MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 19 2018, 8:57 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE Robert Peacher Pendleton, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Peacher, April 19, 2018
Appellant-Plaintiff, Court of Appeals Cause No. 48A02-1709-SC-2312 v. Appeal from the Madison Circuit Court
Elizabeth Lakin, The Honorable David A. Happe, Judge Appellee-Defendant. Trial Court Cause No. 48C04-1704- SC-1294
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Plaintiff, Robert Peacher (Peacher), pro se, appeals the small claims
court’s judgment in favor of Appellee-Defendant, Elisabeth Lakin (Lakin).
[2] We affirm.
ISSUE [3] Peacher presents one issue on appeal, and which we restate as: Whether the
small claims court erred in entering judgment for Lakin.
FACTS AND PROCEDURAL HISTORY [4] On January 12, 2017, Peacher filed a notice of claim against Lakin. In the
supporting affidavit, Peacher averred that Lakin “had given away or destroyed”
his business books, records, and seals. (Appellant’s App. Vol. II, p. 17). As
such, Peacher claimed that Lakin owed him “$5,700 to replace the property
that she has either kept, given away, or destroyed.” (Appellant’s App. Vol. II, p.
17). On April 20, 2017, Lakin filed her response denying Peacher’s claims. On
May 12, 2017, Peacher filed a motion, seeking to amend his notice of claim and
to allege that the cost of replacing his business books and other items being held
by Lakin was now $6,000 instead of $5,700. In his amended notice of claim,
Peacher requested that a hearing date be set within thirty days.
[5] On May 15, 2017, the small claims court ordered the parties to present evidence
in the form of affidavits in place of a hearing. On June 6, 2017, Peacher filed
his affidavit and supporting exhibits. Peacher averred that in a separate
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 2 of 8 unrelated civil cause number, he had obtained a default judgment against Lakin
where the trial court had ordered Lakin to pay him compensatory damages in
the sum of $50,000, and for Lakin to release any property that she controlled or
held on behalf of Peacher. Peacher swore that although Lakin had fully paid
the compensatory damages, Lakin had not returned his “company records,
books and seals,” instead, Lakin had voluntary offered his property to the
Madison County Prosecutor’s Office. (Appellant’s App. Vol. II, p. 22).
Peacher indicated that he replaced his company books and attached a quotation
from Spiegel and Utrera, P.A., indicating that the cost of replacing his company
books and seals was $5,700. On July 6, 2017, Lakin filed her responsive
affidavit where she averred that in order to avoid being incarcerated in her own
criminal case, and in exchange for a “plea” deal, she turned over Peacher’s
company books and seals to the Madison County Prosecutor’s Office.
(Appellant’s App. Vol. II, p. 36). Lakin additionally claimed that there was
insufficient evidence to substantiate that Peacher paid $5,700 to replace his
company books and seals. 1 On July 19, 2017, the small claims court reviewed
the parties’ affidavits and issued an order stating, in pertinent part:
1 On July 21, 2017, Peacher filed his response to Lakin’s affidavit, claiming that the Pendleton Correctional Facility staff illegally confiscated Lakin’s responsive affidavit; therefore, he did not have sufficient time to respond to it.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 3 of 8 [Peacher] brought suit for damages over [Lakin’s] alleged disposition of certain business assets or records. [Peacher] asserts that these items were given by [Lakin] to a prosecuting attorney. Rather than pursuing replevin against the party who possessed the records, [Peacher] instead wants to be paid for the reproduction of the said records or assets. 2
The [c]ourt cannot find that [Lakin’s] action in cooperating with a law enforcement investigation are tortious, enabling [Peacher] to recover damages from her. To the extent that [Peacher’s] claim is based on a breach of contract or fiduciary duty, he had an obligation to mitigate his damages by seeking legal recourse to recover the property he believes is from the party who has it. While he apparently raised this issue in a hearing within a criminal cause number, there is no indication that he ever sought to use the civil tool of replevin to obtain the property.
The [c]ourt finds that [Peacher] has not met his burden of proof, and therefore enters judgment for [Lakin] against [Peacher]. . . .
(Appellant’s App. Vol. II, pp. 14-15). On July 26, 2017, Peacher filed a motion
to correct error, claiming that the small claims court “was not correct” in stating
that he did not “pursue replevin against the party who possessed” his company
books and seals. (Appellant’s App. Vol. II, p. 50). Specifically, Peacher argued
2 While [Peacher] submitted a quote from Spiegel and Utrera, P.A., for replacement of assets/records, there is no documentation that he actually paid such sum [footnote in the original].
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 4 of 8 that at his criminal hearing on May 1, 2017, he questioned the Madison County
Prosecutor regarding the status and return of his company books and seals, and
that the prosecutor indicated that Lakin had voluntarily offered the books to
them. On July 30, 2017, the small claims court issued an order stating
Having reviewed [Peacher’s] filings of 7/21/17 and 7/26/2017, the [c]ourt takes these as Motion to Correct Errors, and hereby denies the same. The [c]ourt notes that had these materials been submitted prior to the judgment, they would not have affected the outcome of this matter, and judgment would still have been entered for [Lakin].
(Appellant’s App. Vol. II, p. 48).
[6] Peacher now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [7] As a preliminary matter, we observe that Lakin did not file an appellee’s brief.
Where an appellee fails to file a brief, we do not undertake to develop
arguments on that party’s behalf; rather, we may reverse upon a prima facie
showing of reversible error by the appellant. Morton v. Ivacic, 898 N.E.2d 1196,
1199 (Ind. 2008). Prima facie error is error “at first sight, on first appearance, or
on the face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind.
2014). This “prima facie error rule” relieves this court from the burden of
controverting arguments advanced for reversal, a duty which remains with the
appellee. Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 5 of 8 [8] The issue here is whether the judgment of the small claims court is clearly
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 19 2018, 8:57 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE Robert Peacher Pendleton, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Peacher, April 19, 2018
Appellant-Plaintiff, Court of Appeals Cause No. 48A02-1709-SC-2312 v. Appeal from the Madison Circuit Court
Elizabeth Lakin, The Honorable David A. Happe, Judge Appellee-Defendant. Trial Court Cause No. 48C04-1704- SC-1294
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Plaintiff, Robert Peacher (Peacher), pro se, appeals the small claims
court’s judgment in favor of Appellee-Defendant, Elisabeth Lakin (Lakin).
[2] We affirm.
ISSUE [3] Peacher presents one issue on appeal, and which we restate as: Whether the
small claims court erred in entering judgment for Lakin.
FACTS AND PROCEDURAL HISTORY [4] On January 12, 2017, Peacher filed a notice of claim against Lakin. In the
supporting affidavit, Peacher averred that Lakin “had given away or destroyed”
his business books, records, and seals. (Appellant’s App. Vol. II, p. 17). As
such, Peacher claimed that Lakin owed him “$5,700 to replace the property
that she has either kept, given away, or destroyed.” (Appellant’s App. Vol. II, p.
17). On April 20, 2017, Lakin filed her response denying Peacher’s claims. On
May 12, 2017, Peacher filed a motion, seeking to amend his notice of claim and
to allege that the cost of replacing his business books and other items being held
by Lakin was now $6,000 instead of $5,700. In his amended notice of claim,
Peacher requested that a hearing date be set within thirty days.
[5] On May 15, 2017, the small claims court ordered the parties to present evidence
in the form of affidavits in place of a hearing. On June 6, 2017, Peacher filed
his affidavit and supporting exhibits. Peacher averred that in a separate
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 2 of 8 unrelated civil cause number, he had obtained a default judgment against Lakin
where the trial court had ordered Lakin to pay him compensatory damages in
the sum of $50,000, and for Lakin to release any property that she controlled or
held on behalf of Peacher. Peacher swore that although Lakin had fully paid
the compensatory damages, Lakin had not returned his “company records,
books and seals,” instead, Lakin had voluntary offered his property to the
Madison County Prosecutor’s Office. (Appellant’s App. Vol. II, p. 22).
Peacher indicated that he replaced his company books and attached a quotation
from Spiegel and Utrera, P.A., indicating that the cost of replacing his company
books and seals was $5,700. On July 6, 2017, Lakin filed her responsive
affidavit where she averred that in order to avoid being incarcerated in her own
criminal case, and in exchange for a “plea” deal, she turned over Peacher’s
company books and seals to the Madison County Prosecutor’s Office.
(Appellant’s App. Vol. II, p. 36). Lakin additionally claimed that there was
insufficient evidence to substantiate that Peacher paid $5,700 to replace his
company books and seals. 1 On July 19, 2017, the small claims court reviewed
the parties’ affidavits and issued an order stating, in pertinent part:
1 On July 21, 2017, Peacher filed his response to Lakin’s affidavit, claiming that the Pendleton Correctional Facility staff illegally confiscated Lakin’s responsive affidavit; therefore, he did not have sufficient time to respond to it.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 3 of 8 [Peacher] brought suit for damages over [Lakin’s] alleged disposition of certain business assets or records. [Peacher] asserts that these items were given by [Lakin] to a prosecuting attorney. Rather than pursuing replevin against the party who possessed the records, [Peacher] instead wants to be paid for the reproduction of the said records or assets. 2
The [c]ourt cannot find that [Lakin’s] action in cooperating with a law enforcement investigation are tortious, enabling [Peacher] to recover damages from her. To the extent that [Peacher’s] claim is based on a breach of contract or fiduciary duty, he had an obligation to mitigate his damages by seeking legal recourse to recover the property he believes is from the party who has it. While he apparently raised this issue in a hearing within a criminal cause number, there is no indication that he ever sought to use the civil tool of replevin to obtain the property.
The [c]ourt finds that [Peacher] has not met his burden of proof, and therefore enters judgment for [Lakin] against [Peacher]. . . .
(Appellant’s App. Vol. II, pp. 14-15). On July 26, 2017, Peacher filed a motion
to correct error, claiming that the small claims court “was not correct” in stating
that he did not “pursue replevin against the party who possessed” his company
books and seals. (Appellant’s App. Vol. II, p. 50). Specifically, Peacher argued
2 While [Peacher] submitted a quote from Spiegel and Utrera, P.A., for replacement of assets/records, there is no documentation that he actually paid such sum [footnote in the original].
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 4 of 8 that at his criminal hearing on May 1, 2017, he questioned the Madison County
Prosecutor regarding the status and return of his company books and seals, and
that the prosecutor indicated that Lakin had voluntarily offered the books to
them. On July 30, 2017, the small claims court issued an order stating
Having reviewed [Peacher’s] filings of 7/21/17 and 7/26/2017, the [c]ourt takes these as Motion to Correct Errors, and hereby denies the same. The [c]ourt notes that had these materials been submitted prior to the judgment, they would not have affected the outcome of this matter, and judgment would still have been entered for [Lakin].
(Appellant’s App. Vol. II, p. 48).
[6] Peacher now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [7] As a preliminary matter, we observe that Lakin did not file an appellee’s brief.
Where an appellee fails to file a brief, we do not undertake to develop
arguments on that party’s behalf; rather, we may reverse upon a prima facie
showing of reversible error by the appellant. Morton v. Ivacic, 898 N.E.2d 1196,
1199 (Ind. 2008). Prima facie error is error “at first sight, on first appearance, or
on the face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind.
2014). This “prima facie error rule” relieves this court from the burden of
controverting arguments advanced for reversal, a duty which remains with the
appellee. Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 5 of 8 [8] The issue here is whether the judgment of the small claims court is clearly
erroneous. Our standard of review in small claims cases is well settled. Small
claims court judgments are “subject to review as prescribed by relevant Indiana
rules and statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule
52(A), the clearly erroneous standard applies to appellate review of facts
determined in a bench trial with due regard given to the opportunity of the trial
court to assess witness credibility. This deferential standard of review is
particularly important in small claims actions, where trials are designed to
speedily dispense justice by applying substantive law between the parties in an
informal setting. Vance v. Lozano, 981 N.E.2d 554, 557 (Ind. Ct. App. 2012).
But this deferential standard does not apply to the substantive rules of law,
which are reviewed de novo just as they are in appeals from a court of general
jurisdiction. Id. at 557-58.
[9] In his amended notice of claim, Peacher’s aim was to recover the money that he
had allegedly expended in replacing his company books and seals, which he
claimed that Lakin had retained or given away to the Madison County
Prosecutor’s Office. Because no hearing was held, the small claims court
directed the parties to submit their evidence through affidavits. We first note
that Peacher amended his notice of claim to assert that he spent $6,000 to
replace his company books and seals. However, Peacher’s affidavit and
accompanying documents reflected that he was only seeking $5,700 in damages
from Lakin. Specifically, Peacher attached a quotation form in his affidavit
claiming that the cost of replacing the company books and seals was $5,700. In
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 6 of 8 her responsive affidavit, Lakin refuted that she was retaining Peacher’s
company books and seals, and she averred that she had offered them to the
Madison County Prosecutor’s Office in exchange for a plea deal. Also, Lakin
swore that the quotation provided by Peacher provided no assurance that
Peacher had spent $5,700 in replacing his company books and seals. Although
not addressed in as great of detail as the issue of replevin—i.e., that Peacher
should have sought the recovery of his company books and seals by initiating a
replevin action—the small claims court included a footnote in its order finding
that “there is no documentation that [Peacher] actually paid such sum.”
(Appellant’s App. Vol. II, p. 15). As such, the small claims court concluded
that Peacher had not met his burden in proving his damages. We agree.
[10] Parties in a small claims court bear the same burdens of proof as they would in
a regular civil action on the same issues. Mayflower Transit, Inc. v. Davenport,
714 N.E.2d 794, 797 (Ind. Ct. App. 1999). While the method of proof may be
informal, the relaxation of evidentiary rules is not the equivalent of relaxation
of the burden of proof. Id. It is incumbent upon the party who bears the
burden of proof to demonstrate that it is entitled to the recovery sought. Id.
Further we note that it is the fact-finder’s prerogative to weigh all of the
evidence and judge its credibility. In the instant case, Lakin, in her responsive
affidavit, challenged Peacher’s claim that he had paid $5,700 to replace his
company books and seals. We note that although Peacher submitted a quote,
he did not designate any documents showing that he had paid $5,700 to
replacing his company books and seals. Based upon the evidence submitted,
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 7 of 8 the small claims court determined that Peacher had failed to prove by a
preponderance of the evidence that he expended some money in replacing is
books and that Lakin was liable for the requested $5,700 in damages.
Accordingly, we hold that Peacher has not shown error of any sort, and we
affirm the small claims court judgment in favor of Lakin.
CONCLUSION
[11] Based on the foregoing, we conclude that the small claims court did not err in
denying Peacher’s notice of claim.
[12] Affirmed
[13] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-SC-2312 | April 19, 2018 Page 8 of 8