Stephen Harriman and Elena Ivanova v. Smith Brothers Ultimate Builders, Inc.

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
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.
APPELLANTS PRO SE: ATTORNEY FOR APPELLEE:
STEPHEN HARRIMAN BRANDI R. FOSTER
ELENA IVANOVA Greenwood, Indiana
Indianapolis, Indiana
May 13 2013, 9:34 am
IN THE
COURT OF APPEALS OF INDIANA
STEPHEN HARRIMAN and )
ELENA IVANOVA, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 41A01-1210-SC-460
)
SMITH BROTHERS ULTIMATE )
BUILDERS, INC., )
)
Appellee-Defendant. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Richard L. Tandy, Magistrate
Cause No. 41D02-1203-SC-662
May 13, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Stephen Harriman and Elena Ivanova (“the Homeowners”) appeal the trial court’s
small claims judgment in favor of Smith Brothers Ultimate Builders, Inc. (“Smith Brothers”).
The sole restated issue presented for our review is whether the trial court’s judgment is
clearly erroneous or contrary to law. Due to the deficient nature of the Homeowners’ pro se
brief, and the lack of cogent argument supported by relevant citation of authority, we
conclude that the Homeowners have waived our review of the issue. Accordingly, we affirm
the trial court’s judgment.
Facts and Procedural History
The facts most favorable to the small claims court’s judgment indicates that Smith
Brothers is an Indiana corporation that has been in the construction business for forty-two
years. In early summer 2010, the Homeowners decided to begin remodeling one of their
rental properties located in Greenwood. The Homeowners obtained a phone number for
Smith Brothers from a telephone book, called the number, spoke to someone, and arranged a
meeting to obtain an estimate for work on their rental property.
On July 15, 2010, a man named Homer D. Caudill met with the Homeowners and
provided an estimate for work on the rental property. Caudill is a subcontractor that had
performed some work for Smith Brothers in 2010, and Caudill had access to Smith Brothers’
telephone. When he met with the Homeowners, Caudill was neither driving a Smith Brothers
vehicle nor wearing the white shirt with the Smith Brothers logo that all employees wear.
Smith Brothers had no record that the Homeowners called to request an estimate. Smith
2
Brothers had a company policy to document each customer phone call made into the office.
Jim Smith is the only employee of Smith Brothers authorized to meet with clients and to
perform estimates.
Caudill agreed to do the work requested by the Homeowners for $10,050. Caudill
provided the Homeowners with a “Smith Brothers” contract, and both parties signed the
contract. Appellants’ Ex. A. As a subcontractor, Caudill had access to Smith Brothers’
blank work contracts. The parties agreed that the Homeowners would pay for the work in
three installments. Caudill informed the Homeowners that they should not make the first
check payable to Smith Brothers because that would mean it would take three or four weeks
for the project to start. Caudill stated that if the Homeowners made the first check payable to
him, he could “expedite” the project. Tr. at 16. The Homeowners gave Caudill a personal
check made payable to Caudill in the amount of $3500. Thereafter, on July 23, 2010, the
Homeowners gave Caudill a second payment by personal check made payable to Caudill in
the amount of $3500.
During the time that work was being performed on the project, the Homeowners had
no contact with Smith Brothers and only communicated with Caudill via cell phone. The
Homeowners became frustrated with the progress of the work and with Caudill giving
excuses for not paying for the furnace he had arranged to be installed. All work on the
project then ceased. Smith Brothers had no knowledge of the Homeowners or the
Homeowners’ dealings with Caudill until it received a letter from the Homeowners’ attorney
more than three months later in November of 2010.
3
On February 25, 2012, the Homeowners filed a small claims notice against Smith
Brothers alleging breach of contract. The Homeowners sought damages in the amount of
$6000 plus $77 in court costs. The trial court held a bench trial on September 4, 2012. Both
parties appeared and were represented by counsel. Thereafter, on September 18, 2012, the
trial court issued its judgment in favor of Smith Brothers.1
Discussion and Decision
The Homeowners appeal a small claims judgment. Our standard of review in this
regard is well settled. Judgments in small claims actions are “subject to review as prescribed
by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). “We review facts
from a bench trial under a 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 designed to speedily dispense justice by applying substantive law
between the parties in an informal setting. Berryhill v. Parkview Hosp., 962 N.E.2d 685, 689
(Ind. Ct. App. 2012). In determining whether a judgment is clearly erroneous, the appellate
tribunal does not reweigh the evidence or determine the credibility of witnesses, but
considers only the evidence that supports the judgment and the reasonable inferences to be
drawn from that evidence. City of Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115,
116 (Ind. 1995).
Moreover, because the Homeowners had the burden of proof at trial, they appeal from
1
On October 22, 2012, the trial court issued an amended judgment to amend the cause number.
4
negative judgment. See LTL Truck Serv., LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind.
Ct. App. 2004). We will not reverse a negative judgment on appeal unless it is contrary to
law. Id. A judgment is contrary to law when the evidence, along with all reasonable
inferences, is without conflict and leads unerringly to a conclusion opposite that reached by
the court. M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1074 (Ind. Ct. App. 2005).
The sole issue presented on appeal is whether the trial court’s judgment in favor of
Smith Brothers is clearly erroneous or contrary to law. Due to the deficient nature of the
Homeowners’ pro se appellants’ brief, we determine sua sponte that Homeowners have
waived this issue on appeal.
We have often explained that
one who proceeds pro se is held to the same established rules of procedure that
a trained legal counsel is bound to follow and, therefore, must be prepared to
accept the consequences of his or her action. While we prefer to decide cases
on the merits, we will deem alleged errors waived where an appellant’s
noncompliance with the rules of appellate procedure is so substantial it
impedes our appellate consideration of the errors. The purpose of our
appellate rules, Ind. Appellate Rule 46 in particular, is to aid and expedite
review and relieve the appellate court of the burden of searching the record
and briefing the case. We will not become an advocate for a party, nor will we
address arguments which are either inappropriate, too poorly developed or
improperly expressed to be understood.
Ramsey v. Review Bd. of Indiana Dept. of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct.
App. 2003) (quotation marks and citations omitted).
Although the Homeowners’ brief contains a multitude of deficiencies and violations
of our appellate rules, we will concentrate on the most significant problem, their violation of
Indiana Appellate Rule 46(A)(8) with respect to the Argument section of their brief. This
5
section “must contain the contentions of the appellant on the issues presented, supported by
cogent reasoning,” as well as relevant citations to the record on appeal or legal authority.
Ind. Appellate Rule 46(A)(8). The Homeowners’ Argument section fails to provide any
argument at all. Indeed, the Homeowners do not even make a bald assertion of error. The
Homeowners provide no explanation as to how the trial court’s judgment is clearly erroneous
or contrary to law, and they fail to make even a single reference in this section to facts and/or
evidence presented to the trial court and the reasonable inferences that can be drawn from the
facts and/or evidence. The section merely contains citations to legal authority purportedly
relied upon by Smith Brothers and by the Homeowners during the small claims trial, but no
argument, cogent or otherwise, as to why or how that legal authority does or does not apply
to the case at bar. We will not, on review, search through authorities cited by a party in order
to try to find legal support of a position. Reed Sign Serv., Inc. v. Reid, 755 N.E.2d 690, 695
n.4 (Ind. Ct. App. 2001), clarified in part on reh’g, 760 N.E.2d 1102, trans. denied (2002).
In sum, the Homeowners’ attempt at presenting an argument for reversal on appeal is
too jumbled and poorly developed to be understood. In other words, the Homeowners have
not only failed to connect the dots, they have not even given us any dots to connect. We will
not address arguments which are too poorly developed or improperly expressed to be
understood. See Ramsey, 789 N.E.2d at 487. Additionally, we note that the Homeowners’
brief is rife with spelling and grammatical errors, missing words, partial thoughts, and
incomprehensible statements. These types of errors, coupled with the other violations of the
Indiana Rules of Appellate Procedure, substantially impede us from reaching the merits of
6
this appeal.
Therefore, the Homeowners’ noncompliance with the appellate rules, most
significantly their failure to provide cogent argument, has resulted in waiver of their claim on
appeal. See Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (finding that
failure to present cogent argument supported by authority coupled with unsupported
assertions too poorly developed to be understood resulted in waiver of argument on appeal).
If we were to address their claim on appeal, we would be forced to abdicate our role as an
impartial tribunal and would instead become an advocate for one of the parties. This we
cannot do. See id.2 The judgment of the trial court is affirmed.
Affirmed.
ROBB, C.J., and FRIEDLANDER, J., concur.
2
While the Homeowners attempt to be more precise in their reply brief by at least referencing the
doctrine of apparent authority, their reply is also rife with poorly developed arguments. In any event, an
appellant is not permitted to present new arguments in a reply brief, and any argument an appellant fails to
raise in its initial brief is waived for appeal. Ashworth v. Ehrgott, 982 N.E.2d 366, 376 n.3 (Ind. Ct. App.
2013).
7