Arlington State Bank v. Colvin

presumptive Fry term. v. See State Pearson, Indiana, Atty. Linley E. Gen. of Ind., 521 N.E.2d 1302. Sheff, Gen., Atty. Deputy Danielle India- napolis, appellee. for to the trial court This cause is remanded sentencing pursuant opin- to this proper GIVAN, Justice. ion. guilty

Appellant plea entered a Voluntary Manslaughter and was sen- SHEPARD, C.J., DeBRULER, (85) thirty-five years. tenced to a term of DICKSON, JJ., concur. PIVARNIK February The offense was committed on time, 1987. At that the crime of volun- tary manslaughter was defined Ind.Code which, among things, 35-42-1-8 other

§

provided B the crime was a Class

felony. September On an amend- effective,

ment to that statute became provides manslaughter which a BANK, ARLINGTON STATE However, felony. Class B if the offense is Appellant-Defendant, deadly weapon committed means of a felony. is a A Class Carolyn R. COLVIN and Sue Glen sentencing, parties At the Colvin, Appellees-Plaintiffs. apparently acting upon

the court assumption erroneous the amended No. 24A01-8901-CV-28. applied appellant statute and that should Indiana, Appeals of Court of pursuant penalties pre be sentenced First District. felony. for a A It scribed Class is viola prohibition tion of constitutional Oct. post legislation ex for a de facto 22, 1989. Nov. Rehearing Denied fendant to be sentenced under a statute passed after commission of the act punishment

which enhances (1988), Ind.,

crime. See Patterson v. State 604; State v. Turner Ind.App. 383 N.E.2d 428.

Appellant position also takes the grounds

court did not state sufficient (5) years

enhance five the sentence im

posed. Although we find that the court's imposing

statement the sentence is not purposes enhancement,

adequate for see 35-38-1-3(3), agree

Ind.Code we do not § appellant's argument re precluded trial

mand the court should be sentencing appellant

from to more than the (10)

presumptive period pre years of ten voluntary manslaughter,

scribed for felony.

Class B remand,

Upon the trial court appellant provided

sentence term long

under the statute as as it does not orig

exceed the sentence he received

inally, provided specific statement is ar support any

ticulated to enhancement Neal, Withrow, Jeffery A. J.

Thomas Henderson, DeVoe, Daily, In- Withrow & Brookville, Barrett, dianapolis, David P. appellant-defendant. McNeely, McNeely, Mark Ste-

J. Lee W. Sanders, phen Schrumpf, McNeely, E. Ste- Thopy, Shelbyville, appel- phenson & lees-plaintiffs.

RATLIFF, Judge. Chief THE CASE STATEMENT OF appeals from a Arlington State Bank awarding R. and Glen Colvin $85,000 compensatory Carolyn Sue Colvin Arlington State Bank's because of Agreed Judgment Breach of an between affirm, and the Colvins. We but the bank damages. the amount of reduce

FACTS 4, 1984,Arlington May State On or about (Bank) a lawsuit initiated (the Carolyn Col- Sue Colvin Glen R. vins) upon mortgage which foreclose On held the Bank Bank and the Colvins March whereby Agreed Judgment, into an entered to the Bank their quitelaimed property in the interest for a lease it to the Colvins agreed to March year beginning upof to one period granted the Col- Bank also 1985. The purchase of first refusal to told him that the had been sold on during period. the lease November April In the Bank entered into a 8, 1985, the On December Colvins ten- listing agreement with a local realtor dered to the pur- Bank a written offer to sell property. agent the A real estate $88,900.00. property chase the for The working the realtor was with the to Colvins attorney Colvins' had advised them to do help larger them locate a home. She asked in protect this order to their record for the Colvins they whether were interested in litigation. future The Colvins did not purchasing property. The re- Colvins 8, any 1985, tender cash. On December sponded that the home was too small. The $16,000.00 had deposit Colvins on in the realtor, interpreting this remark to mean for payment. bank use as a down The that the pur- Colvins were not interested appli- submitted a residential loan chasing property, informed Ron Wilson cation to the Rushville National Bank on (Wilson), attorney, the Col- day. the same Rushville National Bank purchasing were not interested in told the Colvins that it would take between property. (7) (10) days get seven and ten ap- to (the Sorensons) Mr. and Mrs. Sorenson praisal property process and to purchase made a offer to the Bank in No- application. loan For various reasons the vember 1985. Wilson advised the Bank's Rushville granted National Bank neither Board of Directors that the realtor had nor denied the application. Colvins' loan informed him the Colvins were not interest- The Colvins initiated this lawsuit on De- in purchasing ed the property. The Bank 6, 1985, against Bank, cember also accepted then purchase the Sorenson's of- naming the Sorensons as co-defendants. 18, 1985, fer on November offering without The against Sorensons filed a cross-claim the Colvins first refusal. the Bank for the Bank's failure to transfer (Evans), James A. Evans the Bank's Chief property. merchantable title to the Officer, signed purchase Executive Bank settled its suit with the Sorensons in agreement, which referenced the leasehold $40,169.29 October interest owned and the Soren- pre- the Colvins. Wilson conveyed sons title to the Bank. The Col- pared warranty deed which Evans exe- vins' suit the Bank jury went to cuted, and the sale was made on November trial. At both the conclusion of the Col- 22, 1985, subject Colvin's leasehold. vings' case-in-chief and conclusion of the agent The real estate had informed the presentation evidence, of all the the Bank Colvins in November that an offer judgment moved for on the evidence on the purchase had been made to property. compensatory issues of dam- Colvins, On December through ages. The alleged Bank that the Colvins attorney, (Levi), Rick Levi told the had failed to introduce evidence of Bank were interested in purchasing actual suffered as a result of the Also on December Bank's failure to adhere to the terms of the Wilson advised the Colvins that agreed judgment, the Colvins had days $33,900 two to match the cash offer of failed to introduce clear and evi- which the Sorensons had made on prop- dence that the Bank's conduct associated erty. Levi told Wilson that with its failure to adhere to the terms of offering pur- match the Sorensons' agreed judgment pursuant reprehensible chase offer was so to their justify as to punitive damages. an award of refusal, days but needed more than two The trial court denied both motions. financing. obtain Wilson advised Levi that Colvins, found in an offer favor award- had been made on the ing $35,000 compensatory which had them accepted by to be days. punitive damages, within two did Wilson not tell Levi and the already judgment. been court entered sold. Further facts will day, Later that the realtor called Levi and necessary revealed as to the discussion. drawn from the logical inferences to be

ISSUES If there is substantial evidence evidence. presents thirteen Arlington State support the trial probative value we consolidate and appeal which issues for it. will affirm Smith judgment, we court's renumber as follows: Ind., N.E.2d v. State denying the court err in 1. Did the trial only if set aside jury's will be A verdict on the evi- Bank's motions of evidence or where is a total lack there that the Colvins dence made on the basis uncontradicted evidence. contrary present substantial had failed to Trinity Church v. Miller Lutheran compensatory App., trans. de Ind. err, $35,000 and, if the court did nied. clearly excessive? the award proper mea In order to determine denying in 2. Did the trial court err damages to which the trial evidence sure of judgment on the evi- Bank's motions for compared, the na must be we must note made on the basis that the Colvins dence right was breached. The ture of the by clear and failed to establish merely right of first refusal was a dormant a evidence that rights not entitle the set of that did Colvins and, $100,000 if the court did justified was take action until the Bank received a err, clearly the award excessive? not was purchase. bona fide offer to See Urban Washington Hotel v. Main and Joint Ven AND DECISION DISCUSSION Ind.App., 494 N.E.2d ture Issue One denied and v. Fletcher trans. Stoneburner (1980), Ind.App., 408 N.E.2d 545. If the failed The Bank asserts Colvins Bank had notified the Colvins that it had present evidence which substantial $85,000 purchase offer from the Soren jury's award of received a would sons, right of first refusal would have compensatory damages. in The Bank also changed option. into an denial of the been See Urban asserts that the trial court's Hotel, "By option, 494 N.E.2d at 337. motions for on the evi- Bank's subjects lability himself to the the owner dence, the close of the Colvin's made at convey property if the having of all of again and at the close case-in-chief in evidence, option is exercised within the time and Specifically, erroneous. was stipulated." (Emphasis omit the manner alleges failed to the Bank that the Colvins ted). Howard v. A. Wholesale pecuniary any evidence of actual introduce Romain (1987), App., Ind. injury accompanying damages, physical denied. anguish, or of intentional conduct trans. mental or malice inspired fraud damages measure of for No anguish to the Colvins. causing and mental stated right of a of first refusal was breach acknowledge the fact that parties Both However, in in Hotel. Stonebur- Urban agreed judgment is the Bank breached the damages the issue of ner we dealt with dispute. Only in the issues of whether right, which is pre-emptive of a breach damages paid and what amount should be first refusal. for a another label dispute.1 in paid are should be Hotel, at n. 1. See Urban measure of sufficiency general of the The When we review convey land is trial, failure or refusal we will not vendor's brought forth evidence usually on the difference between based reweigh we will not determine it and We will consider credibility of witnesses. price and the market value of the contract breach, plus at the time of the favorable the land most only the evidence interest. any payment made with return of together with all reasonable appellee might the situation have what the outcome of of whether reason, 1. For this question ability provided match the had the financial been if the Bank Colvins December of November or offer in Sorensons' of first refusal. speculate as to We cannot not arise. 1985 does agreed upon by the Col- expressly of the and was a measure is referred to as loss Such Stoneburner, bargain. 408 N.E.2d at 551. No evidence in the and the Bank. reflected suggests record amount this price voluntarily paid by purchaser property's admissible as evidence of the property at the the fair market value alleged Tri-City time of the breach rather than a fair market value. Pla Indiana Bowl v. Estate Ind. za Glueck replacement amount. The Colvins value App., 422 N.E.2d they trans. denied. argue appeal on suffered econom The fair market value at the time of the injury any purported in addition to differ ic particular is the fair market value breach price contract ence between the compared price. to the contract to be price. They argue they market (1960). Realty I.L.E. Sales § (1) have purchased the would proper begun equity to accumulate presented At trial Colvins (2) ty; longer no have had to would that the fair market value of the rent; (8) they pay would have had the by showing that the Sorensons advantages ownership. tax of home paid purchase price November 1985. figure represented present any That also the contract did not evidence on price since was the amount which the pecuniary damages these elements of if Colvins would have had to match the court, the trial so we not consider Bank had not breached the them now. Our review is limited to those agreed judgment. refusal clause the presented matters in the record which were Thus, the market value and the contract by to and considered the trier of fact. Ha property price of the were the same. Al- v. Ry. les and Hunter Co. and W. Norfolk though attempted present the Colvins to (1981), Ind., 428 N.E.2d 1227. appeal at fair evidence trial and on The failed Colvins have to show evi $40, property market value of the was pecuniary dence of actual loss which would 169.29, the record establishes that was the support compensatory a award. paid by amount the Bank to the Sorensons However, presented evidence at in October eleven months after anguish trial that had suffered mental agreed judgment. Bank had breached the argued supported that that an award The record also that the Bank's establishes compensatory damages. Compensatory payment in settle- Sorensons was anguish generally for mental are ment of their crossclaim only anguish recoverable when the mental $88,900 primarily represented pur- accompanied by, from, physi is and results price paid by the chase Sorensons 'for the Oldsmobile, injury. cal Charlie Stuart compensate The balance was to (1976), 315, 326, Ind.App. Inc. v. 171 Smith for the Sorensons cost and inconven- 247, 258, modified, 357 N.E.2d 175 Furthermore, having litigate. ience of Ind.App. 369 N.E.2d on other Mr. testified that he did not think Colvin grounds. The Colvins introduced no evi $40,000; he house was worth that dence to establish suffered men $83,900, bought would have the house for anguish resulting accompa tal from and $39,900 not for the for which it but was by physical injury. nied newspaper offered June 1986. Finally, in their brief the them- Colvins recognize exception Indiana courts an correctly selves note the loss of bar- general compensatory rule and award gain measure of should be used damages in certain tort actions where men of a the case breach of contract to sell anguish unaccompanied by physical tal land. injury. When a tort involves the invasion legal right very of a which its nature is argue property The in- likely disturbance, provoke an emotional surance of was some evidence of Naughgle Feeney-Hornak v. Shadeland market value of the at alleged Mortuary Ind.App., time of the breach. The amount of denied, maintained on the was insurance trans. or when the however, agreed judgment, causing injury inspired by a term of payment provi- contract's balloon ject land the con fraud, malice, motives and or like employees ad- of the realtor's sion. Two intentional, emotional or such duct was he could back out of the him that vised an award of com anguish supports mental deal, decided to continue with damages. First National but he pensatory facts did not closing. We held that such (1984), Ind.App., 462 v. Acra New Castle detrimentally relied on indicate that he argued The Colvins by the re- alleged misrepresentations prior was fraudulent the Bank's conduct Id. at 1147. anguish. The Col- altors. them mental and caused of mental present some evidence vins did question of reliance is one of fact case on other as we decide the anguish, but jury. will not determined We the suffi not addressed grounds, we have appeal from reweigh the evidence anguish. of mental ciency of the evidence Capitol Dodge Haley, verdict. 6-7, Ind.App. 1 at 288 N.E.2d 766 (1) of fraud are elements essential However, (1972). simply no there was past or exist misrepresentation material relied presented that the Colvins false, fact, (2) representation is ing upon any the state- to their detriment (3) knowledge igno or reckless made with to the Colvins ments the Bank made (4) falsity, and which causes of its rance through lawyer, Levi. The evidence person rely the detriment of reliance to presented at trial showed that Mrs. Colvin Acra, 462 N.E.2d at 1348. ing upon it. called the realtor between November Although there was evidence if and asked her and November fraud, have elements of we the first three price, and the house had sold and for what because our that evidence not discussed picked up application a loan Mr. Colvin element of of the fourth determination the Rushville National Bank before from of the issue of action dispositive fraud is attorney the afternoon of seeing his on urge that their fraud. The Colvins able 2, However, he had not December misrep on the Bank's detrimentalreliance yet completed it and returned it to they fact that by is shown resentation Bank. testified Rushville National Levi writing on December informed the Bank shortly phone his second call that after 1985, exercising their 3, they were that Wilson, attorney, he had with by the fact that right first refusal and of in- phone call from the realtor received 1985, 3, they initiated a loan on December already property had forming him that the Rushville National application with the already instructed Mr. Levi had been sold. financing for the in order to obtain prepare a notice that the Colvins Colvin purchase right re- their of first planned to exercise (1942), 219 Ind. In v. Tobin McClellan after the Levi recontacted Colvin fusal. 772, 563, plaintiff we stated closing, and told Colvin of the realtor's call upon he relied a defen must show that notice to advising him that the written as an inducement misrepresentations dant's purposes protect his record for would bank change posi injurious to his action or tendered litigation. The Colvins of future 570, Id., N.E.2d at 775. 219 Ind. at tion. 8, Bank on December offer to the their not shown where fraud is "Actionable application completed the loan and day. merely to Bank that Rushville National the hearer acted appears that in re litigation and not Na- trouble and that the Rushville avoid officer testified loan statements, application ... of the charge false liance on the Bank does not tional (1959). 14 I.L.E. Froud could not recall whether speaker." that she fee and § for an a fee charged the Colvins she had Mork Five Realtors Craig In v. ERA do report. The Colvins or credit appraisal we dis- Ind.App., 509 N.E.2d report fee. paid a credit allege having A detrimental reliance. the issue of cussed De- lawsuit on initiated this closing The Colvins land was at purchaser of closing indicating signed some of the thereby that already cember thinking that misled into they were not earnest put down papers $400.00 of first right their act Bank could of the sub- deposit he learned money when did not Craig presented no evidence as the facts refusal. Just The Colvins pecuniary damages suffered any actual re- allegation of detrimental support an failure to adhere a result of the Bank's as liance, simply does not the evidence here agreed judgment's terms. Col- to the they support contention Colvins' they present evidence that also did not vins representations upon the Bank's relied injury resulting physical suffered a re- they exercise their of first could they nor did from the Bank's conduct they if could and obtain the fusal had en present evidence purchase days. two match the offer within willful, likely gaged in malicious Furthermore, sup- does not evidence also anguish. mental The Colvins cause Colving' that either the notice to port provide supporting the failed to evidence exercising their bank reliance, of detrimental an essen element application to refusal or their loan There element of actionable fraud. tial National Bank was to the Rushville fore, that the provide did not As the failed to show detriment. Bank had committed a fraud on them support the detrimental evidence to anguish. caused their mental which had element of fraud and reliance actionable simply There is no rational basis to engaged in prove failed to that the Bank $85,000 compensatory jury's or malicious conduct which was like- willful damages. We must conclude disturbance, ly result in an emotional by passion, partiality or was motivated compensatory Col- $85,000 in com prejudice to have awarded anguish as a result of mental was not pensatory damages. supported by the evidence. Nevertheless, the trier fact is to if an award The Bank asserts that even given sound liberal discretion where compensatory to the Colvins damages cannot be defined and calculated evidence, supported certainty mathematical or an exact with clearly awarded was an excessive amount Ind.App. at Kavanagh, standard. passion, partiality preju or and indicated Any 221 N.E.2d at 828. measure of dam improper dice or the consideration of some ages enough vary must be flexible part jury. on the evidence While any of a situation and uncer necessities jury in is true that a has wide discretion tainty wrong must be resolved assessing damages, Kavanagh v. Butorac Stoneburner, at doer. 408 N.E.2d 550-51. 139, 145, (1966), Ind.App. 221 N.E.2d 140 presumes The law that at least nominal denied, 824, 828, particular and no damages trans. result from harm. American certainty is re Bank and Trust degree of mathematical Fletcher National (1969), 122, 135, Ind.App. 252 Flick 146 quired awarding damages, in Bell Indiana 839, 846, trans. denied. Also see (1980), Co., Ind. Telephone O'Bryan Inc. v. Stoneburner, 408 N.E.2d 545. The Colvins 178, 184, general rule App., 408 N.E.2d right when did lose valuable contractual damages the amount of awarded is agreed judgment by the Bank breached the seope must be within the of evidence. right failing provide the Colvins their of Ins. America v. Execu Prudential Co. of Therefore, uphold refusal. can an first we 674, Estates, (1977), Ind.App. tive Inc. damages nominal of $1.00. 1117, 1133, 701, 369 N.E.2d trans. denied. denying err in trial court did not judgment if it cannot be A excessive made judgment motions for on the evidence preju explained upon any basis other than alleged insufficiency of on the basis dice, partiality, corruption, or some passion, support compensa evidence to award improper Persinger element. v. Lu other tory damages. 865, (1987), Ind.App., 512 N.E.2d 868. cas Issue Two amount, clearly in the ver If unwarranted cannot stand. Levin v. Schuckman failed dict The Bank asserts that the Colvins (1971), convincing Ind.App. prove by 276 N.E.2d clear and evidence 208, breaching 212. in the Bank's conduct oppres acted inferred that Evans sonably accompanied by mal judgment was agreed negligence. He testi sively gross or with oppressive fraud, or ice, gross negligence had a he knew that the Colvins fied that award so as to refusal, not to call urges but decided Bank also of first damages. The punitive pur he received Sorensons' them when punitive if that even the award convincing evi admitted that he had by clear and offer. Evans supported chase about their spoken with the Colvins dence, was excessive. punitive dam will affirm a We property, but purchasing in interest sufficiency of the ages the issue of not to call them on when his decision had based report that she felt the if, considering only the realtor Stewart's is raised evidence inferenc and reasonable probative purchasing in were not interested it, weighing evidence supporting without es told her it was property since credibility, a reason assessing or witness realtor for them. Since Stewart too small find such fact able trier of told her this that the Colvins had testified could convincing evidence. proven by clear and April, Record "early in 1985" but after on Chevrolet, Robertson Inc. v. Bud 424, inferred that jury could have Wolf Ind., (1988), 137. 519 N.E.2d negligent directly in not grossly Evans was giving them contacting the Colvins and damages are not Generally, punitive at the time of right of first refusal their of con in Indiana for breach recoverable purchase offer November the Sorensons' Casualty Insur Fire and tract. Vernon 1985. Ind. Sharp ance Co. v. recover In order to 349 N.E.2d reasonably have in- also could case, plain damages in such that when advised Col- ferred Wilson by clear and prove tiff must could on December actions the defendant's evidence that pur- refusal to their exercise accompanied breaching the contract he or should have property, chase the knew fraud, op malice, gross negligence or already property had been known that the defendant's and that the pressive conduct the Bank no and that sold to the Sorensons hypothesis with the acts "were inconsistent Fur- longer retained title to a result of a tortious conduct was thermore, reasonably jury could have fact, error of honest mistake of law or oppressively acted or inferred that Wilson overzealousness, negli mere judgment, negligence alleging the Col- gross fail noniniquitous human gence or other only days two to exercise vins had Company v. Indemnity ing." Travelers only days the Bank had two right because Ind., Armstrong of- accept the Sorensons' within plaintiff must also establish 362. The ap- could have allegation an fer. Such by be served the public interest will the implication an that jury to be peared to punitive of effect that an award deterrent had title to the Bank still upon have the future con damages would reasonably inferred have jury could The similarly parties the defendant and duct of attorney, Bank's was the Wilson that since 608, Vernon, 349 264 Ind. at situated. in the clause the first refusal aware of was N.E.2d at 180. prepared the warran- judgment, had agreed transfer I, ty deed Issue As discussed Bank Sorensons', the Bank acted mali in contact with argue not and was did of December during the afternoon assertion officials prove ciously and did known fraudulently. Never 1985, or should have 2, Bank acted knew that the Wilson were Colvins that his statements actual fraud are theless, malice nor neither jury could reason- Finally, inaccurate. punitive a necessary 2, that on December concluded ably have by found clear jury could have award. The its acting to cover was Bank's convincing right of first negligence or provide the gross conduct constituted earlier failure rea refusal. jury could have The oppressive. was

580 opinions recent of the and held that the

The characterizes its it Supreme Indiana Court indicate that through agents its as honest mistakes. uphold punitive of dam would an award Nevertheless, jury it was for the to assess credibility weigh witness the evidence. only ages appropriate in an case where probative damages cannot conclude that the evi- proven. We nominal have been supporting Supreme dence and reasonable inferences Court of Court noted pu it insufficient for a trier of reasonable Indiana had discredited the notion that pro damages nitive must be reasonable proved found that fact to have clear and evidence that the portion damages to actual Hibschman (1977), oppressively gross Pontiac, Bank acted and with Inc. v. Batchelor 266 Ind. negligence. Finally, 310, 317, we cannot conclude N.E.2d 849. The Court tortious conduct above-mentioned also noted that a substantial number of was the result of a mere mistake of law or permit punitive damages states to be damages. of nominal fact, awarded on the basis judgment, an error honest or due adopt reasoning the Tth Circuit's We negligence. overzealousness or mere supports jury's puni- record award of hold that under Indiana law an award of only damages may sup in nominal $1.00 damages. tive port punitive damages. an if The Bank asserts that even punitive damages proper, As to consideration of the factor of the award was defendant, clearly economic awarded wealth the Su- inspired preme Indiana by passion, partiali excessive and Court of has stated that ty, prejudice or the consideration of some where punitive damages assessed, are to be improper evidence. Once it has been deter wealth the defendant be shown legal mined that there so that are assessed in an basis amount premise which to an award of dam that will deter him. The said: Court ages, the amount of the award rests within theory "Such a rule is on the based jury. the sound discretion of the In order greater take a penalty will amount of excessive, to vacate an award as it must person poor dissuade a rich than a clearly appear to have been the result of person oppressive from conduct. How- passion prejudice. or Tutwiler v. Snod ever, appears requirement there to be no (1981), Ind.App., 428 N.E.2d grass that evidence of worth be submitted in punitive damages." if the award was cases 1298. To determine passion prejudice, result of or must we Pontiac, 266 Ind. at Fibschman awarding puni the purpose consider that Although N.E.2d at 849. we have since punish wrongdoer tive is to stated that such factors as the defendant's and deter others from future similar con economic wealth and income should be con Tutwiler, duct. 428 N.E.2d at 1298. The sidered, eg., Michigan Indiana and Elec reviewing factors to be considered in Ind.App. tric Stevenson are, thus, punitive damages trans. tort, nature of the extent of actual denied, quoted we Hibschman Pontiac damages, and the economic wealth of the Tutwiler, approval recently as as Galloway defendant. Nate v. Ind. which was written in 1981. App., trans.denied. Therefore, we find that the Bank's assets already We have discussed the and income are relevant to factors consider Bank's conduct and we have noted the Col- determining in jury's whether the award of punitive damages to actual vins' failure show substantial was not excessive. How However, ever, damages. in Keehr v. Consol we do not find that an absence of Delaware, (7th Freightways Inc. such evidence of economic idated of Cir.1987), in 825 F.2d the Court necessarily wealth renders the amount of punitive damages speculative so as to be terpreted Indiana cases to be consistent awarding punitive damages jury with the of excessive. The also the had nature of compensatory damages based on nominal the to tortious consider. siveness, entirely is also con- stated, the evidence purpose the of previously As wrongdoer that Evans' con- hypothesis the with the damages is to deter sistent punitive in the fu of fact from similar conduct result of a mistake or and others duct was the particularly damages are judgment. ture. Punitive in Evans indi- honest error present in a case such as appropriate not to call that he based his decision cated condone the public policy 'cannot report realtor's one as the Colvins on the contrac disregard for willful and deliberate buying in not interested the Bank exhibited. obligations tual which agreed judg- subject of the which was punitive damages of The award of working with the ment. The realtor was Bank from similar conduct will deter the help larger them locate home. in the future. other customers toward essence, majority, permits in an award The damages upon per- inferences punitive of conclusion, no evidence to In there was punitive of jury's greater missibly indicate that from evidence of no drawn preju- passion result of or damages was the required up- than that persuasive value clear and convinc- dice. The evidence was agreed of finding hold a of breach punitive of and ing on the issue judgment. Indem. See Travelers punitive jury's award of (1982), Ind., 442 N.E.2d Armstrong upheld. should be Therefore, judgment, affirm the but we punitive the award dam- To sustain of compensatory dam- reduce the award of majority focuses ages, also damages of One Dollar ages to nominal attorney, conduct of the Bank's Wilson. ($1.00), puni- affirm the and advised the Colvins that Wilson damages. tive days in to exercise their two which refusal, in fact the Bank no first when ROBERTSON, J., concurs. ques- in longer held title to the HOFFMAN, J., part in concurs majority proposes that "the tion. The opinion. part separate in dissents reasonably inferred that Wilson could have gross negligence oppressively acted or with HOFFMAN, concurring part in Judge, days only two alleging dissenting part. right." Again, the evidence exercise their majority's respectfully I dissent from hypothesis with the equally is consistent issue, in appellate disposition of the second conduct was the result that the tortious damages is punitive the award of which failing, noniniquitous human such as some prove upheld. The Colvins failed Such is not the stuff overzealousness. convincing evidence clear and are made. punitive awards agreed judgment was accom- breach malice, fraud, gross negligence panied by adopted a stan Supreme has Court oppressive convincing or conduct. evidence to of clear and dard damages. an award of sustain suggests that an majority initially the clear and propriety ''The sup- punitive damages be particularly evident evidence standard chief that the Bank's ported by evidence cases, the breach itself because contract Evans, officer, signed purchase executive reason, invariably almost will for whatever without hon- agreement with the Sorensons party as regarded by complaining refusal held oring outright fraudulent." if not oppressive, Colvings. majority, "[t]he According Co., supra, at 363. The Travelers Indem. reasonably inferred that jury could have fraud, gross negligence allegations gross or with oppressively acted Evans in the instant case were oppressive conduct notify he failed negligence" when evi out clear not borne purchase offer. Sorensons' dence. the ma- upon which the evidence While reasons, I I dissent. foregoing For the consistent with the jority relies dam- to vacate the award vote oppres- negligence or hypothesis gross by clear and convine- ages unsupported as

ing evidence.

R.L. JEFFRIES TRUCKING

COMPANY, Appellant INC.

(Defendant Below), CAIN,

Jerry Appellee Lee

(Plaintiff Below).

No. 93A02-8903-EX-91. Indiana, Appeals of

Court of

First District. 24,1989.

Oct. Porch, Foreman,

George Bamberger, A. Hahn, Hewins, Daniel Oswald and F. Hew- Hewins, Evansville, appellant. ins & Rupp, Indianapolis, appel- Robert C. lee.

ROBERTSON, Judge. Appellant-defendant RL. Jeffries Truck- (Jeffries) ing Company appeals from the granting appellee-plain- Industrial Board's Jerry compensa- tiff Lee Cain a workmen's permanent partial impair- tion award for permanent disability. ment and for total We affirm. wife, Glenda, and his into

Cain entered agreement with Jeffries to drive a trac- Simoni, rig tor-trailer leased to Jeffries trucking Georgia. business out of Cain Glenda were to haul and deliver load

Case Details

Case Name: Arlington State Bank v. Colvin

Court Name: Indiana Court of Appeals

Date Published: Oct 23, 1989

Citation: 545 N.E.2d 572

Docket Number: 24A01-8901-CV-28

Court Abbreviation: Ind. Ct. App.