Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019 Page 1 of 5

MEMORANDUM DECISION

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 APPELLANT

Alan D. Wilson

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Jacob M. O’Brien

Scott L. Starr

Starr Austen & Miller, LLP

Logansport, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Merritt’s Truck and Auto Repair, 

Inc.,

Appellant-Defendant,

v.

Bullard Trucking Company, 

L.L.C.,

Appellee-Plaintiff

September 9, 2019

Court of Appeals Case No.

18A-PL-2010

Appeal from the 

Howard Superior Court

The Honorable 

Daniel C. Banina, Special Judge

Trial Court Cause No.

34D02-1606-PL-427

Vaidik, Chief Judge.

[1] Bullard Trucking Company, L.L.C. (“Bullard”) sued Merritt’s Truck and Auto 

Repair, Inc. (“Merritt’s”) in relation to the repair of a broken-down semi-truck 

engine. Bullard made seven claims against Merritt’s: (1) breach of contract; (2) 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019 Page 2 of 5

breach of express warranty; (3) negligent bailment; (4) fraud; (5) breach of 

implied warranty of merchantability; (6) breach of implied warranty of fitness 

for a particular purpose; and (7) promissory estoppel. The case proceeded to a 

jury trial, and the jury returned a verdict in favor of Bullard. The jury found 

that Bullard had suffered $70,000 in damages but actually awarded a total of 

$200,000 as treble damages, indicating that it had found fraud by Merritt’s. See

Ind. Code § 34-24-3-1(1) (authorizing award of treble damages for fraud). 

[2] Merritt’s now appeals, raising seven issues of its own. Specifically, Merritt’s 

contends that: (1) Bullard’s fraud claim is barred by the Statute of Frauds, 

Indiana Code section 32-21-1-1; (2) the trial court should not have allowed 

Bullard to ask the jury for an award of treble damages under Section 34-24-3-1; 

(3) the trial court committed reversible error by failing to issue a pre-trial order 

pursuant to Indiana Trial Rule 16(J); (4) the trial court should have allowed 

Merritt’s to rely on various warranty disclaimers; (5) the trial court should not 

have sent Bullard’s negligence claim to the jury; (6) the trial court should have 

given the jury a verdict form that allowed for the apportionment of a percentage 

of fault to a non-party; and (7) the evidence is insufficient to support the jury’s 

verdict.

[3] In its appellee’s brief, Bullard convincingly argues that Merritt’s failed to raise 

any of these seven issues in the trial court and that it therefore waived them for 

purposes of appeal. Despite having filed a 54-page appellant’s brief, Merritt’s 

did not file a reply brief to respond to Bullard’s waiver arguments. We have 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2010 | September 9, 2019 Page 3 of 5

reviewed the record, and we agree with Bullard that Merritt’s waived all the 

issues it raises on appeal.

[4] Merritt’s argues that Bullard’s fraud claim is barred by the Statute of Frauds, 

Indiana Code section 32-21-1-1. Merritt’s did not make this argument to the 

trial court, so it is waived for purposes of appeal. See Zavodnik v. Harper, 17 

N.E.3d 259, 264 (Ind. 2014).

[5] Merritt’s argues that Bullard waited too long to announce its intent to seek 

treble damages under Indiana Code section 34-24-3-1 and that the trial court 

therefore erred by allowing Bullard to seek treble damages at trial. Merritt’s did 

not make this argument to the trial court, so it is waived for purposes of appeal. 

See id. 

[6] Merritt’s argues that the trial court committed reversible error by failing to enter 

a pre-trial order pursuant to Trial Rule 16(J). Merritt’s did not complain to the 

trial court about the lack of a pre-trial order, so this argument is waived for 

purposes of appeal. See id.

[7] Merritt’s argues that the trial court erred by entering a directed verdict

prohibiting it from making arguments to the jury based on a warranty 

disclaimer that appeared on various documents. However, when Bullard 

moved for the directed verdict on the issue, Merritt’s offered no opposition. Tr. 

Vol. IV p. 38 (“Well, you’ve already got me on that one. I guess.”). As such, 

Merritt’s waived the issue for purposes of appeal. See Zavodnik, 17 N.E.3d at 

264.
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[8] Merritt’s argues that Bullard’s negligence claim should not have been sent to the 

jury “because, as a matter of law, no duty was owed.” Appellant’s Br. p. 43. 

Setting aside the fact that the jury found Merritt’s liable for fraud, not 

negligence, Merritt’s did not make this argument to the trial court, so it is 

waived for purposes of appeal. See Zavodnik, 17 N.E.3d at 264.

[9] Merritt’s argues that the trial court erred by failing to give the jury a verdict 

form allowing for the apportionment of fault to a non-party (Midwest Engines, 

Inc.) and to instruct the jury accordingly. However, when the trial court 

indicated its intent to use a different verdict form, Merritt’s did not object. As 

such, Merritt’s waived this argument for purposes of appeal. See id. 

[10] Merritt’s argues that Bullard did not present sufficient evidence to support a 

jury verdict for fraud. In the trial court, however, Bullard did not file a motion 

for judgment on the evidence or a motion to correct error making such a claim. 

By failing to do so, Merritt’s waived this argument for purposes of appeal. See

Henri v. Curto, 908 N.E.2d 196, 208-09 (Ind. 2009) (holding that claim of 

insufficient evidence cannot be raised on appeal in civil jury case “if not 

previously preserved in the trial court by either a motion for judgment on the 

evidence filed before judgment or in a motion to correct error”); see also Ind. 

Trial Rule 50(A)(5) (providing that challenge to sufficiency of evidence in jury 

trial may be raised “upon appeal for the first time in criminal appeals but not in 

civil cases”).

[11] Affirmed.
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Kirsch, J., and Altice, J., concur.