      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                           FILED
      this Memorandum Decision shall not be                                       Sep 09 2019, 8:34 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                     CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
      the defense of res judicata, collateral                                           and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Alan D. Wilson                                           Jacob M. O’Brien
      Kokomo, Indiana                                          Scott L. Starr
                                                               Starr Austen & Miller, LLP
                                                               Logansport, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Merritt’s Truck and Auto Repair,                         September 9, 2019
      Inc.,                                                    Court of Appeals Case No.
      Appellant-Defendant,                                     18A-PL-2010
                                                               Appeal from the
              v.                                               Howard Superior Court
                                                               The Honorable
      Bullard Trucking Company,                                Daniel C. Banina, Special Judge
      L.L.C.,                                                  Trial Court Cause No.
      Appellee-Plaintiff                                       34D02-1606-PL-427




      Vaidik, Chief Judge.


[1]   Bullard Trucking Company, L.L.C. (“Bullard”) sued Merritt’s Truck and Auto

      Repair, Inc. (“Merritt’s”) in relation to the repair of a broken-down semi-truck

      engine. Bullard made seven claims against Merritt’s: (1) breach of contract; (2)

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019                    Page 1 of 5
      breach of express warranty; (3) negligent bailment; (4) fraud; (5) breach of

      implied warranty of merchantability; (6) breach of implied warranty of fitness

      for a particular purpose; and (7) promissory estoppel. The case proceeded to a

      jury trial, and the jury returned a verdict in favor of Bullard. The jury found

      that Bullard had suffered $70,000 in damages but actually awarded a total of

      $200,000 as treble damages, indicating that it had found fraud by Merritt’s. See

      Ind. Code § 34-24-3-1(1) (authorizing award of treble damages for fraud).


[2]   Merritt’s now appeals, raising seven issues of its own. Specifically, Merritt’s

      contends that: (1) Bullard’s fraud claim is barred by the Statute of Frauds,

      Indiana Code section 32-21-1-1; (2) the trial court should not have allowed

      Bullard to ask the jury for an award of treble damages under Section 34-24-3-1;

      (3) the trial court committed reversible error by failing to issue a pre-trial order

      pursuant to Indiana Trial Rule 16(J); (4) the trial court should have allowed

      Merritt’s to rely on various warranty disclaimers; (5) the trial court should not

      have sent Bullard’s negligence claim to the jury; (6) the trial court should have

      given the jury a verdict form that allowed for the apportionment of a percentage

      of fault to a non-party; and (7) the evidence is insufficient to support the jury’s

      verdict.


[3]   In its appellee’s brief, Bullard convincingly argues that Merritt’s failed to raise

      any of these seven issues in the trial court and that it therefore waived them for

      purposes of appeal. Despite having filed a 54-page appellant’s brief, Merritt’s

      did not file a reply brief to respond to Bullard’s waiver arguments. We have



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019   Page 2 of 5
      reviewed the record, and we agree with Bullard that Merritt’s waived all the

      issues it raises on appeal.


[4]   Merritt’s argues that Bullard’s fraud claim is barred by the Statute of Frauds,

      Indiana Code section 32-21-1-1. Merritt’s did not make this argument to the

      trial court, so it is waived for purposes of appeal. See Zavodnik v. Harper, 17

      N.E.3d 259, 264 (Ind. 2014).


[5]   Merritt’s argues that Bullard waited too long to announce its intent to seek

      treble damages under Indiana Code section 34-24-3-1 and that the trial court

      therefore erred by allowing Bullard to seek treble damages at trial. Merritt’s did

      not make this argument to the trial court, so it is waived for purposes of appeal.

      See id.


[6]   Merritt’s argues that the trial court committed reversible error by failing to enter

      a pre-trial order pursuant to Trial Rule 16(J). Merritt’s did not complain to the

      trial court about the lack of a pre-trial order, so this argument is waived for

      purposes of appeal. See id.


[7]   Merritt’s argues that the trial court erred by entering a directed verdict

      prohibiting it from making arguments to the jury based on a warranty

      disclaimer that appeared on various documents. However, when Bullard

      moved for the directed verdict on the issue, Merritt’s offered no opposition. Tr.

      Vol. IV p. 38 (“Well, you’ve already got me on that one. I guess.”). As such,

      Merritt’s waived the issue for purposes of appeal. See Zavodnik, 17 N.E.3d at

      264.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019   Page 3 of 5
[8]    Merritt’s argues that Bullard’s negligence claim should not have been sent to the

       jury “because, as a matter of law, no duty was owed.” Appellant’s Br. p. 43.

       Setting aside the fact that the jury found Merritt’s liable for fraud, not

       negligence, Merritt’s did not make this argument to the trial court, so it is

       waived for purposes of appeal. See Zavodnik, 17 N.E.3d at 264.


[9]    Merritt’s argues that the trial court erred by failing to give the jury a verdict

       form allowing for the apportionment of fault to a non-party (Midwest Engines,

       Inc.) and to instruct the jury accordingly. However, when the trial court

       indicated its intent to use a different verdict form, Merritt’s did not object. As

       such, Merritt’s waived this argument for purposes of appeal. See id.


[10]   Merritt’s argues that Bullard did not present sufficient evidence to support a

       jury verdict for fraud. In the trial court, however, Bullard did not file a motion

       for judgment on the evidence or a motion to correct error making such a claim.

       By failing to do so, Merritt’s waived this argument for purposes of appeal. See

       Henri v. Curto, 908 N.E.2d 196, 208-09 (Ind. 2009) (holding that claim of

       insufficient evidence cannot be raised on appeal in civil jury case “if not

       previously preserved in the trial court by either a motion for judgment on the

       evidence filed before judgment or in a motion to correct error”); see also Ind.

       Trial Rule 50(A)(5) (providing that challenge to sufficiency of evidence in jury

       trial may be raised “upon appeal for the first time in criminal appeals but not in

       civil cases”).


[11]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019   Page 4 of 5
Kirsch, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019   Page 5 of 5
