Catellier v. Depco, Inc.

• Decision Date: 17 June 1998
• Docket Number: No. 29A02-9709-CV-626,29A02-9709-CV-626
• Citation: 696 N.E.2d 75
• Parties: Louis CATELLIER, Appellant-Plaintiff, v. DEPCO, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

Page 75

696 N.E.2d 75

Louis CATELLIER, Appellant-Plaintiff, v. DEPCO, INC., Appellee-Defendant.

No. 29A02-9709-CV-626.

Court of Appeals of Indiana.

June 17, 1998.

Eugene G. Ziobron, Indianapolis, for Appellant-Plaintiff.

Patrick R. Ragains, Smith, Ragains & Cotton, Anderson, Michael E. Farrer, Bingham, Farrer & Wilson, P.C., Elwood, for Appellee-Defendant.

OPINION

MATTINGLY, Judge.

Louis Catellier (Catellier) appeals a trial court order that required Depco, Inc. (Depco) to pay him $419.95. We restate the issues Catellier has raised for review:

1. Whether the judge pro tempore was properly appointed;

2. Whether the evidence supports particular findings contained in the trial court's order; and

3. Whether the trial court erred when it failed to find Depco liable to Catellier for breach of contract and criminal conversion.

Affirmed and remanded with instructions to calculate, and to execute in favor of Depco, an award of appellate attorney fees.

FACTS AND PROCEDURAL HISTORY

Catellier, the operator of an excavating business, contracted to purchase a new hydraulic pump from Depco at a cost of $2,042. Catellier and one of his employees installed the new pump on a mechanical excavator. After the new pump did not work properly, Catellier returned it to Depco, exchanging it for a $1,050 used pump. At the time of the exchange, Catellier asked Depco to pay him a refund of $992--the price difference between the new pump and the used one.

Depco inspected the returned pump, finding scarred metal inside. Believing it had been damaged, Depco sent the pump to the manufacturer. After an inspection, the manufacturer was unable to attribute the pump's damage to faulty parts or faulty workmanship. As a result, Depco concluded that the pump had been damaged when Catellier improperly installed it in the excavator.

Depco's "return policy" for hydraulic pumps precluded a refund for returned goods with damage caused by the customer. R. at 44, 176-78. Consequently, Depco declined to give Catellier the full amount of the refund, offering instead a partial refund of $419.95. ¹

Seeking to recover a full refund, Catellier filed a complaint against Depco in the trial court's small claims division. The complaint, which was set forth in two counts, alleged (1) that Depco's failure to pay Catellier $992 amounted to breach of contract and (2) that Depco had criminally converted $992 of Catellier's money. The issues raised in Catellier's complaint were litigated in a bench trial before a judge pro tempore. An order was then issued in which the trial court, sua sponte, made findings of fact and conclusions of law. The trial court found in favor of Depco on Catellier's complaint, but ordered Depco to refund Catellier $419.95, finding that otherwise, Depco would be unjustly enriched.

This appeal ensued after Catellier's motion to correct error was denied.

DISCUSSION

1. Appointment of the Judge Pro Tempore

Catellier alleges that the judge pro tempore was not appointed properly and was therefore without authority to preside over or rule on his case. We must determine whether a challenge to the authority of the judge pro tempore was properly made in the trial court, thus preserving the issue for appeal. Garage Doors of Indianapolis, Inc. v. Morton, 682 N.E.2d 1296, 1300 (Ind.Ct.App.1997). Catellier did not raise this issue at trial, instead raising it for the first time in his motion to correct error. That is insufficient, as parties may not raise an issue for the first time in their motion to correct errors. In re S.L., 599 N.E.2d 227, 229 (Ind.Ct.App.1992). Because Catellier failed to object at the trial court level, he has waived the issue of the judge pro tempore's appointment.

2. The Trial Court's Findings of Fact

a. Standard of Review

Because the trial court, sua sponte, entered specific findings of fact and conclusions of law, the specific findings control only with respect to the issues they cover and the general judgment will control as to the issues upon which the court has not found. In re Marriage of Snemis, 575 N.E.2d 650, 652 (Ind.Ct.App.1991). We may not reverse the trial court's findings unless they are clearly erroneous. Id. "[T]he general judgment will be affirmed if it can be sustained upon any legal theory by the evidence introduced at trial." Id. at 652. In our review, we will consider only the evidence that is most favorable to the trial court's judgment and will not weigh the evidence or judge the credibility of witnesses. Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind.Ct.App.1997).

b. Damage to the New Pump

The trial court found that Catellier damaged the new pump by improperly installing it on his excavator. R. at 70. Catellier's claim that this finding is without evidentiary support is inaccurate. The trial court was presented with testimony ² which could support a finding that Catellier damaged the new pump by improperly installing it. Because we cannot say that such a finding is clearly erroneous, we must reject Catellier's claim.

c. Depco's Return Policy

The trial court found that, under the terms of Depco's return policy, a customer who damaged a purchased item and then returned it was not entitled to a refund of the item's purchase price. R. at 66, 70. Although Catellier challenges this finding, supporting evidence was introduced at trial. R. at 44, 176-78. As a result, this finding is not clearly erroneous and Catellier's challenge fails.

3. Catellier's Theories of Recovery

Catellier asserts the trial court erred when it allowed no recovery under either of his two theories of recovery: breach of contract or criminal conversion.

a. Breach of Contract

It is undisputed that Depco and Catellier entered into a contract for the sale of a hydraulic pump. Because this contract was for the sale of goods, ³ it is governed by the Uniform Commercial Code. Gumz v. Starke County Farm Bureau Coop. Ass'n, Inc., 271 Ind. 694, 699, 395 N.E.2d 257, 262 (1979). However, Catellier's argument on appeal neither demonstrates how he is entitled to recover for breach of contract under the UCC nor attempts to show that those provisions do not govern the contract. Under these circumstances, Catellier presents no issue of error. We therefore decline to review the trial court's ruling on his breach of contract claim.

b. Criminal Conversion

Catellier alleges that Depco, by retaining the full refund of $992, incurs civil liability under Indiana's criminal conversion statute, which provides: "[a] person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor." Ind.Code § 35-43-4-3. A civil action under this statute is permitted by Indiana Code § 34-4-30-1, which states that "[i]f a person suffers a pecuniary loss as a result of a violation of IC 35-43 ..., the person may bring a civil action against the person who caused the loss for [damages.]"

The criminal conversion statute has a mens rea element, requiring the unauthorized control to be either knowing or intentional. Coffel v. Perry, 452 N.E.2d 1066, 1069 (Ind.Ct.App.1983). Mens rea is not, however, an element of tortious conversion. Id. The evidence most favorable to Depco is that Depco believed it was entitled to retain the $992 which Catellier claimed was his. From this evidence, we cannot say the trial court's conclusions were erroneous as a matter of law.

4. Appellate Attorney Fees

Depco claims it has been subjected to defending a frivolous appeal and is entitled to an award of appellate attorney fees pursuant to Indiana Appellate Rule 15(G), which provides that:

If the court on appeal affirms the judgment, damages may be assessed in favor of the appellee not exceeding ten percent (10%) upon the judgment, in money judgments, and in other cases in the discretion of the court; and the court shall remand such cause for execution.

The damages available under this rule are sometimes characterized as appellate attorney fees. Greasel v. Troy, 690 N.E.2d 298, 304 (Ind.Ct.App.1997). We may award appellate attorney fees "when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Hyundai Motor Co. v. Stamper, 651 N.E.2d 803, 810 (Ind.Ct.App.1995).

We grant Depco's request for appellate attorney fees, not because Catellier's appeal is frivolous, but because Catellier's appeal is permeated with bad faith. A litigant's bad faith on appeal may be classified as "substantive" or "procedural." Substantive bad faith "implies the conscious doing of a wrong because of dishonest purpose or moral obliquity." Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind.Ct.App.1990) (quoting Young v. Williamson, 497 N.E.2d 612, 617 (Ind.Ct.App.1986)). Procedural bad faith "is present when a party flagrantly disregards the form and content requirements of the Rules of Appellate Procedure, omits and misstates relevant facts appearing in the record, and files briefs appearing to have been written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court." Id. Conduct can be classified as procedural bad faith even if it falls short of being deliberate or by design. Id.

This appeal is permeated with procedural bad faith, which is apparent upon examination of Catellier's appellate brief. This brief, in many ways, fails to meet the requirements of our appellate rules. We deal in turn with the brief's most significant shortcomings.

Catellier has violated Appellate Rule 8.2(A)(4) by submitting an appellate brief that exceeds 30 pages. Although there are mechanisms provided in this rule which allow a party to submit a brief in excess of 30 pages, Catellier has failed to make use of them. ⁴

In contravention of Appellate Rule 8.2(A)(1), the text and footnotes of Catellier's brief are printed in a typeface that is smaller than 12-point.

Catellier's statement of the case is defective because it contains...