Jason T. Myers v. June Palms Property Management (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 30 2019, 9:21 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.

APPELLANT PRO SE Jason T. Myers Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason T. Myers, May 30, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-SC-2197 v. Appeal from the Tippecanoe Superior Court June Palms Property The Honorable Laura Zeman, Management, Judge Appellee-Plaintiff. Trial Court Cause No. 79D04-1803-SC-816 & 79D04- 1805-SC-1592

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019 Page 1 of 10

STATEMENT OF THE CASE [1] Appellant-Defendant, Jason Myers (Myers), appeals from the trial court’s order

denying his motion to correct error seeking relief from a judgment in favor of

Appellee-Plaintiff, June Palms Property Management, (June Palms). [2] We affirm.

ISSUE [3] Myers presents one issue on appeal, which we restate as: Whether the trial

court abused its discretion when it denied his motion to correct error.

FACTS AND PROCEDURAL HISTORY [4] On August 11, 2017, Myers and June Palms entered into a lease agreement (the

Lease) for an apartment located on 4th Street in Lafayette, Indiana. The Lease

provided that the apartment “shall be occupied by no more than 1 persons . . .

without the written consent of [June Palms].” (Appellant’s App. Vol. II, p. 17).

The Lease further provided that Myers would be charged $100 per month for

each “unauthorized occupant” determined to be living in the apartment and

that Myers would be liable for costs and expenses, including legal and

administrative fees, resulting from legal steps taken to enforce the provisions of

the Lease. (Appellant’s App. Vol. II, pp. 15, 17). [5] In February 2018, June Palms received reports of loud arguments emanating

from Myers’ apartment. June Palms became suspicious that Myers had an

unauthorized person living in his apartment, so they sent an employee,

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Anthony Stout (Stout), to inspect the property. When he arrived to perform the

inspection, Stout was greeted by Myers’ girlfriend. Myers was not home at the

time. Stout observed several items of the girlfriend’s clothing and hygiene items

in the apartment. The girlfriend appeared nervous and asked if she would be in

trouble for staying in the apartment. She also asked Stout about using storage

space in the laundry room. [6] June Palms concluded that Myers’ girlfriend was living in his apartment

without authorization. June Palms issued Myers a notice of over-occupancy

and began charging him an extra $100 per month, as provided for in the Lease.

Myers continued to pay the base rate of his rent, but he did not pay the $100

over-occupancy fee. Myers’ account with June Palms went into arrears, and

late fees accumulated. June Palms had informed Myers that he could prove to

them that the girlfriend was not living in his apartment by supplying a lease or

mail showing that she lived elsewhere. The parties exchanged several emails

regarding what type of mail would be acceptable proof of non-occupancy, but

Myers never provided June Palms with documentation that satisfied them. [7] On March 14, 2018, June Palms filed a petition for eviction under Cause

Number 79D04-1803-SC-816 (the -816 Eviction). June Palms sought payment

of the outstanding over-occupancy fees, late fees, attorney’s fees, and possession

of the apartment. In a March 19, 2018, email to June Palms, Myers stated that

he believed that his girlfriend had mail from her bank card account which

would satisfy June Palms’ requirements for showing non-occupancy. On

March 27, 2018, the trial court held a hearing on the -816 Eviction petition.

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Myers testified that his girlfriend stayed with him often but did not specifically

deny that she had spent five days and nights consecutively at his apartment,

which was the standard June Palms used to determine occupancy. When asked

why his girlfriend was not present to assist Myers with settling the occupancy

issue, Myers responded that “she’s not part of it.” (Defendant’s Exh. 1, Vol.

III, p. 15). Myers did not seek to admit a copy of his girlfriend’s mail for her

bank card account as proof that she lived elsewhere. Myers did not ask the trial

court if he could have a continuance of the proceedings in order to procure that

mail. Myers also claimed, as he had in his answer to the -816 Eviction petition,

that he had not been provided with the statutorily-required notice to evict by

June Palms. The trial court ruled in favor of June Palms, issuing a judgment

and an award of damages in their favor against Myers but denying June Palms

the right to possession of the apartment. [8] Myers continued to pay his base rent amount but did not pay additional sums

toward the -816 Eviction judgment. June Palms applied all of Myers’ rent

payments to the -816 judgment, resulting in additional arrears to Myers’

account. On May 14, 2018, June Palms filed a second eviction proceeding

against Myers under Cause Number 79D04-1805-SC-1592 (the -1592 Eviction).

On May 17, 2018, Myers filed a motion for relief from judgment pursuant to

Indiana Trial Rule 60(B) seeking to vacate the -816 Eviction judgment.

Framing his argument mainly as one of contract interpretation, Myers argued

that June Palms was to blame for his failure to bring appropriate documentation

of his girlfriend’s non-occupancy to court on March 27, 2018, because June

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Palms did not inform him until it was too late what sort of mail would be

acceptable proof. Myers also claimed that the trial court should have allowed

him more time to provide his girlfriend’s mail and that June Palms had not

provided him with the statutorily-required notice of intent to evict. [9] On May 29, 2018, the trial court held a hearing on the -1592 Eviction petition

and awarded June Palms additional damages and possession of the apartment.

On June 5, 2018, the trial court held a hearing on Myers’ motion for relief from

judgment, which it denied, concluding that Myers had not presented any new

evidence and that he had not filed a timely motion to correct error in the -816

Eviction. On July 2, 2018, Myers filed a motion to correct error challenging the

trial court’s June 5, 2018, denial of his motion for relief from judgment. On

August 6, 2018, the trial court denied Myers’ motion to correct error. [10] Myers now appeals. Additional facts will be presented as necessary.

DISCUSSION AND DECISION I. Standard of Review

[11] We begin by noting that June Palms did not file an appellate brief in this

matter. We do not develop arguments on behalf of an appellee who fails to file

a brief. WindGate Props., LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App.

2018). In such cases, we will reverse if the appellant establishes prima facie

error, meaning error at first sight or error on the face of it. Id. However, even

in light of this relaxed standard, we still have the obligation to correctly apply

the law to the facts in the record to determine whether reversal is required. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019 Page 5 of 10 [12] Myers appeals from the trial court’s denial of his motion to correct error,

framing his arguments as contract, negligence, and due process issues. A trial

court’s ruling on a motion to correct error is generally reviewed for an abuse of

discretion, approaching our review with a strong presumption of correctness.

Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). An abuse of discretion

occurs when the trial court’s decision is against the logic and effect of the facts

and circumstances before it and the inferences to be drawn therefrom. Paulsen

v. Malone, 880 N.E.2d 312, 313 (Ind. Ct. App. 2008). However, we review any

questions of law de novo. Healey v. Carter, 109 N.E.3d 1043, 1047 (Ind. Ct. App.

2018), trans. denied. This standard of review requires us to examine the

propriety of the underlying order, namely the trial court’s June 5, 2018, denial

of Myers’ motion for relief from judgment.

II. Motion for Relief from Judgment

[13] Myers filed a motion for relief from judgment seeking to vacate the -816

Eviction judgment. 1 In his motion, Myers argued that his failure to provide his

girlfriend’s mail at the March 27, 2018, hearing was “a mistake of law and

reasonable neglect” because June Palms did not alert him beforehand that it

would accept that as proof of her non-occupancy and that this was newly-

discovered evidence. (Appellant’s App. Vol. II, p. 43). Myers also alleged that

1 Although Myers initially filed the motion in both eviction proceedings, no final judgment had been rendered in the -1592 Eviction, and the substance of the motion pertained to the -816 Eviction judgment. After Myers’ rent payments had extinguished the damages awarded in the -816 Eviction, at the hearing on Myers’ motion to correct error, June Palms agreed to vacate that judgment, noting that, by doing so, it was not conceding that the -816 Eviction judgment was in error.

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June Palms had not supplied him with the statutorily-mandated notice of intent

to evict him. Except for the setting aside default judgments, the Indiana Trial

Rules apply to proceedings to set aside small claims judgments. Summit Account

& Comput. Serv. v. Hogge, 608 N.E.2d 1003, 1005 (Ind. Ct. App. 1993). Trial

Rule 60(B) provides in relevant part:

On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment . . . for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct error under Rule 59[.]

The movant has the burden to establish the grounds for relief, and because the

relief is within the equitable discretion of the trial court, we will reverse the

denial of relief only upon an abuse of the trial court’s discretion. In re Paternity

of P.S.S., 934 N.E.2d 737, 740-41 (Ind. 2010). [14] The issues that Myers raised in his motion for relief from judgment did not

involve mistake, surprise, excusable neglect, or newly discovered evidence. The

issue of whether June Palms had complied with statutory notice requirements

was known and litigated in the -816 Eviction proceedings. In addition, Myers

was well aware that his girlfriend’s occupancy was the issue to be litigated at

the March 27, 2018, hearing on the -816 Eviction petition, and he had already

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proposed to June Palms that her bank card account mailings would show her

non-occupancy of his apartment. It was incumbent upon him to present that

defense at the -816 Eviction hearing. He did not; nor did he seek a continuance

of the proceedings in order to procure the mail. The trial court ruled in favor of

June Palms, resulting in an award of damages against Myers, the non-payment

of which eventually became the basis for the second eviction proceeding. [15] The trial court entered its order in favor of June Palms in the -816 Eviction on

March 27, 2018. This was a final order which was appealable. See Ind. Small

Claims Rule 11(A); Ind. Appellate Rule 2(H)(1). Myers had thirty days—until

April 26, 2018—to either file a motion to correct error or to appeal the trial

court’s final order. See T.R. 59(A); App. R. 9(A)(1). Myers did not file a

motion to correct error or pursue a direct appeal. Instead, he waited until May

17, 2018, to file a motion for relief from judgment. A motion for relief from

judgment under Trial Rule 60(B) pertains to only procedural, equitable grounds

justifying relief from the legal finality, not the legal merits, of a final judgment

and is not a substitute for a direct appeal. P.S.S., 934 N.E.2d at 740. Because

Myers did not show excusable neglect or newly discovered evidence, the trial

court did not abuse its discretion when it denied his motion for relief from

judgment or his subsequent motion to correct error based on that denial. See

id.; Santelli, 993 N.E.2d at 172. For these reasons, Myers has not demonstrated

even prima facie error. See WindGate Props., 93 N.E.3d at 813.

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III. Due Process

[16] We pause briefly to address Myers’ due process claim as it relates to the -1592

Eviction. 2 Myers argues that his due process rights were violated when June

Palms failed to supply him with the ten days of notice of intent to evict that he

claims he was due pursuant to Indiana Code section 32-31-1-7. Assuming,

without deciding, that this is correct, Myers presents no argument regarding

how his defense in the -1592 Eviction was prejudiced as a result of this lack of

notice. He claims in the summary of his argument that adequate notice would

have allowed him “time to obtain and provide pay check stubs which provided

his girlfriend’s address and switched the result of the proceedings” in his favor.

(Appellant’s Br. p. 12). Myers made no indication at the -1592 Eviction hearing

that he sought to introduce pay check stubs, so this claim of error appears to

address the -816 Eviction, an issue which we have already determined was not

properly before the trial court in the motion for relief from judgment. Therefore,

Myers has failed to establish even prima facie error on the part of the trial court

as it relates to the due process claim in the -816 Eviction proceedings. See Jones

v. Housing Auth. of City of South Bend, 915 N.E.2d 490, 497 (Ind. Ct. App. 2009)

2 Myers also argues that the trial court violated his due process rights in both the -816 and -1592 Eviction proceedings by failing to “enter a proper show cause order pursuant to Ind. Code 32-30-3-2.” (Appellant’s Br. p. 15). Myers did not raise this claim in the trial court. Issues raised for the first time on appeal are waived, and, therefore, we decline to address it. See Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) (noting that declining to review issues not properly preserved for appeal is a cardinal principle of sound judicial administration).

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(declining to reverse where Jones had failed to demonstrate how he was

prejudiced by procedural due process error).

CONCLUSION [17] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it denied Myers’ motion to correct error based on its denial of

his improper motion for relief from judgment. We also conclude that Myers

failed to establish that he suffered any prejudice arising from the claimed

violation of his due process rights. [18] Affirmed. [19] Bailey, J. and Pyle, J. concur

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