                                                                          Sep 30 2013, 5:32 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:

JERRY T. DROOK
Marion, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

TOM TRISLER d/b/a                            )
CANAL HOUSE ANTIQUES,                        )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )        No. 35A02-1302-SC-192
                                             )
CLAYTON L. CARTER,                           )
                                             )
     Appellee-Plaintiff.                     )


               APPEAL FROM THE HUNTINGTON SUPERIOR COURT
                       The Honorable J. R. Heffelfinger, Judge
                    The Honorable Jennifer E. Newton, Magistrate
                          Cause No. 35D01-1207-SC-677


                                 September 30, 2013

                            OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE


       Appellant-Defendant, Tom Trisler (Trisler), d/b/a Canal House Antiques (Canal),

appeals the trial court’s order which required Trisler to issue a refund to the Appellee-

Plaintiff, Clayton L. Carter (Carter).


       We reverse.

                                           ISSUE


       Trisler raises a single issue on appeal, which we restate as follows: Whether trial

court erred in ordering Trisler to issue a refund to Carter.


                        FACTS AND PROCEDURAL HISTORY


       On November 19, 2011, Carter and his wife went to Canal in Wabash, Indiana.

Carter purchased some tools, Christmas decorations, two chests of drawers, and a filing

cabinet. When they were cleaning the items some time before Christmas, Carter and his

wife found nails protruding through the back of one of the chest of drawers. They had

purchased the chest of drawers for Carter’s sister-in-law who was in a nursing home

suffering from Alzheimer’s. Upon realizing this, Carter called Trisler and asked if he

could return the chest of drawers. Trisler agreed to the return but told Carter that he

would issue him a store credit rather than a refund. Carter retuned the item on January 5,

2012. He looked around the store, found nothing he wanted, and demanded a cash refund

which Trisler refused. There was nothing on the receipt nor was there any sign in the

store stating that Canal would refund the purchase price of a returned item.
                                              2
       On July 18, 2012, Carter filed his Notice of Claim in Small Claims Court against

Trisler alleging that he returned defective merchandise to Trisler’s store and Trisler failed

to give him a refund of the purchase price. On September 4, 2012, Trisler filed his

Answer. On October 10, 2012, a bench trial was held. On December 26, 2012, the trial

court entered judgment in favor of Carter. Specifically, the trial court ruled:


       1. [Trisler] did not have a posted policy on the return of exchange items. [Carter]
          returned the chest of drawers in a reasonable amount of time. []
       2. Judgment for [Carter] in the amount of $ 170.00 plus court costs of $ 92.00.
(Appellant’s App. pp. 11-12).


       Trisler now appeals. Additional facts will be provided as necessary.


                             DISCUSSION AND DECISION


       Trisler contends that the trial court erred in entering judgment against him and in

favor of Carter because there was no express or implied warranty requiring him to refund

the purchase price. Trisler argues that “[t]the fact that the store owner had posted no

signs regarding refunds or exchanges created no express or implied warranty either.”

(Appellant’s Br. p. 4). Trisler further contends that his willingness to allow Carter to

exchange and return the item for store credit did not give rise to a right to refuse store

credit and demand a cash refund instead.


       Under Indiana Small Claims Rule 11(A), judgments in small claims action are

“subject to review as prescribed by relevant Indiana rules and statutes.” Trinity Homes,

                                              3
LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). 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); Bennett v. Broderick, 858

N.E.2d 1044, 1047 (Ind. Ct. App. 2006), trans. denied. A judgment is clearly erroneous

when a review of the materials on appeal leaves us firmly convinced that a mistake has

been made. Barber v. Echo Lake Mobile Home Com., 759 N.E.2d 253, 255 (Ind. Ct.

App. 2001). In our review, we presume that the trial court correctly applied the law, and

we will not reweigh the evidence or determine the credibility of witnesses but will

consider only the evidence that supports the judgment and the reasonable inferences to be

drawn therefrom. Id. 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. Lae v.

Householder, 789 N.E.2d 481, 483 (Ind. 2003)..


       Lastly, we note that Carter did not file an appellee’s brief. An appellee who does

not respond to the appellant’s allegations of error on appeal runs a considerable risk of

reversal. O.S. v. J.M., 436 N.E.2d 871, 873 (Ind. Ct. App. 1982). Where an appellee has

not filed a brief on appeal, the appellant’s brief need only demonstrate prima facie

reversible error in order to justify a reversal. Id.


       Here, Trisler argues that because there was no return policy, Carter was not

entitled to a refund. Trisler’s argument relies on Caveat Emptor, which literally means,
                                               4
buyer beware. In support of his contention, Trisler solely quotes Buchanan v. Caine, 106

N.E. 885, 887 (Ind. Ct. App. 1914), where this court held that Caveat Emptor applies in a

sale of specific chattel where there is absence of fraud. However, in Vetor v. Shockey,

414 N.E.2d 575, 576 (Ind. Ct. App. 1980), we noted that:


       Under the common law tradition, the doctrine of caveat emptor governed the
       purchase of real estate. The theory underlying caveat emptor was that buyers and
       sellers dealt at arm’s length and that if the purchaser sought any warranties, those
       warranties should be negotiated and incorporated into the written contract.
       Additionally, purchasers were presumed to have the means and the opportunity to
       examine the property and judge its qualities for themselves.
       Recently, caveat emptor has been viewed with disfavor and many jurisdictions
       including Indiana have adopted the doctrine of implied warranty of habitability for
       the purchase of a new home from a builder-vendor. In part, this is due to a
       recognition of the sale of goods concept [].


       We find that the application of the common law principle appears to be

diminishing and our courts seem to be slowly abandoning this principle. Here, the sale

was in respect to personal property and not real property, and in this regard, we find that

the Indiana Uniform Commercial Code (U.C.C.) would be more appropriate to determine

the issue before us. As revealed by the record, the sale of the chest of drawers constituted

a contract of sale by definition under the U.C.C. Specifically, Ind. Code § 26-1-2-106

provides in part that:


       []unless the context otherwise requires, “contract” and “agreement” are limited to
       those relating to the present or future sale of goods. “Contract for sale” includes
       both a present sale of goods and a contract to sell goods at a future time. A “sale”
       consists in the passing of title from the seller to the buyer for a price (I.C. 26-1-2-
       401). A “present sale” means a sale which is accomplished by the making of the
       contract.
                                              5
       Although there was no written contract between Trisler and Carter for the sale of

the item, the U.C.C. provides that an action for a sale of goods contract that is below

$500 is still enforceable under the U.C.C. even though it is not in writing. See I. C. § 26-

1-2-201. Furthermore, we note that the U.C.C. gives the buyer the right to revoke his

acceptance of the goods. “Revocation has the effect of permitting the buyer to avoid his

obligation to pay for the previously accepted goods (or to have his payment returned) if

he returns the goods to the seller.” Agrarian Grain Co., Inc. v. Meeker, 526 n.E.2d 1189,

1191 (Ind. Ct. App. 1988). Specifically, I. C. § 26-1-2-608 provides that:


       (1) The buyer may revoke his acceptance of a lot or commercial unit whose non-
       conformity substantially impairs its value to him if he has accepted it
       (a) on the reasonable assumption that its non-conformity would be cured and it has
       not been seasonably cured; or
       (b) without discovery of such non-conformity if his acceptance was reasonably
       induced either by the difficulty of discovery before acceptance or by the seller’s
       assurances.
       (2) Revocation of acceptance must occur within a reasonable time after the buyer
       discovers or should have discovered the ground for it and before any substantial
       change in condition of the goods which is not caused by their own defects. It is not
       effective until the buyer notifies the seller of it.
       (3) A buyer who so revokes has the same rights and duties with regard to the
       goods involved as if he had rejected them.

       Here the record indicates that Carter and his wife purchased the chest of drawers

for his sister-in-law who was living in a nursing home and was suffering from

Alzheimer’s. After he had taken the chest of drawers home, he realized the chest had

nails sticking out through the back, and Carter felt that it would be unsafe for his sister-


                                             6
in-law. We find that the chest of drawers did not conform to what Carter initially had

intended to use the chest of drawers for and as such, it substantially impaired its value.

        However, even though we conclude that the chest of drawers is non-conforming

pursuant to the statute, Carter is not entitled to revoke his acceptance. Indiana Code

section 26-1-2-608(1)(a) does not apply because Carter did not accept non-conforming

goods on the assumption the non-conformity would be cured. The fact that Carter was

able to discover the defect upon opening the drawers of the chest while cleaning it belies

the difficulty of discovering the non-conformity and there is no allegation that Trisler in

any way kept Carter from inspecting the chest of drawers prior to his purchase of it.

Therefore, I.C. § 26-1-2-608(1)(b) also does not apply to allow Carter to revoke his

acceptance of the chest of drawers. Failing a legitimate reason to revoke his acceptance,

the timeliness of Carter’s attempted revocation pursuant to I.C. § 26-1-2-608(2) is not at

issue.1 Therefore, we conclude that the trial court erred in entering judgment for Trisler

and we reverse its decision.

                                            CONCLUSION


        Based on the foregoing, we conclude that the trial court erred in ordering Trisler to

reimburse Carter the purchase price of the chest of drawers.

1
 Additionally, there is no allegation that the filing cabinet, the purchase price of which Trisler was also
ordered to refund, was non-conforming in the first place. It appears the filing cabinet was too big for
Carter to transport on the day of purchase and that he thereafter simply changed his mind about taking it
from the store. I.C. § 26-1-2-608 therefore does not come into play. Carter, having paid for the item and
therefore accepted it, had no right to reject or revoke his acceptance of it. See McClure Oil Corp. v.
Murray Equip., Inc., 515 N.E.2d 546, 552 (Ind. Ct. App. 1987) (“Once the buyer accepts the goods, the
buyer is precluded from rejecting them.”).

                                                     7
      Reversed.


KIRSCH, J. and ROBB, C. J. concur




                                    8
