MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          May 30 2019, 9:21 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
Jason T. Myers
Lafayette, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason T. Myers,                                          May 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-SC-2197
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
June Palms Property                                      The Honorable Laura Zeman,
Management,                                              Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         79D04-1803-SC-816 & 79D04-
                                                         1805-SC-1592



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019                       Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jason Myers (Myers), appeals from the trial court’s order

      denying his motion to correct error seeking relief from a judgment in favor of

      Appellee-Plaintiff, June Palms Property Management, (June Palms).


[2]   We affirm.


                                                    ISSUE
[3]   Myers presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion when it denied his motion to correct error.


                      FACTS AND PROCEDURAL HISTORY
[4]   On August 11, 2017, Myers and June Palms entered into a lease agreement (the

      Lease) for an apartment located on 4th Street in Lafayette, Indiana. The Lease

      provided that the apartment “shall be occupied by no more than 1 persons . . .

      without the written consent of [June Palms].” (Appellant’s App. Vol. II, p. 17).

      The Lease further provided that Myers would be charged $100 per month for

      each “unauthorized occupant” determined to be living in the apartment and

      that Myers would be liable for costs and expenses, including legal and

      administrative fees, resulting from legal steps taken to enforce the provisions of

      the Lease. (Appellant’s App. Vol. II, pp. 15, 17).


[5]   In February 2018, June Palms received reports of loud arguments emanating

      from Myers’ apartment. June Palms became suspicious that Myers had an

      unauthorized person living in his apartment, so they sent an employee,

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 2 of 10
      Anthony Stout (Stout), to inspect the property. When he arrived to perform the

      inspection, Stout was greeted by Myers’ girlfriend. Myers was not home at the

      time. Stout observed several items of the girlfriend’s clothing and hygiene items

      in the apartment. The girlfriend appeared nervous and asked if she would be in

      trouble for staying in the apartment. She also asked Stout about using storage

      space in the laundry room.


[6]   June Palms concluded that Myers’ girlfriend was living in his apartment

      without authorization. June Palms issued Myers a notice of over-occupancy

      and began charging him an extra $100 per month, as provided for in the Lease.

      Myers continued to pay the base rate of his rent, but he did not pay the $100

      over-occupancy fee. Myers’ account with June Palms went into arrears, and

      late fees accumulated. June Palms had informed Myers that he could prove to

      them that the girlfriend was not living in his apartment by supplying a lease or

      mail showing that she lived elsewhere. The parties exchanged several emails

      regarding what type of mail would be acceptable proof of non-occupancy, but

      Myers never provided June Palms with documentation that satisfied them.


[7]   On March 14, 2018, June Palms filed a petition for eviction under Cause

      Number 79D04-1803-SC-816 (the -816 Eviction). June Palms sought payment

      of the outstanding over-occupancy fees, late fees, attorney’s fees, and possession

      of the apartment. In a March 19, 2018, email to June Palms, Myers stated that

      he believed that his girlfriend had mail from her bank card account which

      would satisfy June Palms’ requirements for showing non-occupancy. On

      March 27, 2018, the trial court held a hearing on the -816 Eviction petition.

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 3 of 10
      Myers testified that his girlfriend stayed with him often but did not specifically

      deny that she had spent five days and nights consecutively at his apartment,

      which was the standard June Palms used to determine occupancy. When asked

      why his girlfriend was not present to assist Myers with settling the occupancy

      issue, Myers responded that “she’s not part of it.” (Defendant’s Exh. 1, Vol.

      III, p. 15). Myers did not seek to admit a copy of his girlfriend’s mail for her

      bank card account as proof that she lived elsewhere. Myers did not ask the trial

      court if he could have a continuance of the proceedings in order to procure that

      mail. Myers also claimed, as he had in his answer to the -816 Eviction petition,

      that he had not been provided with the statutorily-required notice to evict by

      June Palms. The trial court ruled in favor of June Palms, issuing a judgment

      and an award of damages in their favor against Myers but denying June Palms

      the right to possession of the apartment.


[8]   Myers continued to pay his base rent amount but did not pay additional sums

      toward the -816 Eviction judgment. June Palms applied all of Myers’ rent

      payments to the -816 judgment, resulting in additional arrears to Myers’

      account. On May 14, 2018, June Palms filed a second eviction proceeding

      against Myers under Cause Number 79D04-1805-SC-1592 (the -1592 Eviction).

      On May 17, 2018, Myers filed a motion for relief from judgment pursuant to

      Indiana Trial Rule 60(B) seeking to vacate the -816 Eviction judgment.

      Framing his argument mainly as one of contract interpretation, Myers argued

      that June Palms was to blame for his failure to bring appropriate documentation

      of his girlfriend’s non-occupancy to court on March 27, 2018, because June


      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 4 of 10
       Palms did not inform him until it was too late what sort of mail would be

       acceptable proof. Myers also claimed that the trial court should have allowed

       him more time to provide his girlfriend’s mail and that June Palms had not

       provided him with the statutorily-required notice of intent to evict.


[9]    On May 29, 2018, the trial court held a hearing on the -1592 Eviction petition

       and awarded June Palms additional damages and possession of the apartment.

       On June 5, 2018, the trial court held a hearing on Myers’ motion for relief from

       judgment, which it denied, concluding that Myers had not presented any new

       evidence and that he had not filed a timely motion to correct error in the -816

       Eviction. On July 2, 2018, Myers filed a motion to correct error challenging the

       trial court’s June 5, 2018, denial of his motion for relief from judgment. On

       August 6, 2018, the trial court denied Myers’ motion to correct error.


[10]   Myers now appeals. Additional facts will be presented as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[11]   We begin by noting that June Palms did not file an appellate brief in this

       matter. We do not develop arguments on behalf of an appellee who fails to file

       a brief. WindGate Props., LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App.

       2018). In such cases, we will reverse if the appellant establishes prima facie

       error, meaning error at first sight or error on the face of it. Id. However, even

       in light of this relaxed standard, we still have the obligation to correctly apply

       the law to the facts in the record to determine whether reversal is required. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 5 of 10
[12]   Myers appeals from the trial court’s denial of his motion to correct error,

       framing his arguments as contract, negligence, and due process issues. A trial

       court’s ruling on a motion to correct error is generally reviewed for an abuse of

       discretion, approaching our review with a strong presumption of correctness.

       Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). An abuse of discretion

       occurs when the trial court’s decision is against the logic and effect of the facts

       and circumstances before it and the inferences to be drawn therefrom. Paulsen

       v. Malone, 880 N.E.2d 312, 313 (Ind. Ct. App. 2008). However, we review any

       questions of law de novo. Healey v. Carter, 109 N.E.3d 1043, 1047 (Ind. Ct. App.

       2018), trans. denied. This standard of review requires us to examine the

       propriety of the underlying order, namely the trial court’s June 5, 2018, denial

       of Myers’ motion for relief from judgment.


                                       II. Motion for Relief from Judgment

[13]   Myers filed a motion for relief from judgment seeking to vacate the -816

       Eviction judgment. 1 In his motion, Myers argued that his failure to provide his

       girlfriend’s mail at the March 27, 2018, hearing was “a mistake of law and

       reasonable neglect” because June Palms did not alert him beforehand that it

       would accept that as proof of her non-occupancy and that this was newly-

       discovered evidence. (Appellant’s App. Vol. II, p. 43). Myers also alleged that




       1
         Although Myers initially filed the motion in both eviction proceedings, no final judgment had been
       rendered in the -1592 Eviction, and the substance of the motion pertained to the -816 Eviction judgment.
       After Myers’ rent payments had extinguished the damages awarded in the -816 Eviction, at the hearing on
       Myers’ motion to correct error, June Palms agreed to vacate that judgment, noting that, by doing so, it was
       not conceding that the -816 Eviction judgment was in error.

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019                     Page 6 of 10
       June Palms had not supplied him with the statutorily-mandated notice of intent

       to evict him. Except for the setting aside default judgments, the Indiana Trial

       Rules apply to proceedings to set aside small claims judgments. Summit Account

       & Comput. Serv. v. Hogge, 608 N.E.2d 1003, 1005 (Ind. Ct. App. 1993). Trial

       Rule 60(B) provides in relevant part:


               On motion and upon such terms as are just the court may relieve
               a party or his legal representative from a judgment . . . for the
               following reasons:


               (1) mistake, surprise, or excusable neglect;


               (2) any ground for a motion to correct error, including without
                   limitation newly discovered evidence, which by due diligence
                   could not have been discovered in time to move for a motion
                   to correct error under Rule 59[.]


       The movant has the burden to establish the grounds for relief, and because the

       relief is within the equitable discretion of the trial court, we will reverse the

       denial of relief only upon an abuse of the trial court’s discretion. In re Paternity

       of P.S.S., 934 N.E.2d 737, 740-41 (Ind. 2010).


[14]   The issues that Myers raised in his motion for relief from judgment did not

       involve mistake, surprise, excusable neglect, or newly discovered evidence. The

       issue of whether June Palms had complied with statutory notice requirements

       was known and litigated in the -816 Eviction proceedings. In addition, Myers

       was well aware that his girlfriend’s occupancy was the issue to be litigated at

       the March 27, 2018, hearing on the -816 Eviction petition, and he had already

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 7 of 10
       proposed to June Palms that her bank card account mailings would show her

       non-occupancy of his apartment. It was incumbent upon him to present that

       defense at the -816 Eviction hearing. He did not; nor did he seek a continuance

       of the proceedings in order to procure the mail. The trial court ruled in favor of

       June Palms, resulting in an award of damages against Myers, the non-payment

       of which eventually became the basis for the second eviction proceeding.


[15]   The trial court entered its order in favor of June Palms in the -816 Eviction on

       March 27, 2018. This was a final order which was appealable. See Ind. Small

       Claims Rule 11(A); Ind. Appellate Rule 2(H)(1). Myers had thirty days—until

       April 26, 2018—to either file a motion to correct error or to appeal the trial

       court’s final order. See T.R. 59(A); App. R. 9(A)(1). Myers did not file a

       motion to correct error or pursue a direct appeal. Instead, he waited until May

       17, 2018, to file a motion for relief from judgment. A motion for relief from

       judgment under Trial Rule 60(B) pertains to only procedural, equitable grounds

       justifying relief from the legal finality, not the legal merits, of a final judgment

       and is not a substitute for a direct appeal. P.S.S., 934 N.E.2d at 740. Because

       Myers did not show excusable neglect or newly discovered evidence, the trial

       court did not abuse its discretion when it denied his motion for relief from

       judgment or his subsequent motion to correct error based on that denial. See

       id.; Santelli, 993 N.E.2d at 172. For these reasons, Myers has not demonstrated

       even prima facie error. See WindGate Props., 93 N.E.3d at 813.




       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 8 of 10
                                                     III. Due Process

[16]   We pause briefly to address Myers’ due process claim as it relates to the -1592

       Eviction. 2 Myers argues that his due process rights were violated when June

       Palms failed to supply him with the ten days of notice of intent to evict that he

       claims he was due pursuant to Indiana Code section 32-31-1-7. Assuming,

       without deciding, that this is correct, Myers presents no argument regarding

       how his defense in the -1592 Eviction was prejudiced as a result of this lack of

       notice. He claims in the summary of his argument that adequate notice would

       have allowed him “time to obtain and provide pay check stubs which provided

       his girlfriend’s address and switched the result of the proceedings” in his favor.

       (Appellant’s Br. p. 12). Myers made no indication at the -1592 Eviction hearing

       that he sought to introduce pay check stubs, so this claim of error appears to

       address the -816 Eviction, an issue which we have already determined was not

       properly before the trial court in the motion for relief from judgment. Therefore,

       Myers has failed to establish even prima facie error on the part of the trial court

       as it relates to the due process claim in the -816 Eviction proceedings. See Jones

       v. Housing Auth. of City of South Bend, 915 N.E.2d 490, 497 (Ind. Ct. App. 2009)




       2
         Myers also argues that the trial court violated his due process rights in both the -816 and -1592 Eviction
       proceedings by failing to “enter a proper show cause order pursuant to Ind. Code 32-30-3-2.” (Appellant’s
       Br. p. 15). Myers did not raise this claim in the trial court. Issues raised for the first time on appeal are
       waived, and, therefore, we decline to address it. See Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind.
       2013) (noting that declining to review issues not properly preserved for appeal is a cardinal principle of sound
       judicial administration).

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019                         Page 9 of 10
       (declining to reverse where Jones had failed to demonstrate how he was

       prejudiced by procedural due process error).


                                             CONCLUSION
[17]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it denied Myers’ motion to correct error based on its denial of

       his improper motion for relief from judgment. We also conclude that Myers

       failed to establish that he suffered any prejudice arising from the claimed

       violation of his due process rights.


[18]   Affirmed.


[19]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 10 of 10
