Kevin Campbell v. Irenea George (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 21 2017, 10:04 am
regarded as precedent or cited before any
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
Kevin Campbell
Marietta, Georgia
IN THE
COURT OF APPEALS OF INDIANA
Kevin Campbell, December 21, 2017
Appellant-Plaintiff, Court of Appeals Case No.
41A05-1708-SC-1766
v. Appeal from the Johnson County
Superior Court I
Irenea George, The Honorable
Appellee-Defendant Kevin M. Barton, Judge
Douglas Cummins, Magistrate
Trial Court Cause No.
41D01-1604-SC-1070
Vaidik, Chief Judge.
Case Summary
[1] After Kevin Campbell and Irenea George ended their relationship and he
moved out, Kevin brought a small-claims action against Irenea for the return of
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a dog, Snickers, that was adopted during their relationship. The court allowed
Irenea to keep the dog, and Kevin now appeals. We affirm the small-claims
court.
Facts and Procedural History
[2] Kevin and Irenea began dating in 2008; Kevin later moved into Irenea’s home
along with her children and pets. On April 1, 2014, Irenea responded to a
Facebook post by Kristina Strickland, who was trying to find a new home for
her four-month-old chocolate Labrador Retriever puppy. That same day,
Irenea and Kevin went to Kristina’s house and took possession of the puppy,
who was given the name Snickers. Shannon Pepperack was at Kristina’s house
at the time of Kevin and Irenea’s visit.
[3] On March 25, 2016—after Kevin and Irenea had ended their relationship and
Kevin was in the process of moving to Georgia—an argument erupted over
who got to keep Snickers, and police were called. Irenea kept Snickers, but on
April 5, Kevin filed a notice of claim in Johnson County, seeking Snickers’s
return from Irenea’s possession and $6000 in damages, the jurisdictional limit
for small-claims actions. On June 9, Kevin and Irenea both appeared in person
before a magistrate in Johnson Superior Court No. 1 and pled their cases.
Among other things, Kevin presented a letter from Kristina, who was living in
West Virginia at the time. The letter said that she gave the dog to Kevin. Ex.
3. Irenea presented testimony from Shannon, who said that Kristina gave
Snickers to Irenea “for [her] kids and the[ir] older dog to have companionship
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until the dog passes and then [they] . . . would already [have] another dog
[established] in the house to where it wouldn’t be as devastating . . . .” Tr. pp.
38-40. The magistrate took the matter under advisement and, later the same
day, issued an order finding Snickers belonged to Irenea and denying Kevin’s
claim for monetary damages because “Snickers was given to the parties and no
dollar amount was presented as to [the dog’s] value.” Appellant’s App. Vol. II
p. 10. The magistrate specifically found:
The parties agree that Snickers was acquired while the parties
resided together in an intimate relationship. The animal was
acquired after [Irenea] made contact with Snickers’ previous
owners following a Facebook post seeking to re-home Snickers.
A letter presented by one of the animal’s previous owners,
[Kristina], indicates she was contacted by [Irenea], the parties
arrived to meet and take possession of Snickers, she “decided to
give the dog to [Kevin] . . . [Kevin and Irenea] took the dog
home that same day.” All contact with [Kristina] prior to the
day of the adoption was made by [Irenea]. Snickers’ other
previous owner, [Shannon], testified in Court that she gave the
dog to [Irenea] and [Irenea’s] children as a companion to an
older dog already living at the residence in order to be a
companion to the older pet and make the transition easier on
[Irenea’s] children once the older dog passed.
Numerous exhibits and extensive testimony was presented by
both parties as to who performed certain duties with the dog.
[Kevin] had the dog micro-chipped, [Irenea] enrolled the dog in
behavior training, etc., etc. Both paid for certain veterinarian
visits and food for Snickers.
With conflicting testimony from the parties, the Court finds
[Shannon’s] testimony credible in that she gave Snickers to
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[Irenea] to assist in the transition period for [Irenea’s] children
once her older dog passed and to be companion dog to [Irenea’s]
older animal.
Id. (emphases added). This order was never signed or otherwise adopted by the
judge of Johnson Superior Court No. 1. Kevin filed a Trial Rule 60(B) motion
for relief from judgment “due to fraud upon the court,” id. at 19, which mainly
addressed whether Shannon was actually a previous owner of Snickers, and a
motion to correct errors, both of which the magistrate denied in orders signed
by him only.
[4] Kevin appealed to this Court raising numerous issues, but we found one
dispositive. That is, we held that the magistrate’s order was not a final
appealable order by statute. Campbell v. George, 77 N.E.3d 816, 818 (Ind. Ct.
App. 2017). We remanded “for adoption or rejection of the magistrate’s order
by the court.” Id.[5] On remand, the judge of Johnson Superior Court No. 1 issued the following
order dated June 15, 2017:
5. The Court accepts the findings and Order And Judgment
entered by the Magistrate as a final appealable order.
6. In addition, the Court has reviewed the evidence presented
and finds that the Magistrate’s Order And Judgment is supported
by evidence presented.
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7. By [Kevin’s] Verified Motion For The Court to Reject The
Magistrate’s Order, [Kevin] raises issues in opposition to the
Magistrate’s decision.
A. [Shannon’s] testimony.
The Magistrate entered a finding that [Shannon] was the prior
owner and that she gave the dog to [Irenea]. [Kevin] asserts that
the Magistrate incorrectly attributed ownership of “Snickers” to
[Shannon].
[Shannon] did not testify that she was a prior owner of
“Snickers”. However, [Irenea] testified that “Snickers” was a
“community dog” in the household shared by [Shannon] and
[Kristina]. There is evidence to support the Magistrate’s finding.
Moreover, the Magistrate’s Order is not dependent upon the
finding. [Shannon] did testify that Snickers was given to
[Irenea]. There is evidence to support the Magistrate’s finding.
Appellant’s App. pp. 14-15. Kevin then filed a combined motion to correct
errors and relief from judgment, id. at 97, and the small-claims court issued the
following order dated July 27, 2017:
With regards to, [Kevin’s] individual claims of error, the court
finds as follows: [Kevin] is correct that the Court incorrectly
stated that the witness [Shannon] was the dog’s former owner.
[Shannon] testified she was present on the day that [Kevin] and
[Irenea] arrived to adopt Snickers, not that she was the dog’s
owner. However, this does not change the Court’s ultimate
determination in this case that [Irenea] be allowed to retain
possession of Snickers. Consequently, [Kevin’s combined
motion] is DENIED.
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Id. at 17 (emphases added). This order was signed by both the magistrate and
the judge.
[6] Kevin, pro se, now appeals.
Discussion and Decision
[7] We observe that Irenea has filed no brief. When the appellee has failed to
submit an answer brief, we need not undertake the burden of developing an
argument on the appellee’s behalf. Rather, we will reverse the trial court’s
judgment if the appellant’s brief presents a case of prima facie error. Trinity
Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Prima facie error in
this context is defined as, “at first sight, on first appearance, or on the face of
it.” Id. Where an appellant is unable to meet this burden, we will affirm. Id.[8] Kevin raises several issues on appeal, but his main challenge is to the evidence
supporting the small-claims court’s judgment in favor of Irenea. Kevin argues,
“Given that [Shannon’s] testimony [regarding dog ownership] as the magistrate
[originally] cited never occurred, it is clearly against the logic and effect of the
facts and circumstances for the judge to affirm the [magistrate’s] decision” in
favor of Irenea. Appellant’s Br. p. 17.
[9] Small-claims-court judgments are “subject to review as prescribed by relevant
Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Pursuant to
Indiana Trial Rule 52(A), we review the facts determined in a bench trial under
the clearly erroneous standard of review, with due regard given to the
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opportunity of the court to assess witness credibility. Hamilton v. Schaefer Lake
Lot Owners Ass’n, Inc., 59 N.E.3d 1051, 1054 (Ind. Ct. App. 2016). This
deferential standard of review is particularly important in small-claims actions,
where trials are informal and the sole objective is to dispense speedy justice
between the parties according to the rules of substantive law. Morton v. Ivacic,
898 N.E.2d 1196, 1199 (Ind. 2008); see also Ind. Small Claims Rule 8(A).
[10] It is true that the magistrate originally found that Shannon was a former owner
of Snickers and that she testified that “she gave the dog [to Irenea].” However,
on July 27, 2017, the magistrate, in an order signed by the judge, clarified that
Shannon was not a former owner of Snickers and that she was merely present
when Kevin and Irenea arrived at Kristina’s house to adopt Snickers.
Importantly, the magistrate (and the judge) found that this mistake did not
change “the Court’s ultimate determination in this case that [Irenea] be allowed
to retain possession of Snickers.” Appellant’s App. Vol. II p. 17. The record
shows that Irenea, who knew Kristina, is the one who contacted Kristina about
Snickers. Irenea testified that Kristina gave her Snickers. And Shannon, who
was at Kristina’s house, testified that Kristina gave Snickers to Irenea and her
children as a companion to their older dog. Given this evidence, we will not
disturb the judgment in favor of Irenea. As for Kevin’s arguments concerning
ownership, such as that he had Snickers microchipped, paid for certain
veterinarian bills, and registered Snickers with Johnson County Animal
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Control,1 we find that they are requests to reweigh the competing ownership
evidence presented by Irenea, which we will not do.
[11] Kevin raises numerous other issues; however, we find all of them meritless.2
For example, he argues that the court should have treated Kristina’s letter,
Exhibit 3, not as testimony but rather as “a written instrument restating the . . .
terms of the binding oral agreement reached on April 1, 2014” regarding the
transfer of ownership of Snickers from Kristina to Kevin. Appellant’s Br. p. 18.
We first note that Kevin presented Exhibit 3 to the court as simply a “letter”
that Kristina “wr[ote]” “to the Court”—not as an oral agreement that was later
reduced to rewriting. Tr. pp. 21-23. Treating the letter from Kristina, who
lived in West Virginia at the time, as testimony comports with the informality
of small-claims trials. See S.C.R. 8(A) (explaining that small-claims trials are
not subject to “statutory provisions or rules of practice, procedure, pleadings or
evidence except provisions relating to privileged communications and offers of
compromise”). Moreover, Kevin cites no authority to support this novel
1
Kevin points out that Johnson County Ordinance § 15-1-4-6 requires dangerous dogs to be registered with
Johnson County Animal Control. He notes that he registered Snickers with Johnson County Animal
Control, which conclusively establishes that he—and not Irenea—is the sole owner of Snickers. Aside from
the fact that Kevin provides no citations to the record that Snickers is in fact dangerous, see Appellant’s Br. p.
20, we agree with the small-claims court that the records of animal control “are only evidence and are not
determinative” of ownership. Appellant’s App. Vol. II p. 16.
2
Other issues Kevin raises include that the “magistrate has ignored local and state statues [sic],” the denial of
his first motion to correct error, and the “authority and composition of . . . Johnson County’s courts.”
Appellant’s Br. pp. 22, 25. We have reviewed these arguments and find that they either are waived or do not
have merit.
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contract theory and has therefore waived it. See Ind. Appellate Rule
46(A)(8)(a).
[12] Kevin also makes arguments concerning various Johnson County local rules.
He first notes that LR41-SC16-011 requires hearings in possession-of-personal-
property cases to be “expedited.” He points out that he filed his notice of claim
on April 5, 2016, the hearing was originally scheduled for May 11, but the court
rescheduled it to June 9. We find, however, that the hearing in this case was
sufficiently expedited under the local rule. Kevin also notes that LR41-SC01-
001 provides that “[t]hese rules shall govern the procedure and practice of the
Small Claims Division, Johnson County Superior Court No. 2,” but his notice
of claim was assigned to Superior Court 1, not 2. Kevin, however, does not
explain how he was harmed by this or why this otherwise requires reversal of
the small-claims court’s judgment.
[13] Finally, Kevin argues that the court erred in not holding a hearing on his Trial
Rule 60(B) motion for fraud upon the court. Trial Rule 60(D) generally
requires trial courts to hold a hearing on any “pertinent” evidence before
granting Trial Rule 60(B) relief. Thompson v. Thompson, 811 N.E.2d 888, 904
(Ind. Ct. App. 2004). However, when there is no pertinent evidence to be
heard, a hearing is unnecessary. Id. Here, because the court corrected itself and
clarified that Shannon was not a former owner of Snickers but rather was
merely present when Kevin and Irenea arrived at Kristina’s house to adopt
Snickers, a hearing was unnecessary. We therefore affirm the small-claims
court.
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[14] Affirmed.
May, J., and Altice, J., concur.
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