Auto Liquidation Center, Inc., and Majid Zojaji (a/k/a Mike Zojaji), individually v. Jorge Chiqui Chaca

Dec 10 2015, 8:45 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Samuel L. Bolinger Patrick L. Proctor
Fort Wayne, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Auto Liquidation Center, Inc., December 10, 2015
and Majid Zojaji (a/k/a Mike Court of Appeals Case No.
Zojaji), Individually 02A05-1503-PL-00131
Appellants-Defendants, Appeal from the Allen Superior
Court
v. The Honorable Stanley Levine,
Judge
Jorge Chiqui Chaca, Trial Court Cause No.
Appellee-Plaintiff 02D01-1204-PL-000131
Vaidik, Chief Judge.
Case Summary
[1] Auto Liquidation Center (ALC), whose owner is Majid “Mike” Zojaji,
repossessed a Dodge Charger that it sold on credit to Jorge Chiqui Chaca.
Initially the car was repossessed because Zojaji erroneously believed that Jorge
was behind in payments. After Jorge proved he was current in his payments,
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Zojaji refused to return the car to Jorge, claiming instead that he confiscated the
car because Jorge had disconnected the GPS—a GPS that Zojaji had used to
disable Jorge’s car for alleged non-payment. Ultimately, Zojaji never returned
the car or its contents to Jorge and sold it at auction. A jury found that ALC
and Zojaji converted Jorge’s car and awarded damages and treble damages
under Indiana Code section 34-24-3-1. ALC and Zojaji appeal the judgment
arguing that there is insufficient evidence to show that they had the intent to
exert unauthorized control over Jorge’s property. They also complain that the
damages awarded were excessive. We find sufficient evidence of intent, affirm
the damage award, and order the case remanded to the trial court to award
reasonable appellate attorney’s fees to Jorge. We also warn that self-help is a
perilous and potentially expensive path.
Facts and Procedural History
[2] On November 25, 2011, Jorge bought a 2008 Dodge Charger from Auto
Liquidation Center, Inc. (ALC), which is owned and operated by Zojaji and
located in New Haven, Indiana. Jorge agreed to purchase the car for $14,500.
Jorge paid $4000 as a down payment at the time of purchase, and agreed to pay
ALC the remaining balance through forty-eight, twice-monthly installment
payments: forty-seven payments of $250 and one payment of $435.35. The
payments were to begin on December 10, 2011.
[3] As a condition of the deal, Jorge agreed to the car being equipped with a GPS
device. Jorge signed a document entitled “Disclosure Statement and
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Agreement for Installation,” providing that installing and maintaining a GPS
device in the car was a material condition for ALC to finance the loan secured
by the vehicle; that tampering with, altering, disconnecting, or removing the
device was grounds for default under the agreement; and that any default
entitled ALC to take “any and all actions, including but not limited to,
repossession and sale, as may be allowed under the terms of the Contract.” Ex.
5. ALC uses GPS devices for three purposes: (1) to track the location of cars it
has sold; (2) to send a warning signal to customers who are late on payments;
and (3) to send an electronic signal that disables a car’s starter system to aid in
the repossession of a car. See Tr. p. 228-32, 368-71. A GPS was installed in the
car.1
[4] Jorge timely made his first payment to ALC on December 10 by hand-
delivering his check to ALC. Each of his payments was made in this manner.
ALC staff entered Jorge’s payments in a computer and handwrote each
payment in a black ledger book, which acts as a back-up to the computer
system. See Tr. p. 219. The black book is a “fail-safe” against computer errors,
and the best way to double-check whether a payment was missed. See id. at
220.
1
On three separate occasions—twice in December 2011 and once in March 2012—ALC sent commands to
the GPS device installed on Jorge’s car to locate the car and test the GPS device. See Ex. 28.
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[5] Jorge’s first payment in December was a double payment of $500. His next
payment on January 10, 2012, was a single payment of $250, followed by a
double payment of $500 on January 30 and another double payment on
February 27. But ALC erroneously entered the February 27 payment as a
single payment, which didn’t “push his due date out properly,” even though the
amount entered in the computer and Jorge’s receipt clearly state the payment
amount was $500. See Ex. 22; Tr. p. 221. As of February 27, approximately 90
days after the sale, Jorge had made $1750 in car payments in addition to the
initial $4000 down payment.
[6] In mid-March, when Jorge’s next payment would have been due if he had not
made a double-payment at the end of February, ALC’s computer system
generated a report that was given to Zojaji, which stated that Jorge had missed
a payment on March 10. Without double-checking the black ledger book to see
whether Jorge had, in fact, missed a payment, Zojaji ordered Jorge’s car
repossessed, and on March 13 at 8:28 p.m., according to the “IMETRIK”
report, a “starter disable” command was sent via the GPS device. See Ex. 28
(the IMETRIK report).2
[7] On March 15 Jorge’s wife took the car to Jesse’s Auto Repair, complaining that
the check-engine light was on, there was a “dinging” noise coming from the
2
IMETRIK is described on its website as an “end-to-end car tracking solution” that enables the user to
“interact in real-time with a vehicle in which a telematics device is installed.” See
http://www.imetrik.com/en/solutions#vehicle-finance-telematics (last visited Nov. 18, 2015).
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dashboard, and she was unable to shift into the lower gears of her transmission.
Ex. 29 (Affidavit of Mark Kapocius). The mechanic determined the GPS
device was improperly installed in the car causing damage that ultimately
would have resulted in irreparable damage to the transmission. Id. The
mechanic, therefore, disconnected the offending GPS device, without notice to
Jorge, until Jorge picked up the car at Jesse’s Auto Repair when it was about to
close for the day. Jorge was told that the GPS could be reconnected the next
day. But by the time Jorge awoke the next morning, ALC had repossessed the
car at the direction of Zojaji.
[8] Jorge called ALC and asked for an explanation. Zojaji told him the car was
repossessed because Jorge “hadn’t paid.” Tr. p. 88. Jorge advised Zojaji that
he was not behind on payments but one payment ahead, and that his receipts
were in the repossessed car. Jorge then went to ALC to get the receipts out of
the car; as he reached in the car to get the receipts, Zojaji inexplicably
“slammed the door[,]” hitting Jorge. Id. at 90. Jorge nonetheless got the
receipts out of the car and showed them to Zojaji, who was yelling and “very
angry.” Id. at 92. Zojaji inspected the receipts and then claimed, “I took the
car because you had disconnected a GPS.” Id.
[9] Jorge explained to Zojaji that Jesse’s Auto Repair had removed the GPS device
without Jorge’s permission because the mechanic had determined that it was
improperly installed and damaging the car. Zojaji demanded to know the
mechanic’s name and number, which Jorge provided. After speaking with
Zojaji on the telephone, the mechanic accompanied Jorge to ALC with the
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GPS device and the tools to connect it. But Zojaji would not allow him to
reinstall the device, and made them leave the dealership. Upon Zojaji’s office-
manager’s suggestion to have ALC’s “GPS guy” check out the car, it was
confirmed that the GPS was improperly installed and each command ALC sent
to Jorge’s GPS device was causing damage to the car. Id. at 238.
[10] The office manager further recommended to Zojaji that ALC return the car to
Jorge. Zojaji, who was “furious,” said he would not return the car because
Jorge “had been a pain in the tush from day one.” Id. at 235, 236. In Zojaji’s
words, Jorge was a “lay-away deal”—he had “basically zero credit,” and Zojaji
“was banking on the fact that they were going to miss a payment here or there
and he would get this car back.” Id. at 241.
[11] At the time ALC repossessed Jorge’s car, Jorge had certain personal items
inside the car—some clothing, music CDs, electronic cables, and his minor
daughter’s school project—all worth between $543 and $690. Through his
attorney, Zojaji promised to return the personal items to Jorge, but never did.
[12] On April 25, 2012, Jorge filed his original complaint against Zojaji and ALC.
Approximately eight months later, in December of 2012, Zojaji sold the car at
auction for $10,400 using one of two blank limited-power-of-attorney forms
Jorge had signed at the time of the initial sale. In order to obtain clear title to
the car, Zojaji had filled out the form and engaged a notary to falsely certify
that Jorge had signed the form on April 27, 2012—two days after Jorge had
filed his first complaint.
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[13] Jorge alleged in his complaint and amended complaint criminal conversion,
assault, and general damages; and a violation of the Truth in Lending Act, 15
U.S.C. §1601 et seq. (TILA). A jury returned a verdict for Jorge on all counts,
awarding damages in the amount of $45,883.86 for the conversion claim. The
trial court entered a final judgment for Jorge in the amount of $121,069.66,
which included prejudgment interest and attorney’s fees.3 ALC and Zojaji now
appeal.
Discussion and Decision
1. Sufficiency of the Evidence of Criminal Conversion
[14] On appeal, ALC and Zojaji challenge the sufficiency of the evidence supporting
the jury’s verdict against them on the criminal conversion claim. Our standard
of review of sufficiency-of-the-evidence challenges is the same in civil cases as
in criminal cases. Indian Trucking v. Harber, 752 N.E.2d 168, 172 (Ind. Ct. App.
2001). We consider only the evidence most favorable to the verdict and the
reasonable inferences to be drawn therefrom. Id. We do not reweigh the
evidence or judge the credibility of the witnesses. Id. This Court will affirm the
verdict unless we conclude that it is against the great weight of the evidence. Id.
3
In the order or judgment of the court, the trial court also imposed post-judgment interest and court costs.
See Appellee’s App. p. 1.
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[15] In order to prove that ALC and Zojaji criminally converted Jorge’s car and
other personal property inside the car, Jorge had to prove by a preponderance
of the evidence that ALC and Zojaji “knowingly or intentionally exert[ed]
unauthorized control” over his property. See Ind. Code § 35-43-4-3; see also
Larson v. Karagan, 979 N.E.2d 655, 661 (Ind. Ct. App. 2012) (providing that in a
criminal conversion action, criminal intent must be proven by a preponderance
of the evidence). The mens rea requirement differentiates criminal conversion
from the more innocent breach of contract or failure to pay a debt—situations
the criminal conversion statute was not intended to cover. Larson, 979 N.E.2d
at 661. “A person engages in conduct ‘intentionally’ if, when he engages in the
conduct, it is his conscious objective to do so.” Ind. Code § 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). To “‘exert
control over property’ means to obtain, take, carry, drive, lead away, conceal,
abandon, sell, convey, encumber, or possess property, or to secure, transfer, or
extend a right to property.” Ind. Code § 35-43-4-1(a). And a person’s control
over property of another person is “unauthorized” if it is exerted without the
other person’s consent. I.C. § 35-43-4-1(b)(1).
[16] Here, the evidence shows that ALC/Zojaji repossessed Jorge’s car because he
erroneously believed that Jorge had missed a payment.4 Only after Jorge
4
The appellants argue in their reply brief that “Extra payments by Jorge did not excuse him from making his
March payment by the 10th of the month.” Appellants’ Reply Br. p. 6. First, we find this argument is
waived because “[n]o new issues shall be raised in the reply brief.” See Ind. Appellate Rule 46(C). And in
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showed Zojaji receipts proving that he was current on his payments, did Zojaji
claim to have repossessed the car because Jorge had disconnected the GPS
device. Even after Zojaji learned that the GPS was disconnected because of the
irreparable damage it was causing to the car and that Jorge’s mechanic would
reinstall the device, Zojaji refused to give Jorge either his car or his personal
belongings. We find the evidence supports the conclusion that Zojaji
knowingly or intentionally exerted unauthorized control over Jorge’s
property—namely, the car and the personal items contained therein. See Palmer
Dodge v. Long, 791 N.E.2d 788 (Ind. Ct. App. 2003) (holding that there was
sufficient evidence to support criminal-conversion finding against dealership
where the dealership had possession of the buyer’s purchased car but refused to
give back the buyer’s trade-in car). In this case, even if Zojaji initially
repossessed the car due to a genuine misunderstanding as to the allegedly
missed payment or the removal of the GPS device, once those
misunderstandings were clarified, Zojaji simply had no reason—contractual or
otherwise—to keep Jorge’s car.5
any event, we find the argument has no merit because the evidence shows that Jorge had on two prior
occasions—on December 10, 2011, and January 30, 2012—made one monthly payment of $500 (rather than
two $250 payments), and ALC/Zojaji had not objected to this or asserted that Jorge was in default.
5
In their brief, Appellants assert that Jorge had “several opportunities to get the car back and the personality
[sic] therein[,]” but the evidence shows that Jorge could only get the car back by paying the promissory note
in full or paying money beyond what Jorge owed under the contract. See Appellants’ Br. p. 27. As to the
personal property, it appears that initially Zojaji said he would give it to his attorney but then allegedly lost
the property. See Appellee’s Br. p. 17.
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[17] ALC and Zojaji maintain, however, that Zojaji “firmly believed that he had a
legal contractual right to repossess the car due to [Jorge]’s removal of the GPS
device.” Appellants’ Br. p. 22. And, the argument continues, “Appellant
cannot be guilty of conversion because his control over the vehicle was not
‘unauthorized.’ He had no ‘mens rea.’” Id. This argument is nothing more
than a request for us to reweigh the evidence, which we cannot do. To support
their contention, however, ALC and Zojaji cite to French-Tex Cleaners, Inc. v.
Cafaro Co., 893 N.E.2d 1156 (Ind. Ct. App. 2008). In that case, a commercial
tenant was appealing from a summary judgment in favor of the landlord after
the tenant alleged that the landlord had committed conversion by overcharging
the tenant for its share of real estate taxes due under the lease. The trial court
found—and this Court agreed—that the tenant’s claim constituted a bona fide
contract dispute and not a claim for conversion. See id. at 1166-67.
[18] But French-Tex is distinguishable from this case, for at least two reasons. First,
there was sufficient evidence here for the jury to find that this was never a bona
fide contract dispute. Even if the jury believed that Zojaji had initially acted on
a mistaken belief that Jorge missed a payment, the evidence supports that the
misunderstanding morphed into an intentional, unauthorized taking of Jorge’s
property. In other words, when Zojaji realized Jorge was not behind in his
payments and that he, Zojaji, had wrongfully disabled Jorge’s car via the GPS
device, which resulted in Jorge’s mechanic needing to disconnect the GPS to
prevent further damage to the car, the jury could very well have concluded that
Zojaji’s continued possession of the car constituted conversion. As to the
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second distinction, in French-Tex the tenant was appealing from a negative
judgment, whereas here Jorge prevailed in the trial court; thus, we must decline
the appellants’ ongoing invitation to reweigh the evidence of Zojaji’s intent.
Our standard of review requires us to consider only the evidence most favorable
to the verdict unless we conclude that it is against the great weight of the
evidence. See Indian Trucking, 752 N.E.2d at 172. Because we cannot say that
is the case here, we affirm the finding of criminal conversion.
2. Damages Award
[19] Next ALC and Zojaji allege that the damages awarded by the jury were
excessive. The jury has broad discretion in determining an award of damages,
and when the evidence is conflicting, the jury is in the best position to assess the
damages. Cox v. Matthews, 901 N.E.2d 14, 23 (Ind. Ct. App. 2009), reh’d denied,
trans. denied. Therefore, when reviewing a jury verdict containing a damage
award claimed to be excessive or inadequate, this Court applies a strict
standard. Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind. Ct. App. 2001). We
consider only the evidence that supports the award along with the reasonable
inferences therefrom, and a damage award will be upheld if it falls within the
bounds of the evidence. Id. If there is any evidence to support the amount of
the award, even if it is conflicting, this Court will not reverse that award. Id.
Where the damage award is so outrageous as to indicate the jury was motivated
by passion, prejudice, partiality, or consideration of improper evidence, we will
find the award excessive. Id. at 844. But the jury’s damage award will not be
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deemed the result of improper considerations if the size of the award can be
explained on any reasonable ground. Id.
[20] In this case, Jorge’s conversion claim arises under Section 34-24-3-1, which
provides for—among other things—treble damages to a person who has
suffered a pecuniary loss as a result of certain crimes, including criminal
conversion. The record reflects that the jury’s damage award was based on the
value of the car and the personal property contained in the car. In his appellate
brief, Jorge discusses the range of reasonable damage awards based on the
evidence that was before the jury, based on the car being priced somewhere
between $10,400 (the price for which the car was sold at auction in December
2012) and $18,900 (the original sale price listed on the internet in November
2011), plus the personal property contained therein valued somewhere between
$543 and $690, resulting in a range of between $10,943 and $19,590. When
these amounts are trebled, as authorized by the statute, the range is between
$32,829 and $58,770. Therefore, the jury’s award of $45,883.86 is clearly
within the range supported by the evidence. See Appellee’s Br. p. 19. Further,
ALC/Zojaji offer no evidence that the jury’s damage award was motivated by
passion, prejudice, partiality, or consideration of improper evidence. See Ritter,
745 N.E.2d at 844. Thus, ALC/Zojaji does not meet the strict standard we
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apply when reviewing jury-awarded damages, and we will not reverse the
damage award on these grounds.6
3. Appellate Attorney’s Fees
[21] Finally, Jorge contends that he is entitled to an award of additional attorney’s
fees for this appeal, basing this contention on Section 34-24-3-1, which allows
for the recovery of attorney’s fees. Specifically, the statute provides in relevant
part that “a person [who] suffers a pecuniary loss as a result of a violation of IC
35-43 . . . may bring a civil action against the person who caused the loss for . . .
a reasonable attorney’s fee.” Ind. Code § 34-24-3-1. The trial court
appropriately assessed “fair and reasonable” attorney’s fees against ALC and
Zojaji in the amount of $66,715. See Appellee’s App. p. 1. The appellants do
not challenge this award.
[22] This Court has consistently found that an award of attorney fees includes
appellate attorney’s fees—at least, as here, when the party seeking appellate fees
has been successful on appeal. See e.g., Benge v. Miller, 855 N.E.2d 716, 722
(Ind. Ct. App. 2006); see also Patricia Ann Brown, C.P.A. v. Brown, 776 N.E.2d
394, 397 (Ind. Ct. App. 2002) (“While there are many cases holding that an
award of attorneys’ fees under Indiana Code § 34-24-3-1 should include
6
Appellants frame their argument as a challenge to the jury verdict, but the trial court specifically did not
enter judgment on that verdict. Instead, the trial court added 8% prejudgment interest to the jury award of
$45,883.96, plus “fair and reasonable” attorney’s fees in the amount of $66,715 (pursuant to both the TILA
and conversion claims), for a total of $121,069.66, plus 8% post-judgment interest from January 21, 2015—
the date of the trial court’s order—and court costs. See Appellee’s App. p. 1.
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appellate attorneys’ fees . . . our review of such cases finds that to be the
situation only where the party seeking appellate fees has been successful on
appeal.”), trans. denied. Because we affirm the finding of criminal conversion,
we affirm the trial court’s judgment of $121,069.66 plus costs and post-
judgment interest and remand for a determination of the appropriate amount of
appellate attorney’s fees and costs to be awarded to Jorge.
[23] As a final note: justice is better dispensed in a courtroom and not in one’s own
hands. Self-help remedies are perilous and potentially expensive. When self-
help is attempted, a jury or judge decides the appropriateness or
inappropriateness of the actions regardless of how justified the actor may have
thought his actions were. As we see here, the risks of paying damages, treble
damages, pre-judgment interest, attorney’s fees, appellate attorney’s fees, and
costs are not worth the possible benefits of sidestepping the court system.
[24] Affirmed and remanded for a determination of reasonable appellate attorney’s
fees.
Robb, J., and Pyle, J., concur.
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