Brian K. Wynne v. Tyson Burris and Brian K. Alsip , 105 N.E.3d 188 ( 2018 )

FILED
Jun 13 2018, 10:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE
Brian K. Wynne
Michigan City, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian K. Wynne, June 13, 2018
Appellant-Plaintiff, Court of Appeals Case No.
41A04-1710-SC-2363
v. Appeal from the Johnson Superior
Court
Tyson Burris and Brian K. Alsip, The Honorable Kevin Barton,
Appellees-Defendants Judge
Trial Court Cause No.
41D01-1702-SC-741
Altice, Judge.
Case Summary
[1] Brian K. Wynne filed a small claims action against Tyson Burris and Burris’s
attorney, Brian K. Alsip. The trial court found in favor of Burris and Alsip and
determined that Wynne’s claims were brought in bad faith. Accordingly, the
trial court assessed attorney fees against Wynne. Wynne now appeals pro se
raising the following issues:
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1. Did the trial court abuse its discretion by admitting into
evidence recorded jail telephone calls between Wynne and his
girlfriend, Barbara Mooney?
2. Does the evidence support the trial court’s conclusion that
Wynne had given Mooney actual authority to act as his agent
regarding the settlement with Burris?
3. Should Alsip have been permitted to represent himself in this
action?
4. Did the trial court err by rejecting Wynne’s negligence claim
against Alsip?
[2] We affirm.
Facts & Procedural History
[3] On January 28, 2015, Wynne began work on a home improvement project at
Burris’s home, which included the removal of flooring, demolition of a wall,
and installation of new flooring. Wynne did not provide Burris with a written
agreement or set a price but stated that the labor cost would not exceed $2500.
Wynne worked over the next several days, appearing progressively later each
day. Burris felt that the project was taking too long, and Burris started to notice
“red flags.” Transcript at 54.
[4] During the project, Wynne unexpectedly brought a set of kitchen appliances to
Burris’s home to sell to him and his wife. Burris began to suspect that the
appliances had been stolen and decided to contact local authorities. He learned
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that Wynne was a suspect in a recent burglary. Burris provided a detailed
statement to the Johnson County Sheriff’s Office. Thereafter, on February 3,
2015, Wynne was arrested for burglary while working at Burris’s home. As a
result of his arrest, Wynne did not finish the project. Burris eventually hired
others to complete the work.
[5] Wynne bonded out of jail and then tried to contact Burris regarding the project.
Burris refused his calls but communicated with Wynne via text. They discussed
a payoff amount, and Burris directed Wynne to contact Alsip, Burris’s attorney,
to complete the settlement. Burris provided Alsip with a cashier’s check made
out to Wynne. Alsip and Wynne arranged to meet at Alsip’s office, and Wynne
understood that he would need to sign a release in order to receive the check.
This scheduled meeting, however, did not occur because Wynne was arrested
on a warrant that same day.
[6] While in jail, Wynne made phone calls to Mooney, his longtime girlfriend.
Wynne indicated on a number of occasions that he wanted Mooney to pick up
the check, as well as handle other matters for him. In one phone call, Wynne
reminded Mooney that she had his power of attorney (POA), and he referenced
the POA in another recorded call. With respect to the check from Burris,
Wynne directed Mooney as follows:
If you get a check from [Burris] all you do is sign my name on
the back of it, take it to the ATM machine and deposit it, ok.
That way you don’t have to put your name on it, no one’s going
to question it, it’s gonna go straight in and you should, in a day,
you should have access to the money, ok.
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Id. at 106. Mooney understood from her discussions with Wynne that the
amount of the settlement check was to be $1400.
[7] The POA Wynne referenced was obtained by Mooney at the jail on February
17, 2015, in order to get Wynne’s vehicle out of the tow lot. The POA form
was provided by the jail, and a deputy took the form to Wynne, who had
verbally assented to the POA. Wynne then printed his own name twice and
Mooney’s name once in the appropriate blanks on the form. Wynne, however,
did not sign his name on the signature line or list his social security number.
The form was returned to Mooney. She filled out the few remaining blanks and
mistakenly signed the form and listed her social security number where Wynne
should have done so. The form was then presented to Deann Judd, an
employee of the sheriff’s office who was also a notary. Judd notarized the POA
form without personally observing the form being signed or completed.
[8] As directed by Wynne, Mooney contacted Burris to complete the settlement.
Mooney met with Alsip on March 23, 2015, and presented him with the POA
and her driver’s license. She also signed an affidavit prepared by Alsip
regarding the settlement agreement and the POA. Mooney then signed the
Settlement Agreement and General Release (the Agreement) on Wynne’s
behalf, and Alsip gave her the $1400 cashier’s check made payable to Wynne.
[9] On February 24, 2017, Wynne filed a small claims action against Burris for
services rendered and Alsip for negligence in releasing the cashier’s check to
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Mooney. The basis of Wynne’s claims was that the POA was “invalid and
possibly forged”. Appendix at 9.
[10] On August 16, 2017, Wynne appeared telephonically from prison and
represented himself at trial. Burris was represented by counsel, and Alsip
represented himself. The trial court took the matter under advisement and then
issued a detailed order on September 9, 2017.
[11] Despite concluding that the POA was invalid,1 the trial court determined that
both Wynne and Mooney believed that Wynne had appointed Mooney as his
attorney in fact and that Wynne authorized her to obtain the settlement check
on his behalf. Thus, the court concluded that Wynne had provided Mooney
with actual authority to act as his agent in this matter, and Wynne could not
now seek to avoid the Agreement. Further, with respect to the negligence claim
against Alsip, the court determined that Alsip did not owe Wynne a duty of
ordinary care because he represented Burris, not Wynne. In addition to
entering judgment in favor of Burris and Alsip on Wynne’s claims, the court
granted Burris’s request for attorney fees, explaining:
Mr. Wynne empowered Ms. Mooney to act on his behalf under
actual authority. After clearly instructing Ms. Mooney to accept
the settlement on his behalf, Mr. Wynne now asserts that she had
no authority as a result of the failure of the Johnson County
Sheriff’s Department to get a form properly signed and notarized.
1
The court concluded that the POA was invalid under Ind. Code § 30-5-4-1 because it was not signed by
Wynne and not properly notarized.
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While a valid power of attorney was not created, Mr. Wynne
ignores his own actions in vesting Ms. Mooney with actual
authority. The litigation has been brought in bad faith.
Id. at 57-58. Wynne now appeals. Additional information will be provided
below as needed.
Discussion & Decision
1. Admission of Evidence
[12] Wynne contends that the trial court abused its discretion by admitting into
evidence the recorded telephone conversations from the jail between him and
Mooney. He asserts that these calls were confidential and that Alsip obtained
them by “undocumented means.” Appellant’s Brief at 13. Wynne raises a litany
of specific challenges to this evidence on appeal, but he only objected on two
grounds below. We will therefore limit our review to those two preserved
arguments.
[13] Wynne’s first objection to this evidence was that the recorded jail calls had not
been disclosed to him in discovery. Contrary to Wynne’s assertion below,
“automatic discovery” does not occur in small claims actions. Transcript at 100.
Ind. Small Claims Rule 6 pertains to discovery and provides:
Discovery may be had in a manner generally pursuant to the
rules governing any other civil action, but only upon the approval of
the court and under such limitations as may be specified. The court
should grant discovery only upon notice and good cause shown
and should limit such action to the necessities of the case.
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Id. (emphasis supplied). Our review of the record, reveals that Wynne did not
request discovery in this action. Accordingly, he cannot be heard to complain
that he was unaware that Alsip had copies of these recorded phone
conversations.
[14] Further, we remind Wynne of the informal nature of small claims hearings, as
set out in Ind. Small Claims Rule 8(a):
The trial shall be informal, with the sole objective of dispensing
speedy justice between the parties according to the rules of
substantive law, and shall not be bound by the statutory
provisions or rules of practice, procedure, pleadings or evidence
except provisions relating to privileged communications and
offers of compromise.
With this in mind, Wynne’s various technical claims of alleged discovery
violations and his reliance on the Indiana Trial Rules are misplaced. The trial
court did not abuse its discretion by admitting this relevant and probative
evidence at the small claims hearing over Wynne’s objection.
[15] Next, Wynne argued below that the recordings violated the “Wiretap Act of
Indiana” because Alsip “illegally intercepted wiretap [sic] without
authorization through a search warrant or any other means.” Transcript at 101.
On appeal, he makes the unsupported assertion that Mooney had to have
expressly consented to the calls being recorded in order for them to be
admissible.
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[16] The recording of a communication with the consent of either the sender or the
receiver is not an interception, as defined by the Indiana Wiretap Act. See Ind.
Code § 35-31.5-2-176; see also Edwards v. State, 862 N.E.2d 1254, 1261-62 (Ind.
Ct. App. 2007) (recipient of jail call consented to recording by accepting the call
after hearing admonishment that call may be recorded or monitored), trans.
denied. Here, the evidence establishes that Mooney was aware that the jail calls
were being recorded, and she still accepted them. Additionally, Wynne
acknowledges that the calls included “an automated voice that tells the called
party that the phone call may be recorded.” Appellant’s Brief at 24. Under these
circumstances, Mooney consented to the recording when she accepted the
collect calls after being warned that the calls could be recorded. See Steinberg v.
State, 941 N.E.2d 515, 523 (Ind. Ct. App. 2011), trans. denied. The recordings
were, therefore, not in violation of the Indiana Wiretap Act and were
admissible. See id.; Edwards, 862 N.E.2d at 1262.
2. Actual Agency
[17] Wynne next argues that the evidence does not support the trial court’s
conclusion that Wynne had given Mooney actual authority to act as his agent
regarding the settlement. Wynne’s argument amounts to a request for us to
reweigh the evidence, which we cannot do.
[18] While the trial court entered findings of fact and conclusions thereon, Ind. Trial
Rule 52(A) does not apply to small claims actions. The entry of special findings
is contrary to the policy enunciated in Small Claims Rules 8 and 11. See
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Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995). Thus, a small claims court
cannot be required to enter special findings, and we do not apply a two-tiered
standard of review in a small claims appeal. But where, as here, a small claims
court elects sua sponte to enter findings and conclusions, they aid our review by
providing us with a statement of the reasons for the trial court’s decision. We,
however, apply our usual standard of review: “[w]e consider evidence in the
light most favorable to the judgment, together with all reasonable inferences to
be drawn therefrom. We will reverse a judgment only if the evidence leads to
but one conclusion and the trial court reached the opposite conclusion.” See
Vance v. Lozano, 981 N.E.3d 554, 558 (Ind. Ct. App. 2012) (citing Berryhill v.
Parkview Hosp., 962 N.E.2d 685, 689 (Ind. Ct. App. 2012)).
[19] Here, the trial court determined that Wynne conferred actual authority to
Mooney to act on his behalf with respect to the settlement with Burris. An
actual agency relationship is established by three elements: “(1) a manifestation
of consent by the principal to the agent; (2) an acceptance of the authority by
the agent; and (3) control exerted by the principal over the agent.” Douglas v.
Monroe, 743 N.E.2d 1181, 1186 (Ind. Ct. App. 2001). “These elements may be
proven by circumstantial evidence, and there is no requirement that the agent’s
authority to act be in writing.” Demming v. Underwood, 943 N.E.2d 878, 884
(Ind. Ct. App. 2011), trans. denied. The question of whether an agency
relationship exists is generally a question of fact. Id.
[20] The facts and reasonable inferences favorable to the judgment reveal that
Wynne partially filled out a form at the jail in an attempt to grant Mooney a
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general POA, which Mooney needed in order to get his vehicle out of the tow
lot. Thereafter, in phone conversations with Mooney, Wynne referred to the
POA and “reiterate[d] numerous times that [she was] his power of attorney.”
Transcript at 99. According to Mooney, he authorized and instructed her to
obtain a check for $14002 from Burris. Wynne then detailed what she was to do
with the check, indicating that she should endorse it with his name and then
deposit it into an ATM so that no questions are asked. Further, the record
indicates that Wynne understood that in exchange for the check from Burris a
release was required to be signed.
[21] As Wynne instructed, Mooney went to Alsip’s office to obtain the $1400
settlement check. She presented Alsip with the POA and signed an affidavit
indicating that she had full authority to settle the claims between Wynne and
Burris and to accept the settlement check on Wynne’s behalf. Mooney then
executed the Agreement, and Alsip gave her the check made payable to Wynne.
[22] These facts amply support the trial court’s conclusion that Mooney acted with
actual authority. Wynne’s arguments to the contrary are improper requests for
us to reweigh the evidence.
3. Alsip’s Self-Representation
2
This was an amount that Burris and Wynne had previously discussed, and Mooney was “just kind of
middle man” due to Wynne’s incarceration. Transcript at 117.
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[23] As he did below, Wynne argues that Alsip was precluded from representing
himself in this small claims action pursuant to S.C.R. 8(C)(3), which states:
Corporate Entities, Limited Liability Companies (LLC’s), Limited
Liability Partnerships (LLP’s). All corporate entities, Limited
Liability Companies (LLC’s), and Limited Liability Partnerships
(LLP’s) may appear by a designated full-time employee of the
corporate entity in the presentation or defense of claims arising
out of the business if the claim does not exceed one thousand five
hundred dollars ($1,500.00). However, claims exceeding one
thousand five hundred dollars ($1,500.00) must be defended or
presented by counsel.
Wynne asserts that “Alsip as an attorney is designated as a Professional
Corporation” and was required to be represented by legal counsel because
Wynne’s claims exceeded $1500. Appellant’s Brief at 42. As the trial court
observed, however, Wynne sued Alsip as an individual. Accordingly, Alsip
was properly permitted to represent himself in the small claims action.
4. Negligence
[24] Finally, Wynne contends that the trial court erred in denying his negligence
claim against Alsip. Wynne asserts that the POA was invalid on its face and,
therefore, Alsip was negligent when he released the check to Mooney and
“failed to engage in a thorough investigation of the validity of the POA”. Id. at
52. Wynne’s lengthy arguments on this point are difficult to follow but all boil
down to a fundamental misunderstanding of duty.
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[25] Acknowledging that Alsip represented Burris in the settlement, Wynne asserts
that “Alsip owed a general duty to Burris to exercise ordinary skill and
knowledge as an attorney when he released the check to Mooney.” Id. at 49.
Indeed, Alsip owed this duty to Burris – his client. See Rice v. Strunk, 670
N.E.2d 1280, 1283-84 (Ind. 1996) (setting out elements of an attorney
malpractice claim, including that a client’s employment of attorney creates a
duty to “exercise ordinary skill and knowledge”). But Wynne’s attempt to slide
into the shoes of Burris is clearly untenable. Alsip did not owe a corresponding
duty of care to Wynne. See generally KeyBank Nat’l Assoc. v. Shipley, 846 N.E.2d
290, 296-300 (Ind. Ct. App. 2006) (addressing the privity requirement in
attorney negligence cases), trans. denied. The trial court properly entered
judgment in favor of Alsip on the negligence claim. 3
[26] Judgment affirmed.
Najam, J. and Robb, J., concur.
3
Wynne asserts that the trial court improperly acted as an advocate for Alsip by developing a defense for
him that was not pled as an affirmative defense. This argument ignores the informal nature of small claims
hearings. See S.C.R. 8(A). Further, Ind. Small Claims Rule 5(A) expressly provides that “[a]ll defenses shall
be deemed at issue without responsive pleadings”.
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