Lonnie Garner, Jr. v. Waleed Jomaan (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 10, 2019
• Docket: 18A-SC-2553
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 10 2019, 8:56 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Lonnie Garner, Jr. F. Bradford Johnson Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lonnie Garner, Jr., July 10, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-SC-2553 v. Appeal from the Marion County Small Claims Waleed Jomaan, Court Appellee-Defendant. The Honorable Gerald B. Coleman, Judge. Trial Court Cause No. 49K08-1807-SC-4600

Kirsch, Judge.

[1] Lonnie Garner, Jr. (“Garner”) brought a breach of contract claim in small

claims court against Waleed Jomaan (“Jomaan”) after Garner purchased a

vehicle from Jomaan’s employer, Honest Abe’s Auto Sales (“Honest Abe’s”).

The small claims court denied Garner’s motion for summary judgment and Court of Appeals of Indiana | Memorandum Decision 18A-SC-2553 | July 10, 2019 Page 1 of 5 entered judgment for Jomaan. On appeal, Garner argues that the small claims

court erred when it entered judgment in favor of Jomaan and raises the

following issues on appeal: that the small claims court abused its discretion

when it did not enter default judgment or grant summary judgment against

Honest Abe’s; and, that the small claims court erred when it considered the

unsworn testimony of Jomaan.

[2] We affirm.

Facts and Procedural History [3] On May 8, 2018, Garner purchased a 2002 Lexus ES (“vehicle”) “as is” from

Honest Abe’s for a total of $6,062. Appellant’s App. Vol. 2 at 77. The odometer

read that the vehicle had 140,813 miles. Id. Garner signed an agreement

allowing Honest Abe’s to repossess the vehicle if Garner failed to maintain Full

Coverage Insurance or if he did not keep current with payments. Id. at 92. At

some point before July 20, Garner returned the vehicle to Honest Abe’s

claiming it would not run. Tr. Vol. II at 24.

[4] On July 10, 2018, Garner sent a letter to Honest Abe’s alleging that Honest

Abe’s had breached its contract with Garner. Appellant’s App. Vol. 2 at 20. The

letter referenced how Honest Abe’s informed Garner that the vehicle would be

repossessed if Garner failed to maintain Full Coverage Insurance on the vehicle

and claimed that Honest Abe’s alleged repossession violated Indiana law. Id.

He further alleged that Honest Abe’s sales practices violated Indiana Code

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2553 | July 10, 2019 Page 2 of 5 section 24-5-0.5-3(a) because the vehicle was not in operating condition, and he

believed that Honest Abe’s had deceived him. Id. at 21.

[5] On July 11, 2018, Garner filed a breach of contract claim in small claims court

against Jomaan requesting $6,000 in damages. Id. at 22. On August 16, 2018,

Jomaan moved to dismiss Garner’s claim because Jomaan was not a party to

the transaction, nor was he an owner or officer of Honest Abe’s. Appellee’s App.

Vol. II at 7, 9.

[6] Garner’s initial complaint did not include Honest Abe’s as a party, and on

September 5, 2018, Garner filed a motion to amend the complaint to include

Honest Abe’s. Appellant’s App. Vol. 2 at 35. The motion to amend was granted

on September 7, 2018. Id. at 40. The record is silent about whether Garner

refiled his complaint to include Honest Abe’s as a party.

[7] On October 3, Garner filed a motion for summary judgment. Id. at 49. In his

memorandum in support of summary judgment, Garner stated that the

vehicle’s odometer was inaccurate when compared to the Indiana Bureau of

Motor Vehicles records, and the certificate of title transfer violated the

Deceptive Sales Act (Indiana Code § 24-5-0.5-1). Id. at 59-60. This motion was

denied on October 17, 2018. Appellee’s App. Vol. II at 5.

[8] A trial was held on October 17, 2018. Id. Garner appeared pro se, and Jomaan

appeared with counsel. Id. At trial, Garner made a number of allegations

concerning the condition of the vehicle. Tr. Vol. II at 11-12. Jomaan’s

testimony was taken into evidence despite the fact that he was not sworn. Id. at

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2553 | July 10, 2019 Page 3 of 5 19. The small claims court concluded that there was no breach of contract and

that Garner suffered no damages. Id. at 52-53. The court entered judgment for

Jomaan. Appellant’s App. Vol. II at 8. Garner now appeals.

Discussion and Decision [9] Small claims court judgments are “subject to review as prescribed by relevant

Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Garner had the

burden of proof in his small claims action and, thus, appeals from a negative

judgment. See Herren v. Dishman, 1 N.E.3d 697, 702 (Ind. Ct. App. 2013). We

will reverse a negative judgment only if the trial court’s decision is contrary to

law. Martin v. Ramos, 120 N.E.3d 244, 248 (Ind. Ct. App. 2019). “A decision is

contrary to law if the evidence and reasonable inferences lead to but one

conclusion and the trial court has reached the opposite conclusion.” Id. (citing

LTL Truck Serv., LLC. v. Safeguard, Inc., 817 N.E. 664, 667 (Ind. Ct. App. 2004)).

[10] Garner contends that the small claims court abused its discretion when it failed

to enter a default judgment or to grant his motion for summary judgment when

Honest Abe’s failed to appear at trial. Appellant’s Br. at 13. The issue before the

court was whether it had personal jurisdiction over Honest Abe’s.

[11] Personal jurisdiction is reviewed de novo as a question of law. Wolf’s Marine,

Inc. v. Brar, 3 N.E.3d 12, 15 (Ind. Ct. App. 2014). “Where there is no service of

process, there can be no personal jurisdiction . . .” Shotwell v. Cliff Hagan Ribeye

Franchise, Inc. 572 N.E.2d 487, 489 (Ind. 1991). “A copy of the notice of claim

shall be served on each defendant.” Ind. Small Claims Rule 3(A). The record

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2553 | July 10, 2019 Page 4 of 5 does not establish that Honest Abe’s was properly served pursuant to Indiana

Small Claims Rule 3. Although he was granted permission to amend his

complaint, there is no indication that Garner named Honest Abe’s as a party.

Thus, Honest Abe’s was a non-party to the small claims case. It was not

obligated to appear at trial, and the small claims court did not err in refusing to

enter judgment against it.

[12] Garner also argues that the small claims court abused its discretion when it

considered testimony from Jomaan that was not given under oath. Small

Claims Rule 8(b) provides, “All testimony shall be given under oath or

affirmation.” “[A]s a general rule, a party may not present an argument or

issue on appeal unless the party raised that argument before the trial court.”

Washington v. State, 121 N.E.2d 617, 625 (Ind. Ct. App. 2004). Failing to object

at trial to an issue waives the party’s right to object to an issue on appeal. Id.

Here, Garner failed to object to Jomaan’s testimony at trial or to the fact that it

was unsworn testimony and has, therefore, waived his right to appeal this issue.

[13] The small claims court did not abuse its discretion.

[14] Affirmed.

Vaidik, C.J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2553 | July 10, 2019 Page 5 of 5