James Eugene Surface v. James Armstrong (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 30 2020, 9:19 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT Dennis F. McCrosson Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA James Eugene Surface, December 30, 2020 Court of Appeals Case No. Appellant-Defendant, 20A-SC-830 v. Appeal from the Marion County Small Claims Court, Lawrence Division James Armstrong, The Honorable Kimberly J. Bacon, Appellee-Plaintiff. Judge Trial Court Cause No. 49K03-1908-SC-3628

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 20A-SC-830 | December 30, 2020 Page 1 of 7 [1] James Eugene Surface appeals the denial of his motion to correct error,

following the entry of a $2309.81 judgment in favor of James Armstrong.

Although Surface admitted that he shot out Armstrong’s vehicle window with a

BB gun, he contends that the trial court abused its discretion in calculating

damages and, therefore, the judgment must be set aside. [2] We affirm.

Facts and Procedural History [3] On August 12, 2019, at approximately 1:30 p.m., Surface went to a Walmart

parking lot in Lawrence and approached Armstrong, who was sitting in his

parked GMC Yukon. The men did not know each other and never exchanged

words. Surface drew a BB gun and shot out a window in Armstrong’s vehicle.

Surface then fled the scene in a Jeep Cherokee. [4] Armstrong called 911 and immediately began chasing Surface. A short time

later, Lawrence police officers stopped Surface’s speeding vehicle. As Officer

Derek Byerly approached the Jeep, Surface—the sole occupant in the vehicle—

stated that he did not know why the officers stopped him. [5] Officer Devin Randle, who was standing near the passenger side of Surface’s

Jeep, noticed a black and yellow cartridge containing BBs and a BB pistol on

the seat. Surface was ordered from the vehicle and the officers seized the gun,

BBs, and a Co2 cartridge. The officers observed that the gun’s safety

mechanism was not engaged and the pistol was ready to fire. Surface admitted

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that he was at the Walmart earlier, but denied any involvement in the incident.

Although the officers completed a police report, no arrests were made. [6] On August 21, 2019, Armstrong filed a small claims action against Surface

seeking $6000 for damages to his vehicle, reimbursement for having his vehicle

towed from his residence to a glass replacement company, and lost wages. At

the small claims hearing that commenced on October 24, 2019, Armstrong

testified that he worked as an independent contractor for a trucking company

and missed three days of work because of the incident. The claimed missed

days of work included the date of the incident, the day that his vehicle was

towed to the auto glass repair company, and the day of trial. Armstrong offered

“statements of account” into evidence from the XPO Logistics payroll

company, establishing that he earned an average of $1500 per day when he

worked. Plaintiff’s Exhibit 1, 3, 5. [7] Armstrong testified that there was a hole in the rear passenger window, the

window had cracked and shattered, and shards of glass had fallen from the

window and damaged the paint on the side of his vehicle. According to

Armstrong, the numerous scratches to the side of his vehicle occurred when the

pieces of glass fell from the broken window during the high-speed chase with

Surface. [8] Several photos of the damaged vehicle were admitted into evidence, and

Armstrong presented a written estimate from a glass company for $153.48 for

the window replacement. Exhibits 4, 6. Armstrong also testified that the rear

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passenger door will have to be removed and reinstalled because a vacuum could

not reach all the glass shards with the door intact. Armstrong presented

estimates from two different auto painting companies. One was for $1519.68,

and the other was for $851.36. He also provided a receipt in the amount of $95

for the towing charge. [9] Surface did not object to the admission of Armstrong’s exhibits or testimony.

Following Armstrong’s presentation of evidence, Surface argued that

Armstrong could not have missed any work because of the incident, there was

no way the window could have shattered, and the shards of glass from the

window could not have scratched Armstrong’s vehicle. Surface, however,

admitted shooting out the window, stated it was “wrong,” and that it was “the

dumbest thing [he ever did in his] whole entire life.” Transcript at 22. [10] Thereafter, the trial judge and the parties walked to the courthouse parking lot

where Armstrong’s vehicle was inspected for damage. The trial court

subsequently entered judgment for Armstrong in the amount of $2309.81.

Surface filed a motion to correct error, challenging the damage award. The trial

court denied the motion to correct error, and Surface now appeals.

Discussion and Decision [11] At the outset, we note that Armstrong has not filed an appellate brief. When an

appellee fails to file a brief on appeal, we may reverse the trial court’s decision if

the appellant makes a prima facie showing of reversible error. Universal Auto,

LLC v. Murray, 149 N.E.3d 639, 642 (Ind. Ct. App. 2020). In this context, prima

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facie error is defined as error “at first sight, on first appearance, or on the face of

it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). [12] We employ a limited standard of review when addressing challenges to damage

awards. Prime Mortgage U.S.A., Inc. v. Nichols, 885 N.E.2d 628, 655 (Ind. Ct.

App. 2008). We do not reweigh evidence or judge the credibility of witnesses

and consider only the evidence favorable to the award. Crider & Crider, Inc. v.

Downen, 873 N.E.2d 1115, 1118 (Ind. Ct. App. 2007). [13] The computation of damages is strictly a matter within the trial court’s

discretion. Romine v. Gagle, 782 N.E.2d 369, 382 (Ind. Ct. App. 2003), trans.

denied. No degree of mathematical certainty is required in awarding damages,

so long as the amount awarded is supported by evidence in the record. Husainy

v. Granite Mgmt., 132 N.E.3d 486, 494 (Ind. Ct. App. 2019). [14] Although damages may not be awarded on the mere basis of conjecture,

speculation, or guesswork, we will not reverse a damage award so long as the

amount is within the scope of the evidence before the finder of fact. L.H.

Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1043 (Ind. Ct. App.

2012). If there is any evidence in the record that supports the amount of the

award, even if it is variable or conflicting, the award will not be disturbed.

Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied. [15] In this case, Armstrong testified that he missed work on the day of the incident,

the day that he had his vehicle towed to the auto glass repair company, and on

the day of trial. Armstrong also testified that he earns approximately $1500 per

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day as an independent contractor for a trucking company and presented

“statements of account” and receipts from the payroll issuing company in

support of his claim for lost income. Plaintiff’s Exhibit 1, 3, 5. [16] As for the damage to his vehicle, Armstrong testified that there was a hole in

the rear passenger-side door window from the BB and shards of glass had fallen

and damaged the paint and scratched his vehicle. Armstrong presented written

estimates for all anticipated repair costs and presented a towing cost receipt.

Finally, the trial judge inspected Armstrong’s truck for damage following the

presentation of evidence. [17] Notwithstanding the evidence at trial, Surface contends that the judgment must

be set aside because Armstrong’s documentation in support of his damage claim

was inconclusive and inconsistent and should not have been considered by the

trial court. Surface also alleges that the falling glass could not have caused any

scratches to Armstrong’s truck and there was no reason to have the vehicle

towed when there appeared to be only a “small hole” in the window.

Appellant’s Brief at 11. [18] Surface’s arguments that the judgment is not supported by the evidence is a

request for this court to reweigh the evidence, which we will not do. See Steele-

Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). In short, the damage award was

within the scope of the evidence presented at trial. Thus, we decline to set aside

the judgment. [19] Judgment affirmed.

Court of Appeals of Indiana | Memorandum Decision 20A-SC-830 | December 30, 2020 Page 6 of 7 Riley, J. and May, J., concur. Court of Appeals of Indiana | Memorandum Decision 20A-SC-830 | December 30, 2020 Page 7 of 7