Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                           May 21 2013, 8:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS:                        ATTORNEY FOR APPELLEE:

MARK A. PSIMOS                                  ADAM C. HAWKINS
Merrillville, Indiana                           Chicago, Illinois


                              IN THE
                    COURT OF APPEALS OF INDIANA

DORITA P. LEE and BREALON MILLER,               )
                                                )
       Appellants-Plaintiffs,                   )
                                                )
              vs.                               )     No. 45A03-1211-SC-491
                                                )
ELIZABETH HAMILTON,                             )
                                                )
       Appellee-Defendant.                      )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Michael N. Pagano, Magistrate
                    Cause No. 45D09-1206-SC-1694 & 45D09-1206-SC-1695


                                       May 21, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellants-Plaintiffs, Dorita Lee (Dorita) and Brealon Miller (Brealon)

(collectively, Appellants), appeal the Lake County Superior Court, Small Claims

Division’s judgment in their favor against Appellee-Defendant, Elizabeth Hamilton

(Hamilton).

       We affirm.

                                          ISSUE

       Appellants raise one issue on appeal, which we restate as: Whether the trial court

erred in awarding them zero damages.

                         FACTS AND PROCEDURAL HISTORY

        On December 31, 2011, Hamilton traveled to a Walgreen’s store in Gary, Indiana

to buy some artichokes for her family’s New Year’s Eve dinner. Hamilton parked her car

in the store’s congested parking lot. Appellants traveled to the same store on their way to

Chicago for a New Year’s Eve party. Dorita was driving her pastor’s vehicle and

Brealon, her son, needed some minutes for his prepaid phone. Dorita parked her vehicle

to the right of Hamilton’s while Brealon went in the store. After Brealon returned, Dorita

backed out of her parking space, moving the vehicle some distance behind and to the left

of Hamilton’s vehicle.

       Meanwhile, Hamilton had returned to her vehicle and turned the engine on. Dorita

had stopped her vehicle because she saw Hamilton’s reverse lights come on. Dorita

waited for Hamilton’s vehicle to back out. Hamilton looked but did not see anyone and

                                            2
put her car in reverse. As Hamilton backed out, she traveled approximately a car length

before hitting the front of Dorita’s vehicle. As she saw Hamilton’s vehicle coming

toward her, Dorita did not use her horn but braced herself for the impact. The impact

sent Appellants’ bodies backward then forward but they did not hit any part of the

interior nor did the impact move their vehicle.

          Hamilton exited her vehicle to ask if Appellants were okay and why Dorita did not

sound the horn. Dorita said that she was unhurt and that Hamilton was backing out too

fast. Dorita told Hamilton that she had just finished therapy and that the vehicle was not

damaged.       Neither Dorita nor Brealon had any cuts, bruises, or fractures from the

accident.     Police arrived thereafter and completed an accident report.        All parties

remained at the scene and Brealon remained in Appellants’ vehicle. After their vehicle

arrived home, Brealon changed one of the tires by himself.

          On January 23, 2012, Dorita and Brealon saw Dr. Joseph Refkin (Dr. Refkin), a

chiropractor who had treated Dorita and one of her other children regarding another car

accident in April 2011.      Dorita and Brealon completed separate patient information

sheets.     Dorita indicated that the condition began on January 4, 2012 but Brealon

indicated that his condition began the following day, January 5. 2012. While Dorita said

that she braced for the impact with Hamilton’s vehicle, Brealon did not. Dr. Refkin’s

initial exam report listed the date of the accident consistent with the dates that Dorita and

Brealon stated their condition began. Dr. Refkin opined that their injuries were the

“direct result of the automobile accident.” (Appellants’ App. p. 31). After their initial

                                              3
examinations, Dorita and Brealon received approximately twenty treatments over the

course of two months, with Dr. Rifkin releasing them from care on March 26, 2013. The

total cost of services was $2,959 for Dorita and $2,672 for Brealon.

       On June 18, 2012, Dorita and Brealon separately filed their notice of claim against

Hamilton. Appellants alleged personal injuries resulting from the collision and each

sought $6,000 in damages. On September 27, 2012, a bench trial was held and the cases

were consolidated. After the presentation of evidence, the trial court took the matter

under advisement.    That same day, it granted judgment in favor of Appellants but

awarded them zero damages. In its written judgment, the trial court found that Hamilton

was 100% at fault for the collision with Appellants’ vehicle. With respect to the $6,000

in damages sought by both Appellants, the trial court found that they did not carry their

burden. Specifically, although they were treated for soft tissue injuries with Dr. Refkin

three weeks after the collision, the trial court concluded that neither had established

causation, the extent of their injuries, or the necessity of such treatment at trial. On

October 23, 2012, Appellants filed a motion to correct error which the trial court denied

the same day.

       Appellants now appeal. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       Under Indiana Small Claims Rule 11(A), judgments in small claims action are

subject to review as prescribed by relevant Indiana rules and statutes. Lile v. Kiesel, 871

N.E.2d 995, 997 (Ind. Ct. App. 2007). In the appellate review of claims tried by the

                                            4
bench, the reviewing court shall not set aside the judgment unless clearly erroneous, and

due regard shall be given to the opportunity of the small claims court to judge the

credibility of the witnesses. See id. A judgment is clearly erroneous when a review of

the materials on appeal leaves us firmly convinced that a mistake has been made. Id. In

our review, we presume that the trial court correctly applied the law, and we will not

reweigh the evidence or determine the credibility of witnesses but will consider only the

evidence that supports the judgment and the reasonable inferences to be drawn therefrom.

Id. This deferential standard of review is particularly important in small claims actions,

where trials are informal, with the sole objective of dispensing speedy justice between the

parties according to the rules of substantive law. Id.

       Appellants argue that the small claims court erred in awarding them zero damages

despite finding Hamilton 100% liable.         Specifically, they claim that the evidence

established causation, the extent of their injuries, and the necessity of chiropractic

treatment from Dr. Refkin.      In contrast, Hamilton argues that substantial evidence

supported the judgment based upon the nature of the accident, the delay of Appellants in

seeking treatment, and a discrepancy with respect to the date of the accident.

       Under Indiana law, all damages directly attributed to the wrong done are

recoverable. Ridgeway v. Teshoian, 699 N.E.2d 1156, 1160 (Ind. Ct. App. 1998). The

law allows an injured plaintiff to recover the reasonable cost of necessary medical

expenses. Dee v. Becker, 636 N.E.2d 176, 178 (Ind. Ct. App. 1994). However, the

burden of proof with respect to damages is with the plaintiff. Tamko Roofing Products,

                                             5
Inc. v. Dilloway, 865 N.E.2d 1074, 1078 (Ind. Ct. App. 2007).            Thus, while it is

undisputed that Appellants incurred medical expenses, it was Appellants’ burden to prove

by a preponderance of the evidence the expenses that were incurred as a proximate result

of the collision. See Matovich v. Rodgers, 784 N.E.2d 954, 958 (Ind. Ct. App. 2003).

       Although Appellants argue that Dr. Refkin’s reports establish causation, both

parties testified that the collision was not significant. Hamilton testified that the damage

to Appellants’ vehicle was slight, with a cut appearing on the middle of the front bumper.

A photograph depicting the bumper of Hamilton’s vehicle showed three indentations,

which Hamilton explained were from a prior accident. Although Brealon testified that

their vehicle was towed, the accident report indicates that neither vehicle was towed.

Brealon testified that the front bumper of their car was hanging down and the windshield

washer container under the hood was broken. However, Appellants did not present any

photographs depicting damage to their vehicle. Thus, the small claims court could

reasonably conclude that the damage to their vehicle, if any occurred, was slight and not

the proximate cause of their injuries.

       Further inconsistencies appeared in the medical records. Hamilton asked Dorita if

she was injured and Dorita replied that she was not. Brealon admitted to changing the

tire of the vehicle by himself. Appellants did not seek medical attention for their injuries

for more than three weeks after the accident. In addition to giving a different date for the

onset of their symptoms, Dr. Refkin’s reports state that the accident occurred on January

4 and 5, 2013, respectively. Although Appellants ask us to conclude that the onset of

                                             6
symptoms did not coincide with the date of the accident, this is a request to reweigh the

evidence and determine witness credibility, which we cannot do. See Lile, 871 N.E.2d at

997. In sum, Appellants’ claim on appeal assumes that the small claims court was

required to believe their testimony that the injuries resulted from the collision with

Hamilton. See Flores v. Gutierrez, 951 N.E.2d 632, 636 (Ind. Ct. App. 2011), trans.

denied. But the small claims court was within its fact-finding discretion to discredit their

testimony. See id. Consequently, Appellants have not met their burden to demonstrate

clear error and we therefore affirm the small claims court’s judgment.

                                     CONCLUSION

       Based on the foregoing, we conclude that the small claims court did not err in

awarding Appellants zero damages.

       Affirmed.

BRADFORD, J. and BROWN, J. concur




                                             7
