Vernon L. Mefford v. Lori Little and Jason McCord

• Court: Indiana Court of Appeals
• Decided: August 15, 2012
• Docket: 53A01-1110-SC-495
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral

FILED estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: Aug 15 2012, 9:23 am

JEREMY S. BRENMAN CLERK Bloomington, Indiana of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA

VERNON L. MEFFORD, ) ) Appellant-Plaintiff, ) ) vs. ) No. 53A01-1110-SC-495 ) LORI LITTLE and JASON McCORD, ) ) Appellees-Defendants. )

APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Stephen R. Galvin, Judge Cause No. 53C07-1105-SC-1631

August 15, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge In this appeal arising from a claim for damages resulting from the breach of a lease of

residential real estate, Plaintiff Vernon L. Mefford (“Mefford”) appeals the trial court’s

judgment in favor the Defendants Lori Little (“Little”) and Jason McCord (“McCord”)

(collectively, “the Defendants”). In its judgment, the trial court found that the Mefford had

failed to comply with the requirements of Indiana Code section 32-31-3-12 et seq. and denied

Mefford’s claim for unpaid rent and damages to the property and ordered the return of the

Defendants’ security deposit. The sole issue on this appeal is whether the trial court erred in

denying the Mefford’s claim for damages on the basis that he had failed to provide the

Defendants with a detailed list of damages as required by the statute.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 5, 2010, Mefford, Little, and McCord entered into a residential lease for a

house in Bloomington, Indiana. Little and McCord paid the first month’s rent and a $700.00

security deposit and moved into the property shortly thereafter. The relationship between the

parties soon became strained. Mefford objected to McCord bringing certain landscaping

equipment onto the property, and Little and McCord repeatedly complained of the property’s

physical condition. Little and McCord vacated the property in May of 2011.

In that same month, Mefford filed his claim for damages and unpaid rent against Little

and McCord. Following trial, the trial court entered its judgment finding that Mefford had

failed to comply with Indiana Code sections 32-31-3-12 to 32-31-3-16 by failing to return the

security deposit or provide an itemization of the damages which he claimed. The trial court

2 also found that the property was uninhabitable for Little and McCord and for their newborn

baby due to mold growing throughout the property, holes in the ceiling and walls and

fiberglass insulation that was clearly visible, that Mefford refused to repair or remediate the

problems, and entered judgment for Little and McCord. Mefford now appeals.

DISCUSSION AND DECISION

On appeal, Mefford argues that the trial court erred in ordering a return of the security

deposit as required by Indiana Code section 32-31-3-12 et seq. because Little and McCord

failed to provide him a mailing address as required by the statute. Mefford failed, however,

to make that argument to the trial court and failed to present any evidence to the trial court

supporting such argument. He has, therefore, waived the issue. A party may not raise an

issue on appeal which was not first presented to the trial court. Blairex Labs., Inc. v. Clobes,

599 N.E.2d 233, 237 (Ind. Ct. App. 1992), trans. denied.

Waiver notwithstanding, Mefford’s argument must fail. Because he had the burden of

proof at trial concerning the damages that he claimed, Mefford appeals a negative judgment.

When a party appeals a negative judgment, he must demonstrate that the evidence points

unerringly to a conclusion different from that reached by the trier of fact. Buckland v. Reed,

629 N.E.2d 1241, 1245 (Ind. Ct. App. 1994). Mefford has failed to make such a

demonstration. In light of the trial court’s specific finding that the property was

uninhabitable by Little and McCord and their infant son, the trial court did not err in entering

judgment against Mefford. Affirmed.

NAJAM, J., and MAY, J., concur.