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ATTORNEYS FOR APPELLANT David E. Bostwick Easter & Cavosie Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE BUILDERS ASSOCIATION OF GREATER INDIANAPOLIS, INC. AND THE INDIANA BUILDERS ASSOCIATION Jeffrey W. Scripture Paul C. Sweeney Harrison & Moberly, LLP Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 06S01-0503-CV-124 TRINITY HOMES, LLC, Appellant (Defendant below), v. FRANK Y. FANG, Appellee (Plaintiff below). _________________________________ Appeal from the Boone Small Claims Court, No. 06D02-0310-SC-1357 The Honorable Mark X. Sullivan, Small Claims Commissioner ________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 06A01-0404-CV-167 _________________________________ June 13, 2006 Boehm, Justice. Property taxes assessed on a single tract of land which is later subdivided into individual lots, are due and payable with respect to the lots even if the lots were not assessed individually.

Facts and Procedural History Trinity Homes, LLC owned a tract of real estate in Boone County which it intended to subdivide into individual lots for residential development as the Brittany Chase subdivision. In July 1999, Frank Fang as "Purchaser" entered into a Home Purchase Agreement with Trinity as "Seller" to buy Lot 38 in the subdivision. The Agreement included a "Tax Provision" that reads: "all real estate taxes and assessments, if any, including penalties and interest, which are due and payable with respect to the real estate will be paid by Seller at the closing. Seller agrees to pay first real estate installment due after settlement. Purchaser agrees to pay taxes and assessments thereafter." Real estate in Indiana is assessed as of March 1 of each year for ad valorem property tax purposes, and the taxes for each year are due and payable in May and November of the following year. The closing of Fang's lot occurred on March 3, 2000. Trinity Homes paid both the May and November 2000 property tax installments. The May and November 2000 installments were taxes based on the March 1, 1999 assessment which had been conducted before the tract of land had been subdivided into separate lots. By the spring of 2001 the taxing authorities had assessed the taxes for 2000 on the individual lots, and sent Fang a bill for $2,074.95, due in May 2001. It is that May installment that is in dispute here. Fang paid the May 2001 bill, but contended that under the Tax Provision it was Trinity's responsibility and not his. After Trinity refused Fang's request for reimbursement, Fang filed suit in the small claims division of the Boone Superior Court. The parties relied solely on documents including the Home Purchase Agreement, and no testimony was offered at trial. Fang contended that because Lot 38 was first assessed as a separate lot on March 1, 2000, and that assessment was not due and payable until May and November 2001, the first installment due and payable with respect to Lot 38 was the May 2001 installment, which he paid. The trial court determined that the Tax Provision in the Agreement was ambiguous and entered judgment in Fang's favor in the amount of the May 2001 tax installment along with court costs, for a total award of $2,118.95. The Court of Appeals agreed that the contract was ambiguous and affirmed the trial court in an unpublished memorandum decision. Trinity

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Homes, LLC v. Fang, 817 N.E.2d 701 (Ind. Ct. App. 2004). We granted transfer. Trinity Homes, LLC v. Fang, 2005 Ind. LEXIS 259 (Ind. Mar. 24, 2005). Standard of Review Judgments in small claims actions are "subject to review as prescribed by relevant Indiana rules and statutes." Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the trial court to assess witness credibility. 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 the parties according to the rules of substantive law.'" City of Dunkirk Water & Sewage Dep't v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting S.C.R. 8(A)). But this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a court of general jurisdiction. Lae v. Householder, 789 N.E.2d 481, 483 (Ind. 2003). Similarly, where a small claims case turns solely on documentary evidence, we review de novo, just as we review summary judgment rulings and other "paper records." See Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002) (reviewing the trial court's decision de novo after a bench trial where the parties relied on documentary evidence); Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind. 2006) ("To the extent the evidence the parties offered is admissible, it is documentary . . . . our standard of review is de novo.") The only issue in this case turns on the meaning of the contract, which is a pure question of law and is reviewed de novo. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005). We observe that Fang has filed no brief. When the appellee has failed to submit an answer brief we need not undertake the burden of developing an argument on the appellee's behalf. Rather, we will reverse the trial court's judgment if the appellant's brief presents a case of prima facia error. Gibson v. City of Indianapolis, 242 Ind. 447, 448, 179 N.E.2d 291, 292 (1962). Prima facia error in this context is defined as, "at first sight, on first appearance, or on the face of it." Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999). Where an appellant is unable to meet this burden, we will affirm. Id.

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When Property Taxes Become "Due and Payable With Respect to" a Parcel In this case the trial court determined that the Tax Provision was ambiguous as to whether Trinity was obligated to pay the first installment of taxes after the closing of the contract which was based on an assessment of the entire tract of land, or the first installment of taxes based on the first individual assessment of Lot 38. The Court of Appeals agreed and construed the document against Trinity, the drafter. We agree that it is generally appropriate to construe an ambiguous agreement against its drafter. See MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004). But we also agree with Trinity and the Amici Curiae, the Builders Association of Greater Indianapolis, Inc. and the Indiana Builder's Association, that the Tax Provision is not ambiguous. Real property in Indiana is assessed for tax purposes on the first day of March of each year, but the taxes are not required to be paid until May 10 and November 10 of the following calendar year. See Ind. Code

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