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A landlord’s appeal of a small claims judgment against him was “permeated with procedural bad faith,” the Court of Appeals of Indiana ruled Monday in affirming the lower court’s decision.
The appellate court also remanded the case for the determination of appellate attorney fees to be awarded to three tenants who brought the lawsuit against Charles Wenner, the landlord of a Bloomington property.
According to court records, Wenner owns a rental property at 702 S. Washington St. in Bloomington. But the residential rental occupancy permit was revoked in June 2020 by the city.
According to Wenner, who lives out of the country, the property had been overtaken by squatters and drug addicts for some time before the revocation.
On Jan. 19, 2021, Bloomington Housing and Neighborhood Development, or HAND, issued Wenner a temporary rental occupancy permit that expressly allowed Wenner to rent out only the house, not the garage, which remained out of compliance with the housing codes.
Gehrid Hensley saw Wenner’s rental listing online, filled out an application, then spoke with Wenner over the phone.
Hensley said there would be five individuals living in the rental, and while Wenner said five would be OK, only three could be on the lease. Wenner also cautioned that if HAND came for an inspection, they would need to say that two of the people were just visiting, as he had been fined in the past for allowing five tenants.
In late January 2021, Hensley and Quinn Kaiser went to tour the rental with Justin Kidd, who lived there while working on the property. The rental did not look like the pictures in the listing, as the windows were boarded up and work was being done on the rental.
Wenner assured them that the conditions would improve before the start of the lease in August. But Wenner did not inform the tenants of the restriction on use of the garage, which they planned to use for storage and playing music.
Hensley sent a $2,050 deposit to Wenner on Jan. 27, and the tenants later signed the lease, which was to begin on Aug.15, 2021.
Over the next several months, Hensley had some contact with Kidd about improvements being made at the rental, and he drove Kidd to Menards more than once to pick up supplies.
Hensley also helped by mowing the lawn two times at Wenner’s request to avoid fines by HAND. He also paid Wenner a portion of the first month’s rent early to help move improvements along.
But Kidd stopped working on the rental around mid-July without completing necessary repairs.
On or about July 26, the tenants went to check on the rental and discovered what they believed to be unlivable conditions, including mold. They immediately contacted Wenner and requested that he have professionals come in to assess and treat the mold.
Wenner responded that the tenants could just spray the mold with bleach and that hiring a professional service was not necessary. He otherwise tried to assure them that the rental would be ready by the beginning of the lease on Aug. 15, and warned them that they could not void the lease.
On Aug. 30, 2021, the tenants, by counsel through Student Legal Services, demanded that Wenner return their security deposit and prepaid rent.
Another written demand was sent to Wenner on Sept. 15, after the issuance of a HAND inspection report from the prior week, which documented around 70 existing violations.
The tenants began a small claims action against Wenner in December 2022, claiming that he breached the lease by failing to make necessary repairs and failing to conduct necessary cleaning to provide full use of the premises, including the garage. They also alleged that parts of the rental were “not fit for human habitation.”
The Monroe Circuit Court entered judgment for the tenants in the amount of $3,709.99, plus attorney fees in the amount of $2,000 and court costs.
Wenner appealed pro se.
The Court of Appeals affirmed the trial court’s judgment and remanded the case for a determination of appellate attorney fees to be awarded to the tenants, with the court stating that Wenner’s “procedural bad faith rises to the level of egregiousness for which appellate attorney’s fees are warranted.”
Chief Judge Robert Altice wrote the opinion for the appellate court.
Altice wrote that Wenner’s appellant’s brief violated the brief requirements of Indiana Appellate Rule 46(a).
“His brief is a series of nonsensical ramblings with the sole purpose of relitigating whether he could have had (or did have) the rental in habitable condition by August 15, 2021, and whether mold — the existence of which he does not dispute — was the real reason Tenants walked away from the lease. His reply brief is more of the same,” Altice wrote, adding that Wenner also improperly attempted to assert a counterclaim for the first time on appeal.
Wenner’s noncompliance with the appellate rules substantially impeded the appellate court’s review of the case, and the court found the issues waived, Altice wrote.
Also, the appellate court found that the case was appropriate for the assessment of appellate attorney fees, with Indiana Appellate Rule 66(E) providing the court with discretionary authority to award damages for frivolous or bad-faith filings.
Altice noted Wenner disregarded the form and content requirements of the court’s appellate rules.
“Moreover, aside from lacking citations to the record or providing a separate statement of facts section, the facts he relies on in his appellate briefs often lack support in the record or are irrelevant, and they are not stated in a light most favorable to the trial court’s judgment,” the chief judge wrote. “Finally, his briefs required an inordinate amount of time to decipher and wade through.”
Judges Leanna Weissmann and Dana Kenworthy concurred.
The case is Charles Andrew Wenner v. Gehrid Hensley, et al., 23A-SC-973.
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