Opinion
No. 48A04-1011-SC-750
10-07-2011
KELLEY SEIBERT d/b/a SEIBERT'S KENNEL, Appellant-Defendant, v. RICK BRYANT, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : E. PHILLIP GREGG, JR. Welch & Company, LLC Muncie, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
E. PHILLIP GREGG, JR.
Welch & Company, LLC
Muncie, Indiana
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas L. Clem, Judge
Cause No. 48D05-1008-SC-2199
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM , Judge
STATEMENT OF THE CASE
Kelley Seibert d/b/a Seibert's Kennel ("Seibert") appeals from a small claims court judgment in favor of Rick Bryant on Bryant's claim for damages arising from the purchase of a puppy pursuant to a written contract. We address a single issue on review, namely, whether the small claims court erred when it awarded damages to Bryant for breach of contract.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY前景
On July 15, 2010, Seibert and Bryant executed a contract under which Seibert agreed to sell Bryant a Morkie puppy ("the Contract"). The Contract provided in part as follows:
A Morkie is a cross between a two breeds of dog, Maltese and Yorkie.
The BUYER agrees to have the PUPPY vet[-]checked within 24 [hours] of time of purchase, to give the puppy a clean bill of health. If Puppy is found to be other then [sic] healthy within 24 [hours] along with vet documentation. [sic] No cash refunds will be given[. I]nstead, a replacement puppy of equal or lesser value will be substituted for the said Puppy.Appellant's App. at 16-17.
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The BREEDER guarantees the above dog to be healthy at the time of the sale. . . .
* * *
The breeder is not responsible for any parvo virus[-]related [sic] vet bills accrued on this puppy. It will not be replaced by another Puppy because of the parvo virus [sic]. No cash refunds because of the parvo virus [sic] as well. . . .
Seibert has not included a complete copy of the Contract in the record on appeal.
After taking delivery, Bryant did not take the puppy to the veterinarian within twenty-four hours of purchase. Within two days of purchase, the puppy showed signs of being ill. And on July 19, four days after the purchase, Bryant took the puppy to the veterinarian for treatment, where the puppy was diagnosed as having parvovirus.
Bryant filed a complaint against Seibert in small claims court to recover the cost of treatment for the puppy's parvovirus. Following an evidentiary hearing, the small claims court found that, "due to the proximity in time in terms of the puppy's delivery to [Bryant] from [Seibert] and the onset of sickness, the dog was not healthy at delivery." Id. at 2. As a result, the small claims court entered judgment in favor of Bryant for $3285.14 plus court costs. Seibert now appeals.
The proceedings in the small claims court were not recorded. The "Transcript Letter/Statement of Evidence," included in the appellant's appendix due to the lack of an actual transcript, provides that the court awarded $3085.00 in damages plus court costs. That there are conflicting damages amounts in the record is immaterial given our disposition of this case.
DISCUSSION AND DECISION
Seibert contends that the small claims court erred when it found that she was liable to Bryant in damages for the cost of parvovirus treatment for the puppy she had sold to Bryant. In the appellate review of claims tried by the bench without a jury, the reviewing court shall not set aside the judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Bennett v. Broderick, 858 N.E.2d 1044, 1047 (Ind. Ct. App. 2006) (citation omitted), trans. denied. In determining whether a judgment is clearly erroneous, we will not reweigh the evidence or determine the credibility of witnesses but will consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Id. at 1047-48.
Bryant has not filed an appellee's brief. Thus, we will not undertake the burden of developing arguments for the appellee. Tracy v. Morell, 948 N.E.2d 855, 862 (Ind. Ct. App. 2011) (citing Painter v. Painter, 773 N.E.2d 281, 282 (Ind. Ct. App. 2002)). Applying a less stringent standard of review, we may reverse the trial court if the appellant establishes prima facie error. Id. Prima facie error is defined as at first sight, on first appearance, or on the face of it. Id.
Seibert contends that she is not liable to Bryant, and her arguments require that we construe the Contract. Our standard of review in contract construction cases is well-settled. Construction of the terms of a written contract is a pure question of law for the court; thus, our standard of review is de novo. Est. of Penzenik v. Penz Prods., Inc., 800 N.E.2d 1007, 1010 (Ind. Ct. App. 2003), trans. denied. The unambiguous language of a contract is conclusive upon the parties to the contract and upon the courts. Id.
Seibert has not included a statement of the standard of review for contract cases in her appellant's brief. The argument in an appellant's brief "must include for each issue a concise statement of the applicable standard of review[.]" Ind. Appellate Rule 46(A)(8)(b).
In interpreting a written contract, the court should attempt to determine the intent of the parties at the time the contract was made as discovered by the language used to express their rights and duties. Id. The contract is to be read as a whole when trying to ascertain the intent of the parties. Id. The court will make all attempts to construe the language in a contract so as not to render any words, phrases, or terms ineffective or meaningless. Id. The court must accept an interpretation of the contract that harmonizes its provisions as opposed to one which causes the provisions to be conflicting. Id.
Here, Seibert contends that the small claims court erred by focusing on one provision in the Contract and ignoring another. Specifically, she argues that, when the trial court determined that the puppy was not healthy at the time of sale, the court disregarded the provision in the Contract excluding any claim for vet bills in the event the puppy contracted parvovirus. We must agree.
Under the Contract, Seibert agreed to provide a puppy that was "healthy at the time of the sale." Appellant's App. at 15. But the Contract also provided that she would "not [be] responsible for any parvo virus[-]related [sic] vet bills accrued on this puppy." Id. at 16. The small claims court's focus on the healthy puppy provision to the exclusion of the parvovirus provision violates basic rules of construction. Reading the Contract as a whole, and without disregarding any terms of the Contract, the parvovirus provision is an exception to the healthy puppy provision. See Est. of Penzenik, 800 N.E.2d at 1010. Seibert has made a prima facie showing that the small claims court erred in construing the contract when it ignored the provision that excluded parvovirus-related vet bills.
The puppy that Bryant purchased under the Contract was treated for parvovirus four days after the purchase. The Contract specifically and unambiguously excludes any liability for vet bills in the event the puppy contracts parvovirus. The trial court erred when it ignored the parvovirus provision in the Contract excluding liability. As such, the trial court erred when it awarded damages to Bryant for the cost of treating the parvovirus. Therefore, we must reverse the small claims court's judgment and remand with instructions for the court to enter judgment in favor of Seibert.
Seibert also argues that the small claims court erred in determining that the Contract was an adhesion contract. The only reference to "adhesion contract" is a note written in the margin on the face of Seibert's motion to correct error, on which the trial court also wrote "denied notice" at the top. There is no reference to "adhesion contract" in the Chronological Case Summary or elsewhere in the record on appeal. And there is no indication, on the motion or in the Chronological Case Summary, that the small claims court decided the case or denied the motion to correct error on the ground that the Contract was one of adhesion. Thus, we do not consider this marginal notation a part of the judgment or ruling on the motion to correct error. In any event, if this notation were a finding, we would not be bound by the special findings of a small claims court. See Bennett, 858 N.E.2d at 1048. Therefore, we need not address Seibert's adhesion contract argument.
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Reversed and remanded with instructions. RILEY, J., and MAY, J., concur.