Tom Trisler d/b/a Canal House Antiques v. Clayton L. Carter

Sep 30 2013, 5:32 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT:
JERRY T. DROOK
Marion, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TOM TRISLER d/b/a )
CANAL HOUSE ANTIQUES, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1302-SC-192
)
CLAYTON L. CARTER, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable J. R. Heffelfinger, Judge
The Honorable Jennifer E. Newton, Magistrate
Cause No. 35D01-1207-SC-677
September 30, 2013
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Tom Trisler (Trisler), d/b/a Canal House Antiques (Canal),
appeals the trial court’s order which required Trisler to issue a refund to the Appellee-
Plaintiff, Clayton L. Carter (Carter).
We reverse.
ISSUE
Trisler raises a single issue on appeal, which we restate as follows: Whether trial
court erred in ordering Trisler to issue a refund to Carter.
FACTS AND PROCEDURAL HISTORY
On November 19, 2011, Carter and his wife went to Canal in Wabash, Indiana.
Carter purchased some tools, Christmas decorations, two chests of drawers, and a filing
cabinet. When they were cleaning the items some time before Christmas, Carter and his
wife found nails protruding through the back of one of the chest of drawers. They had
purchased the chest of drawers for Carter’s sister-in-law who was in a nursing home
suffering from Alzheimer’s. Upon realizing this, Carter called Trisler and asked if he
could return the chest of drawers. Trisler agreed to the return but told Carter that he
would issue him a store credit rather than a refund. Carter retuned the item on January 5,
2012. He looked around the store, found nothing he wanted, and demanded a cash refund
which Trisler refused. There was nothing on the receipt nor was there any sign in the
store stating that Canal would refund the purchase price of a returned item.
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On July 18, 2012, Carter filed his Notice of Claim in Small Claims Court against
Trisler alleging that he returned defective merchandise to Trisler’s store and Trisler failed
to give him a refund of the purchase price. On September 4, 2012, Trisler filed his
Answer. On October 10, 2012, a bench trial was held. On December 26, 2012, the trial
court entered judgment in favor of Carter. Specifically, the trial court ruled:
1. [Trisler] did not have a posted policy on the return of exchange items. [Carter]
returned the chest of drawers in a reasonable amount of time. []
2. Judgment for [Carter] in the amount of $ 170.00 plus court costs of $ 92.00.
(Appellant’s App. pp. 11-12).
Trisler now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Trisler contends that the trial court erred in entering judgment against him and in
favor of Carter because there was no express or implied warranty requiring him to refund
the purchase price. Trisler argues that “[t]the fact that the store owner had posted no
signs regarding refunds or exchanges created no express or implied warranty either.”
(Appellant’s Br. p. 4). Trisler further contends that his willingness to allow Carter to
exchange and return the item for store credit did not give rise to a right to refuse store
credit and demand a cash refund instead.
Under Indiana Small Claims Rule 11(A), judgments in small claims action are
“subject to review as prescribed by relevant Indiana rules and statutes.” Trinity Homes,
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LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). In the appellate review of claims tried
by the bench without a jury, the reviewing court shall not set aside the judgment unless
clearly erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses. Ind. Trial Rule 52(A); Bennett v. Broderick, 858
N.E.2d 1044, 1047 (Ind. Ct. App. 2006), trans. denied. A judgment is clearly erroneous
when a review of the materials on appeal leaves us firmly convinced that a mistake has
been made. Barber v. Echo Lake Mobile Home Com., 759 N.E.2d 253, 255 (Ind. Ct.
App. 2001). In our review, we presume that the trial court correctly applied the law, and
we will not reweigh the evidence or determine the credibility of witnesses but will
consider only the evidence that supports the judgment and the reasonable inferences to be
drawn therefrom. Id. 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. Lae v.
Householder, 789 N.E.2d 481, 483 (Ind. 2003)..
Lastly, we note that Carter did not file an appellee’s brief. An appellee who does
not respond to the appellant’s allegations of error on appeal runs a considerable risk of
reversal. O.S. v. J.M., 436 N.E.2d 871, 873 (Ind. Ct. App. 1982). Where an appellee has
not filed a brief on appeal, the appellant’s brief need only demonstrate prima facie
reversible error in order to justify a reversal. Id.
Here, Trisler argues that because there was no return policy, Carter was not
entitled to a refund. Trisler’s argument relies on Caveat Emptor, which literally means,
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buyer beware. In support of his contention, Trisler solely quotes Buchanan v. Caine, 106
N.E. 885, 887 (Ind. Ct. App. 1914), where this court held that Caveat Emptor applies in a
sale of specific chattel where there is absence of fraud. However, in Vetor v. Shockey,
414 N.E.2d 575, 576 (Ind. Ct. App. 1980), we noted that:
Under the common law tradition, the doctrine of caveat emptor governed the
purchase of real estate. The theory underlying caveat emptor was that buyers and
sellers dealt at arm’s length and that if the purchaser sought any warranties, those
warranties should be negotiated and incorporated into the written contract.
Additionally, purchasers were presumed to have the means and the opportunity to
examine the property and judge its qualities for themselves.
Recently, caveat emptor has been viewed with disfavor and many jurisdictions
including Indiana have adopted the doctrine of implied warranty of habitability for
the purchase of a new home from a builder-vendor. In part, this is due to a
recognition of the sale of goods concept [].
We find that the application of the common law principle appears to be
diminishing and our courts seem to be slowly abandoning this principle. Here, the sale
was in respect to personal property and not real property, and in this regard, we find that
the Indiana Uniform Commercial Code (U.C.C.) would be more appropriate to determine
the issue before us. As revealed by the record, the sale of the chest of drawers constituted
a contract of sale by definition under the U.C.C. Specifically, Ind. Code § 26-1-2-106
provides in part that:
[]unless the context otherwise requires, “contract” and “agreement” are limited to
those relating to the present or future sale of goods. “Contract for sale” includes
both a present sale of goods and a contract to sell goods at a future time. A “sale”
consists in the passing of title from the seller to the buyer for a price (I.C. 26-1-2-
401). A “present sale” means a sale which is accomplished by the making of the
contract.
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Although there was no written contract between Trisler and Carter for the sale of
the item, the U.C.C. provides that an action for a sale of goods contract that is below
$500 is still enforceable under the U.C.C. even though it is not in writing. See I. C. § 26-
1-2-201. Furthermore, we note that the U.C.C. gives the buyer the right to revoke his
acceptance of the goods. “Revocation has the effect of permitting the buyer to avoid his
obligation to pay for the previously accepted goods (or to have his payment returned) if
he returns the goods to the seller.” Agrarian Grain Co., Inc. v. Meeker, 526 n.E.2d 1189,
1191 (Ind. Ct. App. 1988). Specifically, I. C. § 26-1-2-608 provides that:
(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-
conformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its non-conformity would be cured and it has
not been seasonably cured; or
(b) without discovery of such non-conformity if his acceptance was reasonably
induced either by the difficulty of discovery before acceptance or by the seller’s
assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer
discovers or should have discovered the ground for it and before any substantial
change in condition of the goods which is not caused by their own defects. It is not
effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the
goods involved as if he had rejected them.
Here the record indicates that Carter and his wife purchased the chest of drawers
for his sister-in-law who was living in a nursing home and was suffering from
Alzheimer’s. After he had taken the chest of drawers home, he realized the chest had
nails sticking out through the back, and Carter felt that it would be unsafe for his sister-
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in-law. We find that the chest of drawers did not conform to what Carter initially had
intended to use the chest of drawers for and as such, it substantially impaired its value.
However, even though we conclude that the chest of drawers is non-conforming
pursuant to the statute, Carter is not entitled to revoke his acceptance. Indiana Code
section 26-1-2-608(1)(a) does not apply because Carter did not accept non-conforming
goods on the assumption the non-conformity would be cured. The fact that Carter was
able to discover the defect upon opening the drawers of the chest while cleaning it belies
the difficulty of discovering the non-conformity and there is no allegation that Trisler in
any way kept Carter from inspecting the chest of drawers prior to his purchase of it.
Therefore, I.C. § 26-1-2-608(1)(b) also does not apply to allow Carter to revoke his
acceptance of the chest of drawers. Failing a legitimate reason to revoke his acceptance,
the timeliness of Carter’s attempted revocation pursuant to I.C. § 26-1-2-608(2) is not at
issue.1 Therefore, we conclude that the trial court erred in entering judgment for Trisler
and we reverse its decision.
CONCLUSION
Based on the foregoing, we conclude that the trial court erred in ordering Trisler to
reimburse Carter the purchase price of the chest of drawers.
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Additionally, there is no allegation that the filing cabinet, the purchase price of which Trisler was also
ordered to refund, was non-conforming in the first place. It appears the filing cabinet was too big for
Carter to transport on the day of purchase and that he thereafter simply changed his mind about taking it
from the store. I.C. § 26-1-2-608 therefore does not come into play. Carter, having paid for the item and
therefore accepted it, had no right to reject or revoke his acceptance of it. See McClure Oil Corp. v.
Murray Equip., Inc., 515 N.E.2d 546, 552 (Ind. Ct. App. 1987) (“Once the buyer accepts the goods, the
buyer is precluded from rejecting them.”).
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Reversed.
KIRSCH, J. and ROBB, C. J. concur
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