DeAnn G. Graham v. UMH in Holiday Village, LLC (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Dec 18 2019, 9:00 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 ATTORNEYS FOR APPELLEE
DeAnn Graham Matthew A. Yeakey
Elkhart, Indiana Jonathan R. Slabaugh
Elkhart, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DeAnn G. Graham, December 18, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-SC-785
v. Appeal from the Elkhart Superior
Court
UMH in Holiday Village, LLC, The Honorable Dean O. Burton,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
20D06-1806-SC-3112
Tavitas, Judge.
Case Summary
[1] DeAnn Graham appeals the small claims court’s judgment for UMH in
Holiday Village, LLC (“Landlord”). We affirm.
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Issues
[2] Graham raises numerous issues, which we consolidate and restate as:
I. Whether the small claims court properly granted Landlord’s
claim for breach of contract.
II. Whether the small claims court properly denied Graham’s
counterclaim for emotional distress.
Facts
[3] In 2013, Graham entered into a lease agreement with Landlord. The lease
provided:
PETS. TENANT may have one (1) registered “domesticated”
pet per household with the prior written approval of
LANDLORD. A monthly charge, as contained in the section of
this Lease entitled “Additional Charges”, will be assessed to
TENANT for the approved pet. TENANT is solely and totally
responsible for the behavior of their pets. Noisy, unruly, or
dangerous pets, those commonly known for aggressive behavior
(i.e. Dobermans, Rottweilers, Pit Bulls, Wolf Breeds, etc.) as well
as exotic pets (snakes, wild animals, etc.) will not be allowed in
the Manufactured Home Community. Management shall have
the final determination as to the acceptability of any pet. Failure
to abide by the Rules and Regulations of the Community will
result in the loss of this privilege.
Exhibits Vol. III p. 5. The lease was later amended to add the following:
DOGS: Dogs will be limited to house-type dogs with a full-
grown weight of 50 lbs. or less. No Resident(s) shall be allowed
to erect or install dog compounds, dog runs, dog shelters or
houses within the Community.
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Id. at 9.
[4] On June 18, 2019, Landlord’s former regional manager, Karen Wills, and
Landlord’s property manager, Chris Waters, were driving through the
community and saw a pit bull on a leash held by Graham’s daughter in a yard
next to Graham’s residence. As Wills was discussing the pit bull with
Graham’s daughter, Graham came outside. Graham and Wills had a verbal
argument. The pit bull lunged at Wills and bit Wills on her right breast,
resulting in bruising. Landlord requested that Graham remove the dog from
the premises, and Graham refused. Graham argued that the dog was a golden
retriever mix named Kane and that the dog was her daughter’s emotional
support animal.
[5] On June 28, 2018, Landlord filed a small claims court notice of claim for breach
of lease agreement against Graham. Landlord alleged that Graham breached
her lease by having an unregistered pit bull. An evidentiary hearing was held
on July 19, 2018, regarding possession and eviction, and the small claims court
entered an order granting Landlord possession of the premises. Graham moved
out of the residence at the end of July 2018.
[6] On August 1, 2018, Graham filed a counterclaim against Landlord. Graham
claimed that she was a “victim of racial bias and racial profiling” by Landlord
and that Landlord’s conduct had caused her emotional distress. Appellant’s
App. Vol. II p. 56. A hearing was held on January 28, 2019, regarding
Landlord’s damages and Graham’s counterclaim. At the hearing, Landlord
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requested damages for attorney fees and alleged cleaning fees and damages to
the residence. Graham testified that she did not own a pit bull; that her dog
was a golden retriever mix; that the dog was her daughter’s emotional support
animal; that she had previously provided Landlord with documentation of the
emotional support animal; and that the emotional support animal did not bite
Wills.
[7] The small claims court issued an order finding for Landlord and awarding
damages to Landlord and denying Graham’s counterclaim. Regarding
Landlord’s claims, the small claims court found that “more likely than not the
Defendant’s dog was a prohibited breed, to wit, a pit bull, (likely an addition to
the Defendant’s dog, [K]ane) and that the dog was not properly registered as an
emotional support animal in accord with the Lease.” Appellant’s App. Vol. II
p. 10. The small claims court, thus, found “that the Plaintiff has established by
a preponderance of evidence that the Defendant violated the Lease by
maintaining a pit bull dog and that the same was not registered with the
Plaintiffs mandated by the Lease and park rules.” Id. at 11. The small claims
court awarded attorney fees and the outstanding account balance 1 to Landlord
but declined to award cleaning or damage fees. As for Graham’s counterclaim,
the small claims court found:
1
The damage award included $1,850.00 for attorney fees, and $424.55 for the account balance ($386.00 due
on the account as of July 12, 2018, plus $38.55 for a utilities reimbursement).
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The Defendant appears to claim that the Plaintiff engaged in
racial profiling in bringing its eviction claim against the
Defendant; however, the Plaintiff’s evidence reflects that all of its
tenants were treated equally. The Plaintiff established that
Notices were sent to all residents with unregistered animals or
pets that were not permitted by the Lease. (Exhibit 4) While this
Court finds that the Defendant, and her daughters, likely, and
unfortunately, suffered emotional stress from the eviction and
relocation, it appears that the eviction was primarily due to the
Defendant’s failure to abide by the Terms of the written Lease
Agreement and again, unfortunately, due to the Plaintiff’s loss of
her employment. This Magistrate must, therefore, find that the
Defendant should take nothing by way of her Counterclaim.
Id. at 12. Graham now appeals this order.
[8] We note that, separately, in June 2018, Graham filed a housing discrimination
complaint with the Elkhart Human Relations Commission and alleged: (1)
“Discriminatory terms, conditions, privileges, or services in rental;” and (2)
“Failure to make reasonable accommodation.” Ex. Vol. III p. 39. On
September 27, 2018, the Elkhart Human Relations Commission issued a “No
Probable Cause Finding” and closed the action. The Commission found there
was “no supporting evidence to conclude that a violation of the Federal Fair
Housing Act has occurred.” Id. at 43. The notice noted that the decision was
the “final determination” and was subject to judicial review in accordance with
Indiana Code Section 4-21.5-5. Id.
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Analysis
[9] Graham appeals the small claims court’s judgment. We review facts from a
bench trial under the clearly erroneous standard with due deference paid to the
trial court’s opportunity to assess witness credibility. Branham v. Varble, 952
N.E.2d 744, 746 (Ind. 2011). “This deferential standard of review is
particularly important in small claims actions, where trials are informal, ‘with
the sole objective of dispensing speedy justice’ between parties according to the
rules of substantive law.” Id. (quoting Morton v. Ivacic, 898 N.E.2d 1196, 1199
(Ind. 2008)). We review questions of law de novo. Id. In determining whether
a judgment is clearly erroneous, we do not reweigh the evidence or determine
the credibility of witnesses. City of Dunkirk Water & Sewage Dep’t v. Hall, 657
N.E.2d 115, 116 (Ind. 1995).
[10] Before addressing Graham’s arguments, we note that “a pro se litigant is held to
the same standards as a trained attorney and is afforded no inherent leniency
simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259,
266 (Ind. 2014). “An appellant who proceeds pro se is held to the same
established rules of procedure that trained legal counsel is bound to follow and,
therefore, must be prepared to accept the consequences of his or her action.”
Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014),
trans. denied, cert. denied, 136 S. Ct. 227 (2015). Although we prefer to decide
cases on their merits, arguments are waived where an appellant’s
noncompliance with the rules of appellate procedure is so substantial it impedes
our appellate consideration of the errors. Id. We will not consider an assertion
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on appeal when there is no cogent argument supported by authority and there
are no references to the record as required by the rules. Id. We will not become
an advocate for a party or address arguments that are inappropriate or too
poorly developed or expressed to be understood. Id.
[11] Landlord argues that we should affirm the small claims court because Graham
repeatedly failed to comply with our appellate rules. We agree that Graham
has largely failed to comply with the Indiana Appellate Rules. We will,
however, address Graham’s arguments to the extent they are discernible.
I. Breach of Lease Claim
[12] Graham appears to argue that the small claims court erred by finding that her
dog violated the lease provisions. We construe a lease in the same manner as
any other contract. Youell v. Cincinnati Ins. Co., 117 N.E.3d 639, 641 (Ind. Ct.
App. 2018). Graham does not appear to contest that the lease did not allow pit
bulls and required dogs to be registered. Rather, Graham argues that her dog,
Kane, was a golden retriever mix and that it was registered with the Landlord
as an emotional support animal. Wills, however, testified that she was bitten by
a pit bull and that Kane was not the animal that attacked her. Landlord also
presented evidence that its records did not contain any information about
Graham’s emotional support animal. The small claims court specifically found
that “more likely than not the Defendant’s dog was a prohibited breed, to wit, a
pit bull, (likely an addition to the Defendant’s dog, [K]ane) and that the dog
was not properly registered as an emotional support animal in accord with the
Lease.” Appellant’s App. Vol. II p. 10. There is evidence to support the small
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claims court’s finding, and Graham’s argument is merely a request that we
reweigh the evidence and judge the credibility of the witnesses, which we
cannot do. We cannot say that the small claims court’s judgment that Graham
breached her lease is clearly erroneous. 2
II. Counterclaim
[13] Next, Graham appears to argue that the small claims court erred by denying her
counterclaim. We note that Graham’s counterclaim presented a claim for
emotional distress due to racial profiling and racial bias by Landlord. On
appeal, Graham mainly argues that Landlord violated the Fair Housing Act, 42
U.S.C. § 3604, and the Rehabilitation Act of 1973, 29 U.S.C. § 794. These
arguments, however, appear to have been presented to the Elkhart Human
Relations Commission, not this small claims court. It is unclear from the
record whether Graham appealed the Commission’s decision; regardless, issues
raised before the Commission must be appealed through an appeal of the
Commission’s decision. 3 Only issues raised before the small claims court can
be considered in this appeal. See GKC Ind. Theatres, Inc. v. Elk Retail Inv’rs, LLC.,
2
Graham also argues that she did not leave the residence damaged or in a dirty condition. The small claims
court, however, did not award Landlord such damages. As a result, we do not address this issue. Graham
seems to argue that Landlord failed to give her a $200.00 promotion for referring a friend. The ledger entered
as Plaintiff’s Exhibit 3, however, shows a $200.00 credit to her account for “Promotion Rent.” Ex. p. 12.
Finally, Graham seems to argue that she was overcharged for the site rental charge for several years. The
small claims court declined to find for Graham on this point and noted that “the Defendant continued to pay
the rent as billed by the Plaintiff.” Appellant’s App. Vol. II p. 12. The small claims court’s finding is not
clearly erroneous.
3
Graham appears to make arguments concerning the Commission’s decision. See Appellant’s Br. p. 14
(discussing claims against the Elkhart Human Relations Department). Graham, however, must exhaust her
administrative remedies and cannot raise these arguments in this appeal. See Ind. Code Chapter 4-21.5-5.
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764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (“As a general rule, a party may not
present an argument or issue to an appellate court unless the party raised that
argument or issue to the trial court.”).
[14] In her counterclaim, Graham argued that she sustained emotional distress due
to racial profiling and racial bias by Landlord. Landlord, however, presented
evidence that the pet policy was enforced regardless of race. Landlord also
presented evidence that the pit bull at issue was not a registered emotional
support animal. The small claims court rejected Graham’s argument, finding
no racial bias and finding that the dog at issue was a pit bull and was not a
registered emotional support animal. Graham’s argument, again, is merely a
request that we reweigh the evidence and judge the credibility of the witnesses,
which we cannot do. We cannot say the small claims court’s denial of
Graham’s counterclaim is clearly erroneous.
Conclusion
[15] The small claims court’s judgment is not clearly erroneous. We affirm.
[16] Affirmed.
Brown, J., and Altice, J., concur.
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