Opinion
24A-EV-882
12-23-2024
Amber Tewell and Austin Bauer, Appellants v. Circle City Land Holdings, Appellee
APPELLANTS PRO SE Amber Tewell Austin Bauer Plainfield, Indiana ATTORNEY FOR APPELLEE Thomas J. Gaunt Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Center Township Small Claims Court Trial Court Cause No. 49K01-2310-EV-4796 The Honorable Brenda A. Roper, Judge
APPELLANTS PRO SE Amber Tewell Austin Bauer Plainfield, Indiana
ATTORNEY FOR APPELLEE Thomas J. Gaunt Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge
[¶1] Amber Tewell and Austin Bauer, pro se, appeal from the judgment of the small claims court. We dismiss.
Facts and Procedural History
[¶2] On October 5, 2023, Tenants filed a Notice of Claim in the Center Township Small Claims Court against Circle City Land Holdings ("Landlord") and the Marion County Board of Health ("MCBH") under cause number 49K01-2310-SC-4687 ("Cause No. 87") which indicated Tenants alleged "Perfessional neglegence, Breech of contract, retaliation." Appellants' Appendix Volume II at 2. The court scheduled a bench trial for November 8, 2023.
[¶3] On October 13, 2023, Landlord filed a Notice of Claim in the Center Township Small Claims Court against Tenants under cause number 49K01-2310-EV-4796 ("Cause No. 96"), the cause from which this appeal arises, alleging nonpayment of rent. The court scheduled an eviction hearing for November 8, 2023. An entry on November 8, 2023, in the chronological case summary ("CCS") for Cause No. 87 indicated that service was not completed as to MCBH and that the matter was set for a contested hearing at 9:30 a.m. on February 29, 2024. A November 8, 2023 CCS entry in Cause No. 96 indicated that Tenants acknowledged delinquency and agreed to voluntarily vacate the premises. The court scheduled a damages hearing in Cause No. 96 for 9:30 a.m. on February 29, 2024.
[¶4] On February 29, 2024, the court held the scheduled hearing. An entry in the CCS in Cause No. 87 on that date states "Court notes [Tenants] did not provide proof of actual loss, but the condition of premises during tenancy." Cause No. 87 CCS. The CCS in Cause 87 indicates that, on March 15, 2024, the court ordered that judgment be entered in favor of Landlord and that Tenants recover nothing by way of their complaint and that the cause be dismissed as to MCBH. Also on March 15, 2024, the court issued a "Judgement/Order" in Cause No. 96 which provided: "Court awards rents ($1994) and damages ($7880) less deposit ($960). Court notes damages requested excluded repairs required per [MCBH]. Court awards attny fees per lease." Appellants' Appendix Volume II at 12. Tenants filed a notice of appeal from the court's judgment in Cause No. 96. Tenants also filed a Motion to Proceed on Appeal In Forma Pauperis,which this Court granted.
The record does not include a transcript of the hearing. The CCS for Cause No. 87 indicates that a bench trial scheduled for 9:30 a.m. on February 29, 2024, was commenced and concluded. The CCS for Cause No. 96 indicates that a damages hearing scheduled for 9:30 a.m. on February 29, 2024, was commenced and concluded.
The March 15, 2024 orders in both Cause No. 87 and Cause No. 96 were signed by Judge Brenda A. Roper.
The motion and an affidavit in support of the motion appear to be signed by Tewell and not Bauer. In her affidavit, Tewell indicated that she was employed but did not provide her wages and indicated that she did not own any cash or checking or savings account.
Discussion
[¶5] Tenants have filed a brief containing very little substantive content in which they state the issue as "[w]hether our right to due process was violated by Center township Small Claims Court regarding eviction, breach of contract and professional negligence." Appellants' Brief at 4. Under "Statements of the Case," Tenants assert that Cause No. 87 "was filed due to breach of contract since the home was considered inhabitable, and they were ordered to fix said problems in the home," "[t]he home was considered inhabitable by the board of health because there were several violations against them," and "[s]ome of these things include rodent issues, foundation issues, severe black mold, and went a week without water and a toilet." Id. They assert:
When 02-29-2024 came along both parties were still allowed to submit evidence, however the judge was allowing the other party to submit fictitious documents and pictures but did not allow my professional witness to rebuttal the evidence submitted by the other party. The judge in this case asked the other party if my witness could speak and the answer was no, they pulled the evidence. However, the fictious documentation of the evidence in their case, for example their work order, was fictious.Id. at 5. Under "Statement of the Facts," Tenants state:
The statement of fact is that we filed a case against them because of the obligations they were failing to follow. The Indiana department of health services gave them so long to fix so many issues within the home they failed to do this. That's when we filed case against them and days after they were served our papers regarding their housing conditions, they filed an eviction on me and my boyfriend.Id.
[¶6] Although Tenants are proceeding pro se, such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App. 2004), trans. denied. This Court will not indulge in any benevolent presumptions on their behalf or waive any rule for the orderly and proper conduct of their appeal. Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 689 n.1 (Ind.Ct.App. 2009), reh'g denied, trans. denied. 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 warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind.Ct.App. 2004). This Court has discretion to dismiss an appeal for the appellant's failure to comply with the Rules of Appellate Procedure. See Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind.Ct.App. 2007) ("Although we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal."), reh'g denied. Moreover, this Court will not become an "advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood." Basic v. Amouri, 58 N.E.3d 980, 984 (Ind.Ct.App. 2016) (citation omitted).
[¶7] Tenants' brief does not include an argument section or a standard of review. Ind. Appellate Rule 46(A) provides that the appellants' brief "shall contain the following sections under separate headings and in the following order: . . . (8) Argument." Ind. Appellate Rule 46(A)(8) provides "[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning," "[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22," and the argument "must include for each issue a concise statement of the applicable standard of review." Ind. Appellate Rule 22(C) provides that "[a]ny factual statement shall be supported by a citation to the volume and page where it appears in an Appendix, and if not contained in an Appendix, to the volume and page it appears in the Transcript or exhibits."
[¶8] The small claims court's judgment was entered following a hearing on February 29, 2024. However, there is no transcript of the hearing in the record as Tenants did not request the small claims court to produce a transcript in their notice of appeal. Ind. Appellate Rule 9(F)(5) provides that the notice of appeal shall include the following:
Also, Tenants did not pursue the option available in Ind. Appellate Rule 31(A), which provides that, "[i]f no Transcript of all or part of the evidence is available, a party or the party's attorney may prepare a verified statement of the evidence from the best available sources, which may include the party's or the attorney's recollection."
Request for Transcript. A designation of all portions of the Transcript necessary to present fairly and decide the issues on appeal. If the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.
[¶9] Due to Tenants' failure to submit a proper record on appeal, failure to provide us with a cogent argument, and failure to comply with appellate rules, we dismiss this appeal.
[¶10] For the foregoing reasons, we dismiss.
[¶11] Dismissed.
Mathias, J., and Kenworthy, J., concur.