                                                            FILED
FOR PUBLICATION                                           Jun 25 2012, 9:27 am


                                                                 CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEE:

GARY D. MILLER                                   SHANE L. GIBSON
Jeffersonville, Indiana                          Gibson Law Office, LLC
                                                 New Albany, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

STEVEN BROWN,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
               vs.                               )      No. 22A01-1111-SC-524
                                                 )
CHRIS GUINN,                                     )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE FLOYD SUPERIOR COURT
                        The Honorable Daniel B. Burke, Jr., Magistrate
                              Cause No. 22D02-1108-SC-759



                                       June 25, 2012


                              OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Steven Brown appeals the trial court’s judgment for Chris Guinn on Guinn’s

complaint alleging breach of contract. Brown raises three issues for our review, which

we restate as follows:

       1.     Whether the trial court abused its discretion when it denied his
              motion for involuntary dismissal;

       2.     Whether the trial court committed reversible error when it concluded
              that Brown was estopped from denying the term of the parties’ lease
              contract; and

       3.     Whether the trial court’s judgment is clearly erroneous.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In June of 2009 Brown and Guinn contracted for Brown to take possession of

Guinn’s 2003 Coronado truck (“the truck”). In addition to taking possession, Brown

assumed Guinn’s monthly payments on the truck to Daimler Truck Financial. The

written contract did not contain a specific term or a specific amount of payment, but it did

permit either party to cancel the contract at any time. Brown had drafted the contract.

       In July, August, and September, Brown made the monthly payments on the truck

pursuant to the contract. But he did not make those payments over the next three months,

despite retaining possession of the truck. In January 2010, Daimler Truck Financial

repossessed the truck while it was still in Brown’s possession.

       On August 9, 2011, Guinn filed his notice of claim against Brown. Guinn claimed

that Brown had breached their contract when he did not pay Guinn’s monthly payments

between October and December of 2009 despite retaining possession of the truck. At the
                                             2
ensuing bench trial, Guinn did not produce a copy of the contract but Brown admitted in

his testimony that the contract had been made. In his defense, Brown testified that he had

cancelled the contract at the end of August 2009 when he had an agreement to sell the

truck to a third party, although that sale later fell through. On October 17, 2011, the court

entered judgment for Guinn. This appeal ensued.

                            DISCUSSION AND DECISION

                                   Standard of Review

       Brown appeals from the trial court’s judgment for Guinn. In such appeals, our

standard of review is well established:

       In the appellate review of claims tried by the bench without a jury, the
       reviewing court shall not set aside the judgment unless clearly erroneous,
       and due regard shall be given to the opportunity of the trial court to judge
       the credibility of the witnesses. City of Dunkirk Water and Sewage Dep’t
       v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (stating standard of review in
       appeal from small claims court). In determining whether a judgment is
       clearly erroneous, we will not reweigh the evidence or determine the
       credibility of witnesses but will consider only the evidence that supports the
       judgment and the reasonable inferences to be drawn from that evidence. Id.

              Small claims actions are “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). Although the court here
       made special findings, the formal entry of special findings is “contrary to
       the policy announced in Small Claims Rules 8 and 11,” which provide that
       small claims trials are informal and require only that small claims
       judgments “shall be reduced to writing.” Bowman v. Kitchel, 644 N.E.2d
       878, 879 (Ind. 1995) (quoting Ind. Small Claims Rule 11(A)).

Bennett v. Broderick, 858 N.E.2d 1044, 1047-48 (Ind. Ct. App. 2006); see also

Councellor v. Ecenbarger, Inc., 834 N.E.2d 1018, 1021 (Ind. Ct. App. 2005).




                                             3
                     Issue One: Motion for Involuntary Dismissal

       Brown first contends that the trial court’s denial of his Trial Rule 41(B) motion for

involuntary dismissal was clear error. According to Trial Rule 41(B):

       After the plaintiff or party with the burden of proof upon an issue, in an
       action tried by the court without a jury, has completed the presentation of
       his evidence thereon, the opposing party, without waiving his right to offer
       evidence in the event the motion is not granted, may move for a dismissal
       on the ground that upon the weight of the evidence and the law there has
       been shown no right to relief. . . .

A Trial Rule 41 motion to dismiss tests the sufficiency of the plaintiff’s case in chief.

See, e.g., Fielitz v. Allred, 173 Ind. App. 540, 542, 364 N.E.2d 786, 787 (1977). Our

review of the denial of the motion for involuntary dismissal is limited to an examination

of the evidence most favorable to the nonmoving party that was presented prior to the

filing of the motion. See Williams v. State, 892 N.E.2d 666, 671 (Ind. Ct. App. 2008),

trans. denied.

       Brown argues that the trial court’s denial of his Rule 41(B) motion was erroneous

because Guinn had failed to produce the written contract that was the basis for his claim.

According to Brown, Guinn’s failure to produce the contract required dismissal under

Indiana Small Claims Rule 2(B)(4)(a) and Indiana Code Section 26-1-2.1-201(1). Brown

is mistaken.

       Indiana Small Claims Rule 2(B)(4)(a) states that a notice of claim shall contain “a

copy” of the “written contract” on which the claim is based. This rule is analogous to

Indiana Trial Rule 9.2(A), which states that, “[w]hen any pleading allowed . . . is founded

on a written instrument, the original, or a copy thereof, must be included in or filed with

the pleading.” However, it is well established that non-compliance with Rule 9.2(A) is
                                             4
not a per se bar to the action. Rather, as stated in Rule 9.2(F): “The court, in its sound

discretion, may order compliance . . . or allow the action to continue without further

pleading.” While the small claims rules do not contain a provision analogous to Trial

Rule 9.2(F), “the Rules of Trial Procedure apply in small claims court unless the

particular rule in question is inconsistent with something in the small claims rules.”

Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995).               Trial Rule 9.2(F) is not

inconsistent with Small Claims Rule 2(B)(4)(a). Therefore, the trial court acted within its

discretion when it did not dismiss Guinn’s action merely because he had failed to produce

a copy of the written contract.

       Indiana Code Section 26-1-2.1-201(1) also does not apply here.             Under that

statute:

       A lease contract is not enforceable by way of action or defense unless: . . .
       (b) there is a writing, signed by the party against whom enforcement is
       sought . . . sufficient to indicate that a lease contract has been made
       between the parties and to describe the goods leased and the lease term.

But subsection (4) of the statute limits subsection (1)’s application.         According to

subsection (4):

       A lease contract that does not satisfy the requirements of subsection (1), but
       which is valid in other respects, is enforceable: . . . (b) if the party against
       whom enforcement is sought admits in that party’s pleading, testimony or
       otherwise in court that a lease contract was made, but the lease contract is
       not enforceable under this provision beyond the quantity of goods
       admitted . . . .

Ind. Code § 26-1-2.1-201(4).




                                              5
       Subsection (4) describes what happened in this case.       While Guinn failed to

produce a copy of the written lease contract, the contract is still enforceable because, in

his testimony, Brown admitted that the contract had been made.

       Brown attempts to ignore subsection (4) by focusing on the timing of his motion

for involuntary dismissal, which occurred before his admission to the existence of the

contract. But Guinn testified that a contract existed, and that testimony was sufficient to

survive Brown’s Trial Rule 41(B) motion. As the trial court stated, “Guinn’s testimony is

some proof.”    Transcript at 13.       And Indiana Code Section 26-1-2.1-201 does not

mandate dismissal of an action at the close of the plaintiff’s case-in-chief simply because

the plaintiff did not produce a written contract. Indeed, to hold otherwise would render

subsection (4) a nullity. Thus, the court did not err when it denied Brown’s motion for

involuntary dismissal.

                                  Issue Two: Estoppel

       Brown next contends that the trial court erroneously concluded that he was

“estopped from denying . . . the term of the lease.” Appellant’s App. at 8. In its order,

the trial court concluded as follows:

       [Brown] claims that [Guinn] was wrong in describing the length of the
       lease term but, having acknowledged the preparation of the lease and the
       possession of the same, and [Brown] having failed to introduce the lease in
       his possession into evidence[, he] is estopped from denying that the term of
       the lease was six (6) months as [Guinn] claimed in his testimony.

Id.   On appeal, Brown states that there is no evidence to support the trial court’s

conclusion that he was in possession of the contract. As such, he continues, the court’s




                                              6
conclusion that he should be estopped from denying the purported term of the contract is

erroneous.

        Guinn does not dispute that there is no evidence in the record to support the trial

court’s conclusion that Brown was in possession of the contract. Nonetheless, we do not

see how the court’s statement, even if erroneous, is reversible error. While the parties

disputed the length of the contract—Guinn testified that the contract was in effect for six

months, while Brown testified that he had cancelled the contract after four months—both

parties testified that the written contract did not state a term. See Transcript at 16

(Guinn’s testimony), 27-28 (Brown’s testimony).

        Thus, even if one of the parties had submitted the written contract, the court’s

determination as to the length of the contract would still have been based on parol

evidence, which, in turn, would have required the court to credit either Guinn or Brown

and discredit the other. The judgment does not turn on whether Brown had the lease in

his possession and failed to introduce the lease at trial but on the testimony of the parties,

which we cannot reweigh on appeal. See Councellor, 834 N.E.2d at 1021. Indeed, it is

clear that the court credited Guinn’s testimony over Brown’s as to the length of the lease.1

As such, Brown cannot show reversible error on this issue.




        1
           Brown also asserts that the trial court erroneously relied on Indiana Code Section 26-1-2.1-
201(4) to justify its consideration of the parol evidence. In particular, Brown contends that the conflicting
testimony demonstrated a lack of consideration and undermined the existence of the contract in the first
place. As explained in Issue One, however, Brown expressly admitted that he had a contract with Guinn.
We cannot ignore his admission on appeal. And insofar as Brown also states that the trial court erred in
relying on Section 26-1-2.1-201(4) because it failed to consider “the quantity of goods admitted,” we
simply note that, two sentences later, Brown acknowledges that “[t]he quantity of goods was never an
issue.” Appellant’s Br. at 12.
                                                     7
                        Issue Three: Sufficiency of the Evidence

       Finally, Brown contends that Guinn failed to meet his burden of proof for his

breach of contract claim. To prevail on a claim of breach of contract, the plaintiff must

satisfy three elements: the existence of a contract, the defendant’s breach of that contract,

and damages. U.S. Fid. & Guar. Ins. Co. v. Hartson-Kennedy Cabinet Top Co., 857

N.E.2d 1033, 1039 (Ind. Ct. App. 2006). As discussed above, both sides testified that

they had a contract; Guinn testified that Brown breached the contract when Brown failed

to pay for three months despite retaining possession of the truck; and Guinn presented

evidence of his damages as a result of Brown’s breach.

       Nonetheless, Brown argues that he “presented more than adequate evidence that

any agreement between himself and Guinn was cancelled by Brown at his discretion,”

Appellant’s Br. at 13; that he had “fulfilled any agreement with Guinn to make payments

on Guinn’s truck while the truck was in the possession of Brown,” id. at 14; and that

Guinn informed the court that he had “no issues with anything the defense has to say,” id.

at 15. Brown’s first two arguments ignore the evidence most favorable to the judgment

and, in effect, ask this court to reweigh the evidence, which we will not do. Councellor,

834 N.E.2d at 1021. Brown’s third argument takes a statement by Guinn out of context.

In the document Brown quotes, Guinn makes clear that his position was that, even if

Brown’s testimony were accurate, Brown was still liable to Guinn. See Appellant’s App.

at 5. Accordingly, Brown’s arguments on appeal are without merit.




                                             8
                                        Conclusion

      In sum, we hold that the trial court did not abuse its discretion when it denied

Brown’s motion for involuntary dismissal.        We also hold that Brown has not

demonstrated that the trial court’s findings and conclusions are clearly erroneous. As

such, we affirm the court’s judgment.

      Affirmed.

ROBB, C.J., and BAILEY, J., concur.




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