Jennifer Lovato, Appellant v. Carmel Motors, Appellee (2025)

MEMORANDUM DECISION

[1] Jennifer Lovato, pro se, appeals the small claims court's entry of judgment against her and in favor of Carmel Motors. Carmel Motors requests damages pursuant to Ind. Appellate Rule 66(E). We affirm the small claims court's judgment, grant Carmel Motors's request for damages, and remand.

Facts and Procedural History

[2] On June 17, 2024, Lovato filed a notice of claim against Carmel Motors.¹ On September 27, 2024, the small claims court held a hearing and took the matter under advisement. On December 9, 2024, the small claims court issued a six-page “Judgment” containing forty numbered paragraphs including findings. Appellant's Appendix Volume II at 7. The court found that Lovato purchased a Toyota Sienna from Carmel Motors. It noted that Lovato testified “that the sales representative, Luke, told her the vehicle had one owner, that it was in excellent condition and that there were no problems with the vehicle.” Id. at 8. It found that Lovato declined to have an independent inspection before purchasing the vehicle and that she acknowledged that she purchased the vehicle “as is.” Id. The court stated that it admitted “a copy of the ‘AS IS Sold Without Warranty’ document signed by” Lovato, which provided, “Carmel Motors is selling the above motor vehicle without a warranty in ‘AS IS’ condition. Previous or needed repairs to this vehicle, if any, are not and will not be our responsibility. The purchaser will bear the entire expense of repairing or correcting any defects that presently exist and/or may occur in the vehicle.” Id. It stated Lovato “seeks compensation from [Carmel Motors] based upon a theory of fraudulent concealment based upon the statements of ‘Luke’ that the vehicle did not have any problems, and the Repair Estimate from Bill Estes.” Id. at 11. The court found Lovato “failed to carry her burden of proof.”² Id. at 12.

Discussion

[3] A pro se litigant is held to the same established rules of procedure that trained legal counsel are bound to follow, and the fact that a litigant proceeds pro se does not excuse the litigant from complying with appellate rules. Foster v. Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990). “We will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016) (citation and quotations omitted), reh'g denied.

A. Waiver of Claims

[4] Lovato has failed to comply with the requirements of the Indiana Rules of Appellate Procedure. Ind. Appellate Rule 46(A) requires the appellant's brief to contain a statement of facts, and Ind. Appellate Rule 46(A)(6) provides in part that “[t]his statement shall describe the facts relevant to the issues presented for review but need not repeat what is in the statement of the case” and “[t]he facts shall be supported by page references to the Record on Appeal or Appendix in accordance with Rule 22(C).” Ind. Appellate Rule 22(C) provides that “[a]ny factual statement shall be supported by a citation to the volume and page where it appears in an Appendix, and if not contained in an Appendix, to the volume and page it appears in the Transcript or exhibits ․” Lovato's brief does not contain a statement of facts. Ind. Appellate Rule 46(A)(5) governs the statement of case and provides “[p]age references to the Record on Appeal or Appendix are required in accordance with Rule 22(C).” In her “Statement of Case,” Lovato's brief includes three statements regarding the evidence.³ Appellant's Brief at 3.

[5] Ind. Appellate Rule 9(F) provides:

Content of Notice of Appeal. The Notice of Appeal shall include the following:

* * * * *

(5) Request for Transcript. A designation of all portions of the Transcript necessary to present fairly and decide the issues on appeal. If the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence ․

[6] Lovato's notice of appeal did not request a transcript of the September 27, 2024 hearing. Accordingly, we are unable to address any claims which rely on the evidence presented at the bench trial. See Fields v. Conforti, 868 N.E.2d 507, 511 (Ind. Ct. App. 2007) (any argument that depends on the evidence presented at the bench trial was waived where appellants did not submit transcript of the proceeding).

[7] Further, Appellate Rule 46(A)(8)(a) provides “[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning” and “[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.” Appellate Rule 46(A)(8)(b) provides the argument “must include for each issue a concise statement of the applicable standard of review” and “a brief statement of the procedural and substantive facts necessary for consideration of the issues presented on appeal, including a statement of how the issues relevant to the appeal were raised and resolved by any ․ trial court.” This Court has previously stated:

We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator. Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990). A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. Hebel v. Conrail, Inc., 475 N.E.2d 652, 659 (Ind. 1985). On review, we will not search the record to find a basis for a party's argument ․ nor will we search the authorities cited by a party in order to find legal support for its position.

Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (footnote omitted).

[8] Lovato's claims in the “Argument” section of her brief are not supported by cogent argument.⁴ In light of Lovato's failure to request a transcript of the proceeding, the multiple violations of the Indiana Appellate Rules, and the lack of cogent argument, we find that Lovato waived her claims on appeal.

B. Damages

[9] Carmel Motors “requests that this Court award attorney's fees and costs incurred in defending this appeal.” Appellee's Brief at 6. Ind. Appellate Rule 66(E) provides, “[t]he Court may assess damages if an appeal ․ is frivolous or in bad faith,” “[d]amages shall be in the Court's discretion and may include attorney's fees,” and “[t]he Court shall remand the case for execution.”

[10] This Court has held:

Indiana appellate courts have formally categorized claims for appellate attorney fees into “substantive” and “procedural” bad faith claims. To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility. Procedural bad faith, on the other hand, occurs 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 written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Even if the appellant's conduct falls short of that which is “deliberate or by design,” procedural bad faith can still be found. Finally, we note that even pro se litigants are liable for attorney's fees when they disregard the rules of procedure in bad faith.

Thacker v. Wentzel, 797 N.E.2d 342, 346-347 (Ind. Ct. App. 2003) (citations omitted).

[11] Lovato did not request a transcript of the proceeding, and her appellant's brief does not comply with the Indiana Rules of Appellate Procedure, substantially impeding our ability to review her claims. We find that an award of damages pursuant to Ind. Appellate Rule 66(E) is appropriate under the circumstances and remand for a determination of a reasonable amount of damages.

[12] For the foregoing reasons, we affirm the judgment of the small claims court, grant Carmel Motors's request for damages pursuant to Ind. Appellate Rule 66(E), and remand for a determination of damages.

[13] Affirmed and remanded.

FOOTNOTES

1.   The appellant's appendix does not contain a copy of the notice of claim. The small claims court's December 9, 2024 order provides that Lovato “filed her ‘Notice of Claim’ alleging that [Carmel Motors] should pay [her] $8,000 for the following reason”:Unfair / Deceptive Act / I was informed [Unintelligible] my “Toyota” was a great car. Nothing wrong with it, found out they declined to repair vehicle from Bill Estes Toyota. Rushed me with paperwork at end of day. Bought car on good faith and their work.Appellant's Appendix Volume II at 7.

2.   Carmel Motors filed a motion to dismiss this appeal arguing that Lovato's notice of appeal was untimely, and a motions panel of this Court denied the motion.

3.   The Statement of Case states:Appellant bought car from Carmel Motors under statement from auto dealer that it was serviced and reliable. Appellant received from Bill Estes Toyota that in fact the car was brought in for inspection however the services were declined by Carmel Motors. Seals transfer case oil leaks, Under Vehicle on multi point inspection had major fluid leaks with transmission, engine and differential (exhibit 28, 29 and 30 noted in small claims Court) (2023 Indiana Code Tide 24 Amide 5 Chp.5 24-5-0.5-3) Appendix 13, 14, 15).Appellant's Brief at 3-4.

4.   To the extent Lovato presents new argument in her reply brief, the argument is waived. See Weldon v. Asset Acceptance, LLC, 896 N.E.2d 1181, 1186 (Ind. Ct. App. 2008), trans. denied; Ind. Appellate Rule 46(C).

Brown, Judge.

Judges Bailey and Weissmann concur. Bailey, J., and Weissmann, J., concur.