                                                                   FILED
                                                              Feb 15 2017, 8:04 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT
Brian R. Gates
Jones Obenchain, LLP
South Bend, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jason Bokori,                                              February 15, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           45A03-1603-SC-519
        v.                                                 Appeal from the Lake Superior
                                                           Court.
Jasmina Martinoski,                                        The Honorable Michael Pagano,
Appellee-Plaintiff.                                        Magistrate.
                                                           Cause No. 45D09-1512-SC-2356



Bailey, Judge.




Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017            Page 1 of 18
                                     Statement of the Case
[1]   Jason Bokori (“Bokori”) collided with Jasmina Martinoski’s (“Martinoski”)

      leased car, totaling it. Insurance payments covered Martinoski’s medical

      expenses and a portion of the cost of her totaled vehicle, but a balance remained

      on the lease. Martinoski sued Bokori for the balance in small claims court, and

      the court entered judgment in her favor. Bokori now appeals.


[2]   We affirm.



                                                      Issue
[3]   Bokori presents one issue for our review, whether the small claims court

      committed clear error in determining fair market value and awarding damages.



                             Facts and Procedural History
[4]   On December 22, 2013, Bokori and Martinoski, driving separate vehicles, were

      involved in a collision. Martinoski’s leased 2013 Toyota Corolla was totaled in

      the accident.


[5]   Martinoski had leased the vehicle with financing through Toyota Financial

      Services (“Toyota Financial”) just five months prior to the collision. The

      balance on the financing agreement was $22,676.52 at the time of the collision.

      Martinoski’s insurer, Nationwide Mutual Insurance (“Nationwide”), paid

      Toyota Financial $17,530.44 to purchase the totaled vehicle. After that

      payment, Martinoski still owed $5,146.08 under her vehicle financing

      Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 2 of 18
      agreement, an amount Martinoski believed would be paid by Bokori’s insurer,

      Progressive Insurance (“Progressive”). However, Toyota Financial pursued

      collection of that amount and late fee charges against Martinoski when

      Progressive did not pay the difference.


[6]   Martinoski sued Bokori and Progressive in small claims court to recover the

      amount she still owed under the lease agreement plus the late fee charges and

      court costs. In her notice of claim, Martinoski alleged that Bokori was

      responsible for the accident, and that he and Progressive owed her the balance

      remaining on her lease plus late fees and court costs totaling $6,000.00.


[7]   During cross-examination of Martinoski, Progressive’s attorney tendered

      Nationwide’s market report prepared by C.C.C. Valuescope Claims Services.

      However, there was no proponent for the document, and Martinoski did not

      recognize it. The small claims court, while acknowledging there was no

      proponent for the exhibit, admitted the document without objection. The

      report shows the date of the accident, that Martinoski was the lessee of the

      totaled vehicle, and correctly identifies the vehicle identification number for the

      Corolla. The report, which was used in negotiation between Progressive and

      Nationwide in reaching a settlement on what would be paid to Toyota for

      Martinoski’s car, concludes that after conducting research into the local market,

      the fair market value of the vehicle at the time of the accident was $17,312.00.


[8]   The small claims court entered judgment in favor of Progressive because there

      was no contractual relationship between it and Martinoski, and, as such,


      Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 3 of 18
       Martinoski could not sue Progressive directly. The court then found Bokori

       was completely responsible for the accident. The trial court recognized that it

       had admitted into evidence the report used by Progressive and Nationwide in

       their negotiations as to the value of Martinoski’s vehicle. However, the trial

       court concluded that “with no proponent for it, I’m not satisfied that it’s

       sufficient to [establish fair market value].” Tr. pp. 30-31. Having also

       determined that Bokori failed to establish any affirmative defense, the trial court

       entered judgment against him in the amount of $5,446.08—the balance of

       Martinoski’s indebtedness on the lease, her late fees, and court costs.


[9]    This appeal ensued.



                                     Analysis and Decision
[10]   Bokori brings his appeal after a negative judgment against him in the small

       claims court. We review a small claims court’s judgment for clear error.

       Bonecutter v. Discover Bank, 953 N.E.2d 1165, 1171 (Ind. Ct. App. 2011), trans.

       denied. “[E]xpeditious resolution is essential to the efficacy and attractiveness of

       the optional small claims process.” Fortner v. Farm Valley-Applewood Apartments,

       898 N.E.2d 393, 398 (Ind. Ct. App. 2008).


[11]   Here, Martinoski did not file an appellee’s brief, and thus we may reverse upon

       a prima facie showing of reversible error—but even so, we still may not reweigh

       evidence or reassess witness credibility. Heartland Crossing Found., Inc. v. Dotlich,

       976 N.E.2d 760, 762 (Ind. Ct. App. 2012). In his appeal, Bokori argues that


       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 4 of 18
       Martinoski’s claim rests on a “mistaken legal theory” (Appellant’s Br. at 5), that

       Martinoski’s proper remedy for loss of the vehicle had already been provided,

       and that the trial court erred when it found otherwise.


[12]   “It is a well-established principle that damages are awarded to fairly and

       adequately compensate an injured party for her loss, and the proper measure of

       damages must be flexible enough to fit the circumstances.” Bader v. Johnson,

       732 N.E.2d 1212, 1220 (Ind. 2000). “In tort actions generally, all damages

       directly related to the wrong and arising without an intervening agency are

       recoverable.” Id.


[13]   The general rule is that a plaintiff’s compensatory damages for property

       destroyed by a tortfeasor shall be the fair market value of the property at the

       time of loss. Ridenour v. Furness, 546 N.E.2d 322, 325 (Ind. Ct. App. 1989).

       “Fair market value is defined as the value a willing seller will accept from a

       willing buyer for a good.” Warrick Cty. v. Waste Mgmt. of Evansville, 732 N.E.2d

       1255, 1258 n.1 (Ind. Ct. App. 2000). A plaintiff must bear the burden of

       proving the fair market value of the property. Campins v. Capels, 461 N.E.2d

       712, 719 (Ind. Ct. App. 1984). Evidence of fair market value may include the

       plaintiff’s testimony, the price paid upon purchase, testimony from skilled

       witnesses, and other competent forms of evidence. See, e.g., City of Carmel v.

       Leeper Elec. Servs, Inc., 805 N.E.2d 389, 394-95 (Ind. Ct. App. 2004) (accepting

       as competent but not dispositive evidence testimony concerning the purchase

       price of land taken in a condemnation), trans. denied; Wiese-GMC, Inc. v. Wells,

       626 N.E.2d 595, 599-600 (Ind. Ct. App. 1993) (remanding to the trial court for

       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 5 of 18
       recalculation of damages from evidence properly before the trial court), trans.

       denied. Nevertheless, a plaintiff should not receive a recovery that constitutes a

       windfall. Dado v. Jeeninga, 743 N.E.2d 291, 294 (Ind. Ct. App. 2001).

       However, the plaintiff need not bear the burden of negating the possibility of a

       windfall; that burden falls on the defendant. Id. at 295.


[14]   Here, Bokori argues that the trial court erred in awarding Martinoski

       compensation of $5,446.08, representing the difference between the total

       purchase price of the car, which was less than six months old at the time of the

       accident, and what Bokori argues is the fair market value 1: the amount of

       money Bokori’s insurer and Martinoski’s insurer negotiated between

       themselves as a suitable measure of compensation to be paid to Toyota

       Financial Services for the destruction of the car. Put another way, Bokori

       argues what the fair market value is and which evidence the trial court should

       have relied upon, though he couches it as a legal issue.


[15]   The trial court was presented with several items of evidence: Martinoski’s

       testimony about the recent purchase price of the vehicle in a retail transactional

       setting, documentation to that effect in the form of an acceleration statement

       from Toyota Financial Services, and a market value report used in settlement

       negotiations between the parties’ insurers. Assessing the evidence at the end of

       the trial, the court stated: “At the end of the day the question is whether or not



       1
        A comparatively de minimis portion of the judgment was ordered to compensate Martinoski for court costs
       and late fees associated with Toyota Financial Services’ collection efforts against her.

       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017                   Page 6 of 18
       the affirmative defense of free market value or fair market value’s been

       established; it hasn’t. Not under the case law I’ve seen…. I, I admitted it [the

       insurance valuation], but with no proponent for it, I’m not satisfied that it’s

       sufficient to get there.”2 (Tr. at 30-31.)


[16]   Thus, the trial court heard evidence of fair market value and, acting within its

       role as fact-finder, weighed the evidence before it. The trial court concluded

       that Martinoski’s evidence of fair market value—taking the form of her

       testimony and the acceleration statement from Toyota Financial Services—was

       more credible than Bokori’s proffered evidence, which took the form of the

       valuation report used in settlement discussions by the parties’ insurers. The

       court’s determination of damages was within the range of evidence presented at

       trial, and whether Bokori’s evidence was worthy of credit was a matter within

       the trial court’s purview. That Bokori characterizes his position as a question of

       law is not determinative: his argument at bottom requests that we reweigh the

       trial court’s assessment of the weight and credibility of the evidence before it.

       We are not at liberty to do so. See Heartland Crossing Found., 976 N.E.2d at 762.


[17]   The dissent sees this differently. Noting that Martinoski leased the vehicle and

       accepted a personal injury-related settlement, the dissent would hold that




       2
         The trial court’s reference to an affirmative defense appears to refer to this Court’s decision in Dado. It was
       not incumbent upon Bokori to establish fair market value, though he was certainly permitted to offer such
       evidence. See Dado, 743 N.E.2d at 295. Rather, it was incumbent upon Bokori to establish that Martinoski
       would be compensated excessively if she received as fair market value the amount of money she had
       requested as damages. See id.

       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017                          Page 7 of 18
       Martinoski incorrectly sought compensation for property damage to a car for

       which she was not entitled to receive any kind of payment. The dissent also

       argues that the negotiated amount Toyota Financial received was the fair

       market value for the destroyed vehicle.


[18]   We might agree with the dissent were the evidence and arguments in this case

       other than what they are. The dissent’s argument that Martinoski cannot

       recover for damages related to a leasehold—something apparently akin to

       arguing that Martinoski lacks a claim for which relief can be granted under

       Trial Rule 12(B)(6)—is not an argument Bokori made at trial. And, because it

       is outside our role to advocate for a party, issues not raised by a party are

       waived. Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App.

       2014), trans. denied, cert. denied. Here, Bokori has essentially conceded that

       Martinoski was entitled to pursue this claim. See Ind. Trial Rule 15(B)

       (providing that issues not raised in the pleadings but tried by express or implicit

       consent of the parties “shall be treated in all respects as if they had been raised

       in the pleadings”).


[19]   Thus, Bokori’s appeal focuses solely on the question of the trial court’s

       determination of fair market value. That Martinoski was not the owner of the

       vehicle does not ipso facto preclude the trial court from hearing or crediting her

       testimony as to the value of the vehicle, just as surely as Martinoski not owning

       the vehicle did not preclude her from obtaining insurance. Simply put, she had

       a contractual interest in the vehicle’s use, and thus a financial stake in any

       resulting payout for damage to the vehicle. We are not at liberty to aid Bokori,

       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 8 of 18
       a party represented by counsel in a small claims case, by creating arguments for

       him, and we are thus not at liberty to take the dissent’s path.


[20]   Nor are we at liberty to presume knowledge of the contents of any of a number

       of documents that might, had Bokori introduced them into evidence, have

       precluded a recovery. The record includes testimony concerning the existence

       of a lease and its term. But the lease document itself was not introduced into

       evidence, and thus we cannot properly rely on what it might say as introducing

       a bar to Martinoski’s recovery. There is also no evidence about the extent to

       which some or all of Martinoski’s claims were subrogated either to Toyota

       Financial or her insurer. Martinoski testified that she signed some form of a

       settlement agreement and received a relatively nominal amount of

       compensation for her personal injuries, but she was unable to testify to or

       explain any of the settlement beyond that. Rather, Martinoski testified only

       that she was led to believe that Progressive would pay the entirety of the lease

       balance, and Bokori did not introduce a settlement agreement that might have

       served to preclude a claim by Martinoski by means of subrogation. Any of

       these might have yielded a different result at trial—but Bokori did not make

       such arguments or rely upon any of these documents.


[21]   We are left, then, to resolve the appeal with the evidence presented at trial—

       Martinoski’s testimony, the invoice from Toyota Financial that Martinoski

       introduced into evidence, and the market survey Bokori introduced into

       evidence—and the argument Bokori actually made on appeal, which focuses

       only on the trial court’s determination of fair market value. Bokori’s argument,

       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 9 of 18
       cloaked as a legal question, actually challenges the trial court’s determination of

       weight and credibility: Bokori suggests as a legal conclusion that an insurance

       market value report, supported by no testimony to explain how it was generated

       or its assumptions, is determinative of value—even as Martinoski provided

       testimony concerning the underlying purchase transaction for the vehicle and

       supporting documentation from Toyota Financial. Such an argument does not

       rise to the level of prima facie error required to obtain a reversal here, and its

       invitation to reweigh evidence is one we cannot take up.


[22]   Bokori worries in his brief that flexibility in the measurement of market value

       would impose unreasonable damages. But the argument that Martinoski, as a

       lessee, could not provide evidence as to the value of the vehicle leads to a rule

       creating the possibility that lessees in the future could be subject to the whims of

       settlement discussions. Here, for example, the money paid to Toyota Financial

       was the result of a negotiated amount between two insurers. If the insurance

       companies had negotiated a settlement of $10,000, the dissent’s rationale would

       leave Martinoski with more than $12,000 in debt owed to Toyota Financial—

       not the nearly $6,000 at issue here—and with no apparent recourse. Moreover,

       the restriction Bokori suggests cuts against the relaxed evidentiary rules that

       advance the goal of efficient disposition of small claims cases. The fact finder is

       free to accept, reject, or determine a value within the range of values presented

       by the parties, Cox v. Matthews, 901 N.E.2d 14, 24 (Ind. Ct. App. 2009), trans.

       dismissed, but the plaintiff is not obliged to sit silently while her interest is totally

       excluded from consideration by the finder of fact.


       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 10 of 18
[23]   Had Bokori presented other arguments or introduced other evidence, our result

       might have been different. But we are not bound to do a litigant’s work, and we

       are not at liberty to reargue the case or reweigh evidence. We therefore affirm

       the trial court’s judgment.


[24]   Affirmed.


       Brown, J., concurs.
       Barteau, Sr. J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 11 of 18
       ATTORNEY FOR APPELLANT
       Brian R. Gates
       Jones Obenchain, LLP
       South Bend, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Jason Bokori,                                              February 15, 2017
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  45A03-1603-SC-519
               v.                                                 Appeal from the Lake Superior
                                                                  Court.
       Jasmina Martinoski,                                        The Honorable Michael Pagano,
                                                                  Magistrate.
       Appellee-Plaintiff.                                        Cause No. 45D09-1512-SC-2356




       Barteau, Senior Judge, dissenting


[25]   The majority concludes that appellate review and disposition of this case hinges

       on the sufficiency of the evidence of fair market value, and would dispose of

       this case as an impermissible request by Jason Bokori to reweigh that evidence.

       I believe that the trial court did not appropriately apply the law, committing

       clear error, and, therefore, I must respectfully dissent.


[26]   Financial choices made by individuals often lead to outcomes that seem unfair

       or inequitable. When that happens, it is natural to seek recourse against those
       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017            Page 12 of 18
       perceived to be at the source of the unfairness or inequity. I am not

       unsympathetic to the plight of Jasmina Martinoski, a single mother, who had

       leased her 2013 Toyota Corolla from Toyota Financial Services just five months

       before she was involved in a vehicular accident for which Bokori was legally

       determined to be completely at fault. Indeed, she refused medical treatment

       because, just a short time prior to the Christmas holiday, she could not afford to

       take time off work. Instead, she chose to accept the nominal amount tendered

       by insurance as compensation for her physical injuries and relied upon verbal

       representations by a Progressive claims adjuster named Dan McKee that her

       property loss would be completely covered. Tr. pp. 7-9.


[27]   Nationwide, her insurance company, determined that the leased vehicle was a

       total loss, and paid Toyota Financial Services $17,530.44 for it. Toyota

       Financial received and accepted that amount as the negotiated price, which it

       designated as salvage, for the vehicle. See Plaintiff’s Ex. 2. Pursuant to statute,

       a lessor, such as Toyota Financial, gives a lessee, such as Martinoski, the right

       to use and possess a vehicle for consideration for a specific period, with the

       option to become the owner at the end of the term. See Ind. Code § 24-5-16.5-4

       (2015). Consequently, since the vehicle was destroyed five or six months into

       the three-year lease, Toyota Financial was the owner of the vehicle, and

       received and accepted a negotiated payment for the vehicle. Thus, the

       compensatory damages arising from the tort had been recovered by the owner.

       See Restatement (Second) of Torts §§ 901, 927 (1979)).




       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 13 of 18
[28]   Martinoski, however, was left with a $5,146.08 obligation remaining on her

       lease agreement with Toyota Financial—the shortfall between the lease amount

       and the insurance payoff—an amount which she could not afford to pay after

       purchasing a new Toyota vehicle, and an amount she testified she believed, but

       had nothing in writing to that effect, that Progressive, Bokori’s insurer, and

       Nationwide, her insurer, would cover between them. She asked Nationwide to

       re-open her claim when Toyota Financial Services proceeded to attempt to

       collect the remaining debt and late fees from her pursuant to the lease

       agreement. Nationwide subsequently dropped her coverage.


[29]   Martinoski, who appeared in small claims court pro se because she could not

       afford an attorney, clarified for the court that she was only seeking

       compensation for property damage. When the trial court asked if she was

       seeking compensation for medical bills, she replied, “right now it was the

       property damage.” Tr. p. 6. The trial court summed up her response by noting,

       “just property damage; all right.” Id. However, Martinoski testified to the

       amount remaining on the lease for her totaled vehicle, the late fees assessed by

       Toyota Financial against her for failure to make payments, and the costs

       associated with bringing the small claims action.


[30]   On cross-examination by counsel for Progressive, Bokori’s insurer, Martinoski

       was asked, “You’re not contending that this amount, the $22,676.52 represents

       the fair market value of your vehicle at the time that it was actually totaled, are

       you?” Id. at 24. Martinoski replied, “I don’t understand that. I know I leased

       the vehicle. I’d never leased a vehicle. Whatever it was, that’s what I signed the

       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 14 of 18
       lease for and I was supposed to return it after three years.” Id. Progressive’s

       counsel further argued, using Martinoski’s Exhibit 2, “Okay. Okay; but, here

       again, it’s showing a selling price of $17,530.44 that your vehicle was traded

       into Toyota, or that Toyota received to pay it off after the accident, correct?”

       Id. at 24-25. Thus, it is clear that Martinoski was actually seeking to be

       compensated not just for the salvage value of the car, but also for the amount of

       her contractual obligation under the lease agreement. It is equally clear that

       Bokori, through counsel for Progressive, was arguing that Martinoski had been

       fully compensated for her tort claim against him, that her small claims action

       emanated from the contractual obligations under her lease agreement with

       Toyota Financial, and that recovery of further damages from Bokori, the

       tortfeasor, would therefore result in a windfall to her.


[31]   “Generally speaking, damages for total destruction to personal property are

       measured by the fair market value of the property at the time of loss.” Ridenour

       v. Furness, 546 N.E.2d 322, 325 (Ind. Ct. App 1989). This is a longstanding

       precept of tort law. “Fair market value is the price at which property would

       change hands between a willing buyer and seller where neither is under any

       compulsion to consummate the sale.” Brown v. Ind. Family & Soc. Servs. Admin.,

       45 N.E.3d 1233, 1238-39 (Ind. Ct. App. 2015). Undoubtedly, the victim of the

       total destruction of property by a tortfeasor, can hardly be called a willing seller.

       Nonetheless, that is the legal standard to be applied. “The burden of proving

       the value of goods destroyed by another is upon the complainant.” Campins v.




       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 15 of 18
       Capels, 461 N.E.2d 712, 719 (Ind. Ct. App. 1984) (citing So. Ind. Gas & Elec. Co.

       v. Ind. Ins. Co., 178 Ind. App. 505, 383 N.E.2d 387 (Ind. 1978)).


[32]   The trial court held that without a proponent for Defendant’s Exhibit 1, there

       was insufficient evidence of the fair market value of the leased vehicle. Using

       the trial court’s rationale, if fair market value was not established, then

       Martinoski was not entitled to an award of damages. The burden was on

       Martinoski to establish the value. Campins, 461 N.E.2d at 719. Bokori’s burden

       was to establish that Martinoski would be excessively compensated by the

       award of the damages requested. See Dado v. Jeeninga, 743 N.E.2d 291, 295

       (Ind. Ct. App. 2001). If there was insufficient evidence of fair market value of

       the leased vehicle, then the burden never shifted to Bokori to establish excessive

       compensation.


[33]   Under my reading of the evidence, it is clear that Martinoski sought to recover

       from Bokori the amount she owed Toyota Financial under the lease. Bokori

       did not cause her to incur that loss. Instead, he only deprived Toyota Financial

       of the value of the car itself, for which Toyota Financial was compensated.


[34]   I find persuasive the rationale set forth in Harris v. Peters, 653 N.E.2d 1274 (Ill.

       App. Ct. 1995). In that case, the lessee of a vehicle was involved in a collision,

       resulting in the total destruction of the vehicle. Harris, the lessee, received from

       his insurer a check for the fair market value of the vehicle. He signed over the

       check to the leasing company, which applied that amount against the balance

       due under the lease agreement. UB, the leasing company, filed a complaint


       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 16 of 18
       against Harris for the balance due on the lease. Harris filed an answer and

       third-party complaint against Peters, the tortfeasor, and his insurer seeking a

       judgment for damages in the amount of any judgment entered against Harris in

       the underlying action against him. Put differently, Harris sought the difference

       between the fair market value of the vehicle and the amount due under the

       vehicle’s lease agreement. The tortfeasor filed a motion to dismiss the count

       against him, which was granted, and Harris voluntarily dismissed the count

       against Peters’ insurer.


[35]   On appeal, the issue presented was whether the trial court correctly dismissed

       Harris’ third-party complaint against Peters after finding that Harris was

       properly compensated for the property loss he suffered in the accident. The

       Illinois Court of Appeals followed the language of the Restatement, finding that

       compensatory damages arising from damages sustained through a tort are

       measured as the fair market value of the property immediately prior to its

       destruction. 653 N.E.2d at 1275. The trial court’s dismissal was affirmed

       because to force the tortfeasor to pay off the lease would result in a windfall to

       Harris, who had the obligation to pay off the lease prior to the accident. Id. at

       1276. “The negative net is the ‘benefit of the bargain’ Harris negotiated with

       UB and was in no way under the control of Peters and, consequently, a loss

       which does not flow directly from the tort committed by Peters and therefore

       not recoverable.” Id.


[36]   This argument was made by Bokori during the small claims court hearing and

       on appeal. See Appellant’s Br. p. 5 (“Fair market value is not the sum still owed

       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 17 of 18
       on a vehicle under a lease or a car loan. . . . Martinoski’s mistaken legal theory

       was that Bokori owed her the difference between what she owed on the lease

       and what her insurer had paid for the vehicle when it was totaled (i.e.,

       $17,530.44)”); Tr. pp. 18-19 (“Because it’s not our obligation….The standard

       measure of damages that she’s entitled to recover for total destruction of

       personal property is the fair market value of the item at the time that it was

       destroyed. That’s what she received.”). Consequently, this question of law was

       not waived at trial and is not waived for our review.


[37]   Martinoski had a remaining contractual liability on the leased vehicle that was

       totally destroyed as a consequence of Bokori’s tortious actions. Although the

       result of the financial choices made seems to lead to a harsh result, Martinoski

       has no legal remedy against Bokori for her contractual liability under the lease

       agreement. For these reasons, I must respectfully dissent from the majority

       opinion affirming the trial court’s decision.




       Court of Appeals of Indiana | Opinion 45A03-1603-SC-519 | February 15, 2017   Page 18 of 18
