AUTO LIQUIDATION CENTER, INC., and Majid Zojaji (a/k/a Mike Zojaji), Individually, Appellants-Defendants, v. Jorge Chiqui CHACA, Appellee-Plaintiff.
No. 02A05-1503-PL-00131
Court of Appeals of Indiana.
Dec. 10, 2015.
650
Patrick J. Proctor, Fort Wayne, IN, Attorney for Appellee.
VAIDIK, Chief Judge.
Case Summary
Auto Liquidation Center (ALC), whose owner is Majid “Mike” Zojaji, repossessed a Dodge Charger that it sold on credit to Jorge Chiqui Chaca. Initially the car was repossessed because Zojaji erroneously believed that Jorge was behind in payments. After Jorge proved he was current in his payments, Zojaji refused to return the car to Jorge, claiming instead that he confiscated the car because Jorge had disconnected the GPS—a GPS that Zojaji had used to disable Jorge‘s car for alleged non-payment. Ultimately, Zojaji never returned the car or its contents to Jorge and sold it at auction. A jury found that ALC and Zojaji converted Jorge‘s car and awarded damages and treble damages under
Facts and Procedural History
On November 25, 2011, Jorge bought a 2008 Dodge Charger from Auto Liquidation Center, Inc. (ALC), which is owned and operated by Zojaji and located in New Haven, Indiana. Jorge agreed to purchase the car for $14,500. Jorge paid $4000 as a down payment at the time of purchase, and agreed to pay ALC the remaining balance through forty-eight, twice-monthly installment payments: forty-seven payments of $250 and one payment of $435.35. The payments were to begin on December 10, 2011.
As a condition of the deal, Jorge agreed to the car being equipped with a GPS device. Jorge signed a document entitled “Disclosure Statement and Agreement for Installation,” providing that installing and maintaining a GPS device in the car was a material condition for ALC to finance the loan secured by the vehicle;
Jorge timely made his first payment to ALC on December 10 by hand-delivering his check to ALC. Each of his payments was made in this manner. ALC staff entered Jorge‘s payments in a computer and handwrote each payment in a black ledger book, which acts as a back-up to the computer system. See Tr. p. 219. The black book is a “fail-safe” against computer errors, and the best way to double-check whether a payment was missed. See id. at 220.
Jorge‘s first payment in December was a double payment of $500. His next payment on January 10, 2012, was a single payment of $250, followed by a double payment of $500 on January 30 and another double payment on February 27. But ALC erroneously entered the February 27 payment as a single payment, which didn‘t “push his due date out properly,” even though the amount entered in the computer and Jorge‘s receipt clearly state the payment amount was $500. See Ex. 22; Tr. p. 221. As of February 27, approximately 90 days after the sale, Jorge had made $1750 in car payments in addition to the initial $4000 down payment.
In mid-March, when Jorge‘s next payment would have been due if he had not made a double-payment at the end of February, ALC‘s computer system generated a report that was given to Zojaji, which stated that Jorge had missed a payment on March 10. Without double-checking the black ledger book to see whether Jorge had, in fact, missed a payment, Zojaji ordered Jorge‘s car repossessed, and on March 13 at 8:28 p.m., according to the “IMETRIK” report, a “starter disable” command was sent via the GPS device. See Ex. 28 (the IMETRIK report).2
On March 15 Jorge‘s wife took the car to Jesse‘s Auto Repair, complaining that the check-engine light was on, there was a “dinging” noise coming from the dashboard, and she was unable to shift into the lower gears of her transmission. Ex. 29 (Affidavit of Mark Kapocius). The mechanic determined the GPS device was improperly installed in the car causing damage that ultimately would have resulted in irreparable damage to the transmission. Id. The mechanic, therefore, disconnected the offending GPS device, without notice to Jorge, until Jorge picked up the car at Jesse‘s Auto Repair when it was about to close for the day. Jorge was told that the GPS could be reconnected the next day. But by the time Jorge awoke the next morning, ALC had repossessed the car at the direction of Zojaji.
Jorge called ALC and asked for an explanation. Zojaji told him the car was
Jorge explained to Zojaji that Jesse‘s Auto Repair had removed the GPS device without Jorge‘s permission because the mechanic had determined that it was improperly installed and damaging the car. Zojaji demanded to know the mechanic‘s name and number, which Jorge provided. After speaking with Zojaji on the telephone, the mechanic accompanied Jorge to ALC with the GPS device and the tools to connect it. But Zojaji would not allow him to reinstall the device, and made them leave the dealership. Upon Zojaji‘s office-manager‘s suggestion to have ALC‘s “GPS guy” check out the car, it was confirmed that the GPS was improperly installed and each command ALC sent to Jorge‘s GPS device was causing damage to the car. Id. at 238.
The office manager further recommended to Zojaji that ALC return the car to Jorge. Zojaji, who was “furious,” said he would not return the car because Jorge “had been a pain in the tush from day one.” Id. at 235, 236. In Zojaji‘s words, Jorge was a “lay-away deal“—he had “basically zero credit,” and Zojaji “was banking on the fact that they were going to miss a payment here or there and he would get this car back.” Id. at 241.
At the time ALC repossessed Jorge‘s car, Jorge had certain personal items inside the car—some clothing, music CDs, electronic cables, and his minor daughter‘s school project—all worth between $543 and $690. Through his attorney, Zojaji promised to return the personal items to Jorge, but never did.
On April 25, 2012, Jorge filed his original complaint against Zojaji and ALC. Approximately eight months later, in December of 2012, Zojaji sold the car at auction for $10,400 using one of two blank limited-power-of-attorney forms Jorge had signed at the time of the initial sale. In order to obtain clear title to the car, Zojaji had filled out the form and engaged a notary to falsely certify that Jorge had signed the form on April 27, 2012—two days after Jorge had filed his first complaint.
Jorge alleged in his complaint and amended complaint criminal conversion, assault, and general damages; and a violation of the Truth in Lending Act,
Discussion and Decision
1. Sufficiency of the Evidence of Criminal Conversion
On appeal, ALC and Zojaji challenge the sufficiency of the evidence supporting the jury‘s verdict against them
In order to prove that ALC and Zojaji criminally converted Jorge‘s car and other personal property inside the car, Jorge had to prove by a preponderance of the evidence that ALC and Zojaji “knowingly or intentionally exert[ed] unauthorized control” over his property. See
Here, the evidence shows that ALC/Zojaji repossessed Jorge‘s car because he erroneously believed that Jorge had missed a payment.4 Only after Jorge showed Zojaji receipts proving that he was current on his payments, did Zojaji claim to have repossessed the car because Jorge had disconnected the GPS device. Even after Zojaji learned that the GPS was disconnected because of the irreparable damage it was causing to the car and that Jorge‘s mechanic would reinstall the device, Zojaji refused to give Jorge either his car or his personal belongings. We find the evidence supports the conclusion that Zojaji knowingly or intentionally exerted unauthorized control over Jorge‘s property—namely, the car and the personal items contained therein. See Palmer Dodge v. Long, 791 N.E.2d 788 (Ind.Ct.App.2003) (holding that there was sufficient evidence to support criminal-conversion finding against dealership where the dealership had possession of the buyer‘s purchased car but refused to give back the buyer‘s trade-in car). In this case, even if Zojaji initially repossessed the car due to a genuine misunderstanding as to the allegedly missed payment or the removal of the GPS device, once those misunderstandings were clarified, Zojaji simply had no reason—
ALC and Zojaji maintain, however, that Zojaji “firmly believed that he had a legal contractual right to repossess the car due to [Jorge]‘s removal of the GPS device.” Appellants’ Br. p. 22. And, the argument continues, “Appellant cannot be guilty of conversion because his control over the vehicle was not ‘unauthorized.’ He had no ‘mens rea.‘” Id. This argument is nothing more than a request for us to reweigh the evidence, which we cannot do. To support their contention, however, ALC and Zojaji cite to French-Tex Cleaners, Inc. v. Cafaro Co., 893 N.E.2d 1156 (Ind.Ct.App.2008). In that case, a commercial tenant was appealing from a summary judgment in favor of the landlord after the tenant alleged that the landlord had committed conversion by overcharging the tenant for its share of real estate taxes due under the lease. The trial court found—and this Court agreed—that the tenant‘s claim constituted a bona fide contract dispute and not a claim for conversion. See id. at 1166-67.
But French-Tex is distinguishable from this case, for at least two reasons. First, there was sufficient evidence here for the jury to find that this was never a bona fide contract dispute. Even if the jury believed that Zojaji had initially acted on a mistaken belief that Jorge missed a payment, the evidence supports that the misunderstanding morphed into an intentional, unauthorized taking of Jorge‘s property. In other words, when Zojaji realized Jorge was not behind in his payments and that he, Zojaji, had wrongfully disabled Jorge‘s car via the GPS device, which resulted in Jorge‘s mechanic needing to disconnect the GPS to prevent further damage to the car, the jury could very well have concluded that Zojaji‘s continued possession of the car constituted conversion. As to the second distinction, in French-Tex the tenant was appealing from a negative judgment, whereas here Jorge prevailed in the trial court; thus, we must decline the appellants’ ongoing invitation to reweigh the evidence of Zojaji‘s intent. Our standard of review requires us to consider only the evidence most favorable to the verdict unless we conclude that it is against the great weight of the evidence. See Indian Trucking, 752 N.E.2d at 172. Because we cannot say that is the case here, we affirm the finding of criminal conversion.
2. Damages Award
Next ALC and Zojaji allege that the damages awarded by the jury were excessive. The jury has broad discretion in determining an award of damages, and when the evidence is conflicting, the jury is in the best position to assess the damages. Cox v. Matthews, 901 N.E.2d 14, 23 (Ind.Ct.App.2009), reh‘d denied, trans. denied. Therefore, when reviewing a jury verdict containing a damage award claimed to be excessive or inadequate, this Court applies a strict standard. Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind.Ct.App.2001). We consider only the evidence that supports the award along with the reasonable inferences therefrom, and a damage award will be upheld if it falls within the bounds of the evidence. Id. If there is any evidence to support the amount of the award, even if it is conflict-
In this case, Jorge‘s conversion claim arises under
3. Appellate Attorney‘s Fees
Finally, Jorge contends that he is entitled to an award of additional attorney‘s fees for this appeal, basing this contention on
This Court has consistently found that an award of attorney fees includes appellate attorney‘s fees—at least, as here, when the party seeking appellate fees has been successful on appeal. See e.g., Benge v. Miller, 855 N.E.2d 716, 722 (Ind.Ct.App.2006); see also Patricia Ann Brown, C.P.A. v. Brown, 776 N.E.2d 394, 397 (Ind.Ct.App.2002) (“While there are many cases holding that an award of attorneys’ fees under
As a final note: justice is better dispensed in a courtroom and not in one‘s own hands. Self-help remedies are perilous and potentially expensive. When self-help is attempted, a jury or judge decides the appropriateness or inappropriateness of the actions regardless of how justified the actor may have thought his actions were. As we see here, the risks of paying damages, treble damages, pre-judgment interest, attorney‘s fees, appellate attorney‘s fees, and costs are not worth the possible benefits of sidestepping the court system.
Affirmed and remanded for a determination of reasonable appellate attorney‘s fees.
ROBB, J., and PYLE, J., concur.
VAIDIK
Chief Judge