                                                                                     FILED
                                                                             Jun 13 2018, 10:13 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      APPELLANT PRO SE
      Brian K. Wynne
      Michigan City, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Brian K. Wynne,                                            June 13, 2018
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 41A04-1710-SC-2363
              v.                                                 Appeal from the Johnson Superior
                                                                 Court
      Tyson Burris and Brian K. Alsip,                           The Honorable Kevin Barton,
      Appellees-Defendants                                       Judge
                                                                 Trial Court Cause No.
                                                                 41D01-1702-SC-741



      Altice, Judge.


                                                 Case Summary


[1]   Brian K. Wynne filed a small claims action against Tyson Burris and Burris’s

      attorney, Brian K. Alsip. The trial court found in favor of Burris and Alsip and

      determined that Wynne’s claims were brought in bad faith. Accordingly, the

      trial court assessed attorney fees against Wynne. Wynne now appeals pro se

      raising the following issues:

      Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018                           Page 1 of 12
              1. Did the trial court abuse its discretion by admitting into
                 evidence recorded jail telephone calls between Wynne and his
                 girlfriend, Barbara Mooney?


              2. Does the evidence support the trial court’s conclusion that
                 Wynne had given Mooney actual authority to act as his agent
                 regarding the settlement with Burris?


              3. Should Alsip have been permitted to represent himself in this
                 action?


              4. Did the trial court err by rejecting Wynne’s negligence claim
                 against Alsip?


[2]   We affirm.


                                        Facts & Procedural History


[3]   On January 28, 2015, Wynne began work on a home improvement project at

      Burris’s home, which included the removal of flooring, demolition of a wall,

      and installation of new flooring. Wynne did not provide Burris with a written

      agreement or set a price but stated that the labor cost would not exceed $2500.

      Wynne worked over the next several days, appearing progressively later each

      day. Burris felt that the project was taking too long, and Burris started to notice

      “red flags.” Transcript at 54.


[4]   During the project, Wynne unexpectedly brought a set of kitchen appliances to

      Burris’s home to sell to him and his wife. Burris began to suspect that the

      appliances had been stolen and decided to contact local authorities. He learned


      Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018   Page 2 of 12
      that Wynne was a suspect in a recent burglary. Burris provided a detailed

      statement to the Johnson County Sheriff’s Office. Thereafter, on February 3,

      2015, Wynne was arrested for burglary while working at Burris’s home. As a

      result of his arrest, Wynne did not finish the project. Burris eventually hired

      others to complete the work.


[5]   Wynne bonded out of jail and then tried to contact Burris regarding the project.

      Burris refused his calls but communicated with Wynne via text. They discussed

      a payoff amount, and Burris directed Wynne to contact Alsip, Burris’s attorney,

      to complete the settlement. Burris provided Alsip with a cashier’s check made

      out to Wynne. Alsip and Wynne arranged to meet at Alsip’s office, and Wynne

      understood that he would need to sign a release in order to receive the check.

      This scheduled meeting, however, did not occur because Wynne was arrested

      on a warrant that same day.


[6]   While in jail, Wynne made phone calls to Mooney, his longtime girlfriend.

      Wynne indicated on a number of occasions that he wanted Mooney to pick up

      the check, as well as handle other matters for him. In one phone call, Wynne

      reminded Mooney that she had his power of attorney (POA), and he referenced

      the POA in another recorded call. With respect to the check from Burris,

      Wynne directed Mooney as follows:


              If you get a check from [Burris] all you do is sign my name on
              the back of it, take it to the ATM machine and deposit it, ok.
              That way you don’t have to put your name on it, no one’s going
              to question it, it’s gonna go straight in and you should, in a day,
              you should have access to the money, ok.

      Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018      Page 3 of 12
      Id. at 106. Mooney understood from her discussions with Wynne that the

      amount of the settlement check was to be $1400.


[7]   The POA Wynne referenced was obtained by Mooney at the jail on February

      17, 2015, in order to get Wynne’s vehicle out of the tow lot. The POA form

      was provided by the jail, and a deputy took the form to Wynne, who had

      verbally assented to the POA. Wynne then printed his own name twice and

      Mooney’s name once in the appropriate blanks on the form. Wynne, however,

      did not sign his name on the signature line or list his social security number.

      The form was returned to Mooney. She filled out the few remaining blanks and

      mistakenly signed the form and listed her social security number where Wynne

      should have done so. The form was then presented to Deann Judd, an

      employee of the sheriff’s office who was also a notary. Judd notarized the POA

      form without personally observing the form being signed or completed.


[8]   As directed by Wynne, Mooney contacted Burris to complete the settlement.

      Mooney met with Alsip on March 23, 2015, and presented him with the POA

      and her driver’s license. She also signed an affidavit prepared by Alsip

      regarding the settlement agreement and the POA. Mooney then signed the

      Settlement Agreement and General Release (the Agreement) on Wynne’s

      behalf, and Alsip gave her the $1400 cashier’s check made payable to Wynne.


[9]   On February 24, 2017, Wynne filed a small claims action against Burris for

      services rendered and Alsip for negligence in releasing the cashier’s check to




      Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018   Page 4 of 12
       Mooney. The basis of Wynne’s claims was that the POA was “invalid and

       possibly forged”. Appendix at 9.


[10]   On August 16, 2017, Wynne appeared telephonically from prison and

       represented himself at trial. Burris was represented by counsel, and Alsip

       represented himself. The trial court took the matter under advisement and then

       issued a detailed order on September 9, 2017.


[11]   Despite concluding that the POA was invalid,1 the trial court determined that

       both Wynne and Mooney believed that Wynne had appointed Mooney as his

       attorney in fact and that Wynne authorized her to obtain the settlement check

       on his behalf. Thus, the court concluded that Wynne had provided Mooney

       with actual authority to act as his agent in this matter, and Wynne could not

       now seek to avoid the Agreement. Further, with respect to the negligence claim

       against Alsip, the court determined that Alsip did not owe Wynne a duty of

       ordinary care because he represented Burris, not Wynne. In addition to

       entering judgment in favor of Burris and Alsip on Wynne’s claims, the court

       granted Burris’s request for attorney fees, explaining:


               Mr. Wynne empowered Ms. Mooney to act on his behalf under
               actual authority. After clearly instructing Ms. Mooney to accept
               the settlement on his behalf, Mr. Wynne now asserts that she had
               no authority as a result of the failure of the Johnson County
               Sheriff’s Department to get a form properly signed and notarized.



       1
        The court concluded that the POA was invalid under Ind. Code § 30-5-4-1 because it was not signed by
       Wynne and not properly notarized.

       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018                      Page 5 of 12
               While a valid power of attorney was not created, Mr. Wynne
               ignores his own actions in vesting Ms. Mooney with actual
               authority. The litigation has been brought in bad faith.


       Id. at 57-58. Wynne now appeals. Additional information will be provided

       below as needed.


                                            Discussion & Decision


                                          1. Admission of Evidence


[12]   Wynne contends that the trial court abused its discretion by admitting into

       evidence the recorded telephone conversations from the jail between him and

       Mooney. He asserts that these calls were confidential and that Alsip obtained

       them by “undocumented means.” Appellant’s Brief at 13. Wynne raises a litany

       of specific challenges to this evidence on appeal, but he only objected on two

       grounds below. We will therefore limit our review to those two preserved

       arguments.


[13]   Wynne’s first objection to this evidence was that the recorded jail calls had not

       been disclosed to him in discovery. Contrary to Wynne’s assertion below,

       “automatic discovery” does not occur in small claims actions. Transcript at 100.

       Ind. Small Claims Rule 6 pertains to discovery and provides:


               Discovery may be had in a manner generally pursuant to the
               rules governing any other civil action, but only upon the approval of
               the court and under such limitations as may be specified. The court
               should grant discovery only upon notice and good cause shown
               and should limit such action to the necessities of the case.

       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018    Page 6 of 12
       Id. (emphasis supplied). Our review of the record, reveals that Wynne did not

       request discovery in this action. Accordingly, he cannot be heard to complain

       that he was unaware that Alsip had copies of these recorded phone

       conversations.


[14]   Further, we remind Wynne of the informal nature of small claims hearings, as

       set out in Ind. Small Claims Rule 8(a):


               The trial shall be informal, with the sole objective of dispensing
               speedy justice between the parties according to the rules of
               substantive law, and shall not be bound by the statutory
               provisions or rules of practice, procedure, pleadings or evidence
               except provisions relating to privileged communications and
               offers of compromise.


       With this in mind, Wynne’s various technical claims of alleged discovery

       violations and his reliance on the Indiana Trial Rules are misplaced. The trial

       court did not abuse its discretion by admitting this relevant and probative

       evidence at the small claims hearing over Wynne’s objection.


[15]   Next, Wynne argued below that the recordings violated the “Wiretap Act of

       Indiana” because Alsip “illegally intercepted wiretap [sic] without

       authorization through a search warrant or any other means.” Transcript at 101.

       On appeal, he makes the unsupported assertion that Mooney had to have

       expressly consented to the calls being recorded in order for them to be

       admissible.




       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018     Page 7 of 12
[16]   The recording of a communication with the consent of either the sender or the

       receiver is not an interception, as defined by the Indiana Wiretap Act. See Ind.

       Code § 35-31.5-2-176; see also Edwards v. State, 862 N.E.2d 1254, 1261-62 (Ind.

       Ct. App. 2007) (recipient of jail call consented to recording by accepting the call

       after hearing admonishment that call may be recorded or monitored), trans.

       denied. Here, the evidence establishes that Mooney was aware that the jail calls

       were being recorded, and she still accepted them. Additionally, Wynne

       acknowledges that the calls included “an automated voice that tells the called

       party that the phone call may be recorded.” Appellant’s Brief at 24. Under these

       circumstances, Mooney consented to the recording when she accepted the

       collect calls after being warned that the calls could be recorded. See Steinberg v.

       State, 941 N.E.2d 515, 523 (Ind. Ct. App. 2011), trans. denied. The recordings

       were, therefore, not in violation of the Indiana Wiretap Act and were

       admissible. See id.; Edwards, 862 N.E.2d at 1262.


                                                2. Actual Agency


[17]   Wynne next argues that the evidence does not support the trial court’s

       conclusion that Wynne had given Mooney actual authority to act as his agent

       regarding the settlement. Wynne’s argument amounts to a request for us to

       reweigh the evidence, which we cannot do.


[18]   While the trial court entered findings of fact and conclusions thereon, Ind. Trial

       Rule 52(A) does not apply to small claims actions. The entry of special findings

       is contrary to the policy enunciated in Small Claims Rules 8 and 11. See


       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018   Page 8 of 12
       Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995). Thus, a small claims court

       cannot be required to enter special findings, and we do not apply a two-tiered

       standard of review in a small claims appeal. But where, as here, a small claims

       court elects sua sponte to enter findings and conclusions, they aid our review by

       providing us with a statement of the reasons for the trial court’s decision. We,

       however, apply our usual standard of review: “[w]e consider evidence in the

       light most favorable to the judgment, together with all reasonable inferences to

       be drawn therefrom. We will reverse a judgment only if the evidence leads to

       but one conclusion and the trial court reached the opposite conclusion.” See

       Vance v. Lozano, 981 N.E.3d 554, 558 (Ind. Ct. App. 2012) (citing Berryhill v.

       Parkview Hosp., 962 N.E.2d 685, 689 (Ind. Ct. App. 2012)).


[19]   Here, the trial court determined that Wynne conferred actual authority to

       Mooney to act on his behalf with respect to the settlement with Burris. An

       actual agency relationship is established by three elements: “(1) a manifestation

       of consent by the principal to the agent; (2) an acceptance of the authority by

       the agent; and (3) control exerted by the principal over the agent.” Douglas v.

       Monroe, 743 N.E.2d 1181, 1186 (Ind. Ct. App. 2001). “These elements may be

       proven by circumstantial evidence, and there is no requirement that the agent’s

       authority to act be in writing.” Demming v. Underwood, 943 N.E.2d 878, 884

       (Ind. Ct. App. 2011), trans. denied. The question of whether an agency

       relationship exists is generally a question of fact. Id.


[20]   The facts and reasonable inferences favorable to the judgment reveal that

       Wynne partially filled out a form at the jail in an attempt to grant Mooney a

       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018   Page 9 of 12
       general POA, which Mooney needed in order to get his vehicle out of the tow

       lot. Thereafter, in phone conversations with Mooney, Wynne referred to the

       POA and “reiterate[d] numerous times that [she was] his power of attorney.”

       Transcript at 99. According to Mooney, he authorized and instructed her to

       obtain a check for $14002 from Burris. Wynne then detailed what she was to do

       with the check, indicating that she should endorse it with his name and then

       deposit it into an ATM so that no questions are asked. Further, the record

       indicates that Wynne understood that in exchange for the check from Burris a

       release was required to be signed.


[21]   As Wynne instructed, Mooney went to Alsip’s office to obtain the $1400

       settlement check. She presented Alsip with the POA and signed an affidavit

       indicating that she had full authority to settle the claims between Wynne and

       Burris and to accept the settlement check on Wynne’s behalf. Mooney then

       executed the Agreement, and Alsip gave her the check made payable to Wynne.


[22]   These facts amply support the trial court’s conclusion that Mooney acted with

       actual authority. Wynne’s arguments to the contrary are improper requests for

       us to reweigh the evidence.


                                       3. Alsip’s Self-Representation




       2
        This was an amount that Burris and Wynne had previously discussed, and Mooney was “just kind of
       middle man” due to Wynne’s incarceration. Transcript at 117.

       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018                  Page 10 of 12
[23]   As he did below, Wynne argues that Alsip was precluded from representing

       himself in this small claims action pursuant to S.C.R. 8(C)(3), which states:

               Corporate Entities, Limited Liability Companies (LLC’s), Limited
               Liability Partnerships (LLP’s). All corporate entities, Limited
               Liability Companies (LLC’s), and Limited Liability Partnerships
               (LLP’s) may appear by a designated full-time employee of the
               corporate entity in the presentation or defense of claims arising
               out of the business if the claim does not exceed one thousand five
               hundred dollars ($1,500.00). However, claims exceeding one
               thousand five hundred dollars ($1,500.00) must be defended or
               presented by counsel.


       Wynne asserts that “Alsip as an attorney is designated as a Professional

       Corporation” and was required to be represented by legal counsel because

       Wynne’s claims exceeded $1500. Appellant’s Brief at 42. As the trial court

       observed, however, Wynne sued Alsip as an individual. Accordingly, Alsip

       was properly permitted to represent himself in the small claims action.


                                                  4. Negligence


[24]   Finally, Wynne contends that the trial court erred in denying his negligence

       claim against Alsip. Wynne asserts that the POA was invalid on its face and,

       therefore, Alsip was negligent when he released the check to Mooney and

       “failed to engage in a thorough investigation of the validity of the POA”. Id. at

       52. Wynne’s lengthy arguments on this point are difficult to follow but all boil

       down to a fundamental misunderstanding of duty.




       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018   Page 11 of 12
[25]   Acknowledging that Alsip represented Burris in the settlement, Wynne asserts

       that “Alsip owed a general duty to Burris to exercise ordinary skill and

       knowledge as an attorney when he released the check to Mooney.” Id. at 49.

       Indeed, Alsip owed this duty to Burris – his client. See Rice v. Strunk, 670

       N.E.2d 1280, 1283-84 (Ind. 1996) (setting out elements of an attorney

       malpractice claim, including that a client’s employment of attorney creates a

       duty to “exercise ordinary skill and knowledge”). But Wynne’s attempt to slide

       into the shoes of Burris is clearly untenable. Alsip did not owe a corresponding

       duty of care to Wynne. See generally KeyBank Nat’l Assoc. v. Shipley, 846 N.E.2d

       290, 296-300 (Ind. Ct. App. 2006) (addressing the privity requirement in

       attorney negligence cases), trans. denied. The trial court properly entered

       judgment in favor of Alsip on the negligence claim. 3


[26]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




       3
         Wynne asserts that the trial court improperly acted as an advocate for Alsip by developing a defense for
       him that was not pled as an affirmative defense. This argument ignores the informal nature of small claims
       hearings. See S.C.R. 8(A). Further, Ind. Small Claims Rule 5(A) expressly provides that “[a]ll defenses shall
       be deemed at issue without responsive pleadings”.

       Court of Appeals of Indiana | Opinion 41A04-1710-SC-2363 | June 13, 2018                        Page 12 of 12
