Lou Leventhal Auto Co., Inc. v. Munns

Decision Date04 June 1975
Docket NumberNo. 1--474A66,1--474A66
Citation328 N.E.2d 734,164 Ind.App. 368
PartiesLOU LEVENTHAL AUTO CO., INC., and Mid State Auto Co., Inc., Appellants (Defendants below), v. Joe MUNNS, Appellee (Plaintiff below).
CourtIndiana Appellate Court

Gene R. Leeuw, Klineman, Rose & Wolf, Indianapolis, for appellants.

Mark Peden, Foley, Foley & Peden, Martinsville, for appellee.

LOWDERMILK, Judge.

Defendant-appellant (Leventhal) brings this appeal from an award of damages arising from plaintiff-appellee's (Munns) suit for replevin, and from the overruling of his counterclaims for replevin and abuse of process.

The evidence discloses that Munns agreed to purchase from Leventhal a 1963 pick up truck, at a price of $595.00, plus a finance chrge of $100.00. Munns tendered a down payment of $250.00 which consisted of $100.00 cash and an automobile (Buick) valued at $150.00. Although there is some conflict, the evidence most favorable to Munns is that the title for the Buick was signed by Munns and given to the sales person when the deal was consummated. Leventhal retained a lien on the truck, and Munns was to make payments at $15.00 per week for 29 weeks, and a final payment of $10.00. The Buick was left at the Leventhal car lot and Munns drove away in the truck.

The following day Munns discovered the truck had not been reinspected by Leventhal prior to sale, as required by law, and Munns took the truck to a mechanic to have it inspected. Munns, however, was informed that in order to pass inspection the truck needed approximately $400.00 worth of repairs. Upon receiving this information Munns returned to Leventhals and requested they make the necessary repairs. Leventhal replied that he was willing to make only certain repairs, which amounted to a small amount of the work allegedly needed. Following this conversation with Leventhal, Munns proceeded to the nearest telephone and notified the police of the past course of events and requested their advice as to what action should be taken. The result of the phone call to the police was that Leventhal was urged by a member of the police force to rescind the deal. Munns again returned to Leventhals and although Leventhal agreed that the contract would be rescinded, he stated he was unable to find the title to the Buick. Munns, not wishing to leave the lot without title to the Buick, refused to retrade the truck.

In the weeks that followed Munns continued to make payments, though still dissatisfied, and Leventhal made several requests to Munns that he sign an application for a duplicate title so that the rescission of the contract could be completed. Munns, however, had by this time secured counsel and was advised not to sign the application for duplicate title. Inasmuch as Leventhal was not receiving cooperation as to what he considered to be Munns' duty or obligation in helping him secure duplicate title, several letters were sent to Munns, offering to rescind the transaction if only Munns would assist them in procuring the new title. These letters also threatened repossession of the truck if assistance from Munns was not forthcoming.

Finally, on Saturday, March 18, 1972, Munns tendered a payment to Leventhal and it was necessary to enlist local police in forcing Leventhal to accept the payment. The following Monday morning Munns awoke to find his truck gone. Munns immediately contacted police and related the events of the past weeks. The police then contacted Leventhal and were able to confirm that he did repossess the truck, and had it in his possession in Indianapolis. Munns was then directed by the police to the Morgan County Prosecutor's office, where he explained what had happened, and exhibited 'papers--all (his) papers and stuff.' Munns testified that the Prosecutor 'went on from there.'

On March 30, 1972, State Police officers arrived at Leventhal's place of business and informed him that they had a search warrant and that they intended to seize the truck. It does not appear that Leventhal was shown the warrant, and although Leventhal explained he had seized the truck and was holding it pursuant to the lien, he released the truck to the police. The truck was removed to Allen's Body Shop (a defendant below) in Martinsville.

On March 31, 1972, Leventhal filed a motion to suppress and return seized property and while this motion was pending in the Morgan Superior Court, Munns filed his action for replevin and immediate possession on April 12, 1972. On that latter date a writ of replevin was issued and the truck was replevied from Allen's Body Shop. No criminal charges were ever filed against Leventhal with regard to the taking of the truck.

Trial on Munns' complaint and Leventhal's counterclaims was had on April 17, 1972, with the final judgment in favor of Munns and an award of $30.00 compensatory damages and $1,500.00 punitive damages, all subject to payment of the contract. Leventhal's counterclaims were overruled and no judgment was rendered against defendants Allen's Body Shop and Mid State Auto Co., Inc.

I.

On appeal, Leventhal raises several arguments relating to sufficiency of the evidence. We have determined, however, that with regard to both the main action and the counterclaims these arguments were not adequately preserved in the motion to correct errors, and are therefore waived.

Leventhal's motion to correct errors states that he had title to the truck, and that Munns was behind in payments. However, the only portions of the motion relating to sufficiency of the evidence are very general in nature, to-wit:

'3. The Judgment in favor of Plaintiff and against Defendants was not supported by sufficient evidence in the record of this cause and the damages awarded by the trial Court were clearly excessive.

4. The Judgment in favor of Plaintiff and against Defendant on Defendants' Counter-Claim was erroneous as a matter of law in that the Court's decision was contrary to the weight of the evidence submitted by both parties.'

We consider these statements insufficient to preserve the arguments raised for the first time on appeal. Ind.Rules of Procedure, Trial Rule 59(G), Adkins v. Elvard (1973), Ind.App., 294 N.E.2d 160. TR. 59(A)(4) states that a judgment may be corrected where:

'(4) The verdict or decision is not supported by sufficient evidence upon all necessary elements of a claim or defense, or is contrary to the evidence specifically pointing out the insufficiency or defect;' (Emphasis added.)

Further, section (B) of that same rule states, in part, that:

'(B) Form of motion . . . The statement of claimed errors shall be specific rather than general, and shall be accompanied by a statement of the facts and grounds upon which the errors are based.' (Emphasis added.)

It is our opinion that there are no specific arguments in the motion to correct errors. Therefore, we cannot consider them on appeal. There remains only the general question of the sufficiency of all the evidence. In this regard, we note there was a definite conflict in the evidence as to whether there was a default by Munns, and as to whether Munns had instigated the criminal process. This court will not weigh the evidence on appeal. If there is sufficient evidence, when viewed most favorably to appellee Munns, we must sustain the judgment. Muehlman v. Keilman (1971), 257 Ind. 100, 272 N.E.2d 591; Johnson v. Mills (1973), Ind.App., 301 N.E.2d 205; Duvall v. Carsten-McDougall-Wingett, Inc. (1973), Ind.App., 297 N.E.2d 861. We find there is sufficient evidence in support of the judgment in all respects, and therefore the judgment was not contrary to law.

II.

The only remaining issues are whether it was proper to award damages, and whether the damages were excessive.

While Leventhal admits he had possession of the truck, he argues there could be no proper award of damages for loss of use because the repossession was 'prudent and lawful.' Further, Leventhal contends the punitive damages were improper because there was no evidence of fraudulent or malicious conduct. Here, Leventhal argues that he was within his statutory rights (IC 1971, 26--1--9--503 (Burns Code Ed.)) to repossess, and that such conduct cannot support an award of punitive damages.

Munns' arguments in this regard are confined almost completely to the issue of punitive damages. Munns maintains that evidence that Leventhal sold the truck in great disrepair; that excessive interest was charged; and that the truck was taken 'by stealth of night' is sufficient to show malice or oppressive conduct. Munns further notes he was without the truck for many weeks, and that he lost work while spending large sums of money to have the truck repaired.

Before proceeding to a determination of the precise question, however, we feel it is necessary to consider a problem inherent in the factual situation, the resolution of which is required to reach a proper decision in this case.

The replevin statute applicable to the case at bar reads as follows:

'34--1--8--1(3--2701). When action lies.--When any personal goods are wrongfully taken, or unlawfully detained from the owner or person claiming the possession thereof, or when taken on execution or attachment, are claimed by any person other than the defendant, the owner or claimant may bring an action for the possession thereof.'

The plain words of the statute disclose that (1) the action encompasses both a wrongful taking and detention (formerly replevin), and an unlawful detention (formerly detinue); and (2) the primary purpose of a replevin action is to regain possession of the property.

The above statute has evolved from the common law actions, and is well founded in the decisions of this State. Helman v. Withers (1891), 3 Ind.App. 532; Daggett v. Robins (1831), 2 Blackf. 415; Baer v. Martin (1850), 2 Ind. 229; Rose v. Cash (1877), 58 Ind. 273, 281; Van Gorder, et al. v. Smith (1884), 99 Ind. 404; Woods v. Shearer (1914), 56 Ind.App. 650, 105 N.E.2d 917; Ring v. Ring ...

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