Court of Appeals of Indiana | Opinion 18A-PL-1865 | March 6, 2019 Page 1 of 13

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

I N T H E

COURT OF APPEALS OF INDIANA

Gasbi, LLC d/b/a Michiana 

Chrysler Dodge Jeep Ram Fiat,

Appellant-Defendant,

v.

Tatiyana Sanders, et al.,

Appellees-Plaintiffs.

March 6, 2019

Court of Appeals Case No.

18A-PL-1865

Appeal from the St. Joseph Circuit 

Court

The Honorable John E. Broden, 

Judge

Trial Court Cause No.

71C01-1705-PL-189

Bailey, Judge.
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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

 

1

See Indiana Trial Rule 23. See also Indiana Code § 24-5-0.5-4(b), stating: “Any person who is entitled to 

bring an action under subsection (a) on the person’s own behalf against a supplier for damages for a deceptive 

act may bring a class action against such supplier on behalf of any class of persons of which that person is a 

member and which has been damaged by such deceptive act.”
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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
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(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) permitted the claim of non-disclosure, denied 

Michiana’s motion to dismiss and certified the order for interlocutory appeal. 

Appealed Order at 3. This Court accepted jurisdiction. 

Discussion and Decision

Standard of Review

[5] A Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which 

relief can be granted tests the legal sufficiency of a claim, not the supporting 

facts. Kitchell v. Franklin, 997 N.E.2d 1020, 1025 (Ind. 2013). Accordingly, we 

view the complaint in the light most favorable to the non-moving party and

draw every reasonable inference in favor of that party. Thornton v. State, 43 

N.E.3d 585, 587 (Ind. 2015). We stand in the shoes of the trial court and must 
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determine if the trial court erred in its application of the law. Godby v. 

Whitehead, 837 N.E.2d 146, 149 (Ind. Ct. App. 2005), trans. denied. A motion to 

dismiss is proper if “it is apparent that the facts alleged in the challenged 

pleading are incapable of supporting relief under any set of circumstances.” 

City of E. Chicago, Indiana v. E. Chicago Second Century, Inc., 908 N.E.2d 611, 617 

(Ind. 2009). In making this determination, we look only to the complaint and 

may not resort to any other evidence in the record. Godby, 837 N.E.2d at 149.

[6] Michiana’s asserted grounds for dismissal invoke statutory interpretation. If the 

language of a statue is clear and unambiguous, we need not apply rules of 

construction other than to require that words and phrases be given their plain, 

ordinary, and usual meaning. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 

2007). If a statute is open to more than one interpretation, it is deemed 

ambiguous and subject to judicial construction. Dobeski v. State, 64 N.E.3d 

1257, 1259 (Ind. Ct. App. 2016). The purpose of statutory construction is to

implement the legislature’s intent. Richardson v. Town of Worthington, 44 N.E.3d 

42, 45 (Ind. Ct. App. 2015). 

Analysis

[7] The Consumer Act is a “remedial statute.” Kesling v. Hubler Nissan, Inc., 997 

N.E.2d 327, 332 (Ind. 2013). It “shall be liberally construed and applied to 

promote its purposes and policies.” Id. (quoting I.C. § 24-5-0.5-1.) The stated 

purposes and policies are to:
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(1) simplify, clarify, and modernize the law governing deceptive 

and unconscionable consumer sales practices;

(2) protect consumers from suppliers who commit deceptive and 

unconscionable sales acts; and

(3) encourage the development of fair consumer sales practices.

I.C. § 24-5-0.5-1(b).

[8] Indiana Code Section 24-5-0.5-3 concerns “deceptive acts.” Subsection (a)

provides:

A supplier may not commit an unfair, abusive, or deceptive act, 

omission, or practice in connection with a consumer transaction. 

Such an act, omission, or practice by a supplier is a violation of 

this chapter whether it occurs before, during, or after the 

transaction. An act, omission, or practice prohibited by this 

section includes both implicit and explicit misrepresentations.

Subsection (b), “without limiting the scope of subsection (a),” sets forth thirtyseven “deceptive acts.” Some of those categories pertain to particular 

representations (such as “that replacement or repair .. is needed, if it is not” in 

category five). Several categories provide that a violation of a specified

statutory scheme is a deceptive act (for example, category twenty-one, 

concerning health spa services, and category twenty-three, concerning home 

consumer transactions).

[9] A deceptive act is actionable only if it is “incurable” or “uncured.” I.C. § 24-5-

0.5-4(a). To “cure,” as applied to a deceptive act, means to either “offer in 
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writing to adjust or modify the consumer transaction to which the act relates to 

conform to the reasonable expectations of the consumer” or “to offer in writing 

to rescind such consumer transaction” and perform the offer if accepted. I.C. § 

24-5-0.5-2(5).

[10] An incurable deceptive act is a deceptive act “done by a supplier as part of a 

scheme, artifice, or device with intent to defraud or mislead.” I.C. § 24-5-0.5-

2(8). An “uncured deceptive act” is a deceptive act “with respect to which a 

consumer who has been damaged by such act has given notice to the supplier” 

and either “no offer to cure has been made to such consumer within thirty days

after such notice” or “the act has not been cured as to such consumer within a 

reasonable time after the consumer’s acceptance of the offer to cure.” I.C. § 24-

5-0.5-2(7). The buyer must give timely notice that “state[s] fully the nature of 

the alleged deceptive act and the actual damage suffered therefrom.” I.C. § 24-

5-0.5-5(a). The “obvious reason” for the requirement of specific notice is “so 

that the supplier has an opportunity to correct the problem.” A.B.C. Home & 

Real Estate Inspection, Inc. v. Plummer, 500 N.E.2d 1257, 1262 (Ind. Ct. App. 

1986).

[11] Thus, to state a claim under the Consumer Act, Consumers must have alleged

that Michiana, a seller, committed an uncured or incurable deceptive act. The 

Complaint factually described the transactions between Michiana and 

Consumers and described conduct defined as an unfair practice in Indiana 

Code Section 9-32-13-7. The Complaint rested upon the premise that conduct 

that would constitute a violation of Indiana Code Section 9-32-13-7 would also 
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be a deceptive act within the meaning of the Consumer Act. Consumers 

asserted that Michiana had engaged in both uncured and incurable acts.

[12] At the hearing and in the memorandum of law in support of its motion to 

dismiss, Michiana argued that Consumers’ complaint should be dismissed 

because Consumers failed to allege a deceptive act within the meaning of the 

statutory scheme and further argued that Consumers had alleged an incurable 

deceptive act without facts supporting the requisite “scheme, artifice, or device 

with intent to defraud or mislead.” I.C. § 24-5-0.5-2(8). Michiana argued that 

the allegations of the Complaint did not fall into any of the thirty-seven 

enumerated categories of I.C. § 24-5-0.5-3(b) and further argued that 

Consumers were attempting to derive a private right of action from a statute 

solely entrusted to enforcement by the Indiana Secretary of State,

2

I.C. § 9-32-

13-7. Consumers conceded that they had no private right of action under that 

statute.

[13] Michiana also directed the trial court’s attention to this Court’s decision in 

Lawson v. Hale, 902 N.E.2d 267, 274 (Ind. Ct. App. 2009) (concluding that a 

nondisclosure is not a “representation” of any fact). Consumers directed the 

trial court’s attention to the subsequent legislative amendment to the Consumer 

Act, perhaps in response to Lawson.

 

2

Indiana Code Section 9-32-13-31 provides that a violation is a Class A infraction.
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[14] In Lawson, a prospective purchaser of a tractor had inquired about the tractor’s 

history and the seller had stated that it leaked oil and fuel and that he otherwise 

knew little about it. See id. at 273. After the sale, the purchaser discovered that 

the tractor had a cracked block and he sued, with one claim based upon the 

Consumer Act. He appealed a judgment in favor of the seller and we 

considered whether the seller’s omission was a deceptive act:

Indiana Code section 24-5-0.5-3(a), which requires an oral or 

written act or representation, does not apply to non-disclosures. 

... Lawson’s claim that Hale committed a deceptive act under 

Indiana Code section 24-5-0.5-3(a)(2) must fail.

But why? Hale is a supplier under the [Consumer Act], one 

purpose of the [Consumer Act] is to protect consumers from 

deceptive sales acts, and Hale arguably perpetrated a deceptive 

sales act by failing to tell Lawson of the crack in the tractor’s 

engine block. Yet, Hale is not liable under the [Consumer Act]. 

Our holding is based purely on the language of the [Consumer 

Act]. That is, we are not saying that Hale’s acts were not 

deceptive ... but only that the categories of deceptive acts giving 

rise to liability under the [Consumer Act] are very specifically 

defined. See I.C. §§ 24-5-0.5-3, -10. Unfortunately for Lawson, 

Hale’s acts do not fall into any of those categories; there is no 

general “fraud” category. Compare consumer protection acts in 

many other states, which either specifically refer to failure to state 

material facts or include “catch-all” clauses that could reach 

Hale’s actions in this case. The [Consumer Act] contains no 

such provisions. Our legislature may choose to revisit the Act at 

some point.

Lawson, 902 N.E.2d at 274 (internal citation omitted).
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[15] Effective July 1, 2014, the Indiana Legislature amended the Consumer Act to 

add a “catch-all” provision such as that referred to in Lawson. It is now found 

in subsection (a) of Indiana Code Section 24-5-0.5-3. After the amendment, 

deceptive acts are broadly defined to include non-disclosures or omissions. 

Explicitly, subsection (b) provides that, “without limiting the scope of 

subsection (a),” thirty-seven deceptive acts are described. See id. Under the 

plain language of the amended statute, Michiana could not obtain dismissal of 

the Complaint on grounds that its allegations did not pertain to thirty-seven 

exclusive categories of deceptive acts.

[16] Nor is dismissal justified on grounds that Consumers identified acts already 

addressed by Indiana Code Section 9-32-13-7, without providing a private cause 

of action. Given the breadth of the language in subsection (a) of Indiana Code 

Section 24-5-0.5-3 – that is, a prohibited act by a supplier includes “an unfair, 

abusive, or deceptive act, omission, or practice in connection with a consumer 

transaction” – conduct prohibited elsewhere in the Indiana Code could also be 

a deceptive act under the Consumer Act. That is not to say that a violation of 

the Motor Vehicle Dealer Services Act is a per se violation of the Consumer 

Act. The Consumer Act does not include violation of the Motor Vehicle Dealer 

Services Act within the express categories of deceptive acts of subsection (b). 

[17] The primary allegations of the Complaint – that Michiana charged an unfair 

consumer fee and did not state its intention as part of the bargaining process –

assert conduct generally within the realm of the Consumer Act. That said, 

however, the Consumer Act allows recovery only for deceptive acts that are 
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“incurable” or “uncured.” I.C. § 24-5-0.5-4(a). The Complaint alleged in 

paragraph 28 “an uncured deceptive act pursuant to Ind. Code § 24-5-0.5-

2(a)(7).” (App. Vol. II, pg. 12.) In paragraph 29, the Complaint alleged “an 

incurable deceptive act done as part of a scheme, artifice, or device with intent 

to defraud or mislead pursuant to Ind. Code § 24-5-0.5-2(a)(8). Id. at pg. 13. 

Paragraph 30 asserted that the Consumer Act violation was “willful.” Id.

[18] Michiana argues that a deceptive scheme, artifice, or device with intent to 

defraud is something akin to fraud and Consumers did not state facts to support 

a fraud claim.

3

 There is an exception to Indiana’s liberal notice pleading 

requirements when a claim involves fraud. Indiana Trial Rule 9(B) requires 

that “[i]n all averments of fraud or mistake, the circumstances constituting 

fraud or mistake shall be specifically averred.” This means that, generally, “to 

allege fraud sufficiently, the pleadings must state the time, the place, the 

substance of the false representations, the facts misrepresented, and 

identification of what was procured by fraud.” Kapoor v. Dybwad, 49 N.E.3d 

108, 120 (Ind. Ct. App. 2015), trans. denied. However,

 

3 The elements of common law fraud are (1) a material misrepresentation of past or existing fact which (2) 

was untrue, (3) was made with knowledge or in reckless ignorance of its falsity, (4) was made with the intent 

to deceive, (5) was rightfully relied upon by the complaining party, and (6) which proximately caused injury. 

Boots v. D. Young Chevrolet, LLC, 93 N.E.3d 793, 799 (Ind. Ct. App. 2018). Fraud may include the failure to 

disclose all material facts. Id. When a buyer makes inquiry about the condition, qualities, or characteristics 

of property, the seller must fully declare any problems associated with the subject of the inquiry, or else risk 

liability for fraud. Id. (citing Lawson, 902 N.E.2d at 275.)
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the exact level of particularity that is required will necessarily 

differ based on the facts of the case. [W]hile we require a 

plaintiff claiming fraud to fill in a fairly specific picture of the 

allegations in her complaint, we remain sensitive to information 

asymmetries that may prevent a plaintiff from offering more 

detail.

Id. at 132 (internal quotations and citations omitted) (quoting Cincinnati Life Ins. 

Co. v. Beyrer, 722 F.3d 939, 948 (7th Cir. 2013). For example, where “the heart 

of a constructive fraud claim based on a fiduciary duty is non-disclosure, ... [it] 

is not an event that can be pled with specificity[; i]t is therefore sufficient simply 

to plead that the disclosure did not occur.” Id. at 135. 

[19] We find the general allegations of uncured and incurable acts adequate to 

withstand dismissal. The question before the trial court was whether the 

complaint stated a claim as opposed to whether the plaintiffs would likely

prevail on the merits. At the pleading stage, a party may assert alternative and 

even inconsistent theories of recovery; it is sufficient to plead the operative facts 

of the case so that the defendant is put on notice of the expected trial evidence. 

Cahoon v. Cummings, 734 N.E.2d 535, 542 (Ind. 2000).4 “A complaint is 

sufficient and should not be dismissed so long as it states any set of allegations, 

no matter how unartfully pleaded, upon which the plaintiff could be granted 

 

4

Indiana Trial Rule 8(E)(2) provides in part, “A pleading may set forth two [2] or more statements of a claim 

or defense alternatively or hypothetically, either in one [1] count or defense or in separate counts or defenses. 

When two [2] or more statements are made in the alternative and one [1] of them if made independently 

would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative 

statements.”
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relief.” Graves v. Kovacs, 990 N.E.2d 972, 976 (Ind. Ct. App. 2013). The 

Complaint survives this level of scrutiny.

Conclusion

[20] Consumers did not fail to state a claim upon which relief could be granted. The 

trial court properly denied Michiana’s motion to dismiss the Complaint.

[21] Affirmed.

Bradford, J., and Brown, J., concur.