Dorita P. Lee and Brealon Miller v. Elizabeth Hamilton ( 2013 )

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 May 21 2013, 8:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
MARK A. PSIMOS ADAM C. HAWKINS
Merrillville, Indiana Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
DORITA P. LEE and BREALON MILLER, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 45A03-1211-SC-491
)
ELIZABETH HAMILTON, )
)
Appellee-Defendant. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Michael N. Pagano, Magistrate
Cause No. 45D09-1206-SC-1694 & 45D09-1206-SC-1695
May 21, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellants-Plaintiffs, Dorita Lee (Dorita) and Brealon Miller (Brealon)
(collectively, Appellants), appeal the Lake County Superior Court, Small Claims
Division’s judgment in their favor against Appellee-Defendant, Elizabeth Hamilton
(Hamilton).
We affirm.
ISSUE
Appellants raise one issue on appeal, which we restate as: Whether the trial court
erred in awarding them zero damages.
FACTS AND PROCEDURAL HISTORY
On December 31, 2011, Hamilton traveled to a Walgreen’s store in Gary, Indiana
to buy some artichokes for her family’s New Year’s Eve dinner. Hamilton parked her car
in the store’s congested parking lot. Appellants traveled to the same store on their way to
Chicago for a New Year’s Eve party. Dorita was driving her pastor’s vehicle and
Brealon, her son, needed some minutes for his prepaid phone. Dorita parked her vehicle
to the right of Hamilton’s while Brealon went in the store. After Brealon returned, Dorita
backed out of her parking space, moving the vehicle some distance behind and to the left
of Hamilton’s vehicle.
Meanwhile, Hamilton had returned to her vehicle and turned the engine on. Dorita
had stopped her vehicle because she saw Hamilton’s reverse lights come on. Dorita
waited for Hamilton’s vehicle to back out. Hamilton looked but did not see anyone and
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put her car in reverse. As Hamilton backed out, she traveled approximately a car length
before hitting the front of Dorita’s vehicle. As she saw Hamilton’s vehicle coming
toward her, Dorita did not use her horn but braced herself for the impact. The impact
sent Appellants’ bodies backward then forward but they did not hit any part of the
interior nor did the impact move their vehicle.
Hamilton exited her vehicle to ask if Appellants were okay and why Dorita did not
sound the horn. Dorita said that she was unhurt and that Hamilton was backing out too
fast. Dorita told Hamilton that she had just finished therapy and that the vehicle was not
damaged. Neither Dorita nor Brealon had any cuts, bruises, or fractures from the
accident. Police arrived thereafter and completed an accident report. All parties
remained at the scene and Brealon remained in Appellants’ vehicle. After their vehicle
arrived home, Brealon changed one of the tires by himself.
On January 23, 2012, Dorita and Brealon saw Dr. Joseph Refkin (Dr. Refkin), a
chiropractor who had treated Dorita and one of her other children regarding another car
accident in April 2011. Dorita and Brealon completed separate patient information
sheets. Dorita indicated that the condition began on January 4, 2012 but Brealon
indicated that his condition began the following day, January 5. 2012. While Dorita said
that she braced for the impact with Hamilton’s vehicle, Brealon did not. Dr. Refkin’s
initial exam report listed the date of the accident consistent with the dates that Dorita and
Brealon stated their condition began. Dr. Refkin opined that their injuries were the
“direct result of the automobile accident.” (Appellants’ App. p. 31). After their initial
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examinations, Dorita and Brealon received approximately twenty treatments over the
course of two months, with Dr. Rifkin releasing them from care on March 26, 2013. The
total cost of services was $2,959 for Dorita and $2,672 for Brealon.
On June 18, 2012, Dorita and Brealon separately filed their notice of claim against
Hamilton. Appellants alleged personal injuries resulting from the collision and each
sought $6,000 in damages. On September 27, 2012, a bench trial was held and the cases
were consolidated. After the presentation of evidence, the trial court took the matter
under advisement. That same day, it granted judgment in favor of Appellants but
awarded them zero damages. In its written judgment, the trial court found that Hamilton
was 100% at fault for the collision with Appellants’ vehicle. With respect to the $6,000
in damages sought by both Appellants, the trial court found that they did not carry their
burden. Specifically, although they were treated for soft tissue injuries with Dr. Refkin
three weeks after the collision, the trial court concluded that neither had established
causation, the extent of their injuries, or the necessity of such treatment at trial. On
October 23, 2012, Appellants filed a motion to correct error which the trial court denied
the same day.
Appellants now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Under Indiana Small Claims Rule 11(A), judgments in small claims action are
subject to review as prescribed by relevant Indiana rules and statutes. Lile v. Kiesel, 871
N.E.2d 995, 997 (Ind. Ct. App. 2007). In the appellate review of claims tried by the
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bench, the reviewing court shall not set aside the judgment unless clearly erroneous, and
due regard shall be given to the opportunity of the small claims court to judge the
credibility of the witnesses. See id. A judgment is clearly erroneous when a review of
the materials on appeal leaves us firmly convinced that a mistake has been made. Id. In
our review, we presume that the trial court correctly applied the law, and 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 therefrom.
Id. This deferential standard of review is particularly important in small claims actions,
where trials are informal, with the sole objective of dispensing speedy justice between the
parties according to the rules of substantive law. Id.Appellants argue that the small claims court erred in awarding them zero damages
despite finding Hamilton 100% liable. Specifically, they claim that the evidence
established causation, the extent of their injuries, and the necessity of chiropractic
treatment from Dr. Refkin. In contrast, Hamilton argues that substantial evidence
supported the judgment based upon the nature of the accident, the delay of Appellants in
seeking treatment, and a discrepancy with respect to the date of the accident.
Under Indiana law, all damages directly attributed to the wrong done are
recoverable. Ridgeway v. Teshoian, 699 N.E.2d 1156, 1160 (Ind. Ct. App. 1998). The
law allows an injured plaintiff to recover the reasonable cost of necessary medical
expenses. Dee v. Becker, 636 N.E.2d 176, 178 (Ind. Ct. App. 1994). However, the
burden of proof with respect to damages is with the plaintiff. Tamko Roofing Products,
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Inc. v. Dilloway, 865 N.E.2d 1074, 1078 (Ind. Ct. App. 2007). Thus, while it is
undisputed that Appellants incurred medical expenses, it was Appellants’ burden to prove
by a preponderance of the evidence the expenses that were incurred as a proximate result
of the collision. See Matovich v. Rodgers, 784 N.E.2d 954, 958 (Ind. Ct. App. 2003).
Although Appellants argue that Dr. Refkin’s reports establish causation, both
parties testified that the collision was not significant. Hamilton testified that the damage
to Appellants’ vehicle was slight, with a cut appearing on the middle of the front bumper.
A photograph depicting the bumper of Hamilton’s vehicle showed three indentations,
which Hamilton explained were from a prior accident. Although Brealon testified that
their vehicle was towed, the accident report indicates that neither vehicle was towed.
Brealon testified that the front bumper of their car was hanging down and the windshield
washer container under the hood was broken. However, Appellants did not present any
photographs depicting damage to their vehicle. Thus, the small claims court could
reasonably conclude that the damage to their vehicle, if any occurred, was slight and not
the proximate cause of their injuries.
Further inconsistencies appeared in the medical records. Hamilton asked Dorita if
she was injured and Dorita replied that she was not. Brealon admitted to changing the
tire of the vehicle by himself. Appellants did not seek medical attention for their injuries
for more than three weeks after the accident. In addition to giving a different date for the
onset of their symptoms, Dr. Refkin’s reports state that the accident occurred on January
4 and 5, 2013, respectively. Although Appellants ask us to conclude that the onset of
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symptoms did not coincide with the date of the accident, this is a request to reweigh the
evidence and determine witness credibility, which we cannot do. See Lile, 871 N.E.2d at
997. In sum, Appellants’ claim on appeal assumes that the small claims court was
required to believe their testimony that the injuries resulted from the collision with
Hamilton. See Flores v. Gutierrez, 951 N.E.2d 632, 636 (Ind. Ct. App. 2011), trans.
denied. But the small claims court was within its fact-finding discretion to discredit their
testimony. See id. Consequently, Appellants have not met their burden to demonstrate
clear error and we therefore affirm the small claims court’s judgment.
CONCLUSION
Based on the foregoing, we conclude that the small claims court did not err in
awarding Appellants zero damages.
Affirmed.
BRADFORD, J. and BROWN, J. concur
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