EDWARD R

             EDWARD R. HALL, Appellant-Defendant, vs. ALLIED WASTE
SERVICES, INC., Appellee-Plaintiff.

No. 45A03-0902-CV-43

COURT OF APPEALS OF INDIANA

2009 Ind. App. Unpub. LEXIS 1832

   November 5, 2009, Decided
November 5, 2009, Filed

NOTICE:    PURSUANT TO INDIANA 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.

PRIOR HISTORY:
   APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Julie N. Cantrell, Judge.
The Honorable Michael N. Pagano, Magistrate. Cause No. 45D09-0804-SC-1480.

COUNSEL: EDWARD R. HALL, APPELLANT, Pro se, Merrillville, Indiana.

ATTORNEY FOR APPELLEE: JOHN H. LLOYD, IV, Krieg DeVault, LLP, Mishawaka,
Indiana.

JUDGES: BARNES, Judge. NAJAM, J., concurs. KIRSCH, J., dissents without opinion.

OPINION BY: BARNES

OPINION

Case Summary

   Edward R. Hall appeals the small claims court's judgment for Allied Waste
Services ("Allied Waste"). We affirm.

Issue

   Hall raises two issues, which we consolidate and restate as whether the small
claims court properly enforced the terms of the contract between Hall and Allied
Waste.

Facts

   In early November 2004, Hall entered into a contract with Illiana Disposal &
Recycling, a subsidiary of Allied Waste, for waste removal services at his law
office in Merrillville, Indiana. The contract provided:

      TERM: THE INITIAL TERM (THE "INITIAL TERM") OF THIS AGREEMENT IS
   THREE (3) YEARS FROM THE DATE SERVICE IS COMMENCED ("EFFECTIVE SERVICE
   DATE"). THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE THREE
   (3) YEAR TERMS (THE "RENEWAL TERM") THEREAFTER UNLESS EITHER PARTY
   SHALL GIVE WRITTEN NOTICE OF TERMINATION BY CERTIFIED MAIL TO THE
   OTHER AT LEAST SIXTY (60) DAYS PRIOR TO THE TERMINATION OF THE INITIAL
   TERM OR ANY RENEWAL TERM.

Pl.'s Exhibit 1 p. 5. The contract also provided for liquidated damages
amounting to six months of the monthly payments if Hall terminated the contract
prior to its expiration.

   In December 2007, Allied Waste sent Hall a letter and a "new service
agreement" for his review. App. p. 32. The new service agreement was almost
identical to the prior contract between Hall and Allied Waste. In the letter,
Allied Waste requested that Hall review the new service agreement for accuracy
and notify it of any incorrect details. Hall's office manager, Laura Hanuf,
called Allied Waste on December 11, 2007, and informed Allied Waste that she was
not going to sign the new service agreement and asked for a reduced rate. Hanuf
was informed that her representative was unavailable, so Hanuf called back the
next day. Hanuf was informed that her representative was unavailable until the
following week, and because she was leaving for vacation, Hanuf decided to
cancel Allied Waste's service.

   On December 18, 2007, Allied Waste sent a letter to Hall informing him that
their contract would not expire until November 2011 and that Hall was
responsible for paying his outstanding balance and $ 399.06 in liquidated
damages as a result of his early cancellation. Allied Waste filed a notice of
claim in small claims court against Hall. At the small claims court trial, Hall
argued that the automatic renewal term of the contract was an "evergreen clause"
and that the use of the evergreen clause violated the provisions of an antitrust
consent decree signed by Allied Waste in 2000. Tr. p. 52.

   The small claims court entered judgment for Allied Waste. The court noted
that the determinative issue was whether the evergreen clause of the contract
was unconscionable. The small claims court acknowledged that "the [antitrust]
consent decree and the government's position on the issue [of the evergreen
clause] can have no binding effect on the case at bar." App. p. 148. The court
concluded that "[s]hort of a similar showing in northwest Indiana, the court
would be hard pressed to conclude that this contract language violates public
policy." Id. Next, the court found that Hall had failed to prove that the
contract was unconscionable. The court entered judgment for Allied Waste in the
amount of $ 608.59, representing Hall's outstanding balance due on his account
and liquidated damages. Hall filed a motion to correct error, which the small
claims court denied.

Analysis

   The issue on appeal is whether the small claims court erred by enforcing the
terms of the contract between Hall and Allied Waste. Judgments in small claims
actions are "subject to review as prescribed by relevant Indiana rules and
statutes." Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006)
(quoting 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 court to
assess witness credibility." 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. at 1067-8 (quoting City of Dunkirk Water &
Sewage Dep't v. Hall, 657 N.E.2d 115, 116 (Ind. 1995)). However, this standard
does not apply to the substantive rules of law, which are reviewed de novo just
as they are in appeals from a court of general jurisdiction. Id. at 1068.

   On appeal, Hall argues that the automatic renewal term of the 2004 contract
is unenforceable because it violates a 2000 antitrust federal court consent
decree involving Allied Waste. "Indiana courts have recognized that it is in the
best interest of the public not to unnecessarily restrict persons. freedom to
contract." Putz v. Allie, 785 N.E.2d 577, 579 (Ind. Ct. App. 2003), trans.
denied. In general, "the law allows competent adults the utmost liberty in
entering into contracts which, when entered into freely and voluntarily, will be
enforced by the courts." Id. Nevertheless, courts will refuse to enforce
agreements that are contrary to statute or public policy. Id. Our supreme court
has noted that "courts have refused to enforce private agreements on public
policy grounds in three types of situations: (i) agreements that contravene
statute; (ii) agreements that clearly tend to injure the public in some way; and
(iii) agreements that are otherwise contrary to the declared public policy of
Indiana." Continental Basketball Ass'n, Inc. v. Ellenstein Enterprises, Inc.,
669 N.E.2d 134, 139 (Ind. 1996).

   Hall contends that the automatic renewal term of the contract is an
"evergreen clause" and that it violates a federal court order issued in United
States v. Allied Waste Industries, Inc., and Republic Services, Inc., No.
00-1469, 2000 WL 33225559 (D.D.C. 2000). The order related to a civil antitrust
action brought by the government against Allied Waste and Republic after the two
companies entered into purchase agreements to exchange waste-hauling and
disposal assets in several markets throughout the United States, including
assets in Anderson, Indiana, and Sellersburg, Indiana. The complaint alleged
that the asset exchange would lessen competition in the areas at issue,
resulting in higher prices and fewer services for consumers. The parties entered
into a consent decree, which, among other things, required Allied Waste and
Republic to offer new contracts to small container solid waste commercial
customers in specified markets. The contracts could not have a renewal term
longer than a year, could not require more than thirty days notice of
termination, and could not require the customer to pay liquidated damages in
excess of three times the average monthly charge during the first year of
service or two times the average monthly charge after the first year of service.
App. p. 74. The consent decree required that Republic offer the new contracts in
Sellersburg. Other areas of Indiana were not at issue in the consent decree.

   Hall asks that we "find that the Federal consent decree entered in Allied &
Republic applies in all counties in the State of Indiana." Appellant's Br. p. 8.
We must decline Hall's invitation. 1 First, nothing in the consent decree
required that Allied Waste change its contracts throughout Indiana. In fact, the
consent decree required only that Republic change its contract in the
Sellersburg area. Moreover, the United States Supreme Court has held that an
antitrust "consent decree is not enforceable directly or in collateral
proceedings by those who are not parties to it even though they were intended to
be benefited by it." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750,
95 S. Ct. 1917, 1932 (1975). Hall, who was not a party to the consent decree,
may not attempt to enforce and expand the consent decree in a separate,
completely unrelated proceeding. We conclude that Hall cites no relevant
authority demonstrating that the automatic renewal provision of the contract is
unenforceable. 2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1   Hall also
cites to the government's Competitive Impact Statement as part of the district
court's order. However, the Competitive Impact Statement is document required to
be filed by the government, not part of the court's final judgment. See 15
U.S.C. § 16.
2   Hall also argues that the "evergreen clause" is contrary to statute and
against public policy because it violates Indiana Code Section 24-1-1-1 and
Indiana Code Section 24-1-2-1, but he did not make this argument to the small
claims court. Consequently, Hall has waived the argument, and we will not
address it. See, e.g., Swami, Inc. v. Lee, 841 N.E.2d 1173, 1180 (Ind. Ct. App.
2006) (holding that the appellant had waived an argument by failing to assert it
before the trial court), trans. denied.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

   Alternatively, Hall argues that the new service agreement sent to him by
Allied Waste in December 2007 was "an acknowledgement that the initial contract
term would expire" and was "a new offer, which was subsequently not accepted."
Appellant's Br. p. 11. Having concluded that the automatic renewal provision of
the 2004 contract was enforceable, we note that the 2004 contract had already
renewed in November 2007 for an additional three years. Even though Hall did not
sign the December 2007 agreement, the previous contract had already
automatically renewed and was enforceable. Consequently, Hall's argument fails.

Conclusion

   While we express no opinion as to the enforceability of evergreen provisions
in general, under the circumstances of this case, Hall's arguments fail. The
consent decree did not make the automatic renewal provision of the contract
between Hall and Allied Waste unenforceable. The small claims court did not err
by enforcing the contract and ordering Hall to pay liquidated damages based on
the contract. We affirm.

   Affirmed.

   NAJAM, J., concurs.

   KIRSCH, J., dissents without opinion.