MEMORANDUM DECISION FILED
Jun 30 2016, 8:11 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
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.
ATTORNEY FOR APPELLANT
William Perry McCall
Mosley Bertrand & McCall
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pinnacle Properties June 30, 2016
Development Group, LLC, Court of Appeals Case No.
Appellant-Plaintiff, 10A04-1512-SC-2276
Appeal from the Clark Circuit
v. Court
The Honorable Kenneth R.
Raul Sanchez, Abbott, Magistrate
Appellee-Defendant. Trial Court Cause No.
10C03-1509-SC-1489
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Pinnacle Properties Development Group, LLC (Pinnacle
Properties), appeals the small claims court’s judgment, denying Pinnacle
Properties’ claim for unpaid rent and eviction against Appellee-Defendant, Raul
Sanchez (Sanchez).
[2] We dismiss.
ISSUES
[3] Pinnacle Properties raises two issues, which we restate as follows:
(1) Whether the small claims court abused its discretion when it failed to
apply the terms of the residential lease agreement; and
(2) Whether the small claims court committed a reversible error when it did
not allow Pinnacle Properties to submit additional testimony after the
court conducted a viewing of the residence.
FACTS AND PROCEDURAL HISTORY
[4] On September 21, 2015, Pinnacle Properties filed its Complaint and request for
eviction against Sanchez for unpaid rent in the months of August, September,
and October 2015. Apparently, “[o]n or about June 12, 2015, there was a
substantial rainfall in the local area which caused substantial flooding in the
area, and [Sanchez’] apartment in particular[.]” (Appellant’s Br. p. 10). As a
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result of the flooding, Sanchez “was unable to live in the apartment for a
substantial period of time.” (Appellant’s Br. p. 10). On October 13, 2015, the
small claims court conducted a hearing on Pinnacle Properties’ Complaint.
After hearing the parties, the small claims court suspended the hearing to
conduct an onsite visit of the apartment. The following day, the small claims
court issued its Order, finding:
Despite [Pinnacle Properties’] testimony that the apartment was
repaired and made habitable within a short period of time, and
other testimony that it was repaired within 90 days, the [c]ourt’s
physical viewing of the apartment revealed substantial amounts
of mold on the walls, a large area of drywall missing in one
room, as well as a large section of the ceiling missing in the
bathroom. In addition, claims of the carpeting being removed
and remedial work being done seem highly unlikely due to the
filthy condition of the carpeting and the amount of debris found
on the carpeting.
(Appellant’s Br. p. 10). The small claims court concluded that “[t]he leased
premise has been uninhabitable since the flooding in July, and [Sanchez] had a
legal right to reside elsewhere and pay no rent for the months of August,
September, and October.” (Appellant’s Br. p. 10).
[5] Pinnacle Properties now appeals. Additional facts will be provided as
necessary.
DISCUSSION AND DECISION
[6] 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
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warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). Indiana
Appellate Rule 49(A) provides in part that “[t]he appellant shall file its
Appendix with its appellant’s brief.” (Emphasis added). And Indiana
Appellant Rule 50(A) states, in relevant part:
(1) Purpose. The purpose of an Appendix in civil appeals . . . is
to present the Court with copies of only those parts of the
record on appeal that are necessary for the Court to decide
the issues presented.
(2) Contents of Appellant’s Appendix. The appellant’s Appendix
shall contain a table of contents and copies of the following
documents, if they exist:
(a) The chronological case summary for the trial court . . . ;
****
(f) pleadings and other documents from the Clerk’s Record in
chronological order that are necessary for resolution of the
issues raised on appeal[.]
[7] Here, in its appellant’s brief, Pinnacle Properties included the small claim
court’s appealed judgment. However, Pinnacle Properties did not file an
Appendix. Accordingly, we do not have the small claims court’s chronological
case summary, nor do we have a copy of the Complaint or the residential lease
agreement, despite numerous references to these documents in Pinnacle
Properties’ appellate brief.
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[8] It is well settled that the duty of presenting a record adequate for intelligent
appellate review on points assigned as error falls upon the appellant. Bambi’s
Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 352 (Ind. Ct. App. 2006). Pinnacle
Properties’ disregard for the requirements of the appellate rules makes our
review of the small claim court’s judgment impossible. Accordingly, we
dismiss this appeal.
CONCLUSION
[9] Based on the foregoing, we dismiss Pinnacle Properties’ appeal.
[10] Dismissed.
[11] Kirsch, J. and Pyle, J. concur
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