MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Jan 18 2017, 8:16 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
R. Steven Bom
LaPorte, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

County Motors, LLC, and                                    January 18, 2017
Thomas Kouttoulas,                                         Court of Appeals Case No.
Appellants-Defendants,                                     46A03-1604-SC-898
                                                           Appeal from the
        v.                                                 LaPorte Superior Court
                                                           The Honorable
Clarence Russell, Jr., and    1
                                                           Jeffrey L. Thorne, Judge
Angela Sullivan,                                           Trial Court Cause No.
Appellees-Plaintiffs.                                      46D03-1510-SC-2144




Kirsch, Judge.




1
  We note that the record before us indicates that Clarence Russell, Jr. passed away during the pendency of
this appeal. We include him on the caption because, under the Indiana Rules of Appellate Procedure, a party
of record in the trial court is a party on appeal. Ind. Appellate Rule 17(A).

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017              Page 1 of 20
[1]   Thomas Kouttoulas (“Kouttoulas”) and County Motors LLC (“the dealership”)

      (together, “Sellers”) appeal the small claims court’s judgment, which found in

      favor of Clarence Russell, Jr. (“Russell”) and Angela Sullivan (“Sullivan”)

      (together, “Buyers”) on their claim against Sellers stemming from Russell’s

      purchase of a vehicle from the dealership.2 Sellers raise four issues that we

      consolidate and restate as:


                 I. Whether the trial court erred when it determined that the
                 Sellers’ conduct created an express warranty such that, pursuant
                 to Indiana Code section 26-1-2-316(1), any written disclaimer or
                 limitation of warranties was inoperative; and


                 II. Whether the trial court’s determination of damages was
                 supported by the evidence.


[2]   We affirm.


                                      Facts and Procedural History
[3]   The facts most favorable to the judgment are that, in August 2016, Russell went

      to the dealership and spoke with Kouttoulas, the salesperson at the dealership. 3

      Russell told Kouttoulas that he was looking for a truck to purchase because he

      was moving to Florida and needed a vehicle that he could drive there. Russell

      also told Kouttoulas that he needed a vehicle that could haul a trailer. Tr. at 13,



      2
        Appellants’ brief indicates that County Motors LLC and Kouttoulas are, together, appealing the small
      claims court’s decision, although, as we later discuss, Kouttoulas has no liability under the small claims
      court’s judgment.
      3
          The record before us indicates that Thomas Kouttoulas’s sister is the owner of the dealership. Tr. at 30, 36.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017               Page 2 of 20
      32, 41. Kouttoulas then directed Russell to a 1999 Chevrolet pick-up truck

      (“the Truck”), which was in the dealership’s garage and was the only pick-up

      truck that the dealership had in its inventory at that time. According to Russell,

      Kouttoulas advised Russell that the Truck’s brake line was broken and that

      Sellers would make that repair. With Kouttoulas’s permission, Russell took the

      vehicle for a test drive that day,4 but Russell did not buy the Truck at that time.


[4]   About two weeks later, after being told that the brake line on the Truck had

      been repaired, Russell returned to the dealership on August 26, 2015, and

      purchased the Truck. He signed a one-page “Bill of Sale; Sale Contract;

      Security Agreement; and Disclosure Statement” (“Bill of Sale”) and a one-page

      Buyers Guide (“Buyers Guide”), both of which contained language that the

      vehicle was being sold “AS IS” and that the buyer would bear any costs of

      repairs that the vehicle might need. Defendants’ Exs. A, B. The purchase price

      of the Truck was $2,900. Defendants’ Ex. A. Russell traded in a 2000 Dodge

      Grand Caravan (“the Caravan”), for which Sellers gave Russell a $1,000 credit

      toward the purchase price of the Truck, and Russell also made a down payment

      of $500; the balance due at the time of the sale, with taxes and fees, was $1,548.

      Id.


[5]   After purchasing the Truck, Russell immediately took it for an oil change at

      another local car dealership (“Sauer Buick”). Sauer Buick advised Russell that



      4
        Sellers argue, and Kouttoulas testified, that Russell had the Truck inspected by a relative on the day he took
      it for a test drive, but Russell did not testify to having it inspected that day.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017             Page 3 of 20
      the timing chain on the Truck needed to be replaced. Tr. at 14. Russell spoke

      to Kouttoulas about the timing chain issue, and Kouttoulas told Russell “to find

      a mechanic to do it” and that he would “take it off [Russell’s] payments at the

      end[.]” Id. at 15, 18.


[6]   Shortly thereafter, Russell noticed that the Truck was “running a little rough,”

      so Buyers contacted a man named Chad Hathaway (“Hathaway”), who had

      fifteen years of experience as a mechanic,5 and asked Hathaway to inspect the

      Truck. Id. at 16. About four days after Russell had purchased the Truck,

      Hathaway inspected and serviced it, discovering a number of mechanical issues

      with the Truck that made it unsafe to drive. Thereafter, Russell and Sullivan

      returned to the dealership and attempted to speak to Kouttoulas about the

      situation, but Kouttoulas was unwilling to discuss the matter.


[7]   Thereafter, Buyers filed a complaint in small claims court concerning the Truck,

      and Sellers filed a counter-claim for breach of contract and a claim for breach of

      implied warranty on the traded-in Caravan.6 In January 2016, the small claims

      court held a bench trial, at which it received testimony and evidence from the

      parties.




      5
       At the time of trial, Hathaway was not employed as a mechanic and worked in another industry, but had
      been doing mechanic work “on the side” for about fifteen years. Tr. at 12.
      6
       We do not have a copy of the complaint or Sellers’ counterclaim and, thus, do not know the dates of filing
      or the exact allegations.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017          Page 4 of 20
[8]   At trial, Russell explained that he went to the dealership specifically looking for

      a vehicle that he could drive to Florida and tow his belongings, and he testified

      that he told Kouttoulas that that was his intended purpose for buying a vehicle.

      Russell’s testimony included the following exchange:


              Q: Did Mr. Kouttoulas make statements to you regarding the
              [T]ruck being in good working order that it would make it safely
              to Florida pulling a trailer?


              A: Yes.


              Q: And you expressed that that was your need?


              A: Yep. I sure did.


      Tr. at 41; see also id. at 14 (stating that he explained his intended purpose to

      Kouttoulas). Knowing Russell’s needs, Kouttoulas showed Russell the Truck,

      which was in the garage. Kouttoulas told Russell that the dealership “was

      replacing a brake line ‘cause it was broke.” Id. at 14. Russell testified,

      “[Kouttoulas] said he’d let me know when he got it fixed.” Id. at 18. A couple

      of weeks later, after being told by the dealership that the brakes had been fixed,

      Russell returned, with cash, to purchase the Truck. Russell signed the Bill of

      Sale and the Buyers Guide and purchased the Truck, both of which stated that

      the vehicle was being sold “AS IS.” Defendants’ Exs. A, B.


[9]   Upon cross-examination, Russell acknowledged that the Truck ran “pretty

      good” when he first purchased it and “that’s why I thought it would be good to


      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 5 of 20
       go to Florida like [Kouttoulas] said.” Id. at 17. However, after taking the

       Truck first to Sauer Buick and then to Hathaway, Russell learned of the Truck’s

       mechanical problems, including issues with the suspension and brake line, that

       made it unsafe to drive. Russell testified that when he returned with Sullivan to

       the dealership to speak with Kouttoulas about it, Kouttoulas got

       confrontational, was “in [Sullivan’s] space,” and “didn’t want to hear nothing

       we had to say.” Id. at 16.


[10]   Hathaway, who inspected and serviced the Truck, also testified. Hathaway

       agreed with Sauer Buick’s recommendation that the timing chain needed “swap

       or service.” Id. at 6. Hathaway also found other problems, including needed

       repairs to the ignition system, and he found “safety issues” with the brake line

       and the suspension. Id. at 7. As far as the Truck’s brake lines, Hathaway

       testified that he did not observe that any repairs had been done. He stated that

       “one hard stop” could have “easily broken” the brake line, meaning the driver

       would lose the ability to brake. Id. at 10. He said that it was “clearly unsafe,”

       and “If someone came into a repair shop – even an oil change shop—they

       would not let you leave with that vehicle.” Id. at 6, 10. Hathaway also

       discovered that one of the cylinders “had lost compression,” and the only way

       to fix that was to replace or rebuild the engine. Id. at 7.


[11]   Kouttoulas testified that he reviewed and read the Bill of Sale and the Buyers

       Guide to Russell. Kouttoulas acknowledged that Russell had told him that he

       “wanted to use [the Truck] to pull a trailer,” id. at 32, but Kouttoulas denied

       that he assured Russell that the Truck was suitable for him to drive to Florida

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 6 of 20
       while hauling a trailer, and he denied that he told Russell that the brake line

       repairs had been done. With regard to the trade-in of Russell’s 2000 Dodge

       Caravan, Kouttoulas testified that the dealership took Russell’s Caravan on

       August 26, giving Russell a $1,000 credit on the purchase of the Truck, and that

       the Caravan was placed on a County Motor’s sales lot, where it remained until

       it was sold in November, but that the purchaser returned it the same day due to

       mechanical issues. Kouttoulas said that the dealership did not inspect or repair

       the Caravan before they sold it. Kouttoulas testified that Sellers were seeking

       damages on their breach of contract claim in the amount still owed on the

       contract, which was $1,348, plus $1,000 in attorney fees.


[12]   The evidence at trial pertaining to payments on the Truck was that, in addition

       to the $1,000 trade-in and $500 down payment, Russell made a $200 payment

       to the dealership, but made no more payments on the Truck. When they were

       not able to resolve the issues with Kouttoulas, Buyers put the Truck in storage,

       where it remained as of the time of trial.


[13]   After taking the matter under advisement, the trial court entered Findings of

       Fact and Conclusions of Law (“Order”), which included the following:

               8.      [Russell] made it clear to Kouttoulas that the use for which
               he intended the vehicle he was to purchase was to tow a trailer
               full of household goods in order relocate his residence to the state
               of Florida.


               9.      Kouttoulas represented that the [Truck] would be an
               adequate vehicle for that intended use and expressly warranted
               its fitness for this particular use.
       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 7 of 20
        10. The express warranty that the [Truck] was fit for the
        purpose intended by [Russell] was an inducement for [Russell] to
        purchase the [Truck].


        11. Kouttoulas represented that the brake lines on the [Truck]
        would be repaired by County Motors prior to delivery which was
        a further inducement for [Russell] to purchase the [Truck].


        ....


        13. Neither Kouttoulas nor County Motors repaired the brake
        lines as promised which made the vehicle unsafe to drive.


        14. As of the date of sale, the [Truck] had serious problems
        with the timing chain, the ignition system, the suspension and
        had an oil leak.


        15. The condition of the [Truck] upon the date of sale[] made
        it unsafe to operate.


        ....


        l8.    [Russell] made one of the $200.00 payments required
        under the [Bill of Sale] and failed to make any more payments
        thereafter and has retained possession of the [Truck].


        ....


        27. Kouttoulas expressly warranted that the [Truck] was fit for
        the purpose intended by [Russell], in addition, that the brake
        lines would be fixed both of which were promises that were part
        of the basis of the bargain between the parties and an inducement
        for [Russell] to purchase the [Truck].

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 8 of 20
        28. The [Truck] was not fit for the purpose intended and was,
        otherwise, unsafe to drive.


        29. The promise of repair of the brake lines was not kept.
        County Motors breached the express warranty made by its
        employee, Kouttoulas[,] to [Russell].


        30. County Motors claims that the disclaimers and the “AS
        IS” language in the [Bill of Sale] estop[s] [Russell] from claiming
        a breach of the express warranty.


        31. Where the Seller’s conduct creates an express warranty
        while the written [Bill of Sale] disclaims any express warranty, IC
        26-1-2-316(1) controls:


                 “Words or conduct relevant to the creation of an express
                 warranty and words or conduct tending to negate or limit
                 warranty shall be construed wherever reasonable as
                 consistent with each other; but subject to the provisions of
                 IC 26-1-2-202 on parol or extrinsic evidence, negation or
                 limitation is inoperative to the extent that such
                 construction is unreasonable.”


               Since the express warranties made by Kouttoulas on behalf
        of County Motors cannot be interpreted in a manner consistent
        with the written disclaimer of express warranties, the disclaimer
        becomes inoperative as a matter of law.


Appellant’s Br. at 16-18 (internal citations omitted, emphasis in original). The

trial court determined that Russell was entitled to rescission of the Bill of Sale,

“however, County Motors no longer owns the Dodge Grand Caravan which

was used for trade. Therefore, [Russell]’s only remedy is in money damages.”


Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 9 of 20
       Id. at 18. The trial court then entered judgment in favor of Russell and against

       County Motors7 in the amount of $3,1998 plus $122 for costs of the action, for a

       total of $3,321, and it ordered County Motors to also pay post-judgment

       interest. It ordered Russell to return the Truck to County Motors when County

       Motors had fully paid the judgment and interest owed. Sellers now appeal.


                                       Discussion and Decision
[14]   Sellers appeal the small claims court’s judgment in favor of Russell. Our

       standard of review is particularly deferential in small claims actions, where “the

       trial shall be informal, with the sole objective of dispensing speedy justice

       between the parties according to the rules of substantive law.” Truck City of

       Gary, Inc. v. Schneider Nat’l Leasing, 814 N.E.2d 273, 277 (Ind. Ct. App. 2004)

       (citing Ind. Small Claims Rule 8(A)). Nevertheless, judgments in small claims

       actions are “subject to review as prescribed by relevant Indiana rules and

       statutes.” Herren v. Dishman, 1 N.E.3d 697, 702 (Ind. Ct. App. 2013) (citing

       Ind. Small Claims Rule 11(A)). Indiana has specific rules for small claims

       cases, but the Indiana Rules of Trial Procedure will generally apply “unless the

       particular rule in question is inconsistent with something in the small claims

       rules.” Id. (citing Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995)). Where

       the two conflict, the Small Claims Rules apply. Kalwitz v. Kalwitz, 934 N.E.2d



       7
        Under the judgment, County Motors was liable only to Russell, and Kouttoulas had no personal liability to
       Russell or Sullivan. Appellant’s Br. at 18.
       8
        The $3,199 consists of the following: $1,000 representing the trade-in value of the Caravan; $500 down
       payment; $200 payment pursuant to the Bill of Sale; and $1,499 in repairs and travel expenses.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017        Page 10 of 20
       741, 749 (Ind. Ct. App. 2010). Here, the small claims court entered findings

       and conclusions. Although Indiana Trial Rule 52(A), which governs the effect

       of findings by the trial court, does not apply in small claims proceedings, the

       small claims court’s findings, while not binding, are nevertheless helpful to this

       court in reviewing the judgment. Id. at 748 (citing Bowman, 644 N.E.2d at 878).


[15]   As a preliminary matter, we observe that Buyers did not file an appellees’ brief.

       When an appellee does not submit a brief, an appellant may prevail by

       establishing a prima facie case of error, i.e., error at first sight, on first

       appearance, or on the face of it. Elrod v. Brooks, 910 N.E.2d 231, 233 (Ind. Ct.

       App. 2009). By using a prima facie error standard, this court is relieved of the

       burden of developing arguments for the appellee. Id.


[16]   We also observe that Sellers have not filed an appellate appendix. Indiana

       Appellate Rule 49(A) states that “[t]he appellant shall file its Appendix on or

       before the date on which the appellant’s brief is filed.” (Emphasis added.)

       Indiana Appellate Rule 50(A)(1) reads, “The purpose of an Appendix in civil

       appeals . . . is to present the Court with copies of only those parts of the Record

       on Appeal that are necessary for the Court to decide the issues presented.” In

       addition to the chronological case summary, appealed order, pleadings, and

       various other documents, Appellate Rule 50(A)(2) requires that the appendix

       include “other documents from the Clerk’s Record in chronological order that

       are necessary for resolution of the issues raised on appeal[.]” Failure to file an

       appendix could result in dismissal. See Yoquelet v. Marshall Cnty., 811 N.E.2d

       826, 830 n.5 (Ind. Ct. App. 2004) (summary judgment decision was not

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 11 of 20
       reviewable where appellants did not file appendix). Here, although the record

       before us does not include Buyers’ complaint, Sellers’ counterclaim, or the

       chronological case summary, the record does contain the Bill of Sale and

       Buyers Guide, which were admitted as exhibits at trial, and the small claims

       court’s Order. Sellers also submitted the transcript of the small claims court

       hearing. Therefore, we will proceed to address the merits of Sellers’ appeal.


                                  I. Indiana Code § 26-1-2-316
[17]   In its Order, the small claims court found that Kouttoulas assured Russell that

       the Truck was fit for Russell’s intended purpose and that the brake lines on the

       Truck would be fixed, both of which induced Russell to purchase the Truck.

       The small claims court determined that Kouttoulas’s assurances constituted an

       express warranty, which was not consistent with the limiting language of the

       Bill of Sale and Buyers Guide, and pursuant to Indiana Code section 26-1-2-

       316(1) (“Section 316”), the written disclaimers of express warranties found in

       the Bill of Sale and Buyers Guide were inoperable. Section 316 provides:

               Words or conduct relevant to the creation of an express warranty
               and words or conduct tending to negate or limit warranty shall be
               construed wherever reasonable as consistent with each other; but
               . . . negation or limitation is inoperative to the extent that such
               construction is unreasonable.


       Ind. Code § 26-1-2-316(1).


[18]   On appeal, Sellers do not assert that the trial court erred when it applied Section

       316 or otherwise assert that Section 316 has no application. Rather, they

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 12 of 20
       present other challenges to the small claims court’s judgment. First, Sellers

       assert that the small claims court erred when, in finding that the written

       disclaimers were inoperative, it admitted, over Sellers’ objection, Russell’s

       testimony concerning Kouttoulas’s representations to Russell about the Truck.

       Second, Sellers challenge the evidentiary support for certain findings and

       conclusions.


                                         A. Admission of Evidence

[19]   A small claims court has broad discretion in determining whether to admit or

       exclude evidence. Herren, 1 N.E.3d at 703-04. We will only reverse an

       admissibility decision for a “manifest abuse of the trial court’s discretion

       resulting in the denial of a fair trial.” Id. at 704; Elrod, 910 N.E.2d at 233.

       Here, Sellers argue that it was abuse of discretion for the trial court to admit

       Russell’s testimony about what Kouttoulas said to him regarding the Truck

       because it was parol evidence. We, however, find no error.


[20]   The parol evidence rule is not a procedural rule that excludes evidence; it is a

       rule of preference: “[t]he written word is preferred as evidence because it is not

       subject to the vicissitudes of human memory.” Franklin v. White, 493 N.E.2d

       161, 166 (Ind. 1986). It provides that “[w]hen two parties have made a contract

       and have expressed it in a writing to which they have both assented as the

       complete and accurate integration of that contract, evidence . . . of antecedent

       understandings and negotiations will not be admitted for the purpose of varying

       or contradicting the writing. Dicen v. New Sesco, Inc., 839 N.E.2d 684, 688 (Ind.

       2005); Truck City of Gary, Inc., 814 N.E.2d at 278. Thus, the first step when
       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 13 of 20
       applying the parol evidence rule is determining whether the parties’ written

       contract represents a complete or partial integration of their agreement. Hinkel

       v. Sataria Distrib. & Packaging, Inc., 920 N.E.2d 766, 769 (Ind. Ct. App. 2010).

       An integration clause of contract is to be considered as any other contract

       provision to determine the intention of the parties and to determine if that

       which they intended is fully expressed in the four corners of the writing. Yellow

       Book Inc. v. Cent. Ind. Cooling & Heating, Inc., 10 N.E.3d 22, 27-28 (Ind. Ct. App.

       2014), trans. denied. The inquiry of whether a writing has been adopted as an

       integrated agreement is a question of fact to be determined in accordance with

       all the relevant evidence and “requires the court to hear all relevant evidence,

       parol or written.” Hinkel, 920 N.E.2d at 769. Moreover, the weight given to an

       integration clause, if one exists, is to be decided on a case-by-case basis. Wind

       Wire, LLC v. Finney, 977 N.E.2d 401, 405 (Ind. Ct. App. 2012).


[21]   Here, the Buyers Guide contains no language that could be viewed as an

       integration clause, and as for the Bill of Sale, it contains only the statement that

       “There are no statements, representations, guaranties or warranties, express or

       implied, made by Seller unless herein set out.” Defendants’ Exs. A and B.

       Assuming without deciding that such language could be viewed as constituting

       an integration clause, this court has recognized that an exception to the parol

       evidence rule applies in the case of fraud in the inducement, where a party was

       ‘induced’ through fraudulent representations to enter a contract. Yellow Book

       Inc., 10 N.E.3d at 27-28. That is, a party can overcome the effect of an

       integration clause if he can show that he had a right to rely on the alleged

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 14 of 20
       misrepresentations and did in fact rely on them. Id. at 28. Whether one has the

       right to rely depends largely on the facts of the case. Id. In this case, the small

       claims court made a credibility determination as to what Russell said to

       Kouttoulas about his intended purpose and what Kouttoulas told him about the

       Truck, including what needed to be and would be repaired prior to sale. The

       trial court determined that Kouttoulas’s representations induced Russell into

       purchasing the Truck. We find that the record supports this determination, and

       it was not error to admit and consider Russell’s testimony.


[22]   Furthermore, Indiana Small Claims Rule 8(A) provides that small claims trials

       “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.” Kalwitz, 934 N.E.2d at 751 (emphasis added). Likewise,

       Indiana Evidence Rule 101(c)(2) provides that the Evidence Rules, other than

       those with respect to privileges, do not apply to small claims proceedings. Id. It

       is well-settled that small claims trials shall be informal, with the sole objective of

       dispensing speedy justice between the parties according to the rules of

       substantive law. Ind. Small Claims Rule 8(A). The principle that small claims

       trials are not bound by general evidentiary rules was applied and is illustrated

       by, among others, our Supreme Court’s decision in Matusky v. Sheffield Square

       Apartments, 654 N.E.2d 740, 742 (Ind. 1995), where the Court determined that

       small claims court judgments may be supported solely by hearsay. See also Stout

       v. Kokomo Manor Apartments, 677 N.E.2d 1060, 1067 (Ind. Ct. App. 1997)

       (affirming small claims court’s admission of exhibits that contained hearsay,

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 15 of 20
       confidential information, and settlement offers). Although parol evidence, like

       hearsay, is in some circumstances subject to limitation or exclusion, we find

       that in the context of this small claims bench trial, it was not error for the small

       claims court to admit and consider Russell’s testimony concerning his

       statements to Kouttoulas and Kouttoulas’s assurances to him.


                               B. Support for Findings and Conclusions

[23]   Sellers also challenge the small claims court’s Order by asserting that certain

       findings were unsupported by the evidence and the judgment was contrary to

       law. The clearly erroneous standard applies to appellate review of facts

       determined in a bench trial with due regard given to the opportunity of the trial

       court to assess witness credibility. Kalwitz, 934 N.E.2d at 748; see also Herren, 1

       N.E.3d at 702 (findings or judgments rendered in small claims bench trial must

       be upheld unless clearly erroneous). In determining whether a judgment is

       clearly erroneous, we do not reweigh the evidence or determine the credibility

       of witnesses but consider only the evidence that supports the judgment and the

       reasonable inferences to be drawn therefrom. Kalwitz, 934 N.E.2d at 748.


[24]   On appeal, Sellers challenge Findings and Conclusions Numbers 8, 9, 10, 11,

       13, 27, 28, and 29 as being unsupported by the evidence. Appellants’ Br. at 9-12.

       Numbers 8, 9, 11, and 27 reflect the small claims court’s findings concerning (1)

       statements that Russell made to Kouttoulas regarding his reasons for

       purchasing a vehicle and (2) Kouttoulas’s assurances to Russell regarding the

       Truck’s fitness for that use and the repair of the brake lines. These

       determinations reflect that the small claims court credited Russell’s testimony
       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 16 of 20
       over Kouttoulas’s testimony. We will not reweigh the evidence or judge the

       credibility of witnesses on appeal. Kalwitz, 934 N.E.2d at 748. The remaining

       challenged findings and conclusions, Numbers 10, 13, 28, and 29, consist of the

       small claims court’s determinations that Kouttoulas’s statements induced

       Russell to purchase the Truck, the dealership did not make the promised repairs

       to the brake line, the Truck was not fit for its intended purpose, and it was

       unsafe to drive. Considering only the evidence that supports the judgment,

       including that of Russell and Hathaway, and the reasonable inferences to be

       drawn therefrom, as we must do, we find that the small claims court’s judgment

       in favor of Russell was not clearly erroneous


                                 II. Determination of Damages
[25]   Sellers also challenge the trial court’s determination of damages owed to

       Russell. The amount of damages to be awarded is a question of fact for the trier

       of fact. Jasinski v. Brown, 3 N.E.3d 976, 978-79 (Ind. Ct. App. 2013). A court is

       not required to calculate damages with mathematical certainty, but the

       calculation must be supported by evidence in the record and may not be based

       on mere conjecture, speculation, or guesswork. Id. at 979. We will sustain an

       award challenged as excessive if it is within the scope of the evidence presented

       to the trial court, and we will neither reweigh evidence nor judge witness

       credibility. Id. All uncertainties concerning the specific calculation of damages

       are resolved in plaintiff’s favor. Id. “We will set aside a damage award only if

       it is ‘so outrageous as to impress [this] court as being motivated by passion,



       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 17 of 20
       prejudice, and impartiality.’” Id. (quoting Quebe v. Davis, 586 N.E.2d 914, 920

       (Ind. Ct. App. 1992)).


[26]   Here, the trial court entered judgment in favor of Russell and against County

       Motors in the amount of $3,199 plus $122 for costs of the action, for a total of

       $3,321, and it ordered County Motors to also pay post-judgment interest. On

       appeal Sellers argue, “Despite the fact that Russell paid defendants only

       $700.00, the court awarded Russell $2,499.00 more than what he had paid,

       purportedly for repairs and incidental expenses which included travel expenses

       to and from Florida to attend a trial that they requested.” Appellant’s Br. at 10.

       This, Sellers argue, resulted in Buyers being unjustly enriched.


[27]   We find, however, that the trial court’s calculation of damages was within the

       scope of the evidence. At the conclusion of trial, the small claims court

       specifically inquired about what type of relief Buyers were seeking, asking

       Sullivan: “[W]hat are you asking for?” Tr. at 45. Sullivan replied that Buyers

       hoped to recover: $1,000 for credit for the Caravan that Russell “could have . . .

       sold himself,” the $500 down payment, and the $200 payment that Russell

       made on the Truck. Id. She stated that the total amount that Buyers were

       requesting, including travel expenses and repairs, was $3,199. Id. We find no

       error in the small claims court’s judgment in that same amount, plus costs of

       the action and interest.


[28]   In challenging the judgment amount, Sellers also assert that the small claims

       court’s finding Number 32 was clearly erroneous. It stated:


       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 18 of 20
                [Russell] is entitled to rescission of the [Bill of Sale], however,
                County Motors no longer owns the Dodge Grand Caravan which
                was used for trade. Therefore, [Russell]’s only remedy is in
                money damages.


       Appellant’s App. at 18. Sellers argue that the determination that County Motors

       “no longer owns” the Caravan was contrary to the evidence, namely

       Kouttoulas’s testimony, because Kouttoulas testified that County Motors sold

       the Caravan in November 2015, but the purchaser returned it to County Motors

       the same day. To the extent that Sellers’ position is that the evidence was that

       County Motors did own the Caravan at the time of trial and that the small

       claims court should have rescinded the Bill of Sale contract and ordered the

       Caravan’s return to Buyers (rather than including $1,000 in the judgment as a

       representation of the Caravan’s value), we are not persuaded.


[29]   Kouttoulas’s testimony was that, in November 2015, the Caravan was sold and

       then returned by the purchaser to County Motors the same day; Kouttoulas did

       not testify that County Motors still owned it as of the date of trial in January

       2016. Furthermore, according to the record before us, Buyers did not seek

       rescission of the contract or ask for the return of the Caravan to them; rather,

       Buyers asked for $3,199 in damages. Accordingly, the small claims court was

       not required to order that the Caravan be returned to Russell,9 and we find any




       9
        We note that this court has found that it was error for the trial court to have ordered rescission where no
       party had requested it. New Life Cmty. Church of God v. Adomatis, 672 N.E.2d 433 (Ind. Ct. App. 1996).



       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017            Page 19 of 20
       error in the determination that County Motors “no longer owns” the Caravan

       was harmless. See Brown v. Guinn, 970 N.E.2d 192, 197 (Ind. Ct. App. 2012)

       (holding that small claims court’s statement in conclusion – that defendant was

       in possession of the contract – even if erroneous, was not reversible error, as

       judgment did not turn on whether defendant was in possession of contract).

       Here, the small claims court’s calculation of damages was within the scope of

       the evidence.


[30]   Finding as we do that the small claims court correctly applied Section 316, did

       not err in admitting evidence, and that its findings and conclusions were not

       clearly erroneous, we affirm the small claims court’s judgment.


[31]   Affirmed.


[32]   May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-SC-898 | January 18, 2017   Page 20 of 20
