Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before

                                                                FILED
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                              Feb 23 2012, 8:47 am


ATTORNEY FOR APPELLANT:                                              CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court


KIRK A. WEIKART
Gardner Sayre & Weikart
Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

HAWKINS AUTO STORES, INC.,                         )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 89A01-1110-SC-461
                                                   )
BRENT F. HEHR,                                     )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE WAYNE SUPERIOR COURT
                         The Honorable Darrin M. Dolehanty, Judge
                         The Honorable David C. Stewart, Magistrate
                               Cause No. 89D03-1101-SC-95



                                        February 23, 2012


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
        Appellant-Defendant Hawkins Auto Stores, Inc. (“Hawkins”) appeals the judgment of

the small claims court that it pay Appellee-Plaintiff Brent Hehr $3395.00 for repayment of

funds paid by Hehr for services which he never received. We affirm.

                           FACTS AND PROCEDURAL HISTORY

        On or about April 16, 2004, Hehr paid $1000 toward a $7695 engine that was to be

built by Hawkins. Hehr was not given a specific date when Hawkins would begin to build

the engine but was told that Hawkins would begin building the engine after it was paid in

full.

        On December 31, 2004, Hawkins sold certain business assets on contract to Sam

Wilson. Included in the contract sale was all work in process, orders for work in process, and

a checking account. Pursuant to the terms of the contract sale, Wilson was permitted to use

the name “Hawkins Auto Stores” despite the fact that he was actually operating a different

company called Sam Wilson LLC. The contract sale was terminated on October 11, 2006,

when ownership of Hawkins reverted to its prior owner, Jim Ray.1 Hehr was never notified

of the December 31, 2004 change in ownership or the October 11, 2006 reversion to prior

ownership.

        Hehr made twenty-eight payments totaling $3395 between April 16, 2004 and October

8, 2008, to cashiers at Hawkins. Hehr received a receipt after each payment that indicated

that payment had been made to Hawkins. At some point after October 8, 2008, Hehr went to




        1
            Wilson subsequently declared bankruptcy.


                                                       2
Hawkins and requested his money back because his daughter was having surgery. Hawkins

refused to refund any of Hehr’s money.

       On January 28, 2011, Hehr filed an action in small claims court seeking to recover his

$3395 from Hawkins. Following a June 28, 2011 trial, the small claims court awarded Hehr

$3395 plus court costs. On August 17, 2011, Hawkins filed a motion to correct error, which

was subsequently denied by the small claims court. This appeal follows.

                              DISCUSSION AND DECISION

       Initially, we note that Hehr failed to file an Appellee’s brief. “When an Appellee fails

to submit an appellate brief, it is within this court’s discretion to reverse the trial court’s

ruling if the appellant makes a prima facie showing of reversible error.” Auto-Owners Ins.

Co. v. Cox, 731 N.E.2d 465, 467 (Ind. Ct. App. 2000) (citing Santana v. Santana, 708 N.E.2d

886, 887 (Ind. Ct. App. 1999)). “If the appellant is unable to meet this burden, we will

affirm.” Id. “Prima facie error in this context is defined as, at first sight, on first appearance,

or on the face of it.” Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010) (quotation

omitted).

              Judgments in small claims actions are “subject to review as prescribed
       by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). 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.” Ind. Trial Rule 52(A). In determining whether a judgment is
       clearly erroneous, 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. See [Estate of Reasor v. Putnam Cnty., 635 N.E.2d 153, 158 (Ind.
       1994); In re Estate of Banko, 622 N.E.2d 476, 481 (Ind. 1993)]. A judgment
       in favor of a party having the burden of proof will be affirmed if the evidence


                                                3
       was such that from it a reasonable trier of fact could conclude that the elements
       of the party’s claim were established by a preponderance of evidence. 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.” Ind. Small
       Claims Rule 8(A).

City of Dunkirk Water & Sewage Dept. v. Hall, 657 N.E.2d 115, 116 (Ind. 1995).

       Hawkins argues on appeal that the small claims court erred in ordering that it pay

$3395 to Hehr because at least $1360 of those funds were paid to Wilson during the period

that he owned the business and did not remain with the business when it reverted back to its

prior ownership. Hawkins argues that according to the terms of the contract sale agreement

with Wilson, Wilson was permitted to use the name Hawkins Auto Stores, but was actually

operating as a separate entity called Sam Wilson LLC. Thus, Hawkins argues, Wilson, and

not Hawkins, should be liable for repayment of the funds paid by Hehr during the period

when Wilson owned the company.

       However, upon review, the record demonstrates that throughout the entire period that

Hehr was making payments on the engine, Hehr was never notified that Hawkins had

changed ownership. Hehr made twenty-eight payments toward the engine totalling $3395 to

cashiers at Hawkins, and he received twenty-eight receipts for these payments, all of which

bore the name “Hawkins.” Hehr testified that at all times, he believed that all of his

payments were being made to Hawkins, and indicated that he would have inquired about the

change in ownership if he had received notice of the change. In addition, the record lacks

any evidence that Hawkins notified any of its customers of the initial ownership change or

the reversion back to the original ownership. Moreover, Hawkins’s testimony indicated that


                                              4
it never took any steps or expended any funds in furtherance of building the engine for Hehr.

In light of this evidence, we cannot say that the small claims court erred in determining that

Hehr was entitled to reimbursement from Hawkins in the amount of $3395.

       The judgment of the small claims court is affirmed.

KIRSCH, J., and BARNES, J., concur.




                                              5
