Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res                                 FILED
judicata, collateral estoppel, or the law                       Jun 13 2012, 9:13 am
of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                              ATTORNEY FOR APPELLEE:

ROBERT OWEN VEGELER                                  PATRICK L. PROCTOR
Vegeler Law Office, LLC                              Eilbacher Fletcher, LLP
Fort Wayne, Indiana                                  Fort Wayne, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

AUTO LIQUIDATION CENTER, INC.,                       )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )      No. 02A03-1111-SC-553
                                                     )
MCKESHA BATES,                                       )
                                                     )
        Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Stanley A. Levine, Judge
                         The Honorable Jerry L. Ummel, Magistrate
                             Cause No. 02D01-1104-SC-5315


                                            June 13, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Auto Liquidation Center, Inc., (“ALC”) appeals the small claims court’s judgment

in favor of McKesha Bates. We affirm and remand.

                                           Issues

        ALC raises three issues, which we consolidate and restate as:

              I.     whether the small claims court erred by finding for
                     Bates on her breach of contract claim and on ALC’s
                     breach of contract counterclaim; and

              II.    whether the small claims court properly found that
                     ALC committed criminal conversion.

On cross-appeal, Bates argues that she is entitled to appellate attorney fees.

                                           Facts

       On March 8, 2011, Bates visited ALC, a used car dealership, and found a 1995

Oldsmobile Regency that she wanted to purchase. Bates drove the vehicle and found

problems with the battery and brakes. Mike Zojaji, president and owner of ALC, told

Bates that ALC would fix those issues. Bates purchased the vehicle for $4,473.00 and

made a down payment of $1,700.00. Bates entered into a Retail Installment Contract and

Security Agreement (“Agreement”) and purchased an additional Vehicle Protection Plan

that warranted the vehicle for six months or 6,000 miles (“Warranty”).           Under the

Agreement, Bates was required to make weekly $60.00 payments beginning on March

16, 2001.

       Bates did not take the vehicle when she purchased it because ALC was supposed

to repair the vehicle. On March 16th, Zojaji told Bates that the vehicle would be ready on


                                              2
March 18th and that she should make her first payment on that day. On March 18th, Bates

went to ALC, made her payment, and picked up the vehicle.

        On March 19th, Bates had trouble starting the vehicle. On March 20th, she could

not start the vehicle and had to get a jump start. On March 25th, Bates made her next

payment. She continued having trouble starting the vehicle, and she called ALC on

March 29th. Zojaji told Bates to take the vehicle to Auto Electric. Bates did so and was

told that the battery was “no good.” Tr. p. 20. Bates called Zojaji, and Zojaji said to

bring the vehicle to ALC for a new battery. Bates returned to ALC on March 29th, and a

mechanic told her that the heating coil was also “going out” and that ALC needed to keep

the vehicle to make the repairs. Id. at 21. Bates called on March 30th, and Zojaji said that

the vehicle was not ready and told Bates not to call him anymore. Bates reminded him

that her next payment was due on April 1st, and Zojaji said to wait until she picked up the

vehicle to make the payment. On April 1st, Bates obtained a $60 money order to make

the payment.

        Because she still had not heard from ALC, Bates had her father call ALC on April

5th. Zojaji told Bates’s father that he had been trying to contact Bates.1 Bates called ALC

but was unable to talk with Zojaji. The receptionist asked for Bates’s cell phone number

again. Bates said that Zojaji already had her name and number and hung up the phone.

Bates and her father then drove ALC to talk to Zojaji. Zojaji told Bates that she “couldn’t



1
  Bates had gotten a new cell phone number, and Bates and her father testified that they gave the number
to ALC. Although ALC claimed that it had called Bates’s references from her credit application in an
attempt to contact her, Bates presented evidence that ALC had not called any of the references to contact
her.
                                                   3
get the car back because he felt like he was being lied to and that he [didn’t] like [her]

anymore so he was repossessing [the] vehicle.” Id. at 33. Bates attempted to make her

payment with the money order, but Zojaji refused to accept it, give her the vehicle, or

refund her down payment and two payments.

      On April 7, 2011, Bates filed a small claims court complaint against ALC. She

later filed an amended complaint for breach of contract and criminal conversion. ALC

filed a counterclaim for breach of contract. After a trial, the small claims court entered

the following sua sponte findings of fact and conclusions thereon:

             9.     After April 1st both parties testified that they
                    attempted to contact each other. Finally, on April 5th,
                    the Plaintiff went to Defendant’s lot with her father to
                    pick up the vehicle. She testified that she tendered the
                    payment of $60.00 but the parties got into a verbal
                    altercation and the Defendant refused to allow the
                    Plaintiff to take her vehicle. The Plaintiff presented a
                    copy of a money order to the Court in the amount of
                    $60.00 that she obtained on April 1, 2011. She
                    testified that this was the money order she tendered to
                    the Defendant.

             10.    The Defendant denied that the Plaintiff tendered
                    payment.

             11.    The Defendant offered into evidence a letter dated
                    March 28, 2011 and a letter dated April 5, 2011. The
                    Plaintiff testified that she did not receive either of the
                    letters.

             12.    The letter dated March 28th stated the Plaintiff’s
                    vehicle was repaired on March 25, 2011. Both parties
                    agree that the Plaintiff actually visited Defendant’s
                    store on March 25th and made a payment. The
                    Plaintiff testified that she drove her vehicle that day
                    and it remained in her possession.


                                            4
             13.    The Court is faced with conflicting testimony
                    regarding nearly every key issue in this case.

             14.    The Court finds that on or about April 5, 2011 the
                    Plaintiff visited Defendant’s store and tendered her
                    $60.00 payment to attempt to pick up her vehicle. The
                    Court also finds that the Defendant improperly refused
                    to allow the Plaintiff to take her vehicle and never
                    offered to return any payments made by Plaintiff.

             15.    By refusing to allow the Plaintiff to pick up the vehicle
                    the Defendant converted Plaintiff’s payments of
                    $1,820.00. The Plaintiff is entitled to recover treble
                    damages in the amount of $5,460.00 along with
                    reasonable attorney fees which the Court finds would
                    be in excess of $600.00 making the judgment amount a
                    sum in excess of the Small Claims jurisdictional limit.
                    For these reasons the Plaintiff is entitled to recover a
                    judgment against the Defendant in the sum of
                    $6,000.00.

                    Judgment for the Plaintiff against the Defendant in the
                    sum of $6,000.00.        Judgment for Plaintiff on
                    Defendant’s counter-claim. Costs to Defendant.

Appellant’s App. p. 11. ALC now appeals.

                                        Analysis

      Judgments in small claims actions are “subject to review as prescribed by relevant

Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Here, the small claims court

entered detailed special findings and conclusions sua sponte. “Although Indiana Trial

Rule 52(A), which governs the effect of findings by the trial court, does not apply in

small claims proceedings, . . . the small claims court’s findings here, while not binding,

are nevertheless helpful to this Court in reviewing the judgment.” Kalwitz v. Kalwitz,




                                            5
934 N.E.2d 741, 748 (Ind. Ct. App. 2010) (citing Bowman v. Kitchel, 644 N.E.2d 878,

878 (Ind. 1995)).

       The clearly erroneous standard applies to appellate review of facts determined in a

bench trial with due regard given to the opportunity of the small claims court to assess

witness credibility. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006).

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. Id. at 1067–68. In determining whether

a judgment is clearly erroneous, we do not reweigh the evidence or determine the

credibility of witnesses but consider only the evidence that supports the judgment and the

reasonable inferences to be drawn therefrom. Kalwitz, 934 N.E.2d at 748.

                                   I. Breach of Contract

       ALC first argues that the small claims court erred by finding for Bates on her

breach of contract claim and on ALC’s breach of contract counterclaim. The elements of

a breach of contract action are the existence of a contract, the breach thereof, and

damages. Hawa v. Moore, 947 N.E.2d 421, 426 (Ind. Ct. App. 2011). ALC argues that

Bates breached the Agreement by failing to make the April 1st payment, refusing to

provide current contact information, abandoning the vehicle at ALC’s property, refusing

to “deal appropriately with ALC,” and failing to respond to a letter sent to her on March

28, 2011. Appellant’s Br. p. 20.

       Although the Agreement requires Bates to make weekly payments and to keep the

vehicle in her possession, ALC cites no contractual provisions in the Agreement

                                            6
requiring Bates to keep ALC informed of her cell phone number, “deal appropriately”

with ALC, or respond to the alleged March 28th letter.2 Furthermore, each of these

allegations was disputed by Bates. Bates testified that she provided ALC with her new

cell phone number, that ALC at all times had contact information for her, that she offered

to make the April 1st payment but Zojaji refused to accept the payment, that Zojaji

refused to give her the vehicle, and that she never received the March 28th letter. The

small claims court found Bates more credible than ALC’s witnesses and found that ALC,

not Bates, breached the Agreement. ALC’s argument is “nothing more than an invitation

for us to reweigh the evidence and assess the credibility of witnesses, which we cannot

do.” Benge v. Miller, 855 N.E.2d 716, 719-20 (Ind. Ct. App. 2006). The small claims

court found that ALC, not Bates, breached the Agreement, and there is evidence in the

record to support that determination. The small claims court did not err by granting

judgment in favor of Bates on the breach of contract claim and counterclaim.

                                      II. Criminal Conversion

        Next, ALC argues that the small claims court erred by entering judgment in favor

of Bates on the criminal conversion claim. “A person who knowingly or intentionally

exerts unauthorized control over property of another person commits criminal conversion

. . . .” Ind. Code § 35-43-4-3. The criminal conversion statute includes two levels of

criminal intent—knowingly or intentionally.                    “A person engages in conduct



2
  ALC contends that the credit application filled out by Bates required her to provide contact information.
Clearly, Bates had to provide contact information to obtain financing, but ALC cites no authority for the
proposition that the credit application or the Agreement required Bates to continually update her contact
information.
                                                    7
‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”

I.C. § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he engages in

the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b).

       The Indiana Crime Victim’s Relief Act, Indiana Code Section 34-24-3-1, (the

“Act”) allows a person who has suffered a pecuniary loss as a result of a criminal

conversion to bring a civil action to recover the loss. Benaugh v. Garner, 876 N.E.2d

344, 349 (Ind. Ct. App. 2007), trans. denied. The Act allows a person to recover up to

three times the loss, costs of the action, reasonable attorney fees, and other miscellaneous

costs. Am. Heritage Banco, Inc. v. McNaughton, 879 N.E.2d 1110, 1116 (Ind. Ct. App.

2008); see I.C. § 34-24-3-1. “Unlike in a criminal trial, a claimant need only prove by a

preponderance of the evidence that the defendant committed the criminal act.” Benaugh,

876 N.E.2d at 349. A criminal conviction for conversion is not a condition precedent to

recovery in a civil action brought under the Act. Id. However, the claimant must prove

all of the elements of the alleged criminal act. Id.

       ALC argues that the Act requires “more than a breach of contract” and there is “no

clear evidence of exerting unauthorized control over property of another.” Appellant’s

Br. p. 23. In the criminal conversion context, we have held that criminal intent is an

essential element to the offense that must be proven. NationsCredit Commercial Corp. v.

Grauel Enterprises, Inc., 703 N.E.2d 1072, 1078 (Ind. Ct. App. 1998), trans. denied. “It

is this mens rea requirement that differentiates criminal conversion from the more

innocent breach of contract or failure to pay a debt situation that the criminal conversion

statute was not intended to reach.” Id. “The legislature did not intend to criminalize

                                              8
bona fide contract disputes.” Id. at 1079. “[W]e normally regard a finding of criminal

intent as the sort of determination requiring intervention by a fact-finder. . . .” White v.

Indiana Realty Associates II, 555 N.E.2d 454, 458 (Ind. 1990).

       Bates was required to show by a preponderance of the evidence that ALC

knowingly or intentionally exerted unauthorized control over her property. The small

claims court found that ALC “improperly refused to allow [Bates] to take her vehicle and

never offered to return any payments made by [Bates]” and that “[b]y refusing to allow

[Bates] to pick up the vehicle [ALC] converted [Bates’s] payments of $1,820.00.”

Appellant’s App. p. 11.    Bates testified that, on April 5th, she went with her father to

ALC because she needed her car back. Zojaji told Bates that she “couldn’t get the car

back because he felt like he was being lied to and that he [didn’t] like [her] anymore so

he was repossessing [the] vehicle.” Tr. p. 33. Bates attempted to make her payment with

the money order, but Zojaji refused to accept it, give her the vehicle, or refund her down

payment and two payments.

       ALC argues that this is a case of mere breach of contract, rather than a criminal

conversion. However, based on Bates’s testimony, which the small claims court found

credible, ALC had no reasonable basis for repossessing her vehicle. The small claims

court found that ALC had criminal intent, and there is evidence to support that

determination. We cannot reweigh the evidence or judge the credibility of the witnesses.

As a result, we cannot say that the small claims court erred by finding that ALC




                                             9
committed criminal conversion or that the small claims court erred by awarding damages

to Bates pursuant to the Act.3

                                  III. Appellate Attorney Fees

       On cross-appeal, Bates argues that she is entitled to appellate attorney fees

pursuant to the Act or Indiana Appellate Rule 66(E) for ALC’s filing of a frivolous

appeal.    We begin by addressing Bates’s argument that she is entitled to appellate

attorney fees under the Act. Bates is correct that a plaintiff is entitled to attorney fees,

including appellate attorney fees, when he or she prevails under the Act. Benge, 855

N.E.2d at 722.      However, Bates properly notes that she has already been awarded

$6,000.00, which is the jurisdictional limit for small claims actions. See I.C. § 33-29-2-4

(“The small claims docket has jurisdiction over . . . [c]ivil actions in which the amount

sought or value of the property sought to be recovered is not more than six thousand

dollars ($6,000).”).

       Bates argues that we can award appellate attorney fees even though the judgment

amount would exceed $6,000.00. Bates relies on Hill v. Davis, 850 N.E.2d 993, 998 n.7

(Ind. Ct. App. 2006), where we held that “an award of attorney’s fees, like costs, is

ancillary to the ‘amount sought,’ . . . and, therefore, is not constrained by the

jurisdictional limitation.” Bates does concede that we reached the opposite result in

Pinnacle Properties v. Saulka, 693 N.E.2d 101, 106 n.5 (Ind. Ct. App. 1998), trans.


3
  ALC seems to argue that Bates’s damages were only the value of the vehicle minus the unpaid
payments. ALC cites no authority for this argument and makes no cogent argument, and the issue is
waived. See Nealy v. Am. Family Mut. Ins. Co., 910 N.E.2d 842, 849 (Ind. Ct. App. 2009) (holding that
the failure to provide citation to authority and cogent reasoning results in waiver of the argument on
appeal), trans. denied.
                                                 10
denied, where we held that “the total amount of the judgment, apart from court costs,

must not exceed” the jurisdictional limits and that the statute did “not distinguish between

damages and attorney’s fees in setting the total jurisdictional amount recoverable . . . .”4

       In its reply brief, ALC argues that “[a]ppellate fees may be awarded under [the

Act], but should not be awarded under Appellate Rule 66(E), 67(B) or I.C. § 34-52-1, et

seq.” Appellant’s Reply Br. p. 5. ALC makes no attempt to address the jurisdictional

amount issue or to argue that Saulka is correct and not Hill, and apparently concedes that

appellate attorney fees may be awarded to Bates under the Act.                See Popovich v.

Danielson, 896 N.E.2d 1196 1204 n.5 (Ind. Ct. App. 2008) (applying the prima facie

error standard where a party failed to address an argument raised on appeal), trans.

denied. Under these circumstances and based on Hill, we conclude that Bates is entitled

to appellate attorney fees, and we remand for the small claims court to calculate the

appellate attorney fees owed.

                                          Conclusion

       The small claims court properly found for Bates on her breach of contract and

criminal conversion claims and on ALC’s breach of contract counterclaim. Further,

Bates is entitled to appellate attorney fees, and we remand for the small claims court to

calculate those fees. We affirm and remand.

       Affirmed and remanded.

FRIEDLANDER, J., and MAY, J., concur.


4
  Indiana Small Claims Rule 11(B) provides that the party recovering judgment shall recover costs
regardless of the amount.
                                               11
