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Wynne v. Burris

Court of Appeals of Indiana

June 13, 2018

Brian K. Wynne, Appellant-Plaintiff,
v.
Tyson Burris and Brian K. Alsip, Appellees-Defendants

          Appeal from the Johnson Superior Court The Honorable Kevin Barton, Judge Trial Court Cause No. 41D01-1702-SC-741

          APPELLANT PRO SE Brian K. Wynne Michigan City, Indiana

          ALTICE, JUDGE.

         Case Summary

         [¶1] Brian K. Wynne filed a small claims action against Tyson Burris and Burris's attorney, Brian K. Alsip. The trial court found in favor of Burris and Alsip and determined that Wynne's claims were brought in bad faith. Accordingly, the trial court assessed attorney fees against Wynne. Wynne now appeals pro se raising the following issues:

1. Did the trial court abuse its discretion by admitting into evidence recorded jail telephone calls between Wynne and his girlfriend, Barbara Mooney?
2. Does the evidence support the trial court's conclusion that Wynne had given Mooney actual authority to act as his agent regarding the settlement with Burris?
3. Should Alsip have been permitted to represent himself in this action?
4. Did the trial court err by rejecting Wynne's negligence claim against Alsip?

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] On January 28, 2015, Wynne began work on a home improvement project at Burris's home, which included the removal of flooring, demolition of a wall, and installation of new flooring. Wynne did not provide Burris with a written agreement or set a price but stated that the labor cost would not exceed $2500. Wynne worked over the next several days, appearing progressively later each day. Burris felt that the project was taking too long, and Burris started to notice "red flags." Transcript at 54.

         [¶4] During the project, Wynne unexpectedly brought a set of kitchen appliances to Burris's home to sell to him and his wife. Burris began to suspect that the appliances had been stolen and decided to contact local authorities. He learned that Wynne was a suspect in a recent burglary. Burris provided a detailed statement to the Johnson County Sheriff's Office. Thereafter, on February 3, 2015, Wynne was arrested for burglary while working at Burris's home. As a result of his arrest, Wynne did not finish the project. Burris eventually hired others to complete the work.

         [¶5] Wynne bonded out of jail and then tried to contact Burris regarding the project. Burris refused his calls but communicated with Wynne via text. They discussed a payoff amount, and Burris directed Wynne to contact Alsip, Burris's attorney, to complete the settlement. Burris provided Alsip with a cashier's check made out to Wynne. Alsip and Wynne arranged to meet at Alsip's office, and Wynne understood that he would need to sign a release in order to receive the check. This scheduled meeting, however, did not occur because Wynne was arrested on a warrant that same day.

         [¶6] While in jail, Wynne made phone calls to Mooney, his longtime girlfriend. Wynne indicated on a number of occasions that he wanted Mooney to pick up the check, as well as handle other matters for him. In one phone call, Wynne reminded Mooney that she had his power of attorney (POA), and he referenced the POA in another recorded call. With respect to the check from Burris, Wynne directed Mooney as follows:

If you get a check from [Burris] all you do is sign my name on the back of it, take it to the ATM machine and deposit it, ok. That way you don't have to put your name on it, no one's going to question it, it's gonna go straight in and ...

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