Lonnie Garner, Jr. v. Waleed Jomaan (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 10 2019, 8:56 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Lonnie Garner, Jr. F. Bradford Johnson
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lonnie Garner, Jr., July 10, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-SC-2553
v. Appeal from the
Marion County Small Claims
Waleed Jomaan, Court
Appellee-Defendant. The Honorable
Gerald B. Coleman, Judge.
Trial Court Cause No.
49K08-1807-SC-4600
Kirsch, Judge.
[1] Lonnie Garner, Jr. (“Garner”) brought a breach of contract claim in small
claims court against Waleed Jomaan (“Jomaan”) after Garner purchased a
vehicle from Jomaan’s employer, Honest Abe’s Auto Sales (“Honest Abe’s”).
The small claims court denied Garner’s motion for summary judgment and
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entered judgment for Jomaan. On appeal, Garner argues that the small claims
court erred when it entered judgment in favor of Jomaan and raises the
following issues on appeal: that the small claims court abused its discretion
when it did not enter default judgment or grant summary judgment against
Honest Abe’s; and, that the small claims court erred when it considered the
unsworn testimony of Jomaan.
[2] We affirm.
Facts and Procedural History
[3] On May 8, 2018, Garner purchased a 2002 Lexus ES (“vehicle”) “as is” from
Honest Abe’s for a total of $6,062. Appellant’s App. Vol. 2 at 77. The odometer
read that the vehicle had 140,813 miles. Id. Garner signed an agreement
allowing Honest Abe’s to repossess the vehicle if Garner failed to maintain Full
Coverage Insurance or if he did not keep current with payments. Id. at 92. At
some point before July 20, Garner returned the vehicle to Honest Abe’s
claiming it would not run. Tr. Vol. II at 24.
[4] On July 10, 2018, Garner sent a letter to Honest Abe’s alleging that Honest
Abe’s had breached its contract with Garner. Appellant’s App. Vol. 2 at 20. The
letter referenced how Honest Abe’s informed Garner that the vehicle would be
repossessed if Garner failed to maintain Full Coverage Insurance on the vehicle
and claimed that Honest Abe’s alleged repossession violated Indiana law. Id.
He further alleged that Honest Abe’s sales practices violated Indiana Code
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section 24-5-0.5-3(a) because the vehicle was not in operating condition, and he
believed that Honest Abe’s had deceived him. Id. at 21.
[5] On July 11, 2018, Garner filed a breach of contract claim in small claims court
against Jomaan requesting $6,000 in damages. Id. at 22. On August 16, 2018,
Jomaan moved to dismiss Garner’s claim because Jomaan was not a party to
the transaction, nor was he an owner or officer of Honest Abe’s. Appellee’s App.
Vol. II at 7, 9.
[6] Garner’s initial complaint did not include Honest Abe’s as a party, and on
September 5, 2018, Garner filed a motion to amend the complaint to include
Honest Abe’s. Appellant’s App. Vol. 2 at 35. The motion to amend was granted
on September 7, 2018. Id. at 40. The record is silent about whether Garner
refiled his complaint to include Honest Abe’s as a party.
[7] On October 3, Garner filed a motion for summary judgment. Id. at 49. In his
memorandum in support of summary judgment, Garner stated that the
vehicle’s odometer was inaccurate when compared to the Indiana Bureau of
Motor Vehicles records, and the certificate of title transfer violated the
Deceptive Sales Act (Indiana Code § 24-5-0.5-1). Id. at 59-60. This motion was
denied on October 17, 2018. Appellee’s App. Vol. II at 5.
[8] A trial was held on October 17, 2018. Id. Garner appeared pro se, and Jomaan
appeared with counsel. Id. At trial, Garner made a number of allegations
concerning the condition of the vehicle. Tr. Vol. II at 11-12. Jomaan’s
testimony was taken into evidence despite the fact that he was not sworn. Id. at
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19. The small claims court concluded that there was no breach of contract and
that Garner suffered no damages. Id. at 52-53. The court entered judgment for
Jomaan. Appellant’s App. Vol. II at 8. Garner now appeals.
Discussion and Decision
[9] Small claims court judgments are “subject to review as prescribed by relevant
Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Garner had the
burden of proof in his small claims action and, thus, appeals from a negative
judgment. See Herren v. Dishman, 1 N.E.3d 697, 702 (Ind. Ct. App. 2013). We
will reverse a negative judgment only if the trial court’s decision is contrary to
law. Martin v. Ramos, 120 N.E.3d 244, 248 (Ind. Ct. App. 2019). “A decision is
contrary to law if the evidence and reasonable inferences lead to but one
conclusion and the trial court has reached the opposite conclusion.” Id. (citing
LTL Truck Serv., LLC. v. Safeguard, Inc., 817 N.E. 664, 667 (Ind. Ct. App. 2004)).
[10] Garner contends that the small claims court abused its discretion when it failed
to enter a default judgment or to grant his motion for summary judgment when
Honest Abe’s failed to appear at trial. Appellant’s Br. at 13. The issue before the
court was whether it had personal jurisdiction over Honest Abe’s.
[11] Personal jurisdiction is reviewed de novo as a question of law. Wolf’s Marine,
Inc. v. Brar, 3 N.E.3d 12, 15 (Ind. Ct. App. 2014). “Where there is no service of
process, there can be no personal jurisdiction . . .” Shotwell v. Cliff Hagan Ribeye
Franchise, Inc. 572 N.E.2d 487, 489 (Ind. 1991). “A copy of the notice of claim
shall be served on each defendant.” Ind. Small Claims Rule 3(A). The record
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does not establish that Honest Abe’s was properly served pursuant to Indiana
Small Claims Rule 3. Although he was granted permission to amend his
complaint, there is no indication that Garner named Honest Abe’s as a party.
Thus, Honest Abe’s was a non-party to the small claims case. It was not
obligated to appear at trial, and the small claims court did not err in refusing to
enter judgment against it.
[12] Garner also argues that the small claims court abused its discretion when it
considered testimony from Jomaan that was not given under oath. Small
Claims Rule 8(b) provides, “All testimony shall be given under oath or
affirmation.” “[A]s a general rule, a party may not present an argument or
issue on appeal unless the party raised that argument before the trial court.”
Washington v. State, 121 N.E.2d 617, 625 (Ind. Ct. App. 2004). Failing to object
at trial to an issue waives the party’s right to object to an issue on appeal. Id.
Here, Garner failed to object to Jomaan’s testimony at trial or to the fact that it
was unsworn testimony and has, therefore, waived his right to appeal this issue.
[13] The small claims court did not abuse its discretion.
[14] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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