Universal Auto, LLC, d/b/a James Myers v. Cory Murray

• Court: Indiana Court of Appeals
• Decided: May 28, 2020
• Docket: 19A-PL-1225
• Status: Published

Opinion

ATTORNEYS FOR APPELLANT Mario Garcia FILED Terry Tolliver May 28 2020, 5:38 am Brattain Minnix Garcia CLERK Indianapolis, Indiana Indiana Supreme Court Court of Appeals and Tax Court

IN THE COURT OF APPEALS OF INDIANA

Universal Auto, LLC, d/b/a May 28, 2020 James Myers, Court of Appeals Case No. Appellant-Defendant/Counterclaimant, 19A-PL-1225 Appeal from the Marion Superior v. Court The Honorable David J. Dreyer, Cory Murray, Judge Appellee-Plaintiff/Counterdefendant Trial Court Cause No. 49D10-1809-PL-36457

Crone, Judge.

Case Summary [1] Cory Murray purchased a used vehicle “as is” from Universal Auto, LLC

d/b/a James Myers (Universal). 1 He signed an installment contract and also

1 Universal operates as an LLC, and Myers was improperly captioned as “d/b/a” below.

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 1 of 10 purchased a service agreement. He experienced mechanical problems shortly

after his purchase and took his vehicle for service as instructed by Universal.

Claiming that he had defaulted on the installment contract, Universal

repossessed the vehicle before Murray’s first payment was due. Murray filed a

contract action for damages, and Universal counterclaimed for damages and

attorney’s fees. The trial court entered judgment in Murray’s favor on both his

contract claim and Universal’s counterclaim. Universal now appeals, asserting

that Murray defaulted on the sales contract and that it disclaimed all warranties

and was not a party to the service agreement. We affirm the trial court’s

judgment in all respects.

Facts and Procedural History [2] On February 17, 2018, Murray entered into an installment contract with

Universal to purchase a vehicle “as is” for $17,599.50. Murray made a down

payment of $3539. Universal’s James Myers arranged a financing agreement

with a third-party lender, Credit Acceptance Corporation, pursuant to which

Murray was obligated to make monthly payments of $337.93 beginning on

March 17, 2018. The parties executed a “Right to Repossess,” giving Universal

a right to repossess the vehicle upon default and affording Murray ten days

within which to redeem the repossessed vehicle. Defendant’s Ex. C. Murray

and Universal (by Myers) both signed a document titled, “Wynn’s Plus Vehicle

Service Contract/Application.” Plaintiff’s Ex. 13. The installment contract

and bill of sale each list as a line item, “Service Contract: [$]1,535.00.”

Plaintiff’s Exs. 1, 2.

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 2 of 10 [3] Just hours after Murray purchased the vehicle, its engine began knocking and

smoking. Murray called Universal, and Myers instructed him to take the

vehicle to Indiana Auto Body & Service (Indiana Auto) for repairs and told him

that Universal would cover the cost of the engine repair. Two days later, as

Murray was driving his vehicle to Indiana Auto for the repair, the engine

completely failed, and he had the vehicle towed. Indiana Auto replaced the

engine, and Universal arranged payment. A few days after Murray got his

vehicle back, he experienced trouble with the starter and took the vehicle to

Indiana Auto. Murray personally paid the $200 charge for a new starter. A

couple days later, the engine malfunctioned again, and Myers instructed

Murray to have the vehicle serviced at Indiana Auto, which he did.

Meanwhile, Universal stopped/withdrew its payment to Indiana Auto for the

initial engine repair. When Murray attempted to pick up his vehicle, Indiana

Auto employees informed him that they could not release it to him because it

was subject to a mechanic’s lien due to nonpayment for the initial repair. Tr.

Vol. 2 at 43. Murray phoned Myers, who reminded him that he still had to

make payments on the vehicle to avoid being in breach of the sales contract.

[4] In a letter dated March 7, 2018, Universal informed Murray that it had

repossessed his vehicle and would resell it if he did not exercise his right to

redeem it by paying the full contract balance of $15,720 within ten days.

Plaintiff’s Ex. 6. In a notice dated that same day, Credit Acceptance notified

Murray that it had reassigned his installment contract to Universal, closed his

account, and canceled his vehicle service contract. Plaintiff’s Ex. 12.

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 3 of 10 [5] On March 12, 2018, Murray filed a small claims action against Universal

seeking the return of his down payment as well as damages for the repair of his

starter, towing charges, and pain and suffering in the form of lost wages. On

September 12, 2018, the action was transferred to the trial court’s plenary

docket, and Universal filed a counterclaim seeking damages associated with

Murray’s alleged default, repossession and cleaning costs, and attorney’s fees.

At the February 2019 bench trial, both parties alleged breach of contract.

Murray argued that Universal breached the service contract, and Universal

argued that Murray owed damages for allegedly defaulting on the installment

sales contract. The trial court issued a two-page order that included the

following finding:

Plaintiff purchased auto from Defendant “as is,” and separately entered into a service contract/warranty with Defendant. When the auto failed to operate, repairs were not made or paid by Defendant. Plaintiff lost $3,733.00 in purchase payments, $146.00 in towing charges, $200.00 for a repair, and $150.00 in lost wages.

Appealed Order at 1. Based on this finding, the trial court concluded that

Universal “breached the service contract/warranty contract by failing to repair”

the vehicle and entered judgment in Murray’s favor for $4229. Id. at 2. The

court summarily ruled against Universal on its counterclaim. Universal filed a

motion to correct error, which was deemed denied. Universal now appeals.

Additional facts will be provided as necessary.

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 4 of 10 Discussion and Decision

Section 1 – Universal has failed to establish prima facie error concerning its counterclaim. [6] We first address Universal’s counterclaim, which seeks damages for Murray’s

alleged default for nonpayment on the installment contract. Because Universal

did not prevail on its counterclaim below, it appeals from a negative judgment.

A negative judgment is a judgment entered against the party who bore the

burden of proof at trial. Wilson v. Huff, 60 N.E.3d 294, 298 (Ind. Ct. App.

2016). We will not reverse a negative judgment unless it is contrary to law. Id.

On review, we consider the evidence and reasonable inferences in the light most

favorable to the appellee. Id. “A party appealing a negative judgment must

show that the evidence points unerringly to a conclusion different than that

reached by the trial court.” Id. (citation omitted).

[7] Murray has failed to file an appellee’s brief. When an appellee fails to submit a

brief, we will not undertake the burden of developing his arguments. Meisberger

v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct. App. 2014). Rather, we apply a less

stringent standard of review and will reverse if the appellant establishes prima

facie error. Id. Prima facie error is error “at first sight, on first appearance, or

on the face of it.” Solms v. Solms, 982 N.E.2d 1, 2 (Ind. Ct. App. 2012).

[8] Universal specifically asserts that Murray “refused to complete his first payment

on the [vehicle] and was considered to be in default.” See Appellant’s Br. at 8

(citing Tr. Vol. 2 at 66). The cited portion of the trial transcript does not

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 5 of 10 support this assertion. Rather, it concerns the introduction of Plaintiff’s Exhibit

12, a discharge of lien form dated March 7, 2018, followed by questions to

Universal’s manager Heather Padilla concerning the meaning and effect of such

a form. Padilla explained that the creditor sends the form to the dealer so that

the dealer can get the certificate of title back in the dealer’s name for resale.

When asked why Universal paid off Murray’s account with Credit Acceptance,

Padilla replied, “Because he defaulted on his contract and did not complete his

first payment.” Tr. Vol. 2 at 66. The record does not support this claim. The

installment sales contract specifies that Murray’s payment schedule will be

“MONTHLY beginning March 17, 2018,” and the payment due notice from

Credit Acceptance, dated March 5, 2018, lists Murray’s past due amount as

“$0.00” and his current payment due date as “03/17/2018.” Plaintiff’s Exs. 2,

15. Both the repossession letter and the discharge of lien form are dated March

7, 2018, and both are based on an alleged default by Murray. Thus, instead of

having to make a standard monthly payment on March 17, Murray was now

facing the resale of his vehicle if he could not come up with $15,720 by March

17.

[9] In short, Murray had not defaulted on the sales contract when Universal

repossessed his vehicle. One simply cannot be in default for nonpayment of a

monthly bill that has not yet come due. Universal has failed to carry its burden

of demonstrating prima facie error concerning its counterclaim.

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 6 of 10 Section 2 – Universal has failed to demonstrate prima facie error concerning Murray’s contract claim. [10] We now address Universal’s arguments concerning Murray’s contract claim.

Universal contends that it disclaimed all warranties 2 and did not owe Murray

any contractual duty to service his vehicle. Interpretation and construction of

contract provisions are questions of law. Brill v. Regent Commc’ns, Inc., 12

N.E.3d 299, 306 (Ind. Ct. App. 2014), trans. denied. We review each contract as

a whole, ascertaining the parties’ intent and making every attempt to construe

the contract’s language “so as not to render any words, phrases, or terms

ineffective or meaningless.” Id. (quoting Fischer v. Heymann, 943 N.E.2d 896,

900 (Ind. Ct. App. 2011), trans. denied).

[11] Here, the bill of sale reads in pertinent part, “Unless Seller … enters into a service

contract within 90 days of this contract, this vehicle is being sold “AS IS –

WITH ALL FAULTS.” Plaintiff’s Ex. 1 (emphasis added). The installment

contract includes nearly identical language. Plaintiff’s Ex. 2 (“Unless we … enter

into a service contract within 90 days from the date of this contract, we make no

warranties … on this vehicle”) (emphasis added). This language expressly

2 With respect to the disclaimer of warranties, Universal included the clear, conspicuous, and technical language necessary to disclaim implied warranties by stating that the vehicle was being sold “as is,” without any warranties, and Murray opted not to have the vehicle inspected by a mechanic of his own choosing. Ind. Code § 26-1-2-316. Below, Murray did not focus his argument on the efficacy of the as-is language but rather on the service contract. We limit our discussion accordingly.

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 7 of 10 indicates that the existence of an enforceable service agreement will act as an

exception to the “as-is” disclaimer of warranties.

[12] Universal maintains that the trial court erred in finding that it owed a

contractual duty to Murray concerning any repairs. It relies on language in the

delivery receipt, signed by Murray, acknowledging that the “vehicle is in

acceptable working order,” that he “release[d] the dealership from all

responsibility … for future repairs needed or claims that may arise with the

vehicle,” that he had “been given the opportunity to test drive and research all

information related to the vehicle,” and “that it is FULLY my responsibility to

maintain the vehicle at MY expense and I do not hold the dealer responsible in

any manner to provide any service.” Plaintiff’s Ex. 5. We agree that the

language is unambiguous, but it must be read in conjunction with the other

documents executed as part of the sale. See Merrill v. Knauf Fiber Glass GmbH,

771 N.E.2d 1258, 1268 (Ind. Ct. App. 2002) (where contract comprised four

documents, court harmonized the documents to ascertain parties’ intent), trans.

denied. This includes the installment contract and bill of sale, with their

references to circumstances in which Universal enters into a service agreement.

[13] Universal claims that it was never a party to a service agreement with Murray.

The service agreement at issue is the Wynn’s Plus Service Contract, which was

signed by Murray and by Myers on behalf of Universal as the “Selling Dealer.”

Plaintiff’s Ex. 13. Signature notwithstanding, Universal points us to contract

language defining “You, Your, Yours and I” as the customer, Murray, and

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 8 of 10 “Administrator, Our, Us, and We” as Wynn’s Extended Care, Inc. Id. Based

on this language, Universal submits that the only parties to the contract were

Murray and Wynn’s Extended Care. However, the contract also states, “This

Contract is not valid unless signed by You [Murray] and an authorized

representative of the Selling Dealer.” Id. at 5. This means that the contract

could not have been formed without the signature of Universal’s representative.

Moreover, Universal facilitated the collection of the $1535 fee from Murray.

See Plaintiff’s Exs. 1, 2 (retail installment contract and bill of sale, both listing as

line item $1535 paid for “Service Contract”).

[14] Moreover, Universal played a key role in dictating where Murray obtained

service under the contact, essentially funneling him to its own preferred

mechanic. Murray testified that it was Myers who directed him to take the

vehicle “to Indiana Auto, which is where they get their cars fixed,” and assured

him that Universal would pay for it. Tr. Vol. 2 at 16. It was Universal’s

withdrawal of its payment to Indiana Auto that precipitated the placement of a

mechanic’s lien on the vehicle. In short, Universal facilitated the formation, fee

collection, and execution of the service contract, and its withdrawal of payment

to the repair shop of its own choosing was the catalyst for the mechanic’s lien

that ultimately resulted in the denial of the vehicle to Murray. This level of

control, coupled with Myers’s signature, supports the trial court’s conclusion

that Universal was a party to the service contract.

[15] Given Universal’s level of control, we are unpersuaded by its arguments

concerning Murray’s alleged failure to honor certain technical prerequisites for

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 9 of 10 coverage under the service contract, e.g., calling certain phone numbers to

determine whether a repair or breakdown is covered, notifying the repair facility

concerning the service contract, and paying a $100 deductible. See Appellant’s

Br. at 13-14 (citing Plaintiff’s Ex. 13). Murray simply did what Myers

instructed him to do, which included taking the vehicle to the repair shop with

whom Universal ordinarily dealt. If anything, Universal induced any de

minimis breaches that Murray may have committed.

[16] Finally, with respect to the amount of the damage award, Universal does not

specifically challenge the award of towing fees as consequential damages.

Universal does challenge as contrary to law Murray’s request for $150 for pain

and suffering. See Plaintiff’s Ex. 9 (ledger with line-item breakdown of

Murray’s asserted damages). The trial court addressed this line item during the

trial, and Murray clarified that it was for lost wages during the weeks when his

vehicle was in and out of the repair shop. In its written order, the trial court

identified this portion of the damages as “$150.00 in lost wages.” Appealed

Order at 1. Lost wages may or may not be recoverable in a contract action, but

Universal has not established that they are not recoverable here. The trial court

did not err in including this in the damage award. We therefore affirm the trial

court’s judgment for $4229 in favor of Murray.

[17] Affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Opinion 19A-PL-1225 | May 28, 2020 Page 10 of 10