MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Aug 20 2019, 7:16 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Joshua Lee                                               Jason A. Lopp
Depauw, Indiana                                          Whitney E. Wood
                                                         McNeely Stephenson
                                                         New Albany, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Lee,                                              August 20, 2019
Appellant,                                               Court of Appeals Case No.
                                                         19A-SC-526
        v.                                               Appeal from the Harrison Superior
                                                         Court
Countryside Auto Sales, LLC,                             The Honorable Joseph L.
Appellee                                                 Claypool, Judge
                                                         Trial Court Cause No.
                                                         31D01-1812-SC-269



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019                  Page 1 of 6
[1]   Joshua Lee appeals the trial court’s order ruling in favor of Countryside Auto

      Sales, LLC (Countryside), on Lee’s complaint. Finding no error, we affirm.


                                                          Facts
[2]   On January 29, 2018, Lee purchased a used 1999 GMC Sierra 1500 (the truck)

      from Countryside for $5,626.01.1 Lee made a down payment of $1,500 and

      executed a contract (the Contract) and security agreement for the remaining

      balance. The Contract stated as follows, in relevant part:


                 Vehicle Inspection. You are purchasing the Vehicle based upon
                 your personal inspection, and are not relying upon any opinion,
                 statement, promise or representation of the salesperson, or any
                 other of our employees that is not contained in the written
                 agreements you are signing today.


                 Vehicle Condition. You understand that the Vehicle may have
                 sustained prior body damage and may have undergone prior
                 mechanical repairs during or after its manufacture, during or
                 after transit to us or while in the possession of prior owners or
                 operators.


                 Warranty Information

                 Warranty. We make no express or implied warranties. Except
                 as required by law, we make no implied warranty of
                 merchantability and no warranty that the Vehicle is fit for a
                 particular purpose. We sell the Vehicle AS IS—NOT




      1
          Nothing in the record suggests that Lee is anything other than a competent adult.


      Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019          Page 2 of 6
                 EXPRESSLY WARRANTED OR GUARANTEED. WITH
                 ALL FAULTS.


      Appellant’s App. Vol. II p. 44-45 (emphases original).


[3]   Lee alleges that soon after he purchased the truck, the truck bed began leaning

      toward the cab because of substantial rust underneath the truck. He claims that

      the truck is now unsafe to drive. Countryside states that its salesman informed

      Lee that there was rust underneath the truck, though Countryside maintains

      that it was unaware of rust to the extent that Lee claims exists. Lee also claims

      that the salesman told him that the truck would be good to “haul things” and

      that the truck came with a warranty. Tr. Vol. II p. 8-10.


[4]   On December 17, 2018, Lee filed a small claims action against Countryside,

      asking for damages to repair the vehicle.2 Lee subsequently amended the

      complaint and asked the trial court to rescind the contract. Following a bench

      trial, the trial court entered judgment in favor of Countryside. Lee now

      appeals.


                                       Discussion and Decision
[5]   In reviewing a small claims judgment, we will not set it aside unless it is clearly

      erroneous. Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App.

      2013). We may neither reweigh the evidence nor re-assess witness credibility




      2
          Neither the original nor the amended complaint appears to be included in the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019                       Page 3 of 6
      and must instead consider only the evidence and reasonable inferences that may

      be drawn therefrom that support the judgment. Id. If a reasonable factfinder

      could conclude that the party bearing the burden of proof—here, Lee—failed to

      carry that burden by establishing their claims by a preponderance of the

      evidence, we will affirm. Id. This deferential standard of review is especially

      important in small claims actions, where the trials are “‘informal, with the sole

      objective of dispensing speedy justice between the parties according to the rules

      of substantive law.’” Id. (quoting Ind. Small Claims Rule 8(A)).


[6]   Initially, we note that small claims courts do not have the authority to grant the

      equitable remedy of rescission. Nielson Buick Jeep Eagle Subaru v. Hall, 726

      N.E.2d 358, 360-61 (Ind. Ct. App. 2000). Therefore, the trial court did not err

      by denying this relief.


[7]   Next, we address the crux of Lee’s complaint—that he did not knowingly agree

      to buy the truck “as is.” As a general rule, the law allows competent adults the

      utmost liberty in entering into contracts which, when entered into freely and

      voluntarily, will be enforced by the courts. Trimble v. Ameritech Publishing, Inc.,

      700 N.E.2d 1128, 1129 (Ind. 1998). It is well settled that a used car dealer

      “may disclaim implied warranties through the use of conspicuous language

      containing expressions like ‘as is’ or ‘with all faults’ or other language which in

      common understanding call the buyer’s attention to the exclusion of warranties

      and makes plain there is no implied warranty.” Town and Country Ford, Inc. v.

      Busch, 709 N.E.2d 1030, 1033 (Ind. Ct. App. 1999).



      Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019   Page 4 of 6
[8]    Here, Lee signed a contract containing written disclaimers of warranty. The

       disclaimers were in bold and partially capitalized and expressly disclaimed

       warranties of both merchantability and fitness for a particular purpose.

       Furthermore, the contract also explicitly stated that Lee was not “relying upon

       any opinion, statement, promise or representation of the salesperson” not

       contained in the contract. Appellant’s App. Vol. II p. 44. Therefore, Lee has

       no right to direct our attention to any statements allegedly made by the

       Countryside salesperson. See Circle Centre Dev. Co. v. Y/G Ind., L.P., 762 N.E.2d

       176, 181 (Ind. Ct. App. 2002) (holding that a party “cannot affirmatively state

       in writing that it has ‘independently investigated’ the matters at issue and that it

       ‘has not relied upon any inducements or representations’ by [the other party] or

       its agents and then, after the fact, repudiate those provisions”). Therefore, to

       succeed on any fraud-related claim, Lee would have to show fraud in the

       express terms of the contract, which he cannot do. LTD Keller Farms, LLC v.

       Brigitte Holmes Livestock Co., 722 F. Supp. 2d 1015, 1029 (N.D. Ind. 2010)

       (interpreting and applying Indiana law).


[9]    The simple fact is that Lee signed a contract. The contract is valid. As a

       competent adult, he is assumed to have read and understood the terms of the

       contract before signing it. He is now bound by those terms. Consequently, the

       trial court did not err by finding that Countryside disclaimed all warranties.


[10]   Lee also makes an argument under the Indiana Deceptive Consumer Sales Act.

       Ind. Code ch. 24-5-0.5. The statute requires that a plaintiff making such a claim

       must give timely notice “that shall state fully the nature of the alleged deceptive

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019   Page 5 of 6
       act and the actual damages suffered therefrom” within six months of the

       discovery of the deceptive act. Ind. Code § 24-5-0.5-5(a). Here, Lee failed to

       provide such notice in a timely fashion. Moreover, the trial court could have

       reasonably concluded that the language of the Contract discussed above would

       have denied Lee the right to recover under the Indiana Deceptive Consumer

       Sales Act.3


[11]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       3
         On appeal, Lee also mentions the “Used Car Rule” based in 16 C.F.R. 455. He did not make this claim at
       the trial court level and has consequently waived the right to do so on appeal. While we allow a great deal of
       latitude to small claims plaintiffs, see Ind. Small Claims Rules 2 and 8, this is a very specific claim that needed
       to be pleaded explicitly so that Countryside could prepare a defense to it. Therefore, we find it waived.

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019                         Page 6 of 6
