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Gasbi, LLC v. Sanders

Court of Appeals of Indiana

March 6, 2019

Gasbi, LLC d/b/a Michiana Chrysler Dodge Jeep Ram Fiat, Appellant-Defendant,
v.
Tatiyana Sanders, et al., Appellees-Plaintiffs.

          Appeal from the St. Joseph Circuit Court The Honorable John E. Broden, Judge Trial Court Cause No. 71C01-1705-PL-189

          ATTORNEYS FOR APPELLANT James P. Buchholz Dana K. Carlson TOURKOW, CRELL, ROSENBLATT & JOHNSTON, LLP Fort Wayne, Indiana

          ATTORNEYS FOR APPELLEES Robert E. Duff INDIANA CONSUMER LAW GROUP THE LAW OFFICE OF ROBERT E. DUFF Fishers, Indiana Ryan R. Frasher THE FRASHER LAW FIRM, P.C. Greenwood, Indiana

          Bailey, Judge.

         Case Summary

         [¶1] In this interlocutory appeal, Gasbi, LLC d/b/a Michiana Chrysler Jeep Dodge Ram Fiat ("Michiana") challenges an order denying Michiana's motion to dismiss a class action complaint alleging deceptive acts, [1] brought by Tatiyana Sanders ("Sanders"), Shalonda Vida ("Vida"), and Robert Sheppard ("Sheppard"), on behalf of themselves and others similarly situated (hereinafter, "Consumers"). Michiana presents the restated and consolidated issue of whether Michiana was entitled to dismissal pursuant to Indiana Trial Rule 12(B)(6) because Consumers failed to state a claim that Michiana committed a deceptive act within the meaning of the Indiana Deceptive Consumer Sales Act, Indiana Code Section 24-5-0.5-1 et seq. (the "Consumer Act"). We affirm.

         Facts and Procedural History

         [¶2] On July 14, 2017, Consumers filed their First Amended Class Action Complaint, seeking relief under the Act and alleging the following. On April 25, 2016, Vida purchased a vehicle from Michiana, a for-profit Indiana corporation located in Mishawaka. On August 12, 2016, Sheppard purchased a vehicle from Michiana. On January 28, 2017, Sanders purchased a vehicle from Michiana. In each instance, the consumer was charged a document preparation fee ("Doc Fee") that had not been "affirmatively disclosed" and "was not negotiated." (App. Vol. II, pg. 10.) The amount of the Doc Fee exceeded actual expenses incurred for preparation of the documents. The Complaint further alleged that all persons purchasing a vehicle from Michiana in the prior two years had been charged a Doc Fee.

         [¶3] The Complaint alleged that Michiana's charging of Doc Fees was an "unfair, abusive, or deceptive act, omission, or practice in connection with a consumer transaction." I. C. § 24-5-0.5-3(a). Although Consumers alleged a violation of the Consumer Act, the Complaint described the alleged unfair practice by quoting a statutory provision from the Indiana Motor Vehicle Dealer Services Act, Indiana Code Section 9-32-13-7. That statute, which may be enforced by the Indiana Secretary of State, provides:

It is an unfair practice for a dealer to require a purchaser of a motor vehicle as a condition of the sale and delivery of the motor vehicle to pay a document preparation fee, unless the fee:
(1) reflects expenses actually incurred for the preparation of documents;
(2) was affirmatively disclosed by the dealer;
(3) was negotiated by the dealer and the purchaser;
(4) is not for the preparation, handling, or service of documents that are incidental to the extension of credit; and
(5) is set forth on a buyer's order or similar agreement by a means other than preprinting.

         [¶4] On September 7, 2017, Michiana filed a motion to dismiss the Complaint, asserting that Consumers had no private right of action under Indiana Code Section 9-32-13-7, and had failed to state a claim for relief pursuant to the Consumer Act, with its thirty-seven enumerated categories of deceptive acts. The trial court conducted a hearing on October 31, 2017, at which argument of counsel was heard. Consumers conceded that they had no private cause of action under Indiana Code Section 9-32-13-7 but argued that the reference to that statute was merely descriptive of an unfair consumer practice prohibited by the Consumer Act. The trial court concluded that a "catch-all" provision embodied in I.C. 24-5-0.5-3(a) ...


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