Dawn Iseminger and Scott Iseminger v. Monique Johnson (mem. dec.)

      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                 FILED
      regarded as precedent or cited before any                                         Oct 23 2020, 9:38 am

      court except for the purpose of establishing                                          CLERK
                                                                                        Indiana Supreme Court
      the defense of res judicata, collateral                                              Court of Appeals
                                                                                             and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANTS
      Adam J. Sedia
      Edward W. Hearn
      Johnson & Bell, P.C.
      Crown Point, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dawn Iseminger and Scott                                 October 23, 2020
      Iseminger,                                               Court of Appeals Case No.
      Appellants-Defendants/Counter-                           20A-SC-659
                                                               Appeal from the Porter Superior
      Plaintiffs,                                              Court

              v.                                               The Honorable Jeffrey L. Thode,
                                                               Judge
                                                               The Honorable Lisa A. Moser,
      Monique Johnson,
                                                               Commissioner
      Appellee-Plaintiff/Counter-Defendant
                                                               Trial Court Cause No.
                                                               64D06-1801-SC-260



      May, Judge.

[1]   Dawn Iseminger and Scott Iseminger (collectively, “the Isemingers”) appeal the

      denial of their motion to correct error. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020           Page 1 of 9
                            Facts and Procedural History
[2]   The Isemingers rented an apartment in Portage to Monique Johnson from

      November 30, 2016, until November 30, 2017. Prior to moving into the

      apartment, Johnson paid the Isemingers a security deposit of $840.00. The

      lease stated:

              The Lessor is authorized to charge any damages occasioned by
              the Lessee not fully performing any of the terms or conditions of
              the Contract against said security deposit. At the expiration of
              this lease or any renewal thereof, any unused portion of the
              deposit shall be returned to the Lessee. NO PORTION OF THE
              SECURITY DEPOSIT SHALL BE RETURNED IF THE
              LESSEE OCCUPIES THE LEASED PREMISES FOR LESS
              THAN THE ORIGINAL TERM OF THIS AGREEMENT.


                                                *****


              Within 30 days prior to the expiration of this agreement Lessee
              shall give Lessor written notice of their intent to vacate property
              or make a request for continuation of lease.


      (App. Vol. II at 17, 20) (emphasis in original). On November 2, 2017, Johnson

      sent a text message to Dawn Iseminger stating, “Hi I’m not renewing my lease.

      I’m purchasing a home and my projected closing date is the 17th. If closing is

      later and goes into Dec and I need another month, will that be a problem?” (Id.

      at 23.) Dawn Iseminger responded, “That’s fine.” (Id.) On November 15,

      2017, Johnson sent another text message to Dawn Iseminger stating, “I close

      Monday, will have the keys for you 11/30.” (Id.) Johnson returned the


      Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020   Page 2 of 9
      apartment keys to the Isemingers on November 30, 2017, the last day of the

      lease term.

[3]   On January 7, 2018, the Isemingers sent Johnson a letter stating:

              Please note that per our lease agreement, you are required to give
              a 30-day written notice of intent to vacate. On November 15th of
              2017 you notified me of your intent to vacate on November the
              30th of 2017; thus not giving a 30-day notice of intent to vacate is
              a violation of the terms of the lease.


              Further, the normal wear and tear that is to be expected was
              exceeded. The cabinets were not cleaned of grime, as well as the
              refrigerator was not cleaned of grime as required by the terms of
              the lease and Indiana law.


              Further, the bathroom was not cleaned, the carpet in the living
              room and bedrooms were not vacuumed or professionally
              cleaned, thus turning the property over to us in its original state.
              There was found to be cracked ceramic tile in the hall and the
              dining area; and as you know the tile was brand new prior to
              your lease.


              For these reasons, we are returning $0 of your security deposit.


      (App. Vol. II at 22) (errors in original) (internal spacing modified).

[4]   On January 25, 2018, Johnson filed a notice of claim seeking a return of her

      security deposit. The Isemingers filed a counterclaim against Johnson seeking

      $1,106.70 for alleged additional physical damages to the apartment. The trial

      court held a bench trial on June 28, 2018. On July 26, 2018, the trial court

      entered judgment in favor of Johnson on her claim for a return of her security
      Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020   Page 3 of 9
      deposit. The trial court also entered judgment in favor of Johnson on the

      Isemingers’ counterclaim.

[5]   On August 27, 2018, the Isemingers filed a motion to correct error arguing the

      trial court’s judgment was against the greater weight of the evidence. The trial

      court held a hearing on the motion to correct error. During the hearing, the

      judge discovered a conflict of interest, continued the hearing, and ordered the

      case transferred to a special judge. On December 9, 2019, Johnson filed a

      motion seeking a hearing on the Isemingers’ motion to correct error. The trial

      court held a hearing on the Isemingers’ motion to correct error on February 6,

      2020, and the trial court denied the Isemingers’ motion on February 13, 2020.



                                 Discussion and Decision
[6]   Initially, we note Johnson did not file an appellee brief. Therefore, we will not

      develop arguments on her behalf and will reverse if the Isemingers demonstrate

      prima facie error. WindGate Properties, LLC v. Sanders, 

93 N.E.3d 809

, 813 (Ind.

      Ct. App. 2018). “Prima facie, in this context, means at first sight, on first

      appearance, or on the face of it.”

Id. Nonetheless, we must

still correctly apply

      the law to the facts in the record to determine if reversal is required.

Id. [7]

  The Isemingers argue the trial court erred in denying their motion to correct

      error because the trial court’s judgment awarding Johnson a full refund of her




      Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020   Page 4 of 9
      security deposit was contrary to the evidence presented at trial. 1 We generally

      review a trial court’s ruling on a motion to correct error for an abuse of

      discretion. Ind. Bureau of Motor Vehicles v. Watson, 

70 N.E.3d 380

, 384 (Ind. Ct.

      App. 2017). An abuse of discretion occurs if the trial court misinterpreted the

      law or if the court’s ruling is against the facts and circumstances before it.

Id. [8]

  Our review of the trial court’s ruling on the Isemingers’ motion to correct error

      necessarily involves review of the underlying order. See In re Paternity of H.H.,

      

879 N.E.2d 1175

, 1177 (Ind. Ct. App. 2008) (review of motion to correct error

      includes review of underlying order). “Our standard of review in small claims

      cases is particularly deferential in order to preserve the speedy and informal

      process for small claims.” Heartland Crossing Foundation, Inc. v. Dotlich, 

976 N.E.2d 760

, 762 (Ind. Ct. App. 2012). We do not reweigh the evidence; nor do

      we assess the credibility of the witnesses.

Id. [9]

  However, the burden of proof in a small claims civil lawsuit is the same as the

      burden in a civil action not on the small claims docket. Harris v. Lafayette

      LIHTC, LP, 

85 N.E.3d 871

, 876 (Ind. Ct. App. 2017). We will affirm a

      judgment in favor of the party bearing the burden of proof “if the evidence was

      such that from it a reasonable trier of fact could conclude that the elements of

      the party’s claim were established by a preponderance of evidence.” Eagle

      Aircraft, Inc., v. Trojnar, 

983 N.E.2d 648

, 657 (Ind. Ct. App. 2013). A small




      1
          The Isemingers do not challenge the trial court’s judgment in favor of Johnson on their counterclaim.


      Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020                     Page 5 of 9
       claims court is not required to enter special findings along with its judgment.

       Wynne v. Burris, 

105 N.E.3d 188

, 192 (Ind. Ct. App. 2018). In reviewing such a

       judgment, we presume the trial court followed the law, and we may affirm

       based on any legal theory supported by the evidence. Rea v. Shroyer, 

797 N.E.2d 1178

, 1181 (Ind. Ct. App. 2003).

[10]   The Isemingers argue Johnson violated the terms of the lease and they complied

       with Indiana law in notifying Johnson of their intent to withhold her entire

       security deposit. However, while the Isemingers’ letter to Johnson listed some

       physical damages, the letter did not specify estimated costs for repairing the

       damage. The letter also failed to explain what portion of Johnson’s security

       deposit was withheld for physical damages and what portion of the deposit was

       withheld because of Johnson’s untimely notice to vacate. Indiana Code section

       32-31-3-12 provides:

               (a) Upon termination of a rental agreement, a landlord shall
               return to the tenant the security deposit minus any amount
               applied to:


                        (1) the payment of accrued rent;


                        (2) the amount of damages that the landlord has suffered
                        or will reasonably suffer by reason of the tenant's
                        noncompliance with law or the rental agreement; and


                        (3) unpaid utility or sewer charges that the tenant is
                        obligated to pay under the rental agreement;



       Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020   Page 6 of 9
               all as itemized by the landlord with the amount due in a written
               notice that is delivered to the tenant not more than forty-five (45)
               days after termination of the rental agreement and delivery of
               possession. The landlord is not liable under this chapter until the
               tenant supplies the landlord in writing with a mailing address to
               which to deliver the notice and amount prescribed by this
               subsection. Unless otherwise agreed, a tenant is not entitled to
               apply a security deposit to rent.


               (b) If a landlord fails to comply with subsection (a), a tenant may
               recover all of the security deposit due the tenant and reasonable
               attorney's fees.


               (c) This section does not preclude the landlord or tenant from
               recovering other damages to which either is entitled.


[11]   In Klotz v. Hoyt, two tenants ceased making rent payments after a month and a

       half, and the landlord sued the tenants seeking eviction. 

900 N.E.2d 1

, 2 (Ind.

       2009). The trial court ordered eviction and set the matter for a damages

       hearing.

Id. The landlord withheld

the tenants’ security deposit, but he did not

       send any notice to the tenants informing them of his intention not to return the

       security deposit.

Id. At the damages

hearing, the landlord sought recovery for

       unpaid rent, late fees, damages to the premises, and attorney fees.

Id. at 2-3.

       The trial court ruled against the landlord and ordered the landlord to return the

       tenants’ security deposit.

Id. at 3. [12]

  On appeal, our Indiana Supreme Court held

               that a landlord’s failure to provide to the tenant a timely and
               adequate notice of damages under Sections 12 through 16 of

       Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020   Page 7 of 9
               Indiana Code § 32-31-3 precludes the landlord only from
               recovering damages for physical harm to the rented premises and
               does not bar the landlord from seeking unpaid rent and other
               damages.

Id. at 5.

Therefore, the court explained, the landlord was precluded from

       withholding the security deposit to recover claimed physical damages to the

       property.

Id. at 6.

Like the landlord in Klotz, the Isemingers failed to itemize

       any physical damages in their January 7, 2018, letter to Johnson, and therefore,

       Johnson was entitled to a refund of whatever portion of her security deposit was

       withheld for physical damages.

[13]   Johnson occupied the apartment for the entire twelve-month term covered by

       the lease, and the Isemingers are not claiming Johnson failed to pay her rent

       during that time. Johnson did untimely notify the Isemingers of her intent to

       vacate by telling them on November 2, rather than October 31, of her intent not

       to renew her lease. However, a reasonable trier of fact could conclude the

       Isemingers did not incur any damages because of Johnson’s minimally late

       notice and Johnson thus was entitled to a full refund of her security deposit.

[14]   Scott Iseminger testified that he was unable to rent Johnson’s former apartment

       for a month after she vacated the apartment, but the Isemingers failed to put

       forth any evidence of interested tenants they had to turn away. The Isemingers’

       argument that Johnson’s untimely notice is to blame for their own failure to

       rent the apartment to a new tenant is nothing more than a request for us to

       reweigh the evidence, which we will not do. Therefore, we affirm the trial


       Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020   Page 8 of 9
       court. See Jasinski v. Brown, 

3 N.E.3d 976

, 979 (Ind. Ct. App. 2013) (holding

       appellant’s challenge to small claims court’s valuation of vehicle was a request

       to reweigh the evidence, which the appellate court will not do).



                                               Conclusion
[15]   The trial court did not abuse its discretion in denying the Isemingers’ motion to

       correct error. The Isemingers violated Indiana Code section 32-31-3-12 because

       they failed to notify Johnson of the cost of repairs to damaged apartment

       property, and a reasonable trier of fact could determine the Isemingers did not

       suffer any damages as a result of Johnson’s two-day tardy notice of her

       intention not to renew the lease. Therefore, we affirm the trial court.

[16]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-SC-659 | October 23, 2020   Page 9 of 9

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