Eric P. Hewitt v. Buckingham Management, LLC (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 19 2016, 8:30 am
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.
PRO SE APPELLANT ATTORNEYS FOR APPELLEE
Eric P. Hewitt Edward P. Benchik
South Bend, Indiana Shedlak & Benchik Law Firm LLP
South Bend, Indiana
Patrick J. O’Connell
Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric P. Hewitt, January 19, 2016
Appellant-Defendant, Court of Appeals Case No.
71A04-1507-PL-812
v. Appeal from the St. Joseph Circuit
Court
Buckingham Management, LLC, The Honorable Michael G.
Appellee-Plaintiff. Gotsch, Judge
The Honorable Larry L. Ambler,
Magistrate
Trial Court Cause No.
71C01-1505-PL-169
May, Judge.
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[1] Eric P. Hewitt appeals the trial court’s order granting Buckingham
Management, LLC 1 (Buckingham) immediate prejudgment possession of
Hewitt’s apartment. We affirm.
Facts and Procedural History
[2] On August 26, 2014, Hewitt executed a one-year Lease Agreement with
Foundry Housing Partners, LLC, a management company owned by
Buckingham. On April 16, 2015, Foundry Property Manager Chris Jackowiak
sent Hewitt a letter indicating:
Due to numerous complaints from surrounding neighbors, it has
been decided that we will be terminating your lease immediately.
You will have until Monday, April 20th to vacate the apartment
and turn all of your keys and garage pass into the office. If you
leave willingly, you will be free & clear of all future rent owed to
The Foundry and I will have a document prepared for you to
sign by our corporate attorney.
(Appellant’s App. at 21.) Hewitt refused to leave.
[3] On May 6, 2015, Buckingham filed a “Complaint on Lease and for Immediate
Possession” alleging Hewitt “repeatedly disturbed the peace of other tenants by
1
Hewitt argues Buckingham is not the named leaseholder because the Lease Agreement is signed by a
representative of Foundry Housing Partners, LLC. As Hewitt did not raise that issue before the trial court,
he has waived that allegation of error. See Dennerline v. Atterholt, 886 N.E.2d 582, 594 (Ind. Ct. App. 2008)
(issue not presented before trial court is waived for appellate review), reh’g denied, trans. dismissed.
Notwithstanding the waiver, we note Buckingham presented evidence it owns Foundry and the two entities
have “a contractual and legal relationship . . . so [Foundry] is actually a management company authorized by
Buckingham to run that facility and to deal with them on their behalf[.]” (Tr. at 21-2.)
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conducting himself in a loud and boisterous mannner [sic] and has on at least
one occasion physically assaulted one of said tenants.” (Appellee’s App. at 1.)
Buckingham alleged Hewitt had recently been charged with misdemeanor
public intoxication and misdemeanor intimidation following an altercation with
a fellow tenant at a nearby bar. Buckingham requested “immediate possession
of the property, damages for such rent as may accrue pursuant to the terms of
the lease, any damages to the property as may be determined after inspection
and hearing, late fees, noise violation fees, reasonable attorney fees, for its costs
and all other just and property relief[.]” (Id. at 1-2.)
[4] The trial court awarded Buckingham immediate possession of Hewitt’s
apartment and allowed Hewitt until July 10, 2015, to vacate. The trial court
reserved the issues of damages, attorney fees, and court costs for a future
hearing.
Discussion and Decision
[5] We first note Hewitt proceeds in this appeal pro se. A litigant who proceeds pro
se is held to the same established rules of procedure that trained counsel is
bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009),
trans. denied, cert. dismissed. One risk a litigant takes when he proceeds pro se is
that he will not know how to accomplish all the things an attorney would know
how to accomplish. Id. When a party elects to represent himself, there is no
reason for us to indulge in any benevolent presumption on his behalf or to
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waive any rule for the orderly and proper conduct of his appeal. Foley v.
Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).
[6] When reviewing a grant of immediate prejudgment possession of a property, we
defer to the trial court’s discretion. Bishop v. Hous. Auth. of South Bend, 920
N.E.2d 772, 781 (Ind. Ct. App. 2010), reh’g denied, trans. denied. We “presume
that the trial court will ‘act in accord with what is fair and equitable in each
case,’ and thus we will reverse only ‘if the trial court’s decision is clearly against
the logic and effect of the facts and circumstances before the court or if the trial
court has misinterpreted the law.’” DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d
729, 731-32 (Ind. 2015) (quoting Wright v. Miller, 989 N.E.2d 324, 330 (Ind.
2013)), reh’g denied.
[7] The trial court sua sponte entered findings of fact and conclusions of law. In this
situation, “the specific findings control our review and the judgment only as to
the issues those specific findings cover. Where there are no specific findings, a
general judgment standard applies and we may affirm on any legal theory
supported by the evidence adduced at trial.” Trust No. 6011, Lake Cnty. Trust Co.
v. Heil’s Haven Condos. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012).
We apply a two-tiered standard of review to sua sponte findings and conclusions:
first, whether the evidence supports the findings, and then, whether the findings
support the judgment. Id.Findings and conclusions will be set aside only if they are clearly
erroneous, that is, when the record contains no facts or inferences
supporting them. A judgment is clearly erroneous when a review
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of the record leaves us with a firm conviction that a mistake has
been made. We consider only the evidence favorable to the
judgment and all reasonable inferences flowing therefrom, and
we will neither reweigh the evidence nor assess witness
credibility.
Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839 (Ind. Ct.
App. 2009) (internal citations omitted), trans. denied.
[8] Hewitt specifically challenges this finding: 2
[Hewitt] is found to have violated paragraph twenty (20) of said
Lease and therefore pursuant to paragraph thirty-two (32) of said
Lease is found to be in ‘default’. [sic] Pursuant to the sub-
paragraph captioned ‘Eviction’ of paragraph 32, Plaintiff has the
2
Hewitt directs us to statutes governing landlord/tenant relationships, such as Ind. Code § 32-31-1-7 (form
regarding notice to quit), Ind. Code § 32-31-1-8(3) (requiring “waste” for notice to quit requirement to be
waived), Ind. Code § 32-31-6-3 (emergency possession requirements), Ind. Code § 32-31-6-7 (definition of
“waste”), Ind. Code § 32-31-7-4 (waiver of application of statutory chapter void), and Ind. Code § 32-31-7-7(requirement tenant be given time to remedy non-compliance). Most of these statutes require a tenant be
given notice before being evicted. However, Ind. Code § 32-31-1-8(2) states: “Notice is not required to
terminate a lease in the following situations: . . . (2) The time for the determination of the tenancy is specified
in the contract.” As paragraph thirty-two of the Lease Agreement gives Buckingham the right to terminate
the lease immediately upon default, notice thereof is not required under Ind. Code § 32-31-1-8(2). See
Halliday v. Auburn Mobile Homes, 511 N.E.2d 1086, 1088 (Ind. Ct. App. 1987) (earlier version of Ind. Code §
32-31-1-8(2) which states notice is not required “where the time for the determination of the tenancy is
specified in the contract” applies when provision of the lease is violated and the lease authorizes termination
upon that violation).
Additionally, Ind. Code § 32-31-6-3, which sets forth the requirements for a landlord to obtain emergency
possession of the property, does not apply here because Buckingham did not file for “emergency possession”
and instead filed for pretrial “immediate possession.” (Appellee’s App. at 1.) Emergency possession under
Ind. Code § 32-31-6-3 requires the trial court to “[s]chedule an emergency hearing for not later than three (3)
business days after the petition is filed.” Ind. Code § 32-31-6-5. In this case, the “Complaint on Lease and
for Immediate Possession” (Appellee’s App. at 1), was filed on May 6, 2015, and a hearing was scheduled on
May 15. During the May 15 hearing, the trial court heard no evidence, and the evidentiary hearing on the
matter was held on June 3, 2015, twenty-eight days after Buckingham filed its complaint.
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right to terminate said Lease and end [Hewitt’s] right of
occupancy.
(Appellant’s App. at 3.)
[9] Paragraph twenty of Hewitt’s Lease Agreement states:
20. PROHIBITED CONDUCT. You and your occupants or
guests may not engage in the following activities: behaving in a
loud or obnoxious manner; disturbing or threatening the rights,
comfort, health, safety, or convenience of others (including our
agents and employees) in or near the apartment community;
disrupting our business operations; manufacturing, delivering,
possessing with intent to deliver, or otherwise possessing a
controlled substance or drug paraphernalia; engaging in or
threatening violence; possession of a weapon prohibited by state
law; discharging a firearm in the apartment community;
displaying or possessing a gun, knife, or other weapon in the
common area in a way that may alarm others; storing anything
in closets having gas appliances; tampering with utilities or
telecommunications; bringing hazardous material into the
apartment community; or injuring our reputation by making bad
faith allegations against us to others.
(Appellee’s App. at 4.) Paragraph thirty-two states:
32. DEFAULT BY RESIDENT. You’ll be in default if you or
any guest or occupant violates any terms of this Lease Contract
including but not limited to the following violations: (1) you
don’t pay rent or other amounts that you owe when due; (2) you
or any guest or occupant violates the Apartment rules, or fire,
safety, health, or criminal laws, regardless of whether or where
arrest or conviction occurs; (3) you abandon the Apartment; (4)
you give incorrect or false answers in a rental application; (5) you
or any occupant is arrested, convicted, or given deferred
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adjudication for a felony offense involving actual or potential
physical harm to a person, or involving possession, manufacture,
or delivery of a controlled substance, marijuana, or drug
paraphernalia under state statute; (6) any illegal drugs or
paraphernalia are found in your apartment; (7) you or any guest
or occupant engages in any of the prohibited conduct described
in Paragraph 20; or (8) you or any occupant, in bad faith, makes
an invalid complaint to an official or employee of a utility
company or the government.
Eviction. If you default, we may immediately terminate this
Lease Contract and end your right of occupancy. Termination of
your possession rights or subsequent reletting doesn’t release you
from liability for future rent or other lease obligations. After
giving notice to vacate or filing an eviction suit, we may still
accept rent or other sums due; the filing or acceptance of rent or
other sums to doesn’t waive or diminish our right of eviction, and
is not an accord and satisfaction or create for you any other
contractual or statutory right. Accepting money at any time
doesn’t waive our right to damages; past or future rent or other
sums; or our right to continue with eviction proceedings.
(Id. at 6.)
[10] Buckingham presented evidence 3 Hewitt “has, on at least two occasions within
the last month or so, made threats to individuals on or adjacent to The Foundry
apartment complex,” (Tr. at 9); threatened to kill another resident; and
3
Hewitt argues much of Buckingham’s evidence against him was hearsay and thus should not have been
considered by the trial court. Hewitt objected multiple times during the hearing claiming certain statements
were hearsay, and the trial court denied some and granted some. However, the proceedings were tried before
the bench, and we presume “the court disregarded inadmissible evidence and rendered its decision solely on
the basis of relevant and probative evidence.” Roser v. Silvers, 698 N.E.2d 860, 864 (Ind. Ct. App. 1998).
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physically attacked another resident at a nearby bar on April 15, 2015, in
violation of paragraph twenty of the Lease. Buckingham also presented
evidence Hewitt violated paragraph 32(2) of the Lease on April 15, 2015, when
he was arrested and charged with Class A misdemeanor intimidation and two
counts of Class B misdemeanor public intoxication following the incident at the
bar near the apartments when he physically attacked another resident of the
apartment complex. Finally, Buckingham presented evidence Hewitt did not
disclose certain arrests and convictions on his rental application in violation of
paragraph 32(4) of the Lease Agreement. Those actions put Hewitt in default
of the Lease Agreement 4 and entitled Buckingham to “immediately terminate
this Lease Contract and end [his] right to occupancy,” (Appellee’s App. at 6),
pursuant to the terms of the lease. See Stout v. Kokomo Manor Apartments, 677
N.E.2d 1060, 1064-5 (Ind. Ct. App. 1997) (violation of clause regarding
“criminal activity” in lease agreement entitled leaseholder to terminate lease).
Hewitt’s alternate version of the facts and the inferences he would have us draw
4
Hewitt argues “IN A BREACH OF CONTRACT CASE, A PLAINTIFF CANNOT PREVAIL THAT
HAS NO DAMAGES AND THE DECISION MUST BE REVERSED.” (Br. of Appellant at 14.)
However, Hewitt appeals from the order of immediate possession, which is an interlocutory order separate
from the trial court’s subsequent judgment regarding damages. See Nylen v. Park Doral Apartments, 535 N.E.2d
178, 180 (Ind. Ct. App. 1989) (damages hearing held subsequent to eviction hearing and order), trans. denied.
See also Ind. Code § 32-30-3-2 (provides for pre-judgment possession hearing “to show cause why the judge
should not remove the tenant from the property and put the plaintiff in possession.”) And see Bishop, 720
N.E.2d at 779 (“[Ind. Code § 32-30-3-2] merely allows the trial court to make a preliminary decision as to the
right to immediate possession of the property.”)
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therefrom are invitations for us to reweigh the evidence, which we cannot do.
See Barkwill, 902 N.E.2d at 839 (appellate court does not reweigh evidence). 5
Conclusion
[11] Because Hewitt was in violation of his Lease Agreement, the trial court did not
abuse its discretion when it granted Buckingham immediate possession of
Hewitt’s apartment. We accordingly affirm.
[12] Affirmed.
Najam, J., and Riley, J., concur.
5
Hewitt makes two additional arguments entitled, “THE LEASE CONTRACT SPECIFICALLY STATES
THAT THE OWNER IS NOT A GUARANTOR OF SAFETY AND ALL RESIDENTS WAIVE
RIGHTS TO SAFETY CLAIMS; BUCKINGHAM CANNOT THEN SAY THAT THEY [sic] DO
INDEED MONITOR SAFETY ISSUES AND THIS CASE SHOULD BE REVERSED AS THEY
[sic]CANNOT CLAIM DAMAGES DUE TO SAFETY ISSUES PER THEIR [sic] LEASE” and “PUBLIC
POLICY WOULD NOT BE SERVED BY A RULING THAT ALLOWS A PERSON ARRESTED OF
[sic] A CRIME TO BE EVICTED FOR THAT ARREST WHEN THE ARREST OCCURS NOWHERE
NEAR THE APARTMENT BUILDING.” (Appellant’s Br. at 15.) As Hewitt does not cite legal authority
in support of these arguments, they are waived. See Parameter v. Cass Cnty. Dept. of Child Servs, 878 N.E.2d
444, 452 (Ind. Ct. App. 2007) (failure to cite to relevant authority waives argument before appellate court),
reh’g denied.
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