MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jul 31 2019, 11:11 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANTS
Taylor A. Beaty
Brian C. Heck
Beckman Lawson, LLP
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

YES! Automotive, Inc., and                                July 31, 2019
Brad Hoffer,                                              Court of Appeals Case No.
Appellants-Defendants,                                    19A-SC-601
                                                          Appeal from the Allen Superior
        v.                                                Court – Small Claims Division
                                                          The Honorable Thomas P. Boyer,
Jessica Roach,                                            Magistrate
Appellee-Plaintiff                                        Trial Court Cause No.
                                                          02D03-1810-SC-16101



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-SC-601 | July 31, 2019                   Page 1 of 7
                                            Case Summary
[1]   Yes Automotive Inc., a car dealership, and Brad Hoffer, the owner/president of

      the dealership (collectively, “the Dealership”), appeal the small-claims court’s

      judgment in favor of Jessica Roach in the amount of $3,639.41, arguing that the

      judgment is not supported by the evidence. We affirm.



                             Facts and Procedural History1
[2]   In July 2017, Roach went to the Dealership after seeing on CarGurus.com that

      the Dealership had a 2011 Buick LaCrosse for sale for $9,457.00. Roach

      ultimately signed a Retail Installment Contract for a 2011 Buick LaCrosse,

      though it is unclear whether the car she purchased was the same car she had

      seen on the website—Roach thought it was, the Dealership says it was not.


[3]   In any event, a month-and-a-half later, Roach’s daughter totaled the car Roach

      purchased. Roach asked the Dealership for copies of the transaction

      documents. The paperwork the Dealership sent to Roach included a Bill of

      Sale, which shows a “Vehicle Price” of $12,060.70, Appellants’ App. Vol. II p.

      10, and an Application for Certificate of Title, which shows a “Selling Price” of

      the same amount, id. at 57. Roach then sent the Dealership a message claiming

      she had been told that the price was $9,457.00 and asking for an explanation of




      1
       The proceedings were not transcribed, but the trial court certified a Statement of Evidence pursuant to
      Indiana Appellate Rule 31.

      Court of Appeals of Indiana | Memorandum Decision 19A-SC-601 | July 31, 2019                       Page 2 of 7
      the discrepancy: “[W]hen we discussed the price, I was told that it was the

      $9,457 as indicated on the CarGurus website . . . . In review of the paperwork,

      the price was indicated as $12,060.70. Can you tell me why the price increased

      this much?” Id. at 19. An employee of the Dealership responded, “I went over

      everything with You when You bought the car. You did get the car gurus [sic]

      price, and the bank fee was added to the price[.]” Id. at 20. Roach asked the

      Dealership to pay her the difference between the two prices, but the Dealership

      refused.


[4]   In October 2018, Roach sued the Dealership in small-claims court, alleging that

      the Dealership “overcharged” her, “forged [her] signature,” “did not fully

      disclose charges,” and engaged in “fraudulent” conduct. Id. at 59, 71. At trial,

      Roach testified that “she was told by an employee of [the Dealership] that the

      purchase price of the vehicle was $9,457.00[.]” Id. at 140. Regarding the Bill of

      Sale and the Application for Certificate of Title—the two documents that show

      the price as $12,060.70—Roach said that the Dealership “did not review” those

      documents with her and that she “did not sign” them. Id. at 141. Roach also

      testified about the Retail Installment Contract she signed when she purchased

      the car, which lists the “Price of Vehicle, etc.” as $12,764.95, including sales tax

      of $704.25. Specifically, she testified that the employee at the Dealership told

      her that “the price in the Retail Installment Contract included bank fees.” Id. at

      140. In addition to her testimony, Roach submitted several exhibits, including

      printouts of her message to the Dealership and the Dealership’s response.




      Court of Appeals of Indiana | Memorandum Decision 19A-SC-601 | July 31, 2019   Page 3 of 7
[5]   Hoffer testified that the Dealership “went through all transaction documents

      with [Roach] at the time she purchased the Vehicle” and “did not forge

      [Roach’s] initials or signatures on the transaction documents.” Id. at 142-43.

      He further stated that the Dealership’s “sales representatives are not affiliated

      with [the Dealership’s] billing department and are not authorized by [the

      Dealership] to advise customers on financial matters[.]” Id. at 143. He testified

      that “there are no hidden fees included in the price of the Vehicle[.]” Id.


[6]   The small-claims court believed Roach’s version of events. It found that “[t]he

      listed price for the vehicle was $9,457.00,” that the Dealership or its

      “employees/agents” forged Roach’s signature on the Bill of Sale and the

      Application for Certificate of Title, that Roach was told that the Retail

      Installment Contract showed “the sales price plus bank charges[,]” and that the

      Dealership “committed fraud, misrepresentation, and forgery in the sale of the

      vehicle to [Roach].” Id. at 150. The small-claims court entered judgment in

      favor of Roach for $3,639.41, which represents the overcharge, three months of

      interest on the overcharge, and attorney’s fees.


[7]   The Dealership now appeals.



                                 Discussion and Decision
[8]   We first note that Roach did not file a brief. When the appellee has failed to

      submit an answer brief, we need not undertake the burden of developing an

      argument on the appellee’s behalf. Rather, we will reverse the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 19A-SC-601 | July 31, 2019   Page 4 of 7
       judgment if the appellant’s brief presents a case of prima facie error. Trinity

       Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Prima facie error in

       this context is defined as “at first sight, on first appearance, or on the face of it.”

       Id. Where an appellant is unable to meet this burden, we will affirm. Id.


[9]    The Dealership contends that the small-claims court’s judgment in favor of

       Roach is “not supported by the evidence.” Appellants’ Br. p. 12. Small-claims-

       court judgments are “subject to review as prescribed by relevant Indiana rules

       and statutes.” Ind. Small Claims Rule 11(A). Pursuant to Indiana Trial Rule

       52(A), we review the facts determined in a bench trial under the clearly

       erroneous standard of review, with due regard given to the opportunity of the

       court to assess witness credibility. Hamilton v. Schaefer Lake Lot Owners Ass’n,

       Inc., 59 N.E.3d 1051, 1054 (Ind. Ct. App. 2016). This deferential standard of

       review is particularly important in small-claims actions, where trials are

       informal and the sole objective is to dispense speedy justice between the parties

       according to the rules of substantive law. Morton v. Ivacic, 898 N.E.2d 1196,

       1199 (Ind. 2008); see also Ind. Small Claims Rule 8(A). We will not reweigh the

       evidence and consider “only the evidence that supports the judgment and the

       reasonable inferences to be drawn from that evidence.” City of Dunkirk Water &

       Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995).


[10]   In order to prove fraud, Roach had the burden to show that (1) a material

       misrepresentation of past or existing facts was made to her; (2) the Dealership

       made that material misrepresentation with knowledge or reckless ignorance of

       falsity; and (3) Roach relied on that material misrepresentation to her

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-601 | July 31, 2019   Page 5 of 7
       detriment. Am.’s Directories Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d

       1059, 1067 (Ind. Ct. App. 2005), trans. denied. Parol evidence may be used to

       show that fraud entered into the formation of a contract. Id.


[11]   The Dealership argues that Roach did not present “any evidence of fraud[.]”

       Appellants’ Br. p. 14. At trial, however, Roach testified that an employee of the

       Dealership told her “that the purchase price of the vehicle was $9,457.00” and

       that the figure on the Retail Installment Contract was higher because it included

       “bank fees.” Appellants’ App. Vol. II p. 140. Additionally, Roach presented

       the judge with the message between the Dealership and herself, where the

       Dealership stated that it “went over everything with [Roach] when [Roach]

       bought the car. [Roach] did get the car gurus [sic] price, and the bank fee was

       added to [that] price[.]” Id. at 20. Furthermore, there is evidence that the

       documents that do show a price of $12,060.70—the Bill of Sale and Application

       for Certificate of Title—were forged and not reviewed with Roach. A

       reasonable inference from this evidence is that Roach was never given those

       documents when she purchased the car. All of this evidence supports the small-

       claims court’s conclusion that the Dealership committed fraud.2


[12]   In the alternative, the Dealership argues that even if a salesperson told Roach

       that the price of the car was $9,457.00, “sales representatives are not authorized




       2
         In its brief, the Dealership largely ignores the evidence discussed above and instead focuses on Hoffer’s
       testimony. This directly conflicts with our standard of review. See Hall, 657 N.E.2d at 116 (explaining that
       we consider “only the evidence that supports the judgment and the reasonable inferences to be drawn from
       that evidence.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-601 | July 31, 2019                       Page 6 of 7
       by [the Dealership] to advise customers on financial matters[.]” Appellants’ Br.

       p. 11. However, the Dealership fails to provide a cogent argument as to why a

       dealership is not liable for the sales representations of its employees, nor does it

       cite any legal authority that would support such a conclusion. Thus, the

       Dealership has waived this argument on appeal. See Ind. Appellate Rule

       46(A)(8)(a); Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (“A party

       waives an issue where the party fails to develop a cogent argument or provide

       adequate citation to authority and portions of the record.”), trans. denied.


[13]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-SC-601 | July 31, 2019   Page 7 of 7
