Auto-Teria, Inc. v. Ahern

• Decision Date: 27 July 1976
• Docket Number: No. 2--1173A249,INC,AUTO-TERI,2--1173A249
• Citation: 352 N.E.2d 774,170 Ind.App. 84
• Parties: , 20 UCC Rep.Serv. 336 , Appellant (Plaintiff and Counter-Defendant below), v. Jack E. AHERN and Stephen M. Suhre, Appellees (Defendants and Counter-Plaintiffs below).
• Court: Indiana Appellate Court

Page 774

352 N.E.2d 774

170 Ind.App. 84, 20 UCC Rep.Serv. 336

AUTO-TERIA, INC., Appellant (Plaintiff and Counter-Defendant below), v. Jack E. AHERN and Stephen M. Suhre, Appellees (Defendants and Counter-Plaintiffs below).

No. 2--1173A249.

Court of Appeals of Indiana, First District.

July 27, 1976.

Rehearing Denied Aug. 31, 1976.

Merrill Moores, John L. Price, Indianapolis, for appellant.

William M. Evans, Indianapolis, for appellees; Bose, McKinney & Evans, Indianapolis, of counsel.

LOWDERMILK, Judge.

CASE SUMMARY:

The instant case was transferred from the Second District to this office on July 1, 1976, in order to lessen the disparity in caseloads between the Districts.

Plaintiff-appellant Auto-Teria, Inc., appeals from a judgment of $10,220.27 on the counterclaim of defendants-appellees Jack E. Ahern and Stephen M. Suhre (buyers) and $2,000 on the counterclaim of Suhre individually.

We affirm.

FACTS:

The facts most favorable to the appellees reveal that in 1969 buyers, certified public accountants, were interested in a self-service car wash business. They contacted Del O. Amy, president of Auto-Teria, an Indianapolis manufacturer of automatic carwash equipment, because they felt buying locally would facilitate repair and the acquisition of spare parts and because Auto-Teria sold one of the few coin-operated systems on the market.

They communicated to Amy their desire to invest in a business that would require little of their time; they specifically wanted a unit which would not require the presence of an operator-repairman.

During the course of negotiations Amy gave them Auto-Teria's newsletter and an advertising brochure and sent them a letter--all describing Auto-Teria's brush-type coin-operated carwash.

The 'President's Report' in the newsletter concluded:

'The coin car wash industry has graduated to a new level with many installations totaling $150,000 or more. With the perpetual ideas and equipment improvements, I foresee a market for the investor that will be unsurpassed in: 1. LABOR PROBLEMS; 2. OWNER TIE-DOWN REQUIREMENTS; 3. RETURN OF THE INVESTED DOLLARS.' (Original emphasis.)

The front page of the three-color illustrated brochure depicted a 'talking coin-meter' and emphasized: 'Automatic--Coin Operated--No Hand Wash Labor.' At the bottom of the back page--in the smallest type used on that page--appeared the statement:

'Inasmuch as the quality of car wash is contingent upon so many factors beyond the control of Auto-Teria, Auto-Teria cannot guarantee such or rectify damage to car, such being the responsibility of attendant.

'Manufacturer reserves right to substitute equal or superior components for equipment mentioned.

'Quality and quantity of equipment vary according to model ordered.' (Original emphasis.)

The letter from Amy stated, omitting pleasantries:

'I believe you will agree that the coin operated car wash business is one of the most profitable investments on the market today, with the least amount of hired help requirements.

'I have experienced the sale of many types of equipment all over the world and for this reason feel you should compare equipment very closely because maintenance can become a major problem with piston pumps and poor design. Purchasing the right car washing facility is merely COMMON SENSE, like so many other facets of life.

'THERE IS NO MAGIC implied by AUTO-TERIA except that we usually offer more capacity in the component parts than any other equipment on the market today. If you will compare AUTO-TERIA'S gear capacity, electric motor horse power ratings and brush sizes you will quickly see that the reason Auto-Teria facilities give you a greater return on your investment is--a better wash and a more satisfied customer.

'REMEMBER, the customer only sees the end results . . .. AUTO-TERIA'S QUALITY DOES PAY . . .' (Original emphasis.)

Amy took the buyers to the factory where the brush units were being assembled and showed them a model unit. He then took them to a four-bay installation in Noblesville where, he said, the operator had generated business of $700 to $800 a month with only self-service equipment which customers must hold to operate.

Buyers and Auto-Teria executed an 'Order Form and Sales Agreement' for an automatic brush unit installed in one of the bays of the Noblesville facility plus the used self-service equipment which was to be 'completely checked out and put in working order.'

Buyers received a photocopy of the form--but no written warranty until later. The buyers drew two notes payable to Auto-Teria, the face amount of one being $64,789.20 and the other $2,527.20.

After the brush unit was installed, buyers could not get the coin meter to work properly and therefore disconnected it--so that an attendant had to be present to operate the unit.

Buyers then discovered that the brushes were working too fast and were ripping mirrors and antennaes off customers' cars, and that the various phases of the wash cycle were out of time.

Inasmuch as repeated calls to Amy failed to produce any repair response, buyers turned to Byford Thompson, who owned and operated an Auto-Teria installation in Anderson and who had worked for the manufacturer in the assembly and installation of buyers' unit. Thompson added machanisms to slow the brushes, got the system back 'in cycle', and alleviated the breakage problem by moving the brushes out--in which position they did not effectively wash autos.

Thompson had to repair the automatic unit two to five times per month inasmuch as it would not perform for any extended period of time.

Buyers moved the brush unit to a Nora gas station, where they hoped, the station personnel could operate it and repair it. However, it worked no better.

While Suhre was operating the unit at the Nora station, the top brush unaccountably began falling toward an auto being washed. To prevent the brush from damaging the car, Suhre reached up to push a button which stopped the brush. As he did so a finger on his left hand was broken in three places when it was caught between the unit and the doorway through which it was passing.

As a result of this 'painful' injury the left-handed accountant was treated at a hospital and was unable to work for a period of time.

When winter struck buyers learned that the system to keep water flowing through the self-service units at Noblesville had not been put in working order by Auto-Teria. As a result, the water froze in the pipes and hoses--bursting them.

Only in two months did the carwash produce the business reported by Amy.

In the summer of 1970 buyers returned the brush unit to Noblesville, from where Auto-Teria took possession of it.

Of all the equipment purchased by buyers, Auto-Teria was able to resell only the brush unit. It was sold for $5,500 or $5,600--after Auto-Teria spend $2,500 to $3,500 to put it into salesable condition.

Buyers paid only $9,720.27 on the notes, upon which Auto-Teria sued. Buyers jointly counterclaimed for damages as a result of the transaction; Suhre also counterclaimed for damages for his personal injury.

Following the post-trial entry of judgment for buyers on their counterclaims, present counsel for Auto-Teria entered his appearance between 3:30 and 4:00 P.M., June 4, 1973, and filed a 'Motion to Correct Errors.' He personally applied to the pleadings the file stamp located in the trial court's office. Later he learned that the stamp read: 'FILED June 5, 1973.'

On June 4, 1973, it was the everyday practice of the room clerk assigned to the trial court to leave at 3:30 P.M., which was before the trial court closed. It was also her practice to move the file stamp ahead to the next business day before leaving.

ISSUES:

1. Whether the trial court erred in not changing its records to show a filing date of June 4, 1973, for Auto-Teria's 'Motion to Correct Errors.'

2. Whether the trial court erred in its handling of Auto-Teria's Exhibits D and E.

3. Whether the trial court erred in rendering judgment for buyers, jointly.

4. Whether the trial court erred in rendering judgment for Suhre individually.

5. Whether the trial court denied Auto-Teria a fair trial by conducting a portion of the proceedings outside the regular courtroom. ¹

DECISION:

ISSUE ONE:

Before discussing the merits of Auto-Teria's appeal we must resolve whether the trial court erred in denying Auto-Teria's 'Petition for Correction of Error,' which sought to have the record altered to show that Auto-Teria's 'Motions to Correct Errors' was filed on June 4, 1973, rather than on June 5, 1973.

The trial court entered its judgment in favor of buyers on April 4, 1973. The sixtieth day following that entry was Sunday, June 3, 1973.

Therefore, the latest date on which Auto-Teria could file a timely motion to correct errors--and thereby preserve its right to appeal--was June 4, 1973. Ind. Rules of Procedure, Trial Rule 6(A), Trial Rule 59(C), and Trial Rule 59(G).

'Clerical mistakes' in all parts of the record may be corrected at any time by the trial court--sua sponte or upon the motion of any party. Ind. Rules of Procedure, Trial Rule 60(A).

This provision is anaylzed at 4 Harvey and Townsend, Indiana Practice 205--206 (1969):

'The types of 'clerical mistakes' . . . which may be corrected under Rule 60(A) will be controlled in a large measure by prior Indiana case law--law which is no haven for the lawyer seeking precise rules and answers. Prior case law distinguished between a motion to correct clerical errors and the procedure for correcting inconsistencies between the verdict or finding and the judgment, and between the evidence and the verdict, findings or judgment. . . .

'. . . (C)lerical errors or mechanical mistakes involved in the process of making computations, spelling, transcribing or making entries into the records of the court by the judge or other court officer could be corrected at any time. It is this type of error or mistake within the ambit of Rule 60(A). Prior...