Vassil Marinov and Venetka Marinov v. Wake Robin Estates II Homeowner's Association, Inc. (NFP)
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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. FILED Nov 10 2011, 9:37 am CLERK APPELLANTS PRO SE: of the supreme court, court of appeals and tax court VASSIL MARINOV VENETKA MARINOVA West Lafayette, Indiana IN THE COURT OF APPEALS OF INDIANA VASSIL MARINOV and VENETKA MARINOV,1 Appellants-Defendants, vs. WAKE ROBIN ESTATES II HOMEOWNER S ASSOCIATION, INC. Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) ) No. 79A02-1104-SC-299 APPEAL FROM TIPPECANOE SUPERIOR COURT The Honorable Gregory J. Donat, Judge Cause No. 79D04-1008-SC-3398 November 10, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION The lower court s order lists Marinov as the surname for Venetka. The Appellant s brief, in contrast, indicates this surname is Marinova. 1 BRADFORD, Judge Appellants-Defendants Vassil Marinov and Venetka Marinov challenge the small claims court s judgment against them for homeowner s association dues and attorney s fees. Upon appeal, Appellants claim that they are not members of the homeowner s association and therefore do not owe dues. We affirm. FACTS According to evidence introduced by Appellee-Plaintiff Wake Robin Estates II Homeowner s Association, the Defendants own title to Lot 113 in Wake Robin Estates II Subdivision in Tippecanoe County, Indiana. The Defendants property is governed by certain restrictive covenants which include the requirement of membership in any Association. Pursuant to the Association s bylaws, members are required to pay monthly dues, which the Defendants have failed to pay, totaling $775 in back dues and late fees. The bylaws also provide that the Association is entitled to recover reasonable attorney s fees when seeking collection of unpaid dues. In approximately January of 2011, the Association sought to collect the Defendants unpaid dues. There is no dispute that the Defendants refused to pay. Following a January 26, 2011 small claims hearing, the court entered judgment against the Defendants in the amount of $775 plus $1000 in attorney s fees. In reaching this judgment, the court found that the Defendants were members of the Association and required to pay its dues. DECISION We review the facts determined in a bench trial with due regard given to the opportunity of the trial court to assess witness credibility under the clearly erroneous 2 standard. Morton v. Ivacic, 898 N.E.2d 1196, 1198-99 (Ind. 2008). 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 Ind. Small Claims Rule 8(A)). The Association failed to submit an appellee s brief in this case. Where appellees fail to file a brief on appeal, we may in our discretion reverse the lower court s decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). Here, however, the Defendants have failed to establish prima facie error. In essence, their claim is that they were not members of the Association. But the Defendants fail to cite to any record evidence in support of their position.2 Indeed, the small claims court found to the contrary, and there was ample evidence to support this finding. Exhibits entered at the hearing included a warranty deed establishing the Defendants to be the owners of a lot in the Wake Robin Estates II Subdivision, and the restrictive covenants for that subdivision indicated required membership in any homeowner s association. To the extent the Defendants argue such membership is unconstitutional, they provide no authority suggesting that this is so. Finding no clear error, or a prima facie showing thereof, we affirm the judgment of the small claims court. ROBB, C.J., and BARNES, J., concur. Defendants did not include any record citations or an Appellant s Appendix to aid in our review. We acknowledge that they are Bulgarian and face a significant language barrier. 2 3
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