Vicandy Properties, Appellant-Defendant v. Kamal Yarbouh, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Kamal Yarbouh sued his landlord, Vicandy Properties (Landlord), after complaining for months that a broken heater in his rental apartment was causing frozen plumbing and indoor temperatures as low as 38°F. Landlord brought a counterclaim for unpaid rent. The small claims court found for Yarbouh, awarding him $6,341 and denying Landlord's counterclaim.

[2] Landlord appeals, challenging three aspects of the judgment. First, Landlord argues it is not liable for any uninhabitable conditions arising before it received notice of them. Second, Landlord claims that insufficient evidence supported the temporary relocation expenses awarded to Yarbouh. And third, Landlord challenges the denial of its counterclaim for unpaid rent. We agree with Landlord on the first issue only as to the period prior to Yarbouh's communication of notice on November 30, 2024. We otherwise disagree with Landlord, affirming the award of relocation expenses and the denial of Landlord's counterclaim. Accordingly, we reverse in part, affirm in part, and remand for the recalculation of damages consistent with this opinion.

Facts

[3] In May 2024, Yarbouh began leasing an apartment in New Albany from Landlord. Yarbouh immediately noticed problems with the cooling system and notified Landlord about high temperatures in the unit. Landlord responded: “your ac is running normal․if I send a repair man to your house, and he confirms this, you will be responsible for the service call charge.” Exhs., p. 31 (ellipses in original). Yarbouh responded: “I'll just leave it alone.” Id.

[4] On November 30, 2024, Yarbouh submitted a request for maintenance through his resident portal, as required by his lease. See id. at 5 (“All service and repair requests need to be requested via your online portal.”). The request stated: “The heater is not working and it's freezing.” Id. at 24. In response, Landlord sent a contractor to the unit. Yarbouh later testified at trial that, despite the contractor's visit following his November 30 maintenance request, the heating problems in his unit were never resolved. He stated that the contractor “only replaced a small component” and that “the heating still did not work properly.” Tr., p. 15. He “informed the landlord multiple times” to no avail. Id. Yarbouh further testified that he “got sick due to low temperatures” in his unit and had “no way to stay warm or find consistent shelter.” Id. at 16. Yarbouh paid rent through December 2024 but stopped paying rent in January 2025.

[5] On January 21, 2025, Yarbouh submitted another maintenance request about the heating issues, which had now affected the plumbing in the unit. The request stated: “Furnace is not working” and “everything is frozen.” Exhs., p. 27. Yarbouh included a photograph of the unit's thermostat showing the in-home temperature at 44°F. Yarbouh also reported: “there's not water coming out anywhere in the house” and the bathtub is full of “ice.” Id. at 26. The toilet had also backed up into the kitchen sink. Landlord sent a contractor, who installed a part on the furnace. And because the pipes had frozen and needed to thaw, Landlord later gave Yarbouh a $200 rent concession so he could stay in a hotel in the meantime.

[6] The next day, January 22, Yarbouh texted Landlord again, reporting that the issue persisted: “[T]he house is still at 38 degrees, and everything is frozen, the water [does] not work, and I had to stay at other peoples (sic) house because I couldn't handle being in there.” Id. at 29. He also reported that his electric bill from Duke was unusually high. His bill for the usage period of mid-January to mid-February showed energy consumption of 5,723 kilowatt-hours and totaled $707.54. And for the prior usage period from mid-December to mid-January, his bill showed energy consumption of 6,413 kilowatt-hours and totaled $804.63. Yarbouh texted Landlord again on January 28 with concerns about his high electric bill and shared that Duke suspected something was wrong with the furnace. Landlord responded: “You are on the list.” Id. at 30.

[7] The conditions in the apartment still did not improve. Yarbouh stayed for a week on a neighbor's couch and then spent time at friends’ houses, as he could not shower, cook, sleep, or otherwise live in his apartment. In mid-February, Yarbouh captured the unit's thermostat regularly registering indoor temperatures between 44°F and 49°F with the heat running. Around this same time, Yarbouh consulted with an HVAC technician, who assessed the heating system in the apartment. The technician found the system operating on 10 kilowatts when it required 15 kilowatts and recommended a 15 kilowatt heat kit be installed to remedy the issue.

[8] On February 20, 2025, Yarbouh sued Landlord in small claims court, claiming breach of contract, negligent property maintenance, and failure to provide habitable living conditions. He sought to terminate his lease and requested the following damages:

• $2,200 for November and December rent paid.

• $1,020 for temporary relocation expenses.

• $2,405 for excessive electric bills due to the broken furnace.

• $374 for water bills and $342 for sewage bills that improperly included the usage of his upstairs neighbor's unit.

[9] While his suit was pending, Yarbouh moved into a new apartment on March 1 and officially turned his keys over to Landlord on March 10, 2025. A few weeks later, Landlord sent him an itemized security deposit statement seeking $2,940.50 for unpaid rent and utilities from January through March, as well as a cleaning fee. Landlord then brought a counterclaim to collect the amount demanded in the security deposit statement plus attorney's fees.

[10] At the bench trial, Yarbouh testified and provided documentation of the freezing conditions in his apartment, his maintenance requests, and his utility bills. A representative of Landlord then testified, claiming she responded to Yarbouh's maintenance requests. The representative acknowledged Yarbouh had been improperly charged for the water and sewage usage of his upstairs neighbor but claimed she already remedied it with a $126.71 rent credit.

[11] The trial court found for Yarbouh, awarding him all his requested damages totaling $6,341. It denied Landlord's counterclaims. Landlord appeals.

Discussion and Decision

[12] “Small claims actions involve informal trials with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.” Walking With Jesus Ministries v. Alexander, 240 N.E.3d 183, 185 (Ind. Ct. App. 2024). “Accordingly, judgments from small claims actions are provided a deferential standard of review.” Id. We reverse only for clear error, neither reweighing the evidence nor assessing witness credibility and considering only the evidence most favorable to the judgment. Pfledderer v. Pratt, 142 N.E.3d 492, 494 (Ind. Ct. App. 2020). However, we review questions of law de novo. Alexander, 240 N.E.3d at 185.

[13] We first note that Yarbouh has not filed an appellee's brief.¹ When an appellee fails to file a brief, we may reverse the trial court's decision only if the appellant makes a prima facie showing of reversible error. Id. “In this context, prima facie error is defined as ‘at first sight, on first appearance, or on the face of it.’ ” Id. (quoting Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006)).

[14] Here, Landlord challenges three aspects of the trial court's order: (1) the award of damages for November and December 2024 rent; (2) the award of temporary relocation expenses; and (3) the denial of Landlord's counterclaim for January through March 2025 unpaid rent.² With regard to Landlord's first claim, we reverse only as to November 2024 rent but affirm the award of December rent. As to Landlord's second and third claims, we are unpersuaded and affirm.

I. November and December 2024 Rent

[15] The trial court awarded Yarbouh $2,200 for the rent he paid in November and December 2024. Landlord claims Yarbouh is not entitled to this rent abatement because, during those months, Landlord had not yet been given notice of the heating issue and a reasonable opportunity to cure it. We agree only as to November rent and affirm the award of December rent.

[16] Under Indiana law, a landlord has a statutory duty to deliver rental premises in a “safe, clean, and habitable condition.” Ind. Code § 32-31-8-5. If a tenant wants to take legal action against a landlord for breaching these obligations, the tenant must first provide the landlord notice of the noncompliance and allow the landlord a “reasonable amount of time” to remedy it. Ind. Code § 32-31-8- 6(b)(1)-(2). A landlord's liability for damages under this section begins only when the landlord has notice or actual knowledge of the noncompliance and refuses or fails to remedy it within a reasonable time. Ind. Code § 32-31-8-6(e).

[17] Here, the undisputed evidence establishes that Yarbouh submitted his first maintenance request about the broken heater on November 30, 2024. Therefore, Yarbouh's recovery of November rent covers a period predating the notice to Landlord, in contravention of Indiana Code § 32-31-8-6(e). However, Yarbouh is entitled to recover December rent, as Landlord had notice of the heating issue as of November 30 and failed to remedy it within a reasonable time, leaving Yarbouh without a habitable home.

[18] Although Landlord sent a contractor in response to the November 30 maintenance request, Yarbouh testified that the contractor “only replaced a small component,” that “the heating still did not work properly,” and that he “informed the landlord multiple times.” Tr., p. 15. Thus, the heating issue was not remedied. “The question is not whether [Landlord] failed to respond to a maintenance request, but whether [Landlord] failed to remedy a noncompliance with Section 32-31-8-5 in a reasonable amount of time.” Husainy v. Granite Mgmt., LLC, 132 N.E.3d 486, 496 (Ind. Ct. App. 2019).

[19] Additionally, Yarbouh's testimony that the heating issue persisted after November 30 is corroborated by the mid-February HVAC inspection, which found the system was operating on only 10 kilowatts when it required 15—a structural flaw that could not have materialized overnight. That the heating failure resulted in frozen pipes and plumbing issues in January 2025 is consistent with a system that had been chronically underpowered. Finally, Yarbouh testified that the lack of adequate repair to the heating system made his apartment unlivable. The interior temperatures had dropped as low as 38°F, the extreme cold made him ill, and he had “no way to stay warm or find consistent shelter.” Tr., p. 16.

[20] Viewing the record in the light most favorable to the judgment, Landlord had notice of the heating issue as of November 30 and the deficiency was never properly remedied such that Yarbouh was unable to safely live in his unit. Therefore, the trial court properly awarded Yarbouh December rent.

II. Relocation Expenses

[21] Landlord next argues the trial court erred in awarding Yarbouh $1,020 for temporary relocation expenses, claiming the evidence showed he incurred no such costs. We disagree. Indiana Code § 32-31-8-6(d) authorizes a court to award a prevailing tenant not only “[a]ctual damages and consequential damages” but also “[a]ny other remedy appropriate under the circumstances.” This vests the trial court with broad discretion to make a tenant whole in ways that strict damages accounting might not capture.

[22] Here, the record establishes that Yarbouh was effectively displaced from his unit for an extended period due to Landlord's failure to remedy the deficient heating system following notice of the problem. For example, when the pipes froze in January, the unit was not merely uncomfortable but physically uninhabitable—the toilet froze, the tub was filled with ice, and sewage backed up into his kitchen sink. Yarbouh was forced to stay on a neighbor's couch for a week and then cycled through friends’ homes for weeks more. He was unable to sleep, shower, or cook in his own apartment.

[23] Yarbouh sought the $1,020 as compensation for the time he was displaced from his apartment. The trial court was entitled to treat this award not as a reimbursement of proven expenditures, but as an appropriate remedy for the loss of use and enjoyment of the premises that Landlord's noncompliance caused. Indiana Code § 32-31-8-6(d)(3)’s provision for “[a]ny other remedy appropriate under the circumstances” authorized the court to fashion relief suited to the situation. A modest award compensating a tenant for weeks of forced displacement from an apartment with freezing temperatures and inoperable plumbing falls within that authority. We therefore affirm the award of $1,020 for temporary relocation expenses.

III. Landlord's Counterclaim for Unpaid Rent

[24] Finally, Landlord argues that the trial court erred in denying its counterclaim for unpaid rent. As the party bringing the counterclaim, Landlord bore the burden of proof. See Harris v. Lafayette LIHTC, LP, 85 N.E.3d 871, 877 (Ind. Ct. App. 2017) (noting that landlord bringing claim for unpaid rent held the burden of proof, and court could not shift burden to tenant to prove no rent was due).

[25] Landlord claims entitlement to rent for January through March 2025, emphasizing that Yarbouh only turned over the keys to his unit on March 10. However, a landlord's right to collect rent is not absolute where the tenant has been deprived of the beneficial use and enjoyment of the premises. See, e.g., Village Commons v. Marion Cty. Prosecutor's Off., 882 N.E.2d 210, 217 (Ind. Ct. App. 2008) (explaining that constructive eviction occurs when landlord's acts or omissions deprives tenant of beneficial use and enjoyment of premises, and in such situation, tenant's obligation to pay rent ceases). Viewing the record in the light most favorable to the judgment, the trial court was entitled to find that Landlord failed to prove its counterclaim given the evidence of the unit's uninhabitable conditions.

[26] At trial, Landlord submitted into evidence a copy of the lease contract and presented the testimony of a representative who claimed to have sent a contractor in response to Yarbouh's maintenance requests. But the evidence also showed that issues with the unit's heating system, raised by Yarbouh on November 30, 2024, were not remedied after that date. And in January 2025, the pipes in Yarbouh's unit froze, rendering essential plumbing and sanitation inoperable. The toilet bowl and bathtub froze, and sewage backed up into the kitchen sink. Though Yarbouh submitted additional maintenance requests and a contractor visited the unit, the freezing temperatures persisted for weeks. Photographs of the unit's thermostat taken February 19, 20, and 21 show indoor temperatures in the 40s with the heat running. An inspection by an HVAC technician in mid-February determined that these issues were caused by structural flaws in the unit's heating system.

[27] The record further reflects that Yarbouh was not meaningfully occupying the unit during this period and that he moved out for good at the beginning of March. See id. (explaining that under constructive eviction, tenant must leave premises within reasonable period of time). Yarbouh testified that he stayed with friends for weeks, and Yarbouh's neighbor testified at trial confirming Yarbouh slept on her couch for a week. Yarbouh further explained that he could not sleep, shower, or cook in the unit. Though Yarbouh formally turned over his keys only in March 2025, the evidence supporting the verdict permits a reasonable inference that Yarbouh effectively stopped living in the unit months earlier when the heating defect arose. We therefore affirm the trial court's denial of Landlord's counterclaim for unpaid rent.

Conclusion

[28] Because Yarbough first notified Landlord of the heating issue on November 30, 2024, and the award of November 2024 rent predates that notice, we reverse that portion of the judgment. But we affirm the award of December 2024 rent, as the heating issue was not remedied—and only worsened—after Yarbouh gave Landlord notice. Given the unit's uninhabitable condition caused by Landlord's failure to remedy the heating system, we also affirm the award of $1,020 in temporary relocation expenses and the trial court's rejection of Landlord's counterclaim.

[29] We affirm in part, reverse in part, and remand for recalculation of damages consistent with this opinion.

[30] I respectfully dissent from the majority's conclusion that there was no evidence or inference that Landlord had notice of the issues with the heating in Yarbouh's apartment until November 30, 2024. Although that is when Yarbouh officially submitted a request for maintenance, he testified that “by November 2024, the heating system had started to fail. Temperatures inside the apartment dropped as low as 38 Fahrenheit, and I informed the landlord multiple times.” Tr. Vol. I p. 15 (emphasis added). We should construe all facts and reasonable inferences drawn from those facts in favor of the small claims court's judgment. Scott-LaRosa v. Lewis, 44 N.E.3d 89, 93 (Ind. Ct. App. 2015). I believe that it is reasonable for the trial court to infer from Yarbouh's testimony that the Landlord did have “notice or actual knowledge of noncompliance” before November 30. Ind. Code § 32-31-8-6(e).

[31] I also believe that the damages awarded by the trial court were within the evidence presented and that the trial court did not abuse its discretion in the award of damages. See Jasinski v. Brown, 3 N.E.3d 976, 978-79 (Ind. Ct. App. 2013) (noting that the amount of damages to be awarded in a small claims action is a question for the fact finder; that a court is not required to calculate damages with mathematical certainty; and that we will not reverse an award of damages if it is within the scope of the evidence presented to the trial court). I would, therefore, affirm the small claims court's judgment in all respects.

FOOTNOTES

1.   Yarbouh tendered a brief, but it was defective, and he never corrected it. The document remains unfiled.

2.   Landlord does not challenge the trial court's award of $3,121 in utility overcharges nor the denial of Landlord's counterclaim for $450 in cleaning fees.

Weissmann, Judge.

Judge Foley concurs. Chief Judge Tavitas dissents with a separate opinion. Foley, J., concurs. Tavitas, C.J., dissents with a separate opinion.