MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 20 2019, 7:16 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Joshua Lee Jason A. Lopp
Depauw, Indiana Whitney E. Wood
McNeely Stephenson
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Lee, August 20, 2019
Appellant, Court of Appeals Case No.
19A-SC-526
v. Appeal from the Harrison Superior
Court
Countryside Auto Sales, LLC, The Honorable Joseph L.
Appellee Claypool, Judge
Trial Court Cause No.
31D01-1812-SC-269
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 1 of 6
[1] Joshua Lee appeals the trial court’s order ruling in favor of Countryside Auto
Sales, LLC (Countryside), on Lee’s complaint. Finding no error, we affirm.
Facts
[2] On January 29, 2018, Lee purchased a used 1999 GMC Sierra 1500 (the truck)
from Countryside for $5,626.01.1 Lee made a down payment of $1,500 and
executed a contract (the Contract) and security agreement for the remaining
balance. The Contract stated as follows, in relevant part:
Vehicle Inspection. You are purchasing the Vehicle based upon
your personal inspection, and are not relying upon any opinion,
statement, promise or representation of the salesperson, or any
other of our employees that is not contained in the written
agreements you are signing today.
Vehicle Condition. You understand that the Vehicle may have
sustained prior body damage and may have undergone prior
mechanical repairs during or after its manufacture, during or
after transit to us or while in the possession of prior owners or
operators.
Warranty Information
Warranty. We make no express or implied warranties. Except
as required by law, we make no implied warranty of
merchantability and no warranty that the Vehicle is fit for a
particular purpose. We sell the Vehicle AS IS—NOT
1
Nothing in the record suggests that Lee is anything other than a competent adult.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 2 of 6
EXPRESSLY WARRANTED OR GUARANTEED. WITH
ALL FAULTS.
Appellant’s App. Vol. II p. 44-45 (emphases original).
[3] Lee alleges that soon after he purchased the truck, the truck bed began leaning
toward the cab because of substantial rust underneath the truck. He claims that
the truck is now unsafe to drive. Countryside states that its salesman informed
Lee that there was rust underneath the truck, though Countryside maintains
that it was unaware of rust to the extent that Lee claims exists. Lee also claims
that the salesman told him that the truck would be good to “haul things” and
that the truck came with a warranty. Tr. Vol. II p. 8-10.
[4] On December 17, 2018, Lee filed a small claims action against Countryside,
asking for damages to repair the vehicle.2 Lee subsequently amended the
complaint and asked the trial court to rescind the contract. Following a bench
trial, the trial court entered judgment in favor of Countryside. Lee now
appeals.
Discussion and Decision
[5] In reviewing a small claims judgment, we will not set it aside unless it is clearly
erroneous. Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App.
2013). We may neither reweigh the evidence nor re-assess witness credibility
2
Neither the original nor the amended complaint appears to be included in the record on appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 3 of 6
and must instead consider only the evidence and reasonable inferences that may
be drawn therefrom that support the judgment. Id. If a reasonable factfinder
could conclude that the party bearing the burden of proof—here, Lee—failed to
carry that burden by establishing their claims by a preponderance of the
evidence, we will affirm. Id. This deferential standard of review is especially
important in small claims actions, where the trials are “‘informal, with the sole
objective of dispensing speedy justice between the parties according to the rules
of substantive law.’” Id. (quoting Ind. Small Claims Rule 8(A)).
[6] Initially, we note that small claims courts do not have the authority to grant the
equitable remedy of rescission. Nielson Buick Jeep Eagle Subaru v. Hall, 726
N.E.2d 358, 360-61 (Ind. Ct. App. 2000). Therefore, the trial court did not err
by denying this relief.
[7] Next, we address the crux of Lee’s complaint—that he did not knowingly agree
to buy the truck “as is.” As a general rule, the law allows competent adults the
utmost liberty in entering into contracts which, when entered into freely and
voluntarily, will be enforced by the courts. Trimble v. Ameritech Publishing, Inc.,
700 N.E.2d 1128, 1129 (Ind. 1998). It is well settled that a used car dealer
“may disclaim implied warranties through the use of conspicuous language
containing expressions like ‘as is’ or ‘with all faults’ or other language which in
common understanding call the buyer’s attention to the exclusion of warranties
and makes plain there is no implied warranty.” Town and Country Ford, Inc. v.
Busch, 709 N.E.2d 1030, 1033 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 4 of 6
[8] Here, Lee signed a contract containing written disclaimers of warranty. The
disclaimers were in bold and partially capitalized and expressly disclaimed
warranties of both merchantability and fitness for a particular purpose.
Furthermore, the contract also explicitly stated that Lee was not “relying upon
any opinion, statement, promise or representation of the salesperson” not
contained in the contract. Appellant’s App. Vol. II p. 44. Therefore, Lee has
no right to direct our attention to any statements allegedly made by the
Countryside salesperson. See Circle Centre Dev. Co. v. Y/G Ind., L.P., 762 N.E.2d
176, 181 (Ind. Ct. App. 2002) (holding that a party “cannot affirmatively state
in writing that it has ‘independently investigated’ the matters at issue and that it
‘has not relied upon any inducements or representations’ by [the other party] or
its agents and then, after the fact, repudiate those provisions”). Therefore, to
succeed on any fraud-related claim, Lee would have to show fraud in the
express terms of the contract, which he cannot do. LTD Keller Farms, LLC v.
Brigitte Holmes Livestock Co., 722 F. Supp. 2d 1015, 1029 (N.D. Ind. 2010)
(interpreting and applying Indiana law).
[9] The simple fact is that Lee signed a contract. The contract is valid. As a
competent adult, he is assumed to have read and understood the terms of the
contract before signing it. He is now bound by those terms. Consequently, the
trial court did not err by finding that Countryside disclaimed all warranties.
[10] Lee also makes an argument under the Indiana Deceptive Consumer Sales Act.
Ind. Code ch. 24-5-0.5. The statute requires that a plaintiff making such a claim
must give timely notice “that shall state fully the nature of the alleged deceptive
Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 5 of 6
act and the actual damages suffered therefrom” within six months of the
discovery of the deceptive act. Ind. Code § 24-5-0.5-5(a). Here, Lee failed to
provide such notice in a timely fashion. Moreover, the trial court could have
reasonably concluded that the language of the Contract discussed above would
have denied Lee the right to recover under the Indiana Deceptive Consumer
Sales Act.3
[11] The judgment of the trial court is affirmed.
Kirsch, J., and Crone, J., concur.
3
On appeal, Lee also mentions the “Used Car Rule” based in 16 C.F.R. 455. He did not make this claim at
the trial court level and has consequently waived the right to do so on appeal. While we allow a great deal of
latitude to small claims plaintiffs, see Ind. Small Claims Rules 2 and 8, this is a very specific claim that needed
to be pleaded explicitly so that Countryside could prepare a defense to it. Therefore, we find it waived.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-526 | August 20, 2019 Page 6 of 6