Randy Brotherton and Vickie Brotherton v. Town of Bryant (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 30 2017, 6:14 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS
Brian M. Pierce
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randy Brotherton and Vickie August 30, 2017
Brotherton, Court of Appeals Case No.
Appellants-Defendants, 38A05-1702-SC-328
Appeal from the Jay County
v. Superior Court
The Honorable Max C. Ludy, Jr.,
Town of Bryant, Judge
Appellee-Plaintiff Trial Court Cause No.
38D01-1606-SC-154
May, Judge.
[1] Randy and Vickie Brotherton (“the Brothertons”) appeal the small claims
court’s entry of judgment against them in a small claims action by the Town of
Bryant (“the Town”) to collect outstanding balances the Brothertons owed for
sewer service. We affirm.
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Facts and Procedural History
[2] The Town built and runs its own sewer system. The policies and procedures
controlling the use and cost of the system are outlined in a number of Town
Ordinances. For example, Ordinance 1992-3, Section 8 indicates that users
may contest sewer billing by “appeal[ing] a decision of the administrator of the
sewage system and user charge system to Town Council and that any decision
concerning the sewage system or user charges of the Town Council may be
appealed to the circuit court of the county . . . .” (Exhibit Vol. 3 at 18.) 1
Another Ordinance, Ordinance No. 2005-4, indicates that if users maintain an
outstanding balance on their accounts for sixty days, the Town will notify them
by certified letter, and if the account is not paid within thirty days, the Town
will sue them in small claims court. (Id. at 39.)
[3] The Brothertons own several pieces of property in the Town. The Town sent
the Brothertons sewage bills for their various properties. The Brothertons
apparently paid part, but not all, of the sewer bills. Because the Brothertons
had a balance on their account that violated Ordinance No. 2005-4, the Town
notified the Brothertons and then filed a small claims case against the
Brothertons to collect the balance.
1
The trial court clerk’s failure to number the pages of the Exhibit volume greatly hindered our review of the
record. We cite the page numbers as they appear consecutively in the PDF format of the Electronic Record.
See Ind. Appellate Rule 29(A) (requiring the Exhibits be filed in accordance with Appendix A(2)(a), which
provides: “Each volume of the Transcript shall be independently and consecutively numbered at the bottom.
Each volume shall begin with numeral one on its front page.”).
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[4] At trial, the Brothertons’ only defense to the Town’s claim was that the bills
exceeded what they should have been charged pursuant to the local ordinances.
The trial court found the Brothertons failed to “follow the appropriate
administrative remedies and appeals provided for in the Ordinances.” (App.
Vol. 2 at 6.) The trial court entered judgment against the Brothertons in the
sum of $3,095.97, plus attorney fees and costs.
Discussion and Decision
[5] Small claims judgments are “subject to review as prescribed by relevant Indiana
rules and statutes.” Hastetter v. Fetter Properties, LLC, 873 N.E.2d 679, 682 (Ind.
Ct. App. 2007) (quoting Ind. Small Claims Rule 11(A)). We consider evidence
in the light most favorable to the judgment, together with all reasonable
inferences to be drawn therefrom. Id. at 682. We will reverse only if the
evidence leads to but one conclusion and the trial court reached the opposite
conclusion. Id. at 682-83. Applying a deferential “clearly erroneous” standard
of review is particularly important in small claims actions, where trials are
designed to speedily dispense justice by applying substantive law between the
parties in an informal setting. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065,
1068 (Ind. 2006).
[6] We note the Town did not submit an appellee’s brief. In such situations, we do
not undertake the burden of developing the appellee’s argument. Applying a
less stringent standard of review with respect to showings of reversible error, we
may reverse the lower court if the appellant can establish prima facie error.
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Fisher v. Bd. of Sch. Trs., 514 N.E.2d 626, 628 (Ind. Ct. App. 1986). Prima facie
error, in this context, is defined as “at first sight, on first appearance, or on the
face of it.” Johnson Cty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989,
991 (Ind. Ct. App. 1985). Where an appellant is unable to meet that burden,
we will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind. Ct. App. 1986), reh’g
denied, trans. denied. The appellee’s failure to submit a brief does not relieve us
of our obligation to correctly apply the law to the facts in the record in order to
determine whether reversal is required. Vandenburgh v. Vandenburgh, 916
N.E.2d 723, 725 (Ind. Ct. App. 2009).
[7] The Brothertons allege the small claims court erred as a matter of law when it
sua sponte applied the affirmative defense of failure to exhaust administrative
remedies against them in the Town’s small claims action. The Brothertons’
defense at trial was that their bills were incorrect because the Town’s Clerk
Treasurer was not billing in accordance with an ordinance 2 allegedly called
“one (1) tap, one (1) fee.” (See, e.g., Tr. at 19.) However, to challenge the
amount they were billed, the Brothertons needed to follow the dispute
procedures outlined in the Sewer Rate Ordinance 1992-3, Section 8, so that the
Town Council would have an opportunity to correct the billing and then, if the
Brothertons were unhappy with the result, they could appeal from the Town
Council’s decision. Instead, the Brothertons simply did not pay the bill.
2
This ordinance was not produced at trial or on appeal; however, all parties seem to agree it exists. (See,
generally, Tr. at 19.)
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[8] The small claims court stated the Brothertons “must follow the appropriate
remedies and appeals provided for in the Ordinances.” (App. Vol. 2 at 6.)
Contrary to the Brothertons’ allegation, the small claims court did not assert the
affirmative defense of failure to exhaust remedies against them. What the court
asserted was the doctrine that parties cannot sit on their rights and later claim
prejudice. See Assocs. Fin. Servs. Co. of Ind. v. Boldman, 495 N.E.2d 203, 206 (Ind.
Ct. App. 1986) (debtor may not “sit back and do nothing” to protect his rights
and wait for the creditor to take action before deciding what to do), reh’g denied,
trans. denied, superseded by statute as stated in In re Greer, Bankr. S.D. Ind., March 13,
1990. If the Brothertons wished to challenge the amount of their sewer bills,
their opportunity for making such a challenge was by complaint to the Town
Council, before the account became sixty-days delinquent and the Town
proceeded to small claims court for collection pursuant to Ordinance No. 2005-
4. See id. (a debtor may not claim lien was removed through bankruptcy if
debtor failed in the bankruptcy proceeding to take the steps delineated for
removing the lien).
[9] Because the Brothertons did not challenge the amount of individual sewer bills
in the appropriate proceeding, the small claims court did not err in entering
judgment against the Brothertons for the amount requested by the Town.
Accordingly, we affirm.
[10] Affirmed.
Barnes, J., and Bradford, J., concur.
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