Sharon Jasinski v. Mirian Brown ( 2013 )

FOR PUBLICATION
OCT 31 2013, 5:26 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JUSTIN M. TREASURE BENJAMIN D. FRYMAN
Swope Law Offices, LLC MICHAEL A. CAMPBELL
Schererville, Indiana Schwerd, Fryman & Torrenga, LLP
Valparaiso, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHARON JASINSKI, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1212-SC-552
)
MIRIAN BROWN, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Michael Pagano, Magistrate
Cause No. 45D09-1208-SC-2326
October 31, 2013
OPINION - FOR PUBLICATION
MAY, Judge
Sharon Jasinski appeals the small claims court’s $6,000 judgment in favor of Mirian1
Brown. She raises several issues, which we consolidate and restate as whether the small
claims court’s damage award was supported by the evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 9, 2012, Jasinski’s vehicle rear-ended Brown’s car at an intersection in
New Chicago, causing damage to Brown’s car. Prior to that August 9 collision, Brown’s car
had been damaged in a collision with a deer, but the car was still operable. After the August
9 collision, Brown’s car was inoperable.
On August 30 Brown sued Jasinski in small claims court to recover property damages
and loss of use damages. The small claims court set a hearing date of October 10. On
October 9, Brown filed a separate action against Jasinski for personal injuries in another
Lake County Superior Court. On October 10, Jasinski’s counsel arrived unprepared for the
small claims hearing and requested a continuance, which was granted. The small claims
court rescheduled the hearing for November 1. On October 26, Jasinski requested an
additional continuance to file a Motion to Consolidate or Alternatively Dismiss Duplicative
Suit with the other Lake County Superior Court. The small claims court denied the
continuance and noted, “this looks like a delay tactic to me.” (Tr. at 13.)
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Ms. Brown’s name is Mirian, however, we note opposing counsel and the small claims court refers to her as
“Miriam.” See Br. Of Appellant; see also Appellant’s App. At 5.
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After the November 1 hearing, the small claims court found Brown proved $2,000.00
in property damage and $4,430.71 in loss of use damages. The court then ordered Jasinski to
pay $6,000, which is the small claims court’s jurisdictional limit.
DISCUSSION AND DECISION
Jasinski argues no probative evidence supports the small claims court’s valuation of
Brown’s vehicle and its determination of the value of Brown’s loss of use of the vehicle.
Judgments in small claims actions are “subject to review as prescribed by
relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under
Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate
review of facts determined in a bench trial with due regard given to the
opportunity of the trial court to assess witness credibility. 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.’” City of
Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995)
(quoting S.C.R. 8(A)). But this deferential standard does not apply to the
substantive rules of law, which are reviewed de novo just as they are in appeals
from a court of general jurisdiction. Lae v. Householder, 789 N.E.2d 481, 483
(Ind. 2003).
Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006). “[W]e will affirm a
general judgment upon any legal theory consistent with the evidence.” Ponziano Constr.
Servs. Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 873 (Ind. Ct. App. 2012). Allegations
that an award is excessive are reviewed under a “strict standard.” Persinger v. Lucas, 512
N.E.2d 865, 868 (Ind. Ct. App. 1987).
The amount of damages to be awarded is a question of fact for the trier of fact.
Campins v. Capels, 461 N.E.2d 712, 722 (Ind. Ct. App. 1984). A court is not required to
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calculate damages with mathematical certainty, Ponziano, 980 N.E.2d at 873, but the
calculation must be supported by evidence in the record and may not be based on mere
conjecture, speculation, or guesswork. Id. We will sustain an award challenged as excessive
if it is within the scope of the evidence presented to the trial court, and we will neither
reweigh evidence nor judge witness credibility. Id.
All uncertainties concerning the specific calculation of damages are resolved in
plaintiff’s favor and against the tortfeasor. Campins, 461 N.E.2d at 722. We will set aside a
damage award only if it is “so outrageous as to impress [this] court as being motivated by
passion, prejudice, and impartiality.” Quebe v. Davis, 586 N.E.2d 914, 920 (Ind. Ct. App.
1992) (citation omitted).
1. Valuation of Brown’s Vehicle
The trial court based its valuation of Brown’s vehicle on Plaintiff’s Exhibit 6, which
contained a summary of damages. In support of that summary, Brown presented evidence of
the values of vehicles similar to hers from both the Kelley Blue Book and AutoTrader.com,
and she presented evidence of the salvage value. Jasinski presented evidence of the cost to
repair Brown’s vehicle, which Jasinski’s insurance company had declared a total loss.
Jasinski’s argument the small claims court’s finding regarding the value of the vehicle was
not supported by evidence is an invitation for us to reweigh the evidence, which we cannot
do. See Ponziano, 980 N.E.2d at 873 (appellate court will not reweigh the evidence or judge
the credibility of witnesses). The evidence submitted by Brown supports the court’s
valuation.
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2. Loss of Use Damages
Loss of use damages “are measured by the reasonable value of the loss of use of the
property for the reasonable amount of time required for . . . replacement.” Persinger, 512
N.E.2d at 868. This value is “measured by the fair or reasonable rental value of the property
in the market area.” Id. These damages must be “limited to the reasonable amount of time
necessary for replacement, including a reasonable amount of time to determine if the property
is repairable.” Id. Factors the court may consider when determining a reasonable time for
replacement include:
the time required to determine that the property is unrepairable, the nature of
the property, market availability of a replacement, the time required to locate a
replacement, the availability and time required to obtain financing, the
plaintiff’s efforts to locate and obtain a replacement, the plaintiff’s efforts to
locate and obtain financing, the defendant’s good or bad faith efforts to settle
or litigate, and the plaintiff’s financial ability to obtain a replacement.
Although financial ability is a factor in the determination, proof of financial
inability alone will not establish the reasonable time required to obtain a
replacement. Furthermore, financial inability cannot be used to inflate
speculatively the damages awarded for loss of use beyond the time reasonably
necessary to obtain a replacement. Unless the plaintiff provides additional
evidence of the reasonable time necessary to locate a replacement, or
establishes that the defendant used dilatory settlement tactics, a damage award
for loss of use based on financial inability alone is improper.
Id. at 869 (citations omitted).
The trial court determined that eighty-four days was a reasonable time for Brown to
obtain a replacement vehicle based on Brown’s best efforts to locate a replacement vehicle,
and noted “22 days of this [84 days] was necessitated by Defendant’s requested continuance
of the previous trial date.” (Appellant’s App. at 6.) Brown introduced evidence she visited
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multiple car dealerships in Indiana and Illinois, she paid for rental cars, and she had limited
means at her disposal to obtain a replacement vehicle. Jasinski argues the small claims court
considered only Brown’s inability to pay for a replacement vehicle when determining the loss
of use damages and that Brown did not do an exhaustive search for a replacement vehicle.
Jasinski’s challenges amount to a request to reweigh evidence, which we may not do. See
Ponziano, 980 N.E.2d at 873 (appellate court does not reweigh evidence or judge the
credibility of witnesses). The evidence submitted by Brown supports the court’s finding.
CONCLUSION
As the small claims court’s damage award was based on sufficient evidence, we
affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
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