Robert Vega v. Autumn Ridge Condominium Assocation Board of Directors (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), Feb 10 2016, 6:51 am

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 estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Robert Vega Robert F. Tweedle Valparaiso, Indiana Highland, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Vega, February 10, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1507-SC-1022 v. Appeal from the Lake Superior Court Autumn Ridge Condominium The Honorable Catheron A. Paras, Association Board of Directors, Judge Pro Tempore Appellee-Plaintiff Trial Court Cause No. 45D07-1503-SC-228

Mathias, Judge. [1] Robert Vega (“Vega”) filed a small claims action in Lake Superior Court

against the Autumn Ridge Condominium Association (“ARCA”) Board of

Directors (“the Board”) for reimbursement of a fireplace gas valve and alleged

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misconduct by the Board. The small claims court entered judgment in favor of

the Board. Vega appeals and raises two issues, which we restate as:

I. Whether the small claims court erred when it determined that the gas valve was not a common use item and therefore not subject to reimbursement under ARCA’s Declaration of Condominium provisions and;

II. Whether the small claims court abused its discretion when it declined to hear Vega’s additional claims based on ARCA’s board member eligibility and general performance issues.

[2] We affirm.

Facts and Procedural History [3] Vega lived in a condominium at Autumn Ridge. He noticed a leak in his

fireplace gas line. In August 2013, Vega hired Salyer Plumbing, Inc. (“Salyer”)

to make the necessary repairs, which included removal of interior drywall in

order to gain access to the gas valve at issue.Vega requested reimbursement for

the replaced gas valve from the Board under the Declaration of Condominium,

but the Board refused. [4] The ARCA Declaration of Condominium provides in relevant part:

IV. Maintenance, Repair, Replacement and Alteration of Apartments and Common and Limited Common Areas.

A. By the Apartment Owner.

1. Maintenance, Repair, and Replacement. It shall be the responsibility of the Apartment Owner to

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maintain, repair, and replace at the Apartment Owner’s expense all portions of the Apartment within the boundaries of the Apartment as described in Article V., excepting only those portions and items for which the responsibility for maintenance, repair and replacement is the specific responsibility of the Association under Article IV.B., and including all heating and air conditioning units, . . .

***

B. By the Association.

2. Maintenance, Repair and Replacement of Portions of the Condominium Located Within the Boundaries of Apartments. It shall be the responsibility of the Association to maintain, repair and replace within the boundaries of each Apartment as described in Article V. all portions of the Building structure, and all portions of the Apartment which contribute to the support of the Building and the Apartment boundaries, and which are otherwise in common use, including but not limited to, load bearing walls, all conduits, ducts, piping, plumbing, wiring, and other facilities for the furnishing of utilities, communications, television and security services, but excluding all appliances, plumbing fixtures, electrical and lighting fixtures, and heating and air conditioning units and circuit breaker panels; but shall also include all incidental damage caused to the Apartment by such work as may be done or caused to be done by the Association in accordance with this Article IV.B.

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V. Description of Apartments.

B. Boundaries. Each apartment shall be bounded as to both horizontal and vertical boundaries as shown on the Plans attached as Exhibit “A”, subject to such encroachments as are contained in the Building whether the same exist now or are created by construction, settlement or movement of the Building, or permissible repairs, reconstruction, or alterations. Said boundaries are intended to be as follows:

1. Horizontal Boundaries:

a. the interior surface of drywall ceiling above and abutting the Apartment.

b. the interior top surfaces of the flooring below the finished floor covering and abutting the Apartment.

2. Vertical Boundaries:

a. the interior surfaces of the drywall of the boundary walls of each Apartment.

Appellant’s App. pp. 8-10. [5] On March 26, 2015, Vega filed a small claims action against the Board in Lake

Superior Court, requesting judgment for costs associated with the gas valve

replacement. He also alleged that: 1) the board president was ineligible to serve,

which would invalidate board actions; 2) willful misfeasance voided

indemnification for directors; 3) board actions had not protected the value of

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property nor provided for a congenial occupation; and 4) board actions had

been arbitrary and capricious. Appellant’s App. p. 5. [6] A bench trial was held on June 17, 2015. At trial, Vega presented evidence on

the disputed repair invoice and then attempted to present evidence for his

allegations of Board misconduct. The Board objected and asserted that Vega

was attempting a derivative action and that he had no standing for such action.

The small claims court sustained the Board’s objection and took the matter

under advisement. On July 13, 2015, the court entered judgment in favor of the

Board. Vega now appeals.

I. Gas Valve Reimbursement

[7] Vega argues that the small claims court did not correctly apply the law to the

facts when it determined that the gas line was within the apartment boundaries

as provided in the Declaration of Condominium contract. Specifically, Vega

argues that the Board should reimburse him for the cost of the gas valve

replacement because the gas line was in the wall and outside of the vertical

boundaries of the apartment. [8] The construction of the terms of a written contract is a pure question of law,

which we review de novo. Fraternal Order of Police, Evansville Lodge, No. 73, Inc. v.

City of Evansville, 940 N.E.2d 314, 318 (Ind. Ct. App. 2010).

When construing the meaning of a contract, our primary task is to determine and effectuate the intent of the parties. First, we must determine whether the language is ambiguous. The

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unambiguous language of a contract is conclusive upon the parties to the contract and upon the courts. If the language of the instrument is unambiguous, the parties’ intent will be determined from the four corners of the contract. If, on the other hand, a contract is ambiguous, its meaning must be determined by examining extrinsic evidence and its construction is a matter for the fact finder. When interpreting a written contract, we attempt to determine the intent of the parties at the time the contract was made. We will do this by examining the language used in the instrument to express their rights and duties. We read the contract as a whole and will attempt to construe the contractual language so as not to render any words, phrases, or terms ineffective or meaningless. We must accept an interpretation of the contract that harmonizes its provisions, rather than one that places the provisions in conflict.

Id. at 318-19 (quoting Whitaker v. Brunner, 814 N.E.2d 288, 293-94 (Ind. Ct. App. 2004)).

[9] In the case before us, ARCA is required to:

maintain, repair, and replace within the boundaries of each Apartment as described in Article V. all portions of the Building structure, and all portions of the Apartment which contribute to the support of the Building and the Apartment boundaries, and which are otherwise in common use, including but not limited to, load bearing walls, all conduits, ducts, piping, plumbing, wiring, and other facilities for the furnishing of utilities, communications, television and security services, but excluding all appliances, plumbing fixtures, electrical and lighting fixtures, and heating and air conditioning units and circuit breaker panels.

Appellant’s App. p. 10 (emphasis added). [10] Construing this provision in the context of the entire contract, we conclude that

ARCA is responsible for maintenance, repair, and replacement of common use

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items. Although the gas line was located in the wall, which was outside the

defined apartment boundaries, this gas line only served Vega’s fireplace. As

such, it is not for common use, but rather for individual use. By way of

example, the provision listed other common use items that ARCA would

maintain, repair, or replace. None of the items on the list benefit an individual

apartment, but rather the members of ARCA as a whole. We therefore

conclude that the small claims court properly determined that ARCA was not

required to reimburse Vega for the gas valve replacement cost.

II. Vega’s Additional Claims Against the Board

[11] Vega also argues that the small claims court erred when it declined to hear his

additional claims based on ARCA’s board member eligibility and general

performance issues. However, no evidence in the record supports these claims

on appeal. Indiana Appellate Rule 46(A)(8)(a) provides in relevant part:

The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.

[12] We will deem alleged errors waived where an appellant’s noncompliance with

the rules of appellate procedure is so substantial that it impedes our appellate

consideration of the errors. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct.

App. 2004). It is well settled that we will not consider an appellant’s assertion

on appeal when he has failed to present cogent argument supported by

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authority and references to the record as required by the rules. Thacker v.

Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). [13] In Vega’s claim filed with the small claims court, he cited to exhibits six

through sixteen to support the additional claims. Appellant’s App. p. 5. Vega

only provided exhibits in his appendix to support the gas valve replacement

reimbursement claim against the Board and failed to request a trial transcript in

his notice of appeal. See Appellant’s App. pp. 6-10. Although Vega cites to

some authority to support his argument on these additional claims, he did not

rely on the record whatsoever. We recognize that Vega is a pro se litigant, but a

litigant who chooses to proceed pro se will be held to the same rules of

procedure as trained legal counsel and must be prepared to accept the

consequences of his action. Thacker, 797 N.E.2d at 345. Vega’s argument is not

supported by cogent reasoning, and therefore, it is waived and will not be

considered by our court.

Conclusion [14] The small claims court properly determined that Vega was not entitled to

reimbursement for the gas valve replacement cost from ARCA under the

Declaration of Condominium. Further, Vega’s additional claims are not

supported by cogent reasoning and will not be considered. [15] Affirmed.

Kirsch, J., and Brown, J., concur.

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