties, the small claims court suspended the hearing to

conduct an onsite visit of the apartment. The following day, the small claims

court issued its Order, finding:

Despite [Pinnacle Properties’] testimony that the apartment was repaired and made habitable within a short period of time, and other testimony that it was repaired within 90 days, the [c]ourt’s physical viewing of the apartment revealed substantial amounts of mold on the walls, a large area of drywall missing in one room, as well as a large section of the ceiling missing in the bathroom. In addition, claims of the carpeting being removed and remedial work being done seem highly unlikely due to the filthy condition of the carpeting and the amount of debris found on the carpeting.

(Appellant’s Br. p. 10). The small claims court concluded that “[t]he leased

premise has been uninhabitable since the flooding in July, and [Sanchez] had a

legal right to reside elsewhere and pay no rent for the months of August,

September, and October.” (Appellant’s Br. p. 10).

[5] Pinnacle Properties now appeals. Additional facts will be provided as

necessary.

DISCUSSION AND DECISION

[6] Although we prefer to dispose of cases on their merits, where an appellant fails

to substantially comply with the appellate rules, then dismissal of the appeal is Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2276 | June 30, 2016 Page 3 of 5 warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). Indiana

Appellate Rule 49(A) provides in part that “[t]he appellant shall file its

Appendix with its appellant’s brief.” (Emphasis added). And Indiana

Appellant Rule 50(A) states, in relevant part:

(1) Purpose. The purpose of an Appendix in civil appeals . . . is to present the Court with copies of only those parts of the record on appeal that are necessary for the Court to decide the issues presented.

(2) Contents of Appellant’s Appendix. The appellant’s Appendix shall contain a table of contents and copies of the following documents, if they exist:

(a) The chronological case summary for the trial court . . . ;

****

(f) pleadings and other documents from the Clerk’s Record in chronological order that are necessary for resolution of the issues raised on appeal[.]

[7] Here, in its appellant’s brief, Pinnacle Properties included the small claim

court’s appealed judgment. However, Pinnacle Properties did not file an

Appendix. Accordingly, we do not have the small claims court’s chronological

case summary, nor do we have a copy of the Complaint or the residential lease

agreement, despite numerous references to these documents in Pinnacle

Properties’ appellate brief.

Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2276 | June 30, 2016 Page 4 of 5 [8] It is well settled that the duty of presenting a record adequate for intelligent

appellate review on points assigned as error falls upon the appellant. Bambi’s

Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 352 (Ind. Ct. App. 2006). Pinnacle

Properties’ disregard for the requirements of the appellate rules makes our

review of the small claim court’s judgment impossible. Accordingly, we

dismiss this appeal.

CONCLUSION

[9] Based on the foregoing, we dismiss Pinnacle Properties’ appeal.

[10] Dismissed.

[11] Kirsch, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 10A04-1512-SC-2276 | June 30, 2016 Page 5 of 5