MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                               FILED
court except for the purpose of establishing                       Apr 19 2017, 7:53 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Jon A. Bragalone                                          Patrick L. Proctor
Larry L. Barnard                                          Eilbacher Fletcher, LLP
Carson Boxberger LLP                                      Fort Wayne, Indiana
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rohrman Automotive Group,                                 April 19, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A03-1604-SC-850
        v.                                                Appeal from the Allen Superior
                                                          Court, Small Claims Division
Paul Pratico and Joy DenHouter,                           The Honorable Brian D. Cook,
Appellees-Plaintiffs.                                     Magistrate
                                                          Trial Court Cause No.
                                                          02D01-1404-SC-6541




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017        Page 1 of 17
[1]   Rohrman Automotive Group (“Rohrman”) appeals from the judgment of the

      small claims court in favor of Paul Pratico and Joy DenHouter (together, the

      “Purchasers”) in the amount of $6,000. Rohrman raises two issues which we

      consolidate and restate as whether the judgment of the court is clearly

      erroneous. We affirm.


                                       Facts and Procedural History

[2]   On June 12, 2013, the Purchasers bought a 2000 Subaru Outback from

      Rohrman for $5,802.50 pursuant to a purchase order which indicated the

      vehicle was “SOLD AS IS, WITH ALL FAULTS.” Plaintiffs’ Exhibit 4.

      Joseph Davis was a manager at the time of the sale and served as Rohrman’s

      sales representative. At the time of the sale, Rohrman agreed to perform certain

      repair work on the vehicle and Davis authorized the work as set forth in a work

      order (the “Work Order”) which, in the fields for “Promised” and “R.O.

      Opened,” provided the date of June 4, 2013, and in the field for “Ready”

      provided the date of June 11, 2013. Plaintiffs’ Exhibit 3. The Work Order

      identified the name of service advisor Jason Keefer, indicated the vehicle had

      approximately 121,893 miles, and contained a lengthy itemized list of work to

      be performed and performed on the vehicle, stating in part:


              D RESURFACE BOTH FRONT BRAKE ROTORS
                       MACHINE RESURFACED BOTH FRONT BRAKE
                       ROTORS
                       1395 IUS 1.50 . . . .                                       75.00
              E REPLACE REAR BRAKE PADS AND BOTH REAR
              BRAKE ROTORS

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 2 of 17
                       RBS REPLACED REAR BRAKE PADS AND BOTH
                       REAR BRAKE ROTORS
                                1395 IUS 1.50 . . . .                                75.00
                       1 . . . PAD KIT DISK BRAKE R . . .                            67.96
                       2 . . . BRAKE DISC R . . . .                                  159.92
      Id. 1


[3]   DenHouter took the vehicle back to Rohrman, and an invoice dated December

      17, 2013, states: “A client states that when going 30mph and went to stop and

      had trouble stopping. Check and advise.” Plaintiffs’ Exhibit 8. The invoice

      identifies the name of service advisor Deborah Miller and the name of service

      technician Terrence Bowen. The invoice further states “front sway bar

      broken,” and notes that the vehicle had 124,897 miles and the total charge was

      $98.95. Id.


[4]   The Purchasers then had the vehicle towed to The Import Doctors, and Shayne

      Cattron, a former Subaru certified mechanic, examined the vehicle which at

      that time had approximately 124,899 miles. Cattron believed, based on

      condition and wear, that the rear rotors had more than 3,000 miles on them and

      that it was highly unlikely that the front rotors had been within specification

      3,000 miles earlier. The invoice of the Import Doctors states “front brake pads

      and rotors need replaced,” “brake master cylinder is leaking internally, needs




      1
        The Work Order includes a total amount billed of $1,471.63. Terrence Bowen, a service technician for
      Rohrman, indicated that the amount represents the work completed and “billed to a vehicle but not to an
      independent customer.” Transcript at 98.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017           Page 3 of 17
      new master cylinder,” and “rear brake rotors are glazed and rust pitted, needs

      rotors.” Plaintiffs’ Exhibit 2. The Import Doctors performed work on the

      vehicle in January 2014 which included, among other things, replacement of

      the front brake pads and rotors, the rear brake rotors, the brake master cylinder,

      and the front sway bar. 2


[5]   On April 30, 2014, the Purchasers filed a Notice of Claim in the Allen Superior

      Court, Small Claims Division, alleging that Rohrman breached specific

      warranties, breached its contract, and “committed fraud by claiming it

      performed repair work that it had not in fact performed.” Appellant’s

      Appendix at 7. The small claims court held a bench trial at which the

      Purchasers, Davis, Bowen, and Cattron testified, and the court admitted a

      number of exhibits including the Work Order of June 2013, the June 12, 2013

      purchaser order, Rohrman’s December 17, 2013 invoice, and The Import

      Doctors’ January 2014 invoice. 3




      2
       The Import Doctors’ invoice shows a total charge of $2,290.37. The invoice reflects a charge for towing
      and seven line items related to parts and labor to replace the front and rear brakes and the brake master
      cylinder, and the sum of those eight line items equals $714.94.
      3
        The transcript in the record covers the proceedings of January 27, 2015, but not those on December 8, 2014.
      The Purchasers assert that no court reporter was requested during the first day of trial, that the fact no
      transcript was available does not excuse Rohrman from the duty to present a verified statement of the
      evidence, that Rohrman has thus waived its argument that the trial court’s findings do not support the
      judgment on the claim of fraud, and alternatively the evidence from the second day of the trial is sufficient to
      support the court’s finding of fraud. The record contains the exhibits presented by the parties and the
      transcript for the proceedings on January 27, 2015, including all or part of the testimony of DenHouter,
      Pratico, Cattron, Davis, and Bowen, and as set forth below our review of the record reveals evidence
      sufficient to support the court’s judgment.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017               Page 4 of 17
[6]   When asked what specific promises were made to her about repairs that were

      supposed to have been made to the vehicle, DenHouter testified that “they were

      all outlined for us” in the Work Order presented as Plaintiffs’ Exhibit 3.

      Transcript at 13. She testified that she had conversations with Davis and the

      mechanics at Rohrman and that she and Pratico were told the brakes needed to

      be repaired. She indicated that, at the time she purchased the vehicle, she

      believed Rohrman had completed the brake work. Pratico indicated that the

      mechanic told him that the rear brake rotors were pitted and needed to be

      replaced, that the front brakes were below the legal limit, and that his

      understanding was that the work was going to be performed. When asked if the

      Work Order introduced as Plaintiffs’ Exhibit 3 was “an invoice that Rohrman

      had given you after the work had been done,” Pratico responded affirmatively,

      and when asked “[a]nd it was given to you on June 11th . . . – or excuse on

      June 11th when you bought the car – before you took possession of the car,” he

      stated that was correct. Id. at 45.


[7]   Davis indicated that he authorized the Work Order and it was his

      understanding the work was performed. When asked “you said that it was your

      understanding that the work had been done because someone told you that”

      and “[w]ho told you that,” Davis answered “[t]he service manager would

      have,” that at the time the service manager was Jason Keefer, and that Keefer

      was no longer with Rohrman. Id. at 87. Bowen stated he was a service




      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 5 of 17
      technician for Rohrman, that he was aware of the technician, Adam Raden, 4

      who did the work on the Subaru, that he had no reason to believe Raden did

      not do the work as stated in the Work Order, and that Raden no longer worked

      for Rohrman. When shown a brake rotor in a box, 5 Bowen testified that it

      looked like a rear rotor, that he would not place the rotor on a vehicle in its

      current condition, that he would measure it, and that if it was within

      specification he would resurface and drive it.


[8]   Cattron testified that he was formerly a certified Subaru mechanic. When

      asked if the rear rotor had 3,000 miles on it, Cattron testified “[n]o, it does not.

      I[t] has more.” Id. at 118. When asked about the front rotor, Cattron replied

      that “[t]hose are - definitely that was below spec when he came to my shop,”

      that “[w]e marked them,” that “if they turn these rotors to spec you would have

      to wear off pretty much a millimeter and a half in three thousand (3,000)

      miles,” and it was “[h]ighly unlikely that’s going to happen.” Id. The

      Purchasers’ counsel argued that attorney fees “should be part of cost and

      outside the jurisdictional limit of the Court.” Id. at 121. The Purchasers

      submitted “Plaintiffs’ Legal Memorandum Regarding Attorneys Fees and the

      Issue of Small Claims Court’s Jurisdiction” arguing that sometimes the law

      allows attorney fees to be recovered “as part of the cost” and asked the court to




      4
          The transcript states “Adam Raden [phonetics].” Transcript at 110.
      5
        Pratico had earlier indicated he brought a box of parts which he obtained from Cattron, the parts came off
      the Subaru, and they were in substantially the same condition as when he received them.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017             Page 6 of 17
      “hold that an award of appellate attorney fees under I.C. § 34-24-3-1 [the

      Indiana Crime Victims Relief Act] is not part of the ‘amount sought’ within the

      meaning of I.C. § 33-29-2-4, and is not subject to the small claims court’s

      jurisdictional limitation.” 6 Appellee’s Appendix Volume II at 2-4.


[9]   On March 14, 2016, the court issued an order in favor of the Purchasers and

      against Rohrman in the amount of $6,000. The order states:


                 1.       The [Purchasers] purchased a 2000 Subaru Outback from
                          [Rohrman] on June 12, 2013. The total purchase price for
                          the automobile was $5,802.50. The parties executed a
                          sales order on June 12, 2013. The automobile was
                          purchased “AS IS.”
                                                        *****

                 6.       The [Purchasers’] did carry their burden of proof in
                          showing, more likely than not, that some of the repairs
                          allegedly performed by [Rohrman] prior to the original
                          sale were not in fact performed. Specifically, the
                          [Purchasers] presented the testimony of a certified
                          mechanic showing that the brakes on the automobile were
                          most likely not replaced or repaired 1000 miles prior to
                          their failure.[7] Rather, he stated the brakes were old and
                          worn and needed to be replaced. [Rohrman’s] invoice
                          dated June 4, 2013, clearly states that the front brake
                          rotors were resurfaced and the rear brake pads and rotors



      6
        The Purchasers’ counsel submitted the memorandum near the end of the bench trial, the court noted that it
      would provide Rohrman with an opportunity to respond, and an entry in the chronological case summary
      indicates that Rohrman filed a “Defendant’s Response in Opposition to Plaintiff’s Memorandum Regarding
      Attorney’s Fees.” Appellant’s Appendix at 4. However, Rohrman did not include a copy of its response in
      its appendix.
      7
          The evidence indicates the vehicle was driven approximately 3,000 miles.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017            Page 7 of 17
                        were replaced. The evidence shows more likely than not
                        that it did not happen. [Rohrman’s] actions amount to
                        fraud. They clearly, on a written invoice, stated that all
                        the brake work was performed, when it [sic] fact, it was
                        not.

               7.       The [Purchasers] presented evidence showing that they
                        had the brake system repaired at a total cost of $714.94
                        (this includes the tow to the repair shop). The
                        [Purchasers] are entitled to three (3) times that amount due
                        to [Rohrman’s] fraudulent behavior in the amount of
                        $2,144.82.

               8.       The [Purchasers] failed to carry their burden of proof in
                        showing that they are entitled to any further amounts for
                        repairs or service made to the automobile. They received a
                        general promise to make the automobile safe and
                        dependable. The evidence showed that some work was
                        performed by [Rohrman] to fulfill that promise.

               9.       Due to [Rohrman’s] fraudulent action the [Purchasers] are
                        entitled to collect reasonable attorney fees in the amount
                        of $3,855.18.

               Judgment for [the Purchasers] and against [Rohrman] in the
               amount of $6,000.00. Costs to [Rohrman].

       Appellant’s Appendix at 8-9, Appellee’s Appendix Volume II at 6-7 (emphases

       added).


                                                    Discussion

[10]   The issue is whether the judgment of the small claims court is clearly erroneous.

       Judgments in small claims actions are subject to review as prescribed by

       relevant Indiana rules and statutes. Ind. Small Claims Rule 11(A); Eagle

       Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013). In the
       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 8 of 17
       appellate review of claims tried by the bench without a jury, the reviewing court

       shall not set aside the judgment unless clearly erroneous. Ind. Trial Rule 52(A);

       Eagle Aircraft, 983 N.E.2d at 657. The appellate tribunal does not reweigh the

       evidence or determine the credibility of witnesses but considers only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from that evidence. Eagle Aircraft, 983 N.E.2d at 657. This deferential standard

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

       informal, with the sole objective of dispensing speedy justice between the

       parties according to the rules of substantive law. Id. We presume that the trial

       court correctly applied the law. Id. However, “this deferential standard does

       not apply to the substantive rules of law, which are reviewed de novo just as

       they are in appeals from a court of general jurisdiction.” Trinity Homes, LLC v.

       Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). A trial court’s findings control only

       as to the issues they cover and a general judgment controls as to the issues upon

       which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.

       1997). A general judgment entered with findings will be affirmed if it can be

       sustained on any legal theory supported by the evidence. Id. Findings will be

       set aside only if they are clearly erroneous. Id. In order to determine that a

       finding or conclusion is clearly erroneous, an appellate court’s review of the

       evidence must leave it with the firm conviction that a mistake has been made.

       Id.


[11]   Rohrman argues that the trial court’s judgment awarding punitive damages was

       clearly erroneous because the court did not find that the Purchasers presented

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 9 of 17
       clear and convincing evidence that it acted with fraud. Rohrman further argues

       that the court’s judgment on the claim of fraud is clearly erroneous in that there

       was no finding as to whether its representation on its invoice with respect to the

       brake work was made with knowledge or reckless ignorance of its falsity. It

       asserts that Davis authorized the repairs to the brakes and justifiably understood

       that those repairs had been completed at the time the sale was concluded and

       that “[a]ny misrepresentation of fact was not made with knowledge of its falsity

       by Davis.” Appellant’s Brief at 6.


[12]   The Purchasers respond that it is clear the small claims court did not award

       punitive damages but rather awarded liquidated damages under the Indiana

       Crime Victims Relief Act (the “CVRA”) found at Ind. Code § 34-24-3-1 and

       that they raised the CVRA at trial when they filed a motion concerning the

       award of attorney fees. They assert it is reasonable to infer that Rohrman knew

       it had not replaced the brakes when it gave them the Work Order stating it had

       done the work and that the evidence supports a judgment in their favor under

       the CVRA. They argue that, even if Davis’s claim of ignorance is believed, he

       was not the only employee of Rohrman who represented to the Purchasers that

       the brakes had been replaced and that the evidence shows that at least

       Rohrman’s mechanics and service department representatives were aware that

       they had made a false representation to the Purchasers in June 2013 about

       replacing the brakes. The Purchasers note that the trial court does not cite to

       the CVRA but neither does it state it was awarding punitive damages, that they

       argued they were entitled to attorney fees under the CVRA, and that, since this


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 10 of 17
       court presumes the trial court knows the law, we should find that the small

       claims court’s judgment was a finding of criminal deception under the CVRA

       because it applied the preponderance of the evidence standard, awarded treble

       damages, and awarded attorney fees. They also contend they are entitled to

       appellate attorney fees. In reply, Rohrman argues that the Purchasers’ notice of

       claim did not seek recovery under the CVRA but simply asserted a claim for

       fraud. Rohrman also argues that the Purchasers are not entitled to recover

       appellate attorney fees in excess of the jurisdictional amount of $6,000 and that

       attorney fees “are simply a part of ‘the amount sought’ under Ind. Code §33-29-

       2-4(b), just as are treble damages.” Appellant’s Reply Brief at 9.


[13]   “To prove fraud, a plaintiff must show: (i) material misrepresentation of past or

       existing facts by the party to be charged (ii) which was false (iii) which was

       made with knowledge or reckless ignorance of the falseness (iv) was relied upon

       by the complaining party and (v) proximately caused the complaining party

       injury.” Reed v. Reid, 980 N.E.2d 277, 292 (Ind. 2012) (quoting Rice v. Strunk,

       670 N.E.2d 1280, 1289 (Ind. 1996)). It is well established that the actions of

       employees and agents of a corporation are attributable to the corporation when

       the actions are done within the scope of employment. Mid-Continent Paper

       Converters, Inc. v. Brady, Ware & Schoenfeld, Inc., 715 N.E.2d 906, 909 (Ind. Ct.

       App. 1999). Thus, a principal is liable for any misrepresentations of his agent

       undertaken within the scope of the agency, whether or not the principal has

       knowledge of the fraud. Id. This rule is grounded in the sound policy that it is

       preferable to place the burden of an agent’s fraud on the principal rather than


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 11 of 17
       on an innocent third party to the agency relationship. Id. Moreover, allowing

       principals to accept the benefits of their agents’ fraudulent transactions without

       liability for the fraud could lead to an increase in such transactions and reduce

       incentives to hire honest managers and monitor their behavior. Id.


[14]   The evidence establishes that Rohrman, through its manager and mechanics,

       told the Purchasers that it would resurface the front brake rotors and replace the

       rear brake parts of the Subaru. The Purchasers received a copy of the Work

       Order indicating the brake work Rohrman agreed to perform, and Cattron

       inspected the vehicle’s brakes and later testified that the rear rotors had more

       than 3,000 miles on them and it was highly unlikely that the front rotors had

       only 3,000 miles of wear. Pratico testified that he was given a copy of the Work

       Order on June 11th after Rohrman had completed its work on the Subaru and

       before the Purchasers took possession of the vehicle. The evidence supports the

       court’s finding that more likely than not Rohrman did not resurface the front

       brakes or replace the rear brake pads and rotors as indicated in its Work Order.

       We will not reweigh the evidence, and we consider only the evidence and

       reasonable inferences that support the court’s judgment. Our review of the

       record does not leave us with a firm conviction that a mistake has been made.


[15]   As for the court’s damage award, we note that its order does not expressly

       provide the basis upon which it awarded treble damages. We will affirm a

       general judgment if it can be sustained on any legal theory supported by the

       evidence, Yanoff, 688 N.E.2d at 1262, and we presume that the court correctly

       applied the law. Eagle Aircraft, 983 N.E.2d at 657. The Purchasers agree that

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 12 of 17
       the court did not award punitive damages as it did not find the Purchasers

       established by clear and convincing evidence the facts relied upon. See Ind.

       Code § 34-51-3-2 (“Before a person may recover punitive damages in any civil

       action, that person must establish, by clear and convincing evidence, all of the

       facts that are relied upon by that person to support the recovery of punitive

       damages.”). Nevertheless, the CVRA is a basis upon which the small claims

       court was authorized to award treble damages and attorney fees. 8


[16]   The CVRA provides that, “[i]f a person . . . suffers a pecuniary loss as a result

       of a violation of IC 35-43 . . . , the person may bring a civil action against the

       person who caused the loss” for “[a]n amount not to exceed three (3) times . . .

       the actual damages of the person suffering the loss,” the costs of the action, a

       reasonable attorney fee, and all other reasonable costs of collection. Ind. Code

       § 34-24-3-1. The CVRA provides for recovery to those who suffer loss as a

       result of a violation of Ind. Code §§ 35-43, which in turn governs the offenses,

       among others, of criminal deception and making or delivering a false sales

       document. 9 The Purchasers assert the evidence supports the finding that

       Rohrman committed criminal deception. Ind. Code § 35-43-5-3(a) provides in

       part that a person who “knowingly or intentionally makes a false or misleading




       8
           The Purchasers cited the CVRA in their memorandum regarding attorney fees.
       9
         Ind. Code § 35-43-5-2(b) provides that a person who, with intent to defraud “makes or delivers to another
       person: . . . a false sales receipt [or] a duplicate of a sales receipt . . . commits making or delivering a false
       sales document, a Level 6 felony.” Ind. Code § 35-43-5-16 provides that a person who, with intent to
       defraud, makes a false sales receipt, commits making a false sales document, a level 6 felony.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017                  Page 13 of 17
       written statement with intent to obtain property . . . commits deception, a Class

       A misdemeanor.” A person engages in conduct “intentionally” if, when he

       engages in the conduct, it is his conscious objective to do so, Ind. Code § 35-41-

       2-2(a), and a person engages in conduct “knowingly” if, when he engages in the

       conduct, he is aware of a high probability that he is doing so. Ind. Code § 35-

       41-2-2(b). A criminal conviction is not a condition precedent to recovery under

       the CVRA, and the claimant merely must prove each element of the underlying

       crime by a preponderance of the evidence. Klinker v. First Merchants Bank, N.A.,

       964 N.E.2d 190, 193 (Ind. 2012).


[17]   Through its agents Rohrman agreed to resurface the front brake rotors and

       replace the rear brake parts of the Subaru in order to obtain property, i.e.

       money, from the Purchasers. It then provided the Purchasers with the Work

       Order, stating that it had performed repair work on the vehicle. The Work

       Order specifically itemized the costs for resurfacing the front brake rotors and

       the costs and parts for replacing the rear brake pads and rotors. After the

       vehicle had been driven approximately 3,000 miles, the Purchasers had the

       vehicle inspected by Cattron, who testified his inspection revealed that the rear

       rotors had more than 3,000 miles on them and it was highly unlikely that the

       front rotors had only 3,000 miles of wear. The trier of fact could reasonably

       conclude by a preponderance of the evidence that Rohrman by its employees or

       agents knowingly or intentionally made a false or misleading written statement

       to obtain the Purchasers’ money or delivered a false sales receipt to the

       Purchasers. The evidence before the small claims court supports its award of


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017   Page 14 of 17
       treble damages and attorney fees under the CVRA. See Palmer Dodge v. Long,

       791 N.E.2d 788, 792 (Ind. Ct. App. 2003) (observing that, although the trial

       court did not expressly state that it had found criminal conversion, the only

       theory which could be advanced based upon the evidence which would have

       made an award of attorney fees proper was criminal conversion, that the

       evidence supported a finding of criminal conversion, that we presume a trial

       court knows the law, and concluding that the court awarded attorney fees under

       the CVRA). 10


[18]   Turning to the Purchasers’ request for appellate attorney fees, we observe that

       the CVRA provides that a person may recover a reasonable attorney fee, Ind.

       Code § 34-24-3-1(3), and an award of attorney fees under the CVRA includes

       appellate attorney fees. See Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004, 1008

       (Ind. Ct. App. 2009) (“This Court has held that a plaintiff is entitled to

       attorney’s fees, including appellate attorney’s fees, when she prevails under the

       [CVRA].”). However, the small claims docket has jurisdiction over civil

       actions in which “the amount sought or value of the property sought to be

       recovered” is not more than $6,000. Ind. Code § 33-29-2-4. The CVRA

       provides a person may bring a civil action for six enumerated losses, including

       an amount not to exceed three times actual damages, costs of the action, a




       10
          Further, to the extent Rohrman asserts the notice of claim did not cite the CVRA, we note that the notice
       of claim alleged fraud, the elements of fraud and criminal deception overlap significantly, see Wysocki v.
       Johnson, 18 N.E.3d 600, 604 (Ind. 2014), the evidence demonstrates Rohrman committed criminal deception
       or making or delivering a false sales document, and the Purchasers referenced the CVRA in their
       memorandum in support of their request for attorney fees.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017           Page 15 of 17
reasonable attorney fee, certain travel expenses, an amount to compensate for

loss of time used for certain activities, expenses incurred to compensate

employees and agents for time used for certain activities, and all other

reasonable costs of collection. Ind. Code § 34-24-3-1. We conclude that a

reasonable attorney fee under the CVRA, which includes appellate attorney

fees, see Heartland, 903 N.E.2d at 1008, constitutes together with the other

enumerated recoverable losses in the statute the “amount sought” under Ind.

Code § 33-29-2-4. Thus, as the small claims court has already entered a

judgment in the maximum statutory amount, the Purchasers are not entitled to

an additional amount under the CVRA for appellate attorney fees. See Klotz v.

Hoyt, 900 N.E.2d 1, 7 (Ind. 2009) (observing that the plaintiff’s total claims

which included a claim for attorney fees exceeded the $6,000 small claims

jurisdictional limit and remanding for entry of a judgment in the sum of

$6,000); Pinnacle Properties v. Saulka, 693 N.E.2d 101, 106 (Ind. Ct. App. 1998)

(observing the statute setting forth the jurisdictional amount of the small claims

court does not distinguish between damages and attorney fees in setting the

total jurisdictional amount recoverable), 11 trans. denied. Also, we cannot say

that Rohrman’s arguments on appeal are utterly devoid of all plausibility, that it

flagrantly disregarded the rules of appellate procedure, or that its defense was

unreasonable or groundless, and thus we conclude that appellate attorney fees



11
  The court in Pinnacle Properties also noted that the Indiana Small Claims Rules “make no provision for the
recovery of attorney’s fees in addition to the jurisdictional amount” and Indiana Small Claims Rule 11(B)
provides that the party recovering judgment shall recover costs regardless of the amount. 693 N.E.2d at 106,
106 n.5.

Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017           Page 16 of 17
       are not warranted under Ind. Appellate Rules 66(E) or 67 or Ind. Code § 34-52-

       1-1. 12


                                                      Conclusion

[19]   For the foregoing reasons, we affirm the judgment of the small claims court in

       favor of the Purchasers and decline to award appellate attorney fees.


[20]   Affirmed.


       Robb, J., and Mathias, J., concur.




       12
          This court may assess attorney fees under Ind. Appellate Rule 66(E) where an appeal is frivolous or in bad
       faith and may award costs under Appellate Rule 67, and Ind. Code § 34-52-1-1 provides a court may award
       attorney fees if the court finds an action or defense is frivolous, unreasonable, or groundless.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-850 | April 19, 2017            Page 17 of 17
