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 APPELLANTS : DOUGLAS W. MEYER Plainfield, Indiana


## IN THE

COURT OF APPEALS OF INDIANA

TARI Q QURESHI AND MEHNAZ QURESHI, ) ) Appellants

- Plaintiffs, ) ) vs. ) No. 32A01

- 1211

- SC

- 497 ) RICHARD E. COULTER, ) COX/HAMMOND REALTY GROUP, ) AND DARRELL COX, ) ) Appellees

- Defendants. ) )

APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable Stephenie Lemay

- Luken, Judge Cause No. 32D05

- 1205

- SC

- 1652
April 8, 2013 MEMORANDUM DECISION
- NOT FOR PUBLICATION VA IDIK, Judge2 Case Summary When a real

- estate deal fell through, potential buyers Tariq Qureshi and Mehnaz Qureshi entered into a Mutual Release from Purchase Agreement, which entitled them to a return of their $5000 earnest

- money deposit. The $5000 che ck was made payable to the seller’s real

- estate agent, who cashed the check and never returned the money. The Qureshis filed a small

- claims action against the seller, the seller’s real

- estate agent, and his real

- estate agency. The Qureshis now appeal the trial court’s judgment in favor of the seller

. Finding that the seller is not liable to the Qureshis for their earnest money, we affirm the trial court. Facts and Procedural History Richard E. Coulter owned commercial real estate at 1620 E. Main S treet in Plainfield, Indiana . Coulter selected Darrell (Bill) Cox to serve as his real

- estate agent; Cox was associated with Cox/Hammond Realty Group

. Tr. p. 27. Cox listed the property for sale. In April 2012, t he Qureshis mad e an offer on the proper ty that was subject to and contingent upon a satisfactory inspection. Following an unsatisfactory inspection, the Qureshis made a counter

- offer, which was not timely accepted by Coulter. As a result of th e untimel y counter

- offer , on April 25, 2012, the p arties entered into a “Mutual Release From Purchase Agreement” that rescinded the original purchase agreement and provided in pertinent part: It is further agreed by all parties that the earnest money deposit of Five Thousand and 00/100 ($5,000.00) shall b e . . . returned to Buyers . . . .3

Ex. 1 (formatting altered). The Release was signed by the Qureshis, Coulter, and Cox

. Id. The Qureshis’ real

- estate agent, Nina Mayberry, had personally handed the $5000

earnest

- money check, which was made payable to “Cox/Hammond Realty,” Ex. 2, to Cox
when he c a me to her office to give her the initially accepted purchase agreement. The check was then cashed on April 16, 2012. Id. After the Release was signed, Cox made several promises to Mayberry th at he would return the $5000, but he never did. Tr. p. 15

- 16. Coulter also attempted to contact Cox to have him return the $5000, but he also was unsuccessful. Id. at 26. T he Qureshis have never received a refund of their $5000 earnest money. The Qureshis filed a small

- claims action against Coulter, Cox, and Cox/Hammond Realty Group. Neither Cox nor anyone on behalf of Cox/Hammond Realty Group appeared for trial. Accordingly, t he court entered judgment in favor of the Qureshis and against Co x and Cox/Hammond Realty Group in the amount of $5000 plus attorney fees of $1000 and court costs of $92. However, the court entered judgment in favor of Coulter and against the Qureshis because the Qureshis “submitted their earnest money
check at issue t o Cox/Hammond Realty Group and Darrell W. Cox. Richard E. Coulter at no time had possession of the earnest money check or the $5000 from the earnest money check.” Appellant’s App. p. 5. The Qureshis filed a motion to correct error, which the trial court denied. Id. at 10. The Qureshis now appeal the judgment against them and in favor of Coulter. 1

1 Neither Cox nor Cox/Hammond Realty Group appeal s . O n March 19, 2013, Cox filed a Notice of Bankruptcy explaining that he filed for Chapter 13 bankruptcy on February 26, 2013. Because this4 Discussion and Decision As a preliminary matter, we note that Coulter has not filed an appellee’ s brief. Under that circumstance, we do not un d ertake to develop the appellee’ s arguments. Branham v. Varble , 952 N.E.2d 744, 746 (Ind. 2011). Rather, we will reverse upon an appellant’ s prima

- facie showing of reversible error. Id. Judgments in small

- claims actions are “subject to review as prescribe d by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the trial c ourt to assess witness credibility. Trinity Homes, LLC v. Fang , 848 N.E.2d 1065, 1067 (Ind. 2006). This “deferential standard of review is particularly important in small claims actions, where trials are informal, with the sole objective of dispensing sp eedy justice between the parties according to the rules of substantive law.” Id. at 1067

- 68 (quotation omitted). But this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a c ourt of general jurisdiction. Id. at 1068. The Qureshis argue that Coulter is liable for the $5000 under the doctrine of respondeat superior. In support, the Qureshis cite a Seventh Circuit case applying Indiana law, Tippecanoe Beverages, Inc. v. S.A. El Aguila Brewing Co. , 833 F.2d 633 (7 th Cir. 1987). In this case, the Seventh Circuit noted that although respondeat superior

appeal concerns the Qureshis’ claim against Coulter and do es not concern Cox, we proceed to address the merits of this appeal

.5

is more commonly used to impose liability on an employer for his employee’s torts, 2 it can also be used to impose liability on a principal for torts “committed by an agent within the scope of the agent’s actual or apparent authority.” Id. at 637. Here, the Qureshis argue that Cox and Coulter had an agency relationship pursuant to Indiana Code chapter
25

- 34.1

- 10. Even assuming th at Cox and Coulter had a statutory agency relationship, 3 the Qureshis have failed to prove that Cox acted within the scope of his authority when he kept the money following the execution of the “ Mutual Release F ro m Purchase Agreement

. ” The Release, signed by Cox on April 25, 2012 , clearly provides that the earnest money “shall be returned” to the Qureshis. Mayberry personally handed the $5000 earnest

- money check, which was made payable to “Cox/Hammond Realty,” to
Cox. The check was then cashed on April 1 6, 2012. Coulter never saw the check or received any of its proceeds. Several attempts were made to get the money back from
Cox , including by Coulter

. Because Cox acted outside his authority by not returning the money in accordance with the Release

— whic h is a standard document used by realtors

— C oulter is not liable to the Qureshis under the doctrine of respondeat superior. 4 The Qureshis have not established prima facie error. We therefore affirm the trial court.

2 Under the doctrine of respondeat superior, an employer, who is not liable because of his own acts, can be held liable for the wrongful acts of his employee that are committed withi n the scope of employment. Columbus Reg ’ l Hosp. v. Amburgey , 976 N.E.2d 709, 714 (Ind. Ct. App. 2012) , reh’g denied , trans. denied

.

3 The Qureshis do not argue that Coulter and Cox had a common

- law agency relationship. See Demming v. Underwood , 943 N.E. 2d 878 (Ind. Ct. App. 2011) (analyzing investor’s and realtor’s relationship under both common - law agency and statutory agency), reh’g denied , trans. denied

.

4 As for the Qureshis ’ argu ment that Coulter is liable for the $5000 based on breach of contract , we agree with the trial court that because Coulter neither possessed the check nor received any of the proceeds, he is not liable on this basis

.6

Affirmed. KIRSCH, J., and PYLE, J., co ncur.