Joshua Lee v. Countryside Auto Sales, LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 20, 2019
• Docket: 19A-SC-526
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 20 2019, 7:16 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Joshua Lee Jason A. Lopp Depauw, Indiana Whitney E. Wood McNeely Stephenson New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Lee, August 20, 2019 Appellant, Court of Appeals Case No. 19A-SC-526 v. Appeal from the Harrison Superior Court Countryside Auto Sales, LLC, The Honorable Joseph L. Appellee Claypool, Judge Trial Court Cause No. 31D01-1812-SC-269

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 1 of 6 [1] Joshua Lee appeals the trial court’s order ruling in favor of Countryside Auto

Sales, LLC (Countryside), on Lee’s complaint. Finding no error, we affirm.

Facts [2] On January 29, 2018, Lee purchased a used 1999 GMC Sierra 1500 (the truck)

from Countryside for $5,626.01.1 Lee made a down payment of $1,500 and

executed a contract (the Contract) and security agreement for the remaining

balance. The Contract stated as follows, in relevant part:

Vehicle Inspection. You are purchasing the Vehicle based upon your personal inspection, and are not relying upon any opinion, statement, promise or representation of the salesperson, or any other of our employees that is not contained in the written agreements you are signing today.

Vehicle Condition. You understand that the Vehicle may have sustained prior body damage and may have undergone prior mechanical repairs during or after its manufacture, during or after transit to us or while in the possession of prior owners or operators.

Warranty Information

Warranty. We make no express or implied warranties. Except as required by law, we make no implied warranty of merchantability and no warranty that the Vehicle is fit for a particular purpose. We sell the Vehicle AS IS—NOT

1 Nothing in the record suggests that Lee is anything other than a competent adult.

Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 2 of 6 EXPRESSLY WARRANTED OR GUARANTEED. WITH ALL FAULTS.

Appellant’s App. Vol. II p. 44-45 (emphases original).

[3] Lee alleges that soon after he purchased the truck, the truck bed began leaning

toward the cab because of substantial rust underneath the truck. He claims that

the truck is now unsafe to drive. Countryside states that its salesman informed

Lee that there was rust underneath the truck, though Countryside maintains

that it was unaware of rust to the extent that Lee claims exists. Lee also claims

that the salesman told him that the truck would be good to “haul things” and

that the truck came with a warranty. Tr. Vol. II p. 8-10.

[4] On December 17, 2018, Lee filed a small claims action against Countryside,

asking for damages to repair the vehicle.2 Lee subsequently amended the

complaint and asked the trial court to rescind the contract. Following a bench

trial, the trial court entered judgment in favor of Countryside. Lee now

appeals.

Discussion and Decision [5] In reviewing a small claims judgment, we will not set it aside unless it is clearly

erroneous. Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App.

2013). We may neither reweigh the evidence nor re-assess witness credibility

2 Neither the original nor the amended complaint appears to be included in the record on appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 3 of 6 and must instead consider only the evidence and reasonable inferences that may

be drawn therefrom that support the judgment. Id. If a reasonable factfinder

could conclude that the party bearing the burden of proof—here, Lee—failed to

carry that burden by establishing their claims by a preponderance of the

evidence, we will affirm. Id. This deferential standard of review is especially

important in small claims actions, where the trials are “‘informal, with the sole

objective of dispensing speedy justice between the parties according to the rules

of substantive law.’” Id. (quoting Ind. Small Claims Rule 8(A)).

[6] Initially, we note that small claims courts do not have the authority to grant the

equitable remedy of rescission. Nielson Buick Jeep Eagle Subaru v. Hall, 726

N.E.2d 358, 360-61 (Ind. Ct. App. 2000). Therefore, the trial court did not err

by denying this relief.

[7] Next, we address the crux of Lee’s complaint—that he did not knowingly agree

to buy the truck “as is.” As a general rule, the law allows competent adults the

utmost liberty in entering into contracts which, when entered into freely and

voluntarily, will be enforced by the courts. Trimble v. Ameritech Publishing, Inc.,

700 N.E.2d 1128, 1129 (Ind. 1998). It is well settled that a used car dealer

“may disclaim implied warranties through the use of conspicuous language

containing expressions like ‘as is’ or ‘with all faults’ or other language which in

common understanding call the buyer’s attention to the exclusion of warranties

and makes plain there is no implied warranty.” Town and Country Ford, Inc. v.

Busch, 709 N.E.2d 1030, 1033 (Ind. Ct. App. 1999).

Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 4 of 6 [8] Here, Lee signed a contract containing written disclaimers of warranty. The

disclaimers were in bold and partially capitalized and expressly disclaimed

warranties of both merchantability and fitness for a particular purpose.

Furthermore, the contract also explicitly stated that Lee was not “relying upon

any opinion, statement, promise or representation of the salesperson” not

contained in the contract. Appellant’s App. Vol. II p. 44. Therefore, Lee has

no right to direct our attention to any statements allegedly made by the

Countryside salesperson. See Circle Centre Dev. Co. v. Y/G Ind., L.P., 762 N.E.2d

176, 181 (Ind. Ct. App. 2002) (holding that a party “cannot affirmatively state

in writing that it has ‘independently investigated’ the matters at issue and that it

‘has not relied upon any inducements or representations’ by [the other party] or

its agents and then, after the fact, repudiate those provisions”). Therefore, to

succeed on any fraud-related claim, Lee would have to show fraud in the

express terms of the contract, which he cannot do. LTD Keller Farms, LLC v.

Brigitte Holmes Livestock Co., 722 F. Supp. 2d 1015, 1029 (N.D. Ind. 2010)

(interpreting and applying Indiana law).

[9] The simple fact is that Lee signed a contract. The contract is valid. As a

competent adult, he is assumed to have read and understood the terms of the

contract before signing it. He is now bound by those terms. Consequently, the

trial court did not err by finding that Countryside disclaimed all warranties.

[10] Lee also makes an argument under the Indiana Deceptive Consumer Sales Act.

Ind. Code ch. 24-5-0.5. The statute requires that a plaintiff making such a claim

must give timely notice “that shall state fully the nature of the alleged deceptive

Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 5 of 6 act and the actual damages suffered therefrom” within six months of the

discovery of the deceptive act. Ind. Code § 24-5-0.5-5(a). Here, Lee failed to

provide such notice in a timely fashion. Moreover, the trial court could have

reasonably concluded that the language of the Contract discussed above would

have denied Lee the right to recover under the Indiana Deceptive Consumer

Sales Act.3

[11] The judgment of the trial court is affirmed.

Kirsch, J., and Crone, J., concur.

3 On appeal, Lee also mentions the “Used Car Rule” based in 16 C.F.R. 455. He did not make this claim at the trial court level and has consequently waived the right to do so on appeal. While we allow a great deal of latitude to small claims plaintiffs, see Ind. Small Claims Rules 2 and 8, this is a very specific claim that needed to be pleaded explicitly so that Countryside could prepare a defense to it. Therefore, we find it waived.

Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 6 of 6