Court of Appeals of Indiana | Memorandum Decision 38A05-1702-SC-328 | August 30, 2017 Page 1 of 5

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANTS

Brian M. Pierce

Muncie, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Randy Brotherton and Vickie 

Brotherton,

Appellants-Defendants,

v.

Town of Bryant,

Appellee-Plaintiff

August 30, 2017

Court of Appeals Case No.

38A05-1702-SC-328

Appeal from the Jay County 

Superior Court

The Honorable Max C. Ludy, Jr., 

Judge

Trial Court Cause No.

38D01-1606-SC-154

May, Judge.

[1] Randy and Vickie Brotherton (“the Brothertons”) appeal the small claims 

court’s entry of judgment against them in a small claims action by the Town of 

Bryant (“the Town”) to collect outstanding balances the Brothertons owed for 

sewer service. We affirm. 
Court of Appeals of Indiana | Memorandum Decision 38A05-1702-SC-328 | August 30, 2017 Page 2 of 5

Facts and Procedural History

[2] The Town built and runs its own sewer system. The policies and procedures 

controlling the use and cost of the system are outlined in a number of Town 

Ordinances. For example, Ordinance 1992-3, Section 8 indicates that users 

may contest sewer billing by “appeal[ing] a decision of the administrator of the 

sewage system and user charge system to Town Council and that any decision 

concerning the sewage system or user charges of the Town Council may be 

appealed to the circuit court of the county . . . .” (Exhibit Vol. 3 at 18.)1

 

Another Ordinance, Ordinance No. 2005-4, indicates that if users maintain an 

outstanding balance on their accounts for sixty days, the Town will notify them 

by certified letter, and if the account is not paid within thirty days, the Town 

will sue them in small claims court. (Id. at 39.) 

[3] The Brothertons own several pieces of property in the Town. The Town sent 

the Brothertons sewage bills for their various properties. The Brothertons 

apparently paid part, but not all, of the sewer bills. Because the Brothertons 

had a balance on their account that violated Ordinance No. 2005-4, the Town 

notified the Brothertons and then filed a small claims case against the 

Brothertons to collect the balance. 

 

1 The trial court clerk’s failure to number the pages of the Exhibit volume greatly hindered our review of the 

record. We cite the page numbers as they appear consecutively in the PDF format of the Electronic Record. 

See Ind. Appellate Rule 29(A) (requiring the Exhibits be filed in accordance with Appendix A(2)(a), which 

provides: “Each volume of the Transcript shall be independently and consecutively numbered at the bottom. 

Each volume shall begin with numeral one on its front page.”).
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[4] At trial, the Brothertons’ only defense to the Town’s claim was that the bills 

exceeded what they should have been charged pursuant to the local ordinances. 

The trial court found the Brothertons failed to “follow the appropriate 

administrative remedies and appeals provided for in the Ordinances.” (App. 

Vol. 2 at 6.) The trial court entered judgment against the Brothertons in the 

sum of $3,095.97, plus attorney fees and costs. 

Discussion and Decision

[5] Small claims judgments are “subject to review as prescribed by relevant Indiana 

rules and statutes.” Hastetter v. Fetter Properties, LLC, 873 N.E.2d 679, 682 (Ind.

Ct. App. 2007) (quoting Ind. Small Claims Rule 11(A)). We consider evidence 

in the light most favorable to the judgment, together with all reasonable 

inferences to be drawn therefrom. Id. at 682. We will reverse only if the 

evidence leads to but one conclusion and the trial court reached the opposite 

conclusion. Id. at 682-83. Applying a deferential “clearly erroneous” 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. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 

1068 (Ind. 2006).

[6] We note the Town did not submit an appellee’s brief. In such situations, we do 

not undertake the burden of developing the appellee’s argument. Applying a 

less stringent standard of review with respect to showings of reversible error, we 

may reverse the lower court if the appellant can establish prima facie error. 
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Fisher v. Bd. of Sch. Trs., 514 N.E.2d 626, 628 (Ind. Ct. App. 1986). Prima facie

error, in this context, is defined as “at first sight, on first appearance, or on the 

face of it.” Johnson Cty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 

991 (Ind. Ct. App. 1985). Where an appellant is unable to meet that burden, 

we will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind. Ct. App. 1986), reh’g 

denied, trans. denied. The appellee’s failure to submit a brief does not relieve us 

of our obligation to correctly apply the law to the facts in the record in order to 

determine whether reversal is required. Vandenburgh v. Vandenburgh, 916 

N.E.2d 723, 725 (Ind. Ct. App. 2009). 

[7] The Brothertons allege the small claims court erred as a matter of law when it

sua sponte applied the affirmative defense of failure to exhaust administrative 

remedies against them in the Town’s small claims action. The Brothertons’

defense at trial was that their bills were incorrect because the Town’s Clerk 

Treasurer was not billing in accordance with an ordinance2 allegedly called 

“one (1) tap, one (1) fee.” (See, e.g., Tr. at 19.) However, to challenge the 

amount they were billed, the Brothertons needed to follow the dispute 

procedures outlined in the Sewer Rate Ordinance 1992-3, Section 8, so that the 

Town Council would have an opportunity to correct the billing and then, if the 

Brothertons were unhappy with the result, they could appeal from the Town 

Council’s decision. Instead, the Brothertons simply did not pay the bill. 

 

2 This ordinance was not produced at trial or on appeal; however, all parties seem to agree it exists. (See, 

generally, Tr. at 19.)
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[8] The small claims court stated the Brothertons “must follow the appropriate 

remedies and appeals provided for in the Ordinances.” (App. Vol. 2 at 6.) 

Contrary to the Brothertons’ allegation, the small claims court did not assert the 

affirmative defense of failure to exhaust remedies against them. What the court 

asserted was the doctrine that parties cannot sit on their rights and later claim 

prejudice. See Assocs. Fin. Servs. Co. of Ind. v. Boldman, 495 N.E.2d 203, 206 (Ind. 

Ct. App. 1986) (debtor may not “sit back and do nothing” to protect his rights 

and wait for the creditor to take action before deciding what to do), reh’g denied, 

trans. denied, superseded by statute as stated in In re Greer, Bankr. S.D. Ind., March 13, 

1990. If the Brothertons wished to challenge the amount of their sewer bills, 

their opportunity for making such a challenge was by complaint to the Town 

Council, before the account became sixty-days delinquent and the Town 

proceeded to small claims court for collection pursuant to Ordinance No. 2005-

4. See id. (a debtor may not claim lien was removed through bankruptcy if 

debtor failed in the bankruptcy proceeding to take the steps delineated for

removing the lien).

[9] Because the Brothertons did not challenge the amount of individual sewer bills 

in the appropriate proceeding, the small claims court did not err in entering 

judgment against the Brothertons for the amount requested by the Town.

Accordingly, we affirm.

[10] Affirmed. 

Barnes, J., and Bradford, J., concur.