Sho-Pro of Indiana, Inc. v. Brown, SHO-PRO

• Citation: 585 N.E.2d 1357
• Decision Date: 11 February 1992
• Docket Number: No. 18A05-9107-CV-230,SHO-PRO,18A05-9107-CV-230
• Parties: 17 UCC Rep.Serv.2d 56 OF INDIANA, INC., Appellant-Plaintiff Below, v. Roger J. BROWN, Appellee-Defendant Below. 1
• Court: Court of Appeals of Indiana

Page 1357

585 N.E.2d 1357

17 UCC Rep.Serv.2d 56

SHO-PRO OF INDIANA, INC., Appellant-Plaintiff Below, v. Roger J. BROWN, Appellee-Defendant Below.

No. 18A05-9107-CV-230. ¹

Court of Appeals of Indiana Third District.

Feb. 11, 1992.

Howard Howe, Indianapolis, for appellant-plaintiff.

STATON, Judge.

Sho-Pro of Indiana, Inc. (Sho-Pro) appeals a negative judgment entered in favor of Roger J. Brown, raising two issues for our review, which we restate as follows:

I. Whether the trial court erred in finding that there was no binding contract between the parties.

II. Whether the trial court erred in finding that, even if there was a binding contract between the parties, such contract was unconscionable and therefore unenforceable.

We affirm.

The evidence most favorable to the judgment reveals that representatives of Sho- Pro visited the residence of Roger J. Brown in order to sell him replacement windows. They obtained Brown's name through a "lead card" obtained as a result of Brown's entry in a "sweepstakes contest" to win a house full of windows or $500, with no obligation. The entrant was also entitled to a "turkey platter" merely for entering. After a four-to-five-hour sales pitch, Brown signed a number of documents and received a tin platter.

Three days later, a representative of Sho-Pro left a card in Brown's door. Upon contacting Sho-Pro and inquiring about the card, he was informed by the woman who answered the phone that he had purchased four (4) replacement windows on credit for $4,322. Brown protested that he did not purchase any windows, that he could not afford $4,322, and that he did not even own the house in which he resided. The woman then told him that there would be no problem and that the order would be stopped.

No windows were ever installed, but a week or two later a representative of Sho-Pro arrived to measure windows. When Brown again protested that he did not order any windows, the representative assured him that he was not measuring because Brown was buying the windows, but in case Brown changed his mind about the windows or someone else moved into the house. On that basis, Brown assented to the measurements. He also signed a document stating that the man had been to his house because the man said he needed Brown's signature in order to get paid for the work.

The matter was next called to Brown's attention when he received a copy of the complaint instituting this action to collect the contract price, attorneys fees, and prejudgment interest. The case was tried to a judge, who entered findings of fact concluding that there was no contract between the parties, and even if there was a contract, the bargaining process rendered the contract unconscionable and therefore unenforceable. Judgment was entered in favor of Brown and Sho-Pro appeals.

The trial court entered findings of fact and conclusions of law, sua sponte on some but not all issues litigated. When this occurs, two separate and distinct standards of review are applied to the judgment of the trial court. A general judgment standard of review is applied to those issues not supported by findings of fact. Issues supported by findings of fact are treated differently on review. In Re Marriage of Snemis (1991), Ind.App., 575 N.E.2d 650, 653. On those issues where the court has entered findings, we employ the following standard of review: we first must determine whether the evidence supports the findings; then determine whether the findings support the judgment. Kaminszky v. Kukuch (1990), Ind.App., 553 N.E.2d 868, 870, trans. denied. The judgment of the trial court will be affirmed if we conclude that the special findings support the judgment and are not clearly erroneous. Brancheau v. Weddle (1990), Ind.App., 555 N.E.2d 1315, 1317. A judgment is clearly erroneous where a review of the record leaves us with a firm conviction that a mistake has been made. Indiana Dept. of Correction v. Stagg (1990), Ind.App., 556 N.E.2d 1338, 1341, trans. denied.

I. Contract

Sho-Pro argues that Brown's defense that he misunderstood the transaction is not a defense under Indiana law. He argues that the parol evidence rule prevents the trial court from examining the circumstances surrounding the transaction, and that "there is not even a scintilla to support the conclusion that Roger Brown didn't know what he was doing." Appellant's brief, p. 14.

Initially, we note that Sho-Pro's argument regarding the parol evidence rule lacks merit. The plain language of the Uniform Commercial Code requires a writing "intended by the parties as a final written expression of their agreement" before the rule becomes applicable. Ind.Code 26-1-2-202 (1988). Simply stated, the rule presumes a valid written contract between the parties. See Warrick Beverage Corp. v. Miller Brewing Co. (1976), 170 Ind.App. 114, 352 N.E.2d 496, 501. The question whether a document has been assented to by the parties as a complete expression of their intent is an ordinary question of fact, and no relevant evidence on this question is excluded on the mere ground that it is offered in the form of oral testimony. Corbin, Corbin on Contracts, Secs. 573-596 at 535 (One Volume ed. 1952). No evidence was introduced here purporting to vary the terms of the written document offered; rather, the question was whether there was a meeting of the minds between the parties. The parol evidence rule has no application here.

The expressions contained in a document purporting to be a sales contract require a meeting of the minds, the absence of which prevents the formation of a contract. Continental Grain Co. v. Followell (1985), Ind.App., 475 N.E.2d 318, 321 transfer denied. The intention of the parties is a factual matter to be determined by the trier from all of the circumstances, and a party relying on an express contract bears the burden of proving its existence. Id. Where there is probative evidence to support the conclusion that there was no meeting of the minds between the parties, we will not disturb that conclusion. Id.

Here, the evidence reveals that Brown did not read the documents he signed. Moreover, there was evidence that he misunderstood the purpose of the documents:

Q. Why did you sign those documents if you couldn't afford the windows? Why did you sign the different documents that you signed?

A. One of them was for the day they came out to my house and showed me a demonstration. That they personally come [sic] to my home. I was at my residence and they performed a demonstration.

Record, p. 37. Thus, Brown testified that he thought he was signing a document certifying that the salesmen had performed a demonstration for him. In addition, Brown personally told two employees of Sho-Pro that he did not intend to buy replacement windows, and was twice assured that he had incurred no obligation. These facts support an inference that Brown had never intended to incur an obligation to purchase the windows.

Sho-Pro argues that Brown had to have known that he was applying for windows because he applied for financing. However, the record reveals that he did not fill out the financing...