MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Mar 03 2016, 8:28 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gary L. Griner                                           Trevor Q. Gasper
Mishawaka, Indiana                                       May · Oberfell · Lorber
                                                         Mishawaka, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elaine Adams,                                            March 3, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1507-SC-867
        v.                                               Appeal from the St. Joseph
                                                         Superior Court – Small Claims
Heather Stavropoulos,                                    Division
Appellee-Plaintiff                                       The Honorable William J.
                                                         Boklund, Senior Judge
                                                         The Honorable Elizabeth A.
                                                         Hardtke, Magistrate
                                                         Trial Court Cause No.
                                                         71D05-1412-SC-10819



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016         Page 1 of 12
[1]   In September of 2013, Appellee-Plaintiff Heather Stavropoulos purchased a

      puppy from Appellant-Defendant Elaine Adams. According to the terms of the

      contract for the sale of the puppy, Adams warranted that the puppy was being

      sold in “good condition” and would not suffer from hip dysplasia before

      reaching the age of four. However, nearly immediately after the purchase of the

      puppy was completed, Stavropoulos discovered that the puppy suffered from

      environmental and food allergies which stemmed from an autoimmune disease.

      In addition, when the puppy was just fourteen months old, it was diagnosed

      with hip dysplasia. After receiving these diagnoses, Stavropoulos brought the

      instant action against Adams alleging a breach of the warranties contained in

      the parties’ contract. After finding that breaches of said warranties had

      occurred, the small claims court entered a $3286.26 judgment against Adams.


[2]   On appeal, Adams challenges the $3286.26 judgment, claiming that the small

      claims court erred by ordering her to refund the $1700.00 purchase price of the

      puppy to Stavropoulos without also requiring Stavropoulos to return the puppy

      to Adams. Adams also claims that the small claims court erred by ordering her

      to pay damages relating to certain expenses incurred by Stavropoulos as a result

      of the puppy’s allergies. Finding no error by the small claims court, we affirm.



                            Facts and Procedural History
[3]   On September 4, 2013, the parties entered into a contract under the terms of

      which Stavropoulos agreed to purchase a Doberman Pinscher puppy



      Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 2 of 12
      (hereinafter, the “puppy”) from Adams for the sum of $1700.00. The portion of

      the parties’ contract which is relevant to the instant matter provides as follows:


              3. Puppy is being sold in good condition with current shots, and
              wormings. Puppy is guaranteed against hip d[y]splasia and
              cardio for 4 years. If either were to occur seller has option of
              replacement or refund of the purchase price.


      Appellant’s App. p. 17.


[4]   Almost immediately after bringing the puppy home, Stavropoulos noticed that

      the puppy seemed to be suffering from some health issues. Specifically, the

      puppy would vomit, would not eat “after a certain timeframe,” and broke out in

      hives on multiple occasions. Tr. p. 5. After multiple visits to the veterinarian

      and the completion of multiple tests, it was determined that the puppy suffered

      from environmental and food allergies which fell under “an umbrella of an

      autoimmune disease.” Tr. p. 7. This diagnosis resulted in the need for the

      puppy to undergo additional veterinary care and for Stavropoulos to purchase

      special food, medications, and supplements for the puppy.


[5]   In addition to the above-described allergy issues, when the puppy was

      approximately three months old, Stavropoulos began hearing a “popping”

      sound coming from the puppy’s hips. Tr. p. 19. When these popping sounds

      continued, Stavropoulos became concerned about the possibility that the puppy

      was suffering from hip dysplasia. When the puppy was approximately fourteen

      months old, it was diagnosed with hip dysplasia. This diagnosis was

      subsequently confirmed by a second veterinarian.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 3 of 12
[6]   On December 29, 2014, Stavropoulos filed an action in the small claims court

      against Adams seeking $5000.00 in damages relating to the puppy’s hip

      dysplasia diagnosis and the costs associated with the puppy’s other medical

      ailments. Although Adams claimed during an April 14, 2015 trial, that she

      “would do anything if she could have helped” Stavropoulos with any issues

      Stavropoulos experienced with the puppy, nothing in the record indicates that

      Adams offered to replace the puppy prior to the date that Stavropoulos initiated

      the instant law suit. Tr. p. 62. In addition, Adams testified that she believes

      that, at the age of fourteen months, the puppy was too young to be diagnosed

      with hip dysplasia but would be happy to take the puppy back and refund the

      $1700.00 purchase price if the puppy was diagnosed with hip dysplasia after

      reaching its second birthday.


[7]   Following the conclusion of the April 14, 2015 trial, the small claims court

      determined that there had been a breach of the warranties that the puppy was

      sold in good condition and that it would not suffer from hip dysplasia before the

      age of four. After reaching this determination, the small claims court entered a

      $3286.26 judgment against Adams. Adams subsequently filed a motion to

      correct error, which was denied by the small claims court on June 12, 2015.

      This appeal follows.



                                 Discussion and Decision
[8]   Adams appeals the judgment of the small claims court following the denial of

      her motion to correct error.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 4 of 12
        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 County (1994), Ind., 635 N.E.2d 153, 158; In re
        Estate of Banko (1993), Ind., 622 N.E.2d 476, 481. A judgment in
        favor of a party having the burden of proof will be affirmed if the
        evidence 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 Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995).

Further, although rulings on motions to correct error are usually reviewable

under an abuse of discretion standard, we review a case de novo when the issue

on appeal is purely a question of law. Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d

648, 657 (Ind. Ct. App. 2013) (citing Ind. Bureau of Motor Vehicles v. Charles, 919

N.E.2d 114, 116 (Ind. Ct. App. 2009)). “The interpretation of a contract is a

pure question of law.” Id. (citing Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d

249, 251 (Ind. 2005)).




Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 5 of 12
        I. Authority Relating to the Interpretation of a Contract
[9]    In order to resolve the issues presented below, the small claims court was faced

       with the task of interpreting the parties’ contract relating to the sale of the

       puppy. In order to review the propriety of the small claims court’s judgment,

       we must do the same. “‘The cardinal rule in the interpretation of contracts is to

       ascertain the intention of the parties, as expressed in the language used, and to

       give effect to that intention, if it can be done consistent with legal principles.’”

       Evansville-Vanderburgh Sch. Corp. v. Moll, 264 Ind. 356, 362, 344 N.E.2d 831, 837

       (1976) (quoting Walb Constr. Co. v. Chipman, 202 Ind. 434, 441, 175 N.E. 132,

       134 (1931)). Thus, “[w]hen construing the meaning of a contract, our primary

       task is to determine and effectuate the intent of the parties.” Ryan v. Lawyers

       Title Ins. Corp., 959 N.E.2d 870, 875 (Ind. Ct. App. 2011).


[10]   “Where the terms of a contract are clear the court merely applies its

       provisions.” Turnpaugh v. Wolf, 482 N.E.2d 506, 508 (Ind. Ct. App. 1985).

       “Unambiguous language is conclusive upon the parties to the contract and the

       courts.” Id. “In the absence of an ambiguity it is not within the function of the

       judiciary to look outside of the instrument to get at the intention of the parties.”

       Moll, 264 Ind. at 362, 344 N.E.2d at 837. As such, “[i]f the language of the

       instrument is unambiguous, the intent of the parties must be determined from

       its four corners,” Turnpaugh, 482 N.E.2d at 508, and “[w]e will not construe the

       contract or look to extrinsic evidence, but will merely apply the contractual

       provisions.” Kessel v. State Auto. Mut. Ins. Co., 871 N.E.2d 335, 337 (Ind. Ct.

       App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 6 of 12
[11]   “The terms of a contract are ambiguous only when reasonably intelligent

       persons would honestly differ as to the meaning of those terms.” Bressler v.

       Bressler, 601 N.E.2d 392, 395 (Ind. Ct. App. 1992). “‘The meaning of [an

       instrument] may be said to be clear, when it fairly expresses an intention on a

       reasonable interpretation of the language used, regardless of other possible

       intentions not apparent, but which must be reached through a forced

       construction or circuitous reasoning.’” Id. (quoting Hauck v. Second Nat’l Bank of

       Richmond, 153 Ind. App. 245, 286 N.E.2d 852, 863 (1972), trans. denied). “An

       instrument is not rendered ambiguous by the mere fact the parties disagree as to

       its proper construction.” Id. “In determining whether an instrument is

       ambiguous, we must reference the whole instrument rather than only individual

       clauses.” Id. at 395-96.


[12]   Any ambiguity in a contract is construed against its drafter. Barney v. StoneMor

       Operating LLC, 953 N.E.2d 554, 558 (Ind. Ct. App. 2011), trans. denied. Further,


               in construing a contract we presume that all provisions were
               included for a purpose, and if possible we reconcile seemingly
               conflicting provisions to give effect to all provisions. Magee v.
               Garry-Magee, 833 N.E.2d 1083, 1092 (Ind. Ct. App. 2005). We
               must accept an interpretation of the contract that harmonizes all
               the various parts so that no provision is deemed to conflict with,
               to be repugnant to, or to neutralize any other provision. Id.
               When a contract contains general and specific provisions relating
               to the same subject, the specific provision controls. Id. “It is well
               settled that when interpreting a contract, specific terms control
               over general terms.” Burkhart Advertising, Inc. v. City of Fort
               Wayne, 918 N.E.2d 628, 634 (Ind. Ct. App. 2009) (citing GPI at
               Danville Crossing, L.P. v. West Cent. Conservancy Dist., 867 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 7 of 12
               645, 651 (Ind. Ct. App. 2007), reh’g denied, trans. denied), trans.
               denied.


       Ryan, 959 N.E.2d at 875.


                                               II. Analysis
                                          A. Return of Puppy
[13]   Adams argues on appeal that the small claims court erred in ordering her to

       refund the $1700.00 purchase price to Stavropoulos without also requiring

       Stavropoulos to return the puppy to Adams. For her part, Stavropoulos argues

       that return of the puppy was not required by the terms of the contract.


[14]   Again, the relevant portion of the parties’ contract expressly provides as

       follows: “Puppy is guaranteed against hip d[y]splasia and cardio for 4 years. If

       either were to occur seller has option of replacement or refund of purchase

       price.” Appellant’s App. p. 17. The puppy was diagnosed with hip dysplasia

       when it was approximately fourteen months old, well before reaching its fourth

       birthday. As a result of the diagnosis, Stavropoulos sought and was granted a

       refund of the purchase price.


[15]   Adams attempts to frame the issue relating to the return of the puppy as one

       arising out of the Uniform Commercial Code (“UCC”). In attempting to do so,

       Adams cites to this court’s opinion in Michiana Mack, Inc. v. Allendale Rural Fire

       Protection District, 428 N.E.2d 1367 (Ind. Ct. App. 1981). However, in Michiana

       Mack, the issue before the court did not involve a question as to what remedies

       were available following a breach of an express warranty, as is the issue in the
       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 8 of 12
       instant case, but rather a question as to what remedies were available under the

       UCC following the tender of non-conforming goods. Id. at 269-70. As such,

       we find Adams’s reliance on Michiana Mack to be unavailing.


[16]   Upon review, we conclude that the terms of the parties’ contract are

       unambiguous and, as a result, we will look no further than the four corners of

       the contract to determine the parties’ intent. See Turnpaugh, 482 N.E.2d at 508.

       The contract at issue expressly warranted against hip dysplasia, the condition

       with which the puppy was diagnosed when it was only fourteen months old.

       The contract also expressly provides that if the puppy was diagnosed with hip

       dysplasia before reaching the age of four, one method of recourse was a refund

       of the $1700.00 purchase price. To give a refund is to “reimburse” or “to give

       or put back.” Webster’s Third New International Dictionary 1910 (1964). The

       contract, which appears to be drafted by Adams, makes no mention of return of

       the puppy as a condition for payment of the refund. We therefore conclude that

       the small claims court did not err in ordering that Adams refund the $1700.00

       purchase price to Stavropoulos without also requiring that Stavropoulos return

       the puppy to Adams.


                                      B. Additional Damages
[17]   Adams also argues that the small claims court erred in ordering her to pay an

       additional $1586.26 in damages to Stavropoulos. For her part, Stavropoulos

       argues that the trial court did not err in awarding her the $1586.26 in additional

       damages because said damages reflected expenses incurred as a direct result of


       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 9 of 12
       the breach of Adams’s express warranty that the puppy was being sold “in good

       condition.”


[18]   In arguing that the trial court erred in ordering her to pay the $1586.26 in

       damages to Stavropoulos, Adams claims that because a puppy is personal

       property, damages relating to said puppy cannot exceed the fair market value of

       the puppy. In support of this claim, Adams cites to Ridenour v. Furness, 546

       N.E.2d 322, 325 (Ind. Ct. App. 1986) for the proposition that damages for the

       total destruction of personal property are measured by the fair market value of

       said property at the time of loss. Adams’s reliance on Ridenour, however, is

       misplaced because the damages included in the small claims court’s order do

       not stem from the destruction of any personal property belonging to

       Stavropoulos. Rather, the damages stem from a breach of the express warranty

       contained in the parties’ contract relating to the condition of the puppy at the

       time of the sale. Accordingly, despite Adams’s claim to the contrary, the small

       claims court’s order must be considered for what it is, i.e., an award of damages

       which were incurred as a direct result of a breach of an express warranty.


[19]   The small claims court found that Adams had warranted that the puppy was

       being sold in good condition. The small claims court determined that a breach

       of this warranty had occurred, finding that because the puppy suffered from an

       autoimmune disease which caused what appear to be significant allergy issues,

       the puppy had not been sold in good condition. The small claims court then

       awarded $1586.26 in damages to Stavropoulos for costs incurred as a direct

       result of the breach of that warranty. Adams does not challenge the small

       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 10 of 12
       claims court’s determination that a breach of the warranty occurred, only the

       award of damages.


[20]   With respect to potential damages which may be awarded following a breach of

       warranty, Indiana Code 26-1-2-715 provides as follows:


               (1) Incidental damages resulting from the seller’s breach include
               expenses reasonably incurred in inspection, receipt,
               transportation and care and custody of goods rightfully rejected,
               any commercially reasonable charges, expenses or commissions
               in connection with effecting cover and any other reasonable expense
               incident to the … breach.

               (2) Consequential damages resulting from the seller’s breach
               include

                        (a) any loss resulting from general or particular
                        requirements and needs of which the seller at the
                        time of contracting had reason to know and which
                        could not reasonably be prevented by cover or
                        otherwise; and

                        (b) injury to person or property proximately resulting
                        from any breach of warranty.


       (Emphasis added).


[21]   In the instant matter, Stavropoulos presented evidence during trial setting forth

       the costs she incurred as a direct result of the breach. The small claims court

       found this evidence to be credible and awarded damages accordingly. We

       cannot say that the small claims court erred in doing so. As such, we conclude

       that the small claims court did not err in awarding $1586.26 in damages to

       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 11 of 12
       Stavropoulos for costs incurred as a direct result of the breach of Adams’s

       warranty that the puppy was being sold to Stavropoulos in good condition.


[22]   The judgment of the small claims court is affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1507-SC-867 | March 3, 2016   Page 12 of 12
