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Banks v. Jamison

Court of Appeals of Indiana

July 14, 2014

TERRY BANKS, Appellant-Plaintiff,
v.
DENNY JAMISON, d/b/a, AUTOMOTIVE HAMMERART, Appellee-Defendant

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[Copyrighted Material Omitted]

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APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Cynthia Ayers, Judge. The Honorable Burnett Caudill, Magistrate. Cause No. 49D04-1203-PL-12870.

ATTORNEYS FOR APPELLANT: JAMES. A. GEIGER, O'Koon Hintermeister, PLLC, Indianapolis, Indiana.

ATTORNEYS FOR AUTOMOBILE DEALERS ASSOCIATION OF INDIANA: RONALD C. SMITH, BRYAN H. BABB, JOEL T. NAGLE, Bose McKinney & Evans, LLP, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: DONN H. WRAY, MARC A. MENKVELD, Katz & Korin, PC, Indianapolis, Indiana.

BRADFORD, J., concurs. PYLE, J., concurs in part and dissents in part.

OPINION

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MATHIAS, Judge

Terry Banks (" Banks" ) appeals the trial court's order granting partial summary judgment to Denny Jamison d/b/a Automotive HammerArt (" Jamison" ) on Banks's claims of theft, conversion, and commission of a deceptive act, which he alleged following Jamison's foreclosure of a possessory mechanic's lien against Banks for unpaid work done to Banks's car. On appeal, Banks presents one issue, which we restate as whether the trial court erred by granting partial summary judgment to Jamison on Banks's claims of theft and conversion and on one of two alleged violations of the Indiana Deceptive Consumers Sales Act based on its conclusion that Banks was collaterally estopped from challenging the validity of the mechanic's lien.

We affirm in part, reverse in part, and remand.

Facts and Procedural History [1]

This appeal involves Banks's 1973 Dodge Challenger (" the Challenger" ) and Jamison's mechanic's lien on and foreclosure sale of the Challenger pursuant to Indiana's possessory mechanic's lien statute, Indiana Code section 9-22-6-2.[2] The facts regarding the work authorized to be done on the Challenger and the communication regarding that work are highly disputed by the parties. The facts most favorable to Banks, the non-moving party in this summary judgment proceeding, reveal that, prior to February 2011, " the Challenger ha[d] previously been almost completely restored at another automotive shop[.]" Appellant's App. p. 69. In late

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February 2011, Banks had the Challenger towed to Jamison's auto shop so that Jamison could paint it and install a motor, transmission, torque converter, and a starter. Shortly thereafter, Jamison informed Banks that he needed to " sandblast the Challenger to make sure it was in good enough condition to be painted[,]" and Banks allegedly authorized Jamison to do that work and to " provide [Banks] with [Jamison's] opinion on what further body work, if any, needed to be done on the Challenger[,] along with an estimate of the potential charges for any such work." Appellant's App. p. 70.

Jamison started performing labor on the Challenger in May 2011 and performed additional labor in August and September 2011. In late September or early October of 2011, Banks went to see the Challenger after Jamison had called him and told him that Jamison had completed the sandblasting. When Banks arrived at Jamison's shop, Jamison informed Banks that he had " already done $3,500 worth of body work to the Challenger[,]" and Banks " immediately questioned Mr. Jamison why he had performed any work, other than sandblasting the Challenger, without [Banks's] permission[.]" Appellant's App. p. 71. Banks refused to pay Jamison the $3,500 and " clearly stated to [Jamison] that he did not have permission to do any further work on the Challenger." Id.

On October 28, 2011, Banks went back to Jamison's shop, and Jamison gave Banks an invoice, which indicated that Jamison had performed 86.5 hours of labor on the Challenger and that Banks owed a total of $5,082 for work done to the Challenger.[3] Banks refused to pay the invoice amount and, instead, paid Jamison $500.00 by check.[4] According to Banks, he paid the $500.00 because he thought it was a reasonable amount for the sandblasting work.

Three days later, on October 31, 2011, Jamison, still in possession of the Challenger, sent Banks the following letter via certified mail to Banks's business address on 46th Street in Indianapolis:

As a small business owner, you can appreciate the dilemma that you've put me in by delaying payment of your bill. You received your bill in mid-September and after several broken promises of payment you paid $500 on a bill of $5082. As a small business owner, I cannot operate this way. Your bill is due and payable upon receipt. Therefore, I have moved the car to storage, as of today, and will be charging you $50 per week for storage fees. This bill must be paid in full plus storage fees by November 30, 2011 or I will immediately pursue legal action to collect the balance plus fees owed to me.

Appellant's App. p. 42. Banks did not pay the requested amount and did not retrieve the Challenger from Jamison.

Subsequently, at the end of November 2011, Jamison hired a self-styled " mechanic's lien processor," Indiana Lien,[5] to initiate the mechanic's lien foreclosure process. Indiana Lien then mailed, via certified mail with return receipt requested, a notice of the mechanic's lien and the scheduled December 29, 2011 foreclosure sale to Banks at his 46th Street business address and to his former personal address on Fall Creek Parkway on Jamison's behalf. The letter sent to Banks's 46th Street business

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address was returned as " Unclaimed, Unable to Forward" and the letter sent to the Fall Creek Parkway address was returned as " Not Known, Unable to Forward." Appellant's App. p. 45. Jamison also placed a notice of the December 29 foreclosure sale in a newspaper as required by the possessory mechanic's lien statute.

In the meantime, Banks sought legal counsel. On December 2, 2011, Banks's attorney sent Jamison a letter, in which Banks asserted that he had authorized Jamison only to paint the Challenger and had not authorized any other work to be done on the vehicle. In his letter, Banks also stated that he did " not owe [Jamison] any money, whatsoever, for work [he] did without any authorization and without any written estimate." Appellant's App. p. 51. Additionally, Banks's attorney demanded that Jamison " immediately contact Mr. Banks and permit him to pick up his vehicle." Id.

On December 21, 2011, Banks's attorney sent an additional letter, noting that Banks had not received a response from Jamison. Banks's attorney requested that Jamison contact Banks to arrange a time for Banks to pick up his vehicle. Jamison did not respond to Banks's letter.

After Banks did not receive a response to either of his letters, he filed a complaint against Jamison with the Indiana Attorney General's Office. Banks also obtained new legal counsel, and his attorney sent Jamison a letter on March 7, 2012. In this letter, Banks sought return of the Challenger and claimed that Jamison " had no legal right to do anything to Mr. Banks' property other than paint it." Appellant's App. p. 53. At some point, Banks learned from the Attorney General's Office that Jamison had asserted a mechanic's lien on the Challenger and had sold it at auction on December 29, 2011.

Thereafter, on March 29, 2012, Banks filed a complaint against Jamison, alleging a claim of theft. In August 2012, Banks filed an amended complaint, alleging three claims: (1) theft; (2) conversion; and (3) violation of the Indiana Deceptive Consumers Sales Act (" DCSA" ).[6] In regard to Banks's theft and conversion claims, he alleged that Jamison " knowingly or intentionally exerted unauthorized control over Mr. Banks' property, the Vehicle and the Parts, first by performing unauthorized body work on the Vehicle, later by retaining the Vehicle and the Parts after Mr. Banks demanded their return[,] and finally by selling the Vehicle on or about December 29, 2011." Appellee's App. pp. 9-10. In regard to the DCSA claim, Banks alleged that Jamison had violated the DCSA by committing the deceptive acts set forth in Indiana Code section 24-5-0.5-3(a)(5) and section 24-5-0.5-3(a)(14).[7] Under each count, Banks sought

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to recover treble damages, attorney fees, and pre-judgment and post-judgment interest.

On September 20, 2012, Jamison filed a motion for partial summary judgment. Jamison's designated evidence included an affidavit[8] in which he averred that he had discussed with Banks the labor that Jamison would perform on the Challenger and had informed Banks that the cost would be $50.00 per hour plus materials. Jamison also averred that " Banks agreed to pay for labor at that rate and also agreed to pay for materials." Appellant's App. p. 32. Additionally, in his affidavit, Jamison stated that he had specifically discussed the labor performed and the resulting bill with Banks and that " Banks did not give any indication that he disapproved of the work performed or the amount of the bill." Id. Jamison also averred that Banks had not indicated that any of the work was unauthorized.

In his summary judgment motion, Jamison first argued that he was entitled to summary judgment on Banks's theft and conversion claims because Banks could not meet his burden of showing that Jamison knowingly or intentionally exerted unauthorized control over the Challenger by (1) performing work on it; (2) retaining possession of it after Banks demanded its return; and (3) selling it. Jamison argued that Banks could not show that he exerted unauthorized control by performing work on the Challenger because Banks delivered the vehicle to Jamison and because the act of performing work on property did not fall under the statutory definition of " exert control over property" contained in Indiana Code section 35-43-4-1(a).[9]

Jamison acknowledged that he had retained possession of the Challenger and sold it, but he argued that he was authorized to do so under the possessory mechanic's lien statute, Indiana Code section 9-22-6-2.[10] Jamison argued that Banks could not show that he exerted unauthorized control of the Challenger when he possessed it and sold it because Banks had consented to the work performed, which resulted in Jamison holding a mechanic's lien on the vehicle. Jamison argued that Banks, who did not challenge the lien or the foreclosure process prior to the sale of the Challenger, was now precluded from arguing that Jamison was not authorized to hold and foreclose his mechanic's lien.

In the alternative, Jamison also argued that--even if he was not authorized to possess or sell the Challenger as part of the foreclosure process under the mechanic's lien statute--Banks's claims of theft and conversion would still fail because Banks could not prove that Jamison had the necessary criminal culpability to commit theft and conversion. Jamison argued that his designated evidence showed that Jamison believed he was authorized to perform the work and that Banks's actions were consistent with those of a person who gave authorization to perform the work on the Challenger. Jamison further argued that even if Banks had not consented to the work performed, Banks would not be able to prove that Jamison was aware of the absence of consent.

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Finally, Jamison argued that he was entitled to summary judgment on Bank's DCSA claim alleging that Jamison had violated subsection (a)(14) of the DCSA because Banks could not prove both that he had not authorized the repair and that Jamison knew or should have known that the repair was not authorized. See Ind. Code § 24-5-0.5-3(a)(14). Jamison argued that, even if Banks had not authorized the repairs, then Jamison could not have known that he was not authorized to perform the repairs to the Challenger because Banks never challenged the mechanic's lien on the Challenger or the foreclosure sale.

Banks responded to Jamison's partial summary judgment motion and designated his own affidavit in which he disputed the statements Jamison had made in his affidavit. Banks argued that he did not authorize Jamison to perform " all the work" done on the Challenger. Appellant's App. p. 55. Banks argued that he had only authorized Jamison to " sandblast[] the Challenger to determine what further body work would be required before painting the Challenger" and to " install[] some provided parts[,]" including a motor, transmission, torque converter, and a starter. Id. at 54. In his affidavit, Banks averred that:

At no time, did [he] ever give Mr. Jamison [his] permission or consent, explicit or implicit, express or implied, to perform any work on the Challenger other than sandblasting the vehicle to determine what remaining body work, if any, needed to be completed prior to Mr. Jamison commencing painting the Challenger and installing the delivered parts.

Id. at 70. According to Banks, he paid the $500.00 to Jamison because he " felt that [that amount] was a reasonable fee" for sandblasting the Challenger. Id. at 72.

Banks also challenged whether Jamison had obtained a valid mechanic's lien, arguing that Jamison " did not have express or implied permission to perform all of the work" on the Challenger. Id. at 55. Banks argued that " [s]ince most of the work on the Challenger was done without Mr. Banks' authorization, the sale of the Challenger by Mr. Jamison pursuant to the foreclosure of an improperly-obtained mechanic's lien support[ed] a claim for theft and or conversion as well as a statutory deceptive acts claim[.]" Id. Banks stated that he did not previously challenge the mechanic's lien because he had not received notice of the lien or the foreclosure sale.

Banks argued that Jamison was not entitled to summary judgment because genuine issues of material fact existed regarding whether Jamison was authorized to perform " all of the work" done on the Challenger and whether Jamison knew or should have known that the repairs done were unauthorized. Id. at 62. Banks argued that all the facts taken together with all inferences in his favor led to " the reasonable conclusion that Mr. Jamison did not have authority to perform all of the work he allegedly did to the Challenger and that he therefore knowingly or intentionally exerted unauthorized control over Mr. Banks' property." Id. at 65. Banks also argued that Jamison was not entitled to summary judgment on Banks's deceptive act claim because his designated evidence showed that Jamison did not have authority to perform any body work on the Challenger and that Jamison knew or should have known that he did not have authority based on Banks's statements and conduct.

In Jamison's summary judgment reply, he argued that " [a]ny dispute as to whether Jamison was authorized to hold and foreclose a mechanic's lien on the Challenger must have been raised by Banks ...


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