Opinion
23A-SC-2662
09-25-2024
Jose Menendez, Appellant-Defendant v. Hahn Surveying Group, Inc., Appellee-Plaintiff
APPELLANT PRO SE Jose Menendez
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Washington Township, Marion County Court The Honorable Steven G. Poore, Judge Trial Court Cause No. 49K07-2302-SC-513.
APPELLANT PRO SE Jose Menendez
Vaidik Judge Weissmann concurs. Judge Mathias dissents with separate opinion.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Hahn Surveying Group, Inc., sued Jose Menendez in small-claims court, claiming he failed to pay for certain surveying services. The court entered judgment for Hahn, and Menendez appeals. We affirm.
Facts and Procedural History
[¶2] The evidence most favorable to the small-claims court's judgment is as follows. In January 2022, Menendez and Hahn entered into a written agreement for the surveying of a parcel of property at 1952 Lawrence Street in Indianapolis. Hahn agreed to "Prepare a RETRACEMENT (staked) Survey, Split Parcel into 2 tracts, Prepare Secondary REPLAT certified Drawing for a fee of $2,950.00 due at delivery of Survey." Ex. p. 4. In February, Hahn surveyed and staked the parcel and learned that the Lawrence Street side measures 93.7 feet. Hahn sent Menendez a preliminary drawing and told him, "We need to know where you want to SPLIT the lot into 2 lots and complete the REPLAT drawing[.]" Id. at 6. Menendez said he wanted the parcel to be equally divided down a line perpendicular to Lawrence Street. Hahn responded, "D-5 zoning does not allow less than 50 feet of road frontage. Site would only have 46.85 feet of frontage per completed Retracement Survey." Id. at 3. Menendez said he "would contact the City of Indianapolis for guidance and get back with [Hahn]." Id. From March to July of 2022, Hahn "made several attempts to contact [Menendez] regarding the status of the proposed plat[.]" Id. Menendez didn't respond, and on July 28, 2022, Hahn sent Menendez an invoice for $1,950 for the work completed.
[¶3] Menendez didn't pay the invoice, and in February 2023 Hahn sued him in small-claims court. Neither party had an attorney. At trial, Hahn's representative, David Shackelford, gave testimony and provided documents establishing the foregoing facts. He explained, in part:
Hahn did their due diligence and discovered that the property was zoned D-5, and what that does is that you could not divide a piece of property with less than 50 foot of road frontage. And so the side plat could not be done and Mr. Menendez was advised of that. And that's why the bill and the lawsuit is for [$1,950].Tr. p. 5. The court asked, "Why did they perform the survey if they were not going to be able to perform the side plat?" Id. at 7. Shackelford responded:
Well, they weren't able to determine that the side plat couldn't be done until the survey was accomplished, because you don't know the legal dimensions of the property. So once the survey was completed, that's when they encountered the problem with the side plat. Because you have to do A before you can B.Id. Menendez disputed Hahn's version of events. He testified that after he told Hahn how he wanted the parcel to be split, Hahn never told him about a zoning issue and instead went silent for five months before sending him the invoice for the partial completion of the work. Menendez also argued that Hahn was wrong about the requirements of the zoning ordinance.
[¶4] The small-claims court entered judgment for Hahn. In its written order, the court explained, in part:
21. The evidence establishes that [Hahn] prepared a retracement survey and certified drawing. The evidence fails to establish that retracement survey and certified drawing were performed incorrectly.
22. The evidence establishes that delay was caused by [Menendez's] failure to respond to [Hahn's] inquiry on how to proceed.
23. The evidence fails to establish [Hahn] bre[a]ched the agreement or failed to follow industry standards or the appliable standard of practice.Appellant's App. Vol. II p. 20.
[¶5] Menendez now appeals.
Discussion and Decision
[¶6] Menendez, still proceeding without an attorney, contends the small-claims court erred by entering judgment for Hahn. Hahn hasn't filed an appellee's brief, which means we can reverse if Menendez makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct.App. 2004). This rule was established to make clear that it is not the burden of the appellate court to rebut apparently valid arguments advanced for reversing the trial court's judgment. Id. Nevertheless, we are obligated to correctly apply the law to the facts in the record to determine whether reversal is appropriate. Mikel v. Johnston, 907 N.E.2d 547, 550 n.3 (Ind.Ct.App. 2009). And we remain mindful that deference to the trial court 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) (quoting Ind. Small Claims Rule 8(A)). That is especially true in a case like this, where neither party was represented by counsel and neither party cited any statute or case law to support its position. To call this trial "informal" would be an understatement.
[¶7] Ultimately, the lack of an appellee's brief doesn't affect our review because Menendez hasn't come close to making a prima facie showing of error. He first argues that Hahn breached the contract, and shouldn't be able to recover anything, because it completed only part of the work. But he cites no authority holding that anything less than full performance is always a breach of contract. And here there is evidence supporting the small-claims court's conclusion that Hahn didn't breach the contract. Hahn presented evidence that (1) once the retracement survey revealed the exact dimensions of the parcel, Hahn concluded it could not split and replat the parcel because of the frontage requirements in the zoning ordinance, (2) it told Menendez as much, (3) Menendez said he would seek guidance from the city, and (4) he failed to respond when Hahn made several attempts to contact him about the issue. Menendez claims, as he did at trial, that Hahn didn't really mention the zoning issue to him or offer any other explanation for not completing the contracted work. But the small-claims court accepted Hahn's contrary version of events, so this is a request for us to reweigh the evidence and judge the credibility of the witnesses, which we won't do. See Pfledderer v. Pratt, 142 N.E.3d 492, 494 (Ind.Ct.App. 2020).
[¶8] Menendez also argues that Hahn was relying on an outdated version of the zoning ordinance; he says the ordinance had been amended in a way that would allow his desired split. He doesn't discuss the actual language of the ordinance, either the old version or the new version. He simply states, without any analysis, that the parcel can be split under the new version. But even if Menendez is right about the ordinance, the time to speak up was when Hahn first raised the issue and said it couldn't split and replat the parcel. As the smallclaims court found, Menendez failed to do so.
[¶9] Finally, even if we assume that Hahn breached the contract, Menendez cites no authority holding that a breaching party who has done some of the work called for in a contract cannot, under any circumstances, be entitled to payment for that work. That is not the law in Indiana. A breaching party who has partially performed a contract may be entitled to some payment under the doctrine of quantum meruit. See State v. IBM, 4 N.E.3d 696, 733 (Ind.Ct.App. 2014), summarily aff'd in relevant part, 51 N.E.3d 150 (Ind. 2016). A plaintiff claiming quantum meruit "must establish that a measurable benefit has been conferred upon the defendant under such circumstances that the defendant's retention of the benefit would be unjust." Id. at 733-34. On appeal, Menendez doesn't dispute that Hahn conferred some benefit upon him by surveying and staking the property and providing a preliminary drawing.
[¶10] Because Menendez hasn't made a prima facie showing of error, we affirm the judgment of the small-claims court.
[¶11] Affirmed.
Weissmann, J., concurs.
Mathias, J., dissents with separate opinion.
Mathias, Judge, dissenting.
[¶12] I respectfully dissent. According to the parties' agreement, Hahn "agree[d] to Prepare a RETRACEMENT (staked) Survey, Split Parcel into 2 tracts, Prepare Secondary REPLAT certified Drawing," and, in exchange, Menendez agreed to pay "a fee of $2,950.00 due at delivery of Survey." Ex. Vol. 3, p. 4 (bold font removed). That is all the contract says about the parties' respective obligations. The agreement contains no language with respect to a possible severance of those obligations. It does not itemize costs between the retracement survey and the secondary replat certified drawing. See id. at 4-5. And it does not state that Hahn's completion of one of the two documents would be contingent upon its completion of the other.
[¶13] Although small claims actions involve informal trials, their judgments must still be in accordance with the rules of substantive law. Harvey v. Keyed in Prop. Mgmt., LLC, 165 N.E.3d 584, 587 (Ind.Ct.App. 2021), trans. denied. And, significantly, Hahn has not filed an appellee's brief in this appeal. When the appellee fails to file a brief on appeal, we may reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct.App. 2004). Prima facie error means "at first sight, on first appearance, or on the face of it." Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind.Ct.App. 2006). This rule was established to make clear that it is not the burden of the court on appeal to rebut apparently valid arguments advanced for reversing the trial court's judgment. See McGill, 801 N.E.2d at 1251. This rule should control the outcome here.
[¶14] I agree with Menendez that the plain language of the parties' contract states that he was to receive two documents in exchange for one price, and nothing in the language of the agreement demonstrates a meeting of the minds for anything less. There is no evidence in the contract that Menendez agreed to pay or contemplated the possibility that he might have to pay $1,950 for only the retracement survey. As Hahn did not complete both of the documents required under the contract, Hahn was the party in breach of the contract.
[¶15] The majority acknowledges as much and yet holds that the breaching party is the party nonetheless entitled to a remedy against the nonbreaching party. In support, the majority relies on the vacated in part State v. IBM appeal for a theory of quantum-meruit recovery. Supra, at 6. In IBM, the panel for our Court cited four additional authorities for support of its position, all either contrary to the majority's opinion or inapposite to it. In the first, Ream v. Yankee Park Homeowner's Association, a majority panel for our Court held, contrary to the panel in IBM, that the party that first breaches a written contract is not entitled to a remedy from the nonbreaching party. 915 N.E.2d 536, 547 (Ind.Ct.App. 2009) ("A party first guilty of a material breach of contract may not maintain an action against or recover damages from the other party to the contract."), trans. denied. In the second, American National Bank &Trust Co. v. St. Joseph Valley Bank, a panel for our Court recognized a quantum-meruit exception to the general rule of nonrecovery by a breaching party where the partial performance of a "building contract" resulted in an enhancement to the value of real property, which has no obvious application to Menendez's appeal. 391 N.E.2d 685, 687 (Ind.Ct.App. 1979) (quoting secondary authority). And the third and fourth cases cited by the IBM panel did not involve breach-of-contract claims. See King v. Terry, 805 N.E.2d 397, 400 (Ind.Ct.App. 2004) (claim for unjust enrichment); Inlow v. Inlow, 797 N.E.2d 810, 816 (Ind.Ct.App. 2003) (same).
[¶16] Contrary to the majority's assessment, the general rule in Indiana is that the nonbreaching party is the party with options for its remedies, including any quantum-merit recovery. See, e.g., Fischer v. Heymann, 12 N.E.3d 867, 872-73 (Ind. 2014). And here, where the undisputed evidence shows that Hahn was not going to complete its contractual obligations, that means that Menendez was within his rights to treat the contract as being at an end. Id. He thus had no obligation to pay an amount later chosen only by Hahn for Hahn's partial completion of its contractual obligations, which resulted in no apparent value gained by Menendez.
[¶17] Finally, it is important to note that Hahn's representative at trial had no personal knowledge of the parties' dealings. Indeed, it appears that he was nothing more than a collection agent who was handed a file to collect. Tr. p. 6. Nowhere in his testimony does he indicate that he has any training, let alone professional, knowledge of the business of surveying.
[¶18] Simply said, the judge applied the wrong law, which is prima facie reversible error. For these reasons, I would reverse the small claims court's judgment.