Budget Car Sales v. Stott

656 N.E.2d 261, 1995 Ind. App. LEXIS 1134, 1995 WL 552049

• Court: Indiana Court of Appeals
• Decided: September 20, 1995
• Docket: 11A04-9403-CV-114
• Status: Published

Opinions

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Budget Car Sales appeals the jury's judgment for Ralph Stott in his action against Budget for fraud and its award to Stott of punitive damages. We affirm in part, reverse in part and remand.

ISSUES

1. Whether the award of punitive damages was erroneous.

2. Whether a remark of Stott's counsel in his closing statement requires reversal for a new trial.

3. Whether evidence was improperly admitted, warranting a new trial.

FACTS

On Saturday, April 2, 1988, sixty-six year old Ralph Stott, his sixty-two year old wife, and their daughter Christina were driven to the Terre Haute lot of Budget Car Sales by Christina's husband Anthony. Budget salesman Arsalan Sayyah offered to help them. The Stotts looked at a 1986 Chevrolet Cavalier. The car bore no indication of its price. Because Budget advertised a minimum $3,500 trade-in, the Stotts sought to verify that that applied. Sayyah repeatedly informed them the $3,500 trade-in did not apply to the Cavalier.¹ Mr. Stott was on disability, suffered from seleroderma (which Mrs. Stott described as "a disease from plastic") and black lung disease, and he had been advised not to drive because of his medication. Anthony took the Stotts for a test drive in the Cavalier. Mr. Stott told Sayyah that if he bought the car, new tires would have to be provided.

Mr. and Mrs. Stott went into the Budget office with Sayyah. Mr. Stott signed an "Offer to Purchase" prepared by Sayyah, which specified "4 new tires," "$5800 trade diff," and the trade-in of his unseen but described 1977 Plymouth Volare. (R. 724). The offer was accepted and approved by the lot manager, Paul Clay. Stott's offer to purchase also said "payments of $150 @ mo.," so Clay had Sayyah fill out a credit application with Mr. Stott. The Stotts provided the personal information, credit references and details of their automobile insurance coverage for Sayyah to write on the form. Mr. Stott signed the application. Next Sayyah completed a "Special Conditions of Sale" form, stating "4 new tires" and "no warranty," which Mr. Stott signed. (R. 746). Say-yah also witnessed Mr. Stott sign a statement verifying disclosure that the vehicle was "As Is-No Warranty." (R. 7483, 749).

The Stotts then met with Janice Crowley, Budget's "finance and insurance manager." (R. 880). Crowley would elicit necessary information from car buyers, input the specifies provided into a computer, print the resulting documents, and then obtain necessary customer signatures. Crowley prepared the Used Vehicle Purchase Contract, showing the "amount to be financed by purchaser" as $6,768.95; Mr. Stott signed it. (R. 900, 279). Crowley prepared a "Retail Sales Contract, Security Agreement and Truth In Lending Disclosure" for financing on the $6,768.95; Mr. Stott signed it. Both the Purchase Contract and the Retail Sales Contract included $899 for a service contract in the total price calculation.² Crowley gave Mr. Stott a warranty certificate for his service contract, indicating "deluxe" coverage for the "earlier of 86 months or 36,000 miles." (R. 925). This was the "less expensive" option available. (R. 928). Mrs. Stott tendered a check, signed with Mr. Stott's name, for $290. The Stotts left Budget with the 1986 Cavalier and copies of their paperwork. Mr. Stott's credit application was faxed to the bank and approved that same day.

The Stotts did not realize Mr. Stott had bought the car until that evening when they read the documents Mr. Stott had signed. They thought Mr. Stott had merely completed forms applying for a loan and that they had three days in which to consider, within which they could return the car. Budget was closed when they tried to call, not opening again until Monday morning. On Monday Mr. Stott's granddaughters took him, with the Cavalier and the Volare, to the Budget lot. They departed with only the Cavalier.

Two days later Mr. and Mrs. Stott consulted an attorney. The attorney wrote a letter to manager Clay at the Budget lot, stating his belief that Mr. Stott "was under a mental incompetency when he entered into this contract and the contract is void" and suggesting Budget agree to accept the Cavalier "in return for recission [sic] of the contract." (R. 424). Budget declined, responding that "Itlhere is absolutely no evidence that Mr. Stott was not fully competent and aware of his acts on the day of sale." (R. 427).

On June 8, 1989, Ralph Stott filed a complaint alleging fraud on the part of Budget. Trial was held over five days near the end of 1998. Mr. Stott, Mrs. Stott and Christina testified, but Anthony did not, as his whereabouts were unknown. Since 1988 Mr. Stott had suffered a stroke and major deterioration of his eyesight. His testimony reveals his frequent inability to remember details of the April 1988 visit to the car lot. However, both Mrs. Stott and Christina denied he was subject to confusion or lack of comprehension on that day. Mr. Stott said he did not read the documents he signed, but he was not prevented from doing so. There was no testimony from Mr. Stott, Mrs. Stott or Christina that Sayyah, or any other Budget personnel, quoted them a specific price for the Cavalier; all three did say Sayyah told them a service warranty could be obtained for $300. An advertisement in the local paper indicated the Cavalier was specially priced at $4,995 on April 2nd, the day of purchase. According to Sayyah's and Clay's undisputed testimony, Mr. Stott made the offer of $5,800, subject to certain conditions, for the car. Both Sayyah and Clay testified they were unaware during the Stott visit that the car was specially priced in the ad and said Mr. Stott would have paid more for the car had they applied the advertised price. The jury returned a verdict for Mr. Stott and against Budget, assessing $4,041.22 compensatory damages and $150,000 punitive damages. Budget filed a Motion to Correct Errors, which was overruled by the trial court.

DISCUSSION AND DECISION

At the outset, we note that Budget's appeal propounds four issues. Two of those issues challenge the award of punitive damages. By only challenging the punitive damages awarded, Budget's appeal bears the implicit concession that the compensatory damages awarded are not unreasonable. Further, Budget states that:

[allthough Budget does not agree with the jury's apparent finding that Budget misrepresented the various terms of the transaction, Budget acknowledges, as it must, that viewing the evidence most favorable to the prevailing party, the record can be said to support a conclusion that the misrepresentations did occur. Therefore, Budget does not challenge this aspect of the jury's verdict.

Budget's Brief at 45. An issue not argued in an appellant's brief is deemed waived. Seq, e.g., Foster v. State (1974), 262 Ind. 567, 320 N.E.2d 745; Harris Builders, Inc. v. Kopp (1974), 160 Ind.App. 354, 311 N.E.2d 841; see, also, Ind.Appellate Rule 8.3. According, ly, review as to the sufficiency of the evidence to support the award of compensatory damages has been waived.

1. Punitive Damages

Budget asserts that the "jury's award of punitive damages of $150,000, or any amount, was patently excessive and contrary to law in light of the facts of this case." Budget's Brief at 26 (emphasis in original).

In reviewing a punitive damages judgment, we consider only the probative evidence and reasonable inferences supporting it, without weighing evidence or assessing witness credibility; we affirm if a reasonable trier of fact could find such damages proven by clear and convincing evidence. Bud Wolf Chevrolet, Inc. v. Robertson (1988), Ind., 519 N.E.2d 185, 187. Justice Prentice's analysis of punitive damages in a tort action in Orkin Exterminating Co., Inc. v. Traina (1986), Ind., 486 N.E.2d 1019, is a helpful starting point. Punitive damages are distinguished as those "designed to punish the wrongdoer and to dissuade him and others from similar conduct in the future." Orkin at 1022. Because they are awarded "in addition to" damages which compensate for the specific injury, the injured party "has already been awarded all that he is entitled to as a matter of law." Id. Therefore, the additional damages awarded are "a windfall, and in making that decision all thoughts of benefiting the injured party should be laid aside and the sole issues are whether or not the Defendant's conduct was so obdurate that he should be punished for the benefit of the general public." Id. Thus, the "evidentiary requirement" from Travelers Indemmity Co. v. Armstrong, (1982), Ind., 442 N.E.2d 349, 362, demands any reasonable "hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, overzealousness, mere negligence or other such noniniquitous human failing" be excluded. Orkin at 1028 (citations omitted). The evidentiary requirement was restated in Erie Ins. Co. v. Hickman (1993), Ind., 622 N.E.2d 515, 520: showing by:

clear and convincing evidence that the defendant 'acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing. (Citation omitted). Thus, the mere finding by a preponderance of the evidence that the insurer committed the tort will not, standing alone, justify the imposition of punitive damages.

To review Budget's conduct against the standard, we look first to the pleadings and court instructions to identify the gravamen of the fraud litigated. According to our Trial Rules, a party must specifically aver the cireumstances constituting fraud. Ind.Trial Rule 9(B). Stott's complaint refers to Budget's advertisement having "represented" the Cavalier "for sale at $4,995.00," the documents Stott signed being "represented by Defendant as a loan application," and "[flraudulent misrepresentation" about the price of the service contract. (R. 8-9). Budget's answer included the affirmative defense of "mistake"-asserting that Stott made the first offer, with conditions; that both the Budget manager and salesman were unaware of an advertised price on the Cavalier; and that had the advertised price been applied there would have been additional charges. (R. 18).

In the preliminary instructions at trial, the court explained that Stott alleged Budget had "represented" the Cavalier's being "for sale at $4,995." (R. 35). The court instruct, ed the jury that this described the contention "prepared and filed by" Stott. (R. 836). Final instructions to the jury define fraud and its relevant terms, specify its elements, and explain standards of proof but do not further refer to Stott's allegations of fraud.

The award to Stott of $4,041.22 compensatory damages is "all that he is entitled to as a matter of law." Orkin, supra, at 1022. Additional damages are warranted only if "the Defendant's conduct was so obdurate that he should be punished for the benefit of the general public." Id. According to the instructions of the trial court, and consistent with Erie supra, and Orkin, supra, we therefore consider whether the evidence presented at trial showed clearly and convincingly that Budget acted with malice, oppression, willful and wanton misconduct, or gross negligence, or fraudulently regarding the price of the vehicle.

As noted in the FACTS section, no witness testified that Sayyah or any Budget personnel quoted a specific price for the Cavalier. According to Mr. Stott, "there was no price on the car," and he did not remember having discussed the price of the car while outside on the lot. (R. 888). Mrs. Stott "thought" the balance due for the Cavalier after trading in their Volare "would be $3,000." (R. 160). Likewise, Mr. Stott's understanding of the price was that "it was supposed to have been $4,995." (R. 412, 414). Neither Mr. nor Mrs. Stott explained why. Mr. Stott had no recollection about a Budget Car Sales newspaper ad. Mrs. Stott had "glanced at" an advertisement before their visit to the lot, but had not noticed a particular vehicle or price. (R. 178-74). She got a copy of the ad from the public Hbrary several months later. Mr. Stott said Sayyah told him "that he couldn't give me $3,500 on [the Volare], but he could give me $2,000." (R. 368). Mr. Stott did not say Sayyah had offered to give him $2,000 against a purchase price of $4,995.³

As also stated in the FACTS section, all Budget personnel deny having any knowledge that the Cavalier sold to Mr. Stott that day was being advertised for a price of $4,995. The weekly Budget ads were prepared by an advertising agency in Louisville, based upon the Indianapolis operations office computer records of the Terre Haute lot's inventory. According to the advertisement, prices in the ad "do not include dealer installed options, taxes, freight or doe fees." (R. 119). All cars on the Budget lot have had a $479 Budgetguard treatment, application of an external sealant and internal protectant. (R. 614, 1063). This would have been an add-on as a dealer installed option. The freight cost for delivery of the Cavalier to Budget was $267. (R. 611). The document fee, charged on all Budget sales, would add $69.95. The tires which Budget arranged to have installed on the Cavalier would not have been provided within the advertised price; thus, an additional $120 would be added. (R. 1024). The 5% sales tax on $4,995 would be $250. Without any trade-in, the advertised price applied to what Mr. Stott received would result in a price of $6,180.95.⁴ According to the manager, who authorized the amount for any trade-in, the maximum he would have assigned to the Volare sight unseen was $100. (R. 1029). After credit for the Volare and using the advertised price, Mr. Stott would have paid $6,080.95 for the Cavalier-without any service contract. Without the service contract, what Mr. Stott paid for the Cavalier was $5,869.95. Thus, had the advertised price been used, Mr. Stott would have paid more, Budget's profit would have been greater, and the salesman's commission would have been greater.

There is no clear and convincing evidence that a reasonable man could say is inconsistent with the hypothesis of mistake on the part of Budget, or perhaps negligence for being unaware of the advertised price. Orkin, supra, describes the defendant against whom punitive damages are sought in a tort action as being "cloaked with the presumption that his actions, though tortious, were nevertheless noniniquitous human failings." Orkin, 486 N.E.2d at 1019. Applying this presumption, we conclude that the presumption favoring Budget:

cannot have been overcome. This decision does not involve a weighing of the evidence but only a review, a search, a sifting to ascertain if there was any at all from which a reasonable man, employing the clear and convincing rule, could have found that [Budget's] conduct,

Id. at 1024 (emphasis in original), was willful and wanton, or that Budget acted with malice, oppression or gross negligence in representing the price of the car. Evidence that Budget "acted with ... fraud," as a "mere finding by a preponderance of the evidence that the [tortfeasor] committed the tort," cannot justify the imposition of punitive damages. Erie, supra, at 521. Because we find no clear and convincing evidence that Budget's actions rose to the punitive damages evidentiary standard, "the judgment is, therefore, contrary to law." Orkin, supra, at 1024.⁵

2. Letter from Office of Attorney General

In mid-April, 1988, the Stotts had filed a complaint with the Attorney General of Indiana, Consumer Protection Division, about their experience with Budget Car Sales. (R. 271). There was communication between the Attorney General's Office and Budget regarding the claims made by the Stotts. On three occasions during the trial Mr. Stott's counsel attempted to introduce a letter from the Attorney General's Office to Budget; each time Budget's hearsay objection was sustained. During closing arguments, Mr. Stott's counsel referred to the letter:

They come in here and say, "Oh, this was a mistake." If it was a mistake, they didn't discover it until after the Attorney General had written them a letter telling them that their sales practices were deceptive.

(R. 1158).

Budget asserts that "in disregard of the court's evidentiary rulings," Mr. Stott's counsel "unfairly and unserupulously injected into the jury's consideration an inflammatory, prejudicial, and false description of the contents of a letter from the Indiana Attorney General's Office." Budget's Brief at 38. In accordance with Troxel v. Otto, (1972), 158 Ind.App. 487, 287 N.E.2d 791, Budget argues, prejudice to the adverse party is presumed where counsel refers to evidence ruled inadmissible by the court, and a new trial is required.

Stott responds that Budget failed to impose a contemporaneous objection, as Budget itself concedes. Rather, after Mr. Stott's counsel had concluded his closing argument and thanked the jury, Budget moved for a mistrial "based upon the statements made by counsel relative to a letter from the Attorney General's Office as to deceptive sales acts or practices." (R. 1161). The court held Budget's objection to the remarks "untimely made and accordingly overruled" the request for a mistrial. (R. 1163).

The contentions of both parties were addressed by this court in Frankfort v. Owens (1976), 171 Ind.App. 566, 358 N.E.2d 184. We reviewed the "steps necessary to preserve a point of error founded upon trial counsel's misconduct," Id. 358 N.E.2d at 188, noting the first step was prompt objection and request of a counteracting admonishment to the jury. We found Frankfort had failed to follow the procedures enumerated as necessary to preserve error for appeal. However, we then proceeded to consider Frankfort's argument that Troxel v. Offo, supra, required reversal We responded that:

[als we read Troxel, supra, that case holds that an attorney who repeatedly refers to matters which have been excluded from evidence by the trial court is guilty of clear misconduct with resulting prejudice to the adverse party being presumed.

Frankfort, 358 N.E.2d 184 (emphasis omitted). In Trowel, counsel made two references in his opening statement-on both of which the court cautioned him, "injected" this "irrelevant fact" in a cross-examination question, and finally "hammered" the matter in final argument. Troxel, 287 N.E.2d at 792. In the case at bar, we have only the reference quoted above during the closing statement of Mr. Stott's counsel. Troxel's itemization of each occurrence, its language about counsel's persistence, the repeated rulings of the court, counsel's "recurrent references" and "repeated remarks" distinguish its facts from those before us. Id. at 798.

As we concluded in Frankfort, "the record before us does not disclose such blatant misconduct as appeared in Troxel," Frankfort, 358 N.E.2d at 184. Nevertheless, we are concerned about the potential prejudicial effect of counsel's reference to a letter from the Attorney General-which is not in evidence-purportedly saying Budget's sales practices were deceptive. We note the jury was instructed that punitive damages "punish the defendant and ... deter him and others from like conduct in the future." (R. 69). We conclude that the prejudice resulting from the reference almost certainly appears in the jury's award of $150,000 punitive damages. Because we have reversed the punitive damages award, we do not believe a new trial is necessary.

3. Evidence of Car Condition and Service Contract Performance

Budget's final claim of error asserts the improper admission of evidence of the condition of the car and performance of the service contract, inasmuch as these issues were not raised in Mr. Stott's complaint.

Budget provides no authority for its contention that the admission of this evidence warrants a reversal and new trial. Accordingly, Budget has waived this issue. Ind.Appellate Rule 8.3(A)(7), Kolley v. Harris (1990), Ind.App., 558 N.E.2d 164.

CONCLUSION

The judgment for compensatory damages is affirmed; the judgment of punitive damages is reversed. The cause is remanded and the trial court instructed to vacate the judgment for punitive damages.

CHEZEM, J., concurs in result and dissents with separate opinion. SULLIVAN, J., concurs in part and dissents in part with separate opinion.

1 . The advertisement states, "Minimum trade-in does not apply to compacts, subcompacts, advertised specials" but rather to "red-tagged Budget car[s]". (R. 119). The Cavalier was not red-tagged and was a compact.

2 . The other charge which both included, beyond the $5,800 and the $899 service contract, was a document preparation fee of $69.95. Accordingly to Crowley, the computer was programmed to add this fee to all car sales at the Budget lot.

3 . The Retail Sales Contract shows the 1977 Vo-lare as part of Stott's down payment for a credit of $4,735.

4 . To recap in tabular form:

$4,995.00 advertised price

479.00 Budgetgard

267.00 freight charge

69.95 document fee

120.00 tires

250.00 sales tax

Total: $6,180.95 (without any service contract)

5 . Budget's second punitive damages challenge asserted that "evidence was insufficient as a matter of law to establish all of the elements of fraud." Budget's Brief at 45. However, following this broad statement, Budget argued only the level of proof required for one element of fraud when punitive damages are awarded. Because we have found punitive damages unwarranted, discussion of this issue is unnecessary.