*1 301 Austin v. State dence. In 262 quent Ind. occasion. In and about the same denied, 529, 130, cert. time, 421 U.S. period attempted of he to fondle a 95 S.Ct. L.Ed.2d 680 12-year-old girl at a skating rink. We the court stated: difficulty finding have no that such acts held, however, depraved instincts,

“It has been that constituted sexual apply cited, rule does above where the under the authorities these other acts chief element of the offense is illicit in- were properly admitted. sexes,

tercourse between the and that reasons, For the above this cause is af- subsequent prior such of firmed. acts is admissible subject to exclusion in Judgment affirmed. the discretion of the trial court for re- v. Robbins State moteness. RATLIFF, C.J., CONOVER, P.J., (Emphasis Ind. 46 N.E.2d 691.” concur. added.) Id. 530-1, 319 N.E.2d at 132. Robbins, Austin, enlarges

State v. cited in

upon that statement: cases,

“Heretofore the Indiana with one

exception, seem to have been con- admissibility

cerned with the of evidence occurring prior of similar offenses to the INDIANA & MICHIGAN ELECTRIC charged date of the offense in the indict- COMPANY, Corporation, An Indiana acts, Why subsequent ment. should not Inc., Realty, and Indiana Franklin An remote, not too Judge also be admitted? Corporation, Defendants-Ap Indiana v. Reineke Wanamaker in [State pellants 390, 397, 52-54], 89 Ohio St. 106 N.E. answer, seems to logical have the as

follows: HARLAN, Plaintiff-Appellee. Emma ‘We believe there misappre- is a No. 1-1285A324. hension here of the purpose real

admitting this Indiana, kind evidence. Its Appeals Court relevancy get is to before the court First District. jury the sexual relations of the Feb.

parties covering the date of the indict- 7, 1987. Rehearing April Denied If ment. the sexual relations of the parties at the time of the indictment be proper question, certainly then before,

relation for a reasonable time

as well as a reasonable time there-

after, equally competent, notwith-

standing prior the fact acts probative have more force and subsequent acts;

effect than the goes only weight

this all ” competency.’ evidence and not to its

221 Ind. at 46 N.E.2d at 696. permit

Those subsequent cases evidence of only question.

acts. Remoteness is the

Here, 37-year-old man had sexual rela- 14-year-old

tions with a retarded paper

carrier, got pregnant, her attempted

have sexual relations her with on a subse-

poses, but which needed for purposes in the future. findings,

The remainder of the conclu- sions, are set out verbatim as follows: “3. About December real estate *3 Miller, agent acting Max for I M& and [IFR], contacted James and Emma Har- lan at their attempt acquire home to to property on behalf of & M and [I After several discussions with IFR]. Harlans, they signed, in February option an for to [IFR] Yoder, Chickedantz, parcels above-mentioned 40 and Erik 20 acre Thomas W. C. Dildine, Yoder, parcel. Subsequent- and another 80 acre Livingston, Haynie & Fort ly, May Rockville, Miller Wayne, Asbury, L. for de- delivered to Har- John lans, notice of intention to exer- fendants-appellants. [IFR’s] option, cise the and October Mann, Goodwin, Chaney, Max E. signed deed, M, prepared Iby & con- Johnson, Williams, Goodwin & Terre veying parcels the 40 acre and 20 acre to Haute, Hanner, Hanner, Hanner & Rock- per for acre. $600 [IFR] ville, plaintiff-appellee. for 4. At all times that Miller called on deed, they signed the Harlans until [I NEAL, Judge. adopted any plan & had not definite M] for the use property of the Harlan for THE STATEMENT OF CASE generating electric facilities. & M and [I Defendant-appellants, Indiana & Michi- apparently acquire many wish to IFR] (I M) gan Company Electric & and Indiana acres in northern Sullivan southern (IFR), Realty, appeal Franklin judg- Inc. Counties, Vigo possible to be held for use ment, by rendered Parke Circuit Court at some future date. There were no jury, ordering without a I M IFR & and to approved drawings for the use reconvey acquired plain- real estate from property any specific purpose. Harlan for tiff-appellee, (Emma), by Emma Harlan Because of the distance of the real estate fraud, assessing punitive damages. existing from the Breed Plant it would We affirm. appear it if four would be needed or generating

more units were constructed THE STATEMENT OF FACTS plans at the Breed Plant. There were no for the construction of such unit. & M[I special findings of fact and conclu- agents and their would not IFR, requested by sions of law I M and these facts to disclose the owners of the following findings, the trial court made the real estate. summarized us. Emma and her hus- band, James, Agent I owned 60 acres of land in 5. Miller told Harlans & M Township, Vigo County, definitely Prairie Creek had decided to construct addi- Indiana, generating vicinity 3V2miles north I M’s tional facilities in the located of & generating plant plant future, County, Breed Sullivan of the Breed the near wholly necessary I M and IFR Indiana. & are owned it was for & and acquire property subsidiaries of American Electric Power to from Harlans (AEP). M, I Company, Inc. & an electric for a reservoir to be constructed as right utility, power has the to exercise the of such facilities. & M and fur- represented IFR eminent domain. is a real-estate ther Harlans that it would holding company acquire prop- necessary acquire AEP uses to for I & M to erty presently property through power utility pur- needed for of eminent voluntarily if did not sell 11. never,

domain Harlans The Harlan has time, any it. been used any <& for [I M] public purpose. proper- deeded the [IFR] 6. & M and concealed from I M in ty to «fe and I M«fe has Harlans the fact that a real [IFR] parcel continued to lease the 40 acre holding company purpose estate whose farming year each and has received the System the AEP was to hold land which property. income from the immediately was not needed «feM now no plan has definable purposes might never needed for generating add any facilities at Breed or utility purposes. other century, location time in this misrepresentation 7. Because of the except megawatt for the two units and concealment of the above material Rockport. now under construction at facts, they had no real Harlans believed «feM has no reasonably or keep freedom to choose whether *4 prop- forseeable need to use the Harlan convey property. They reasonably their erty proper for public utility purpose. a they they believed that would be sued if 14. «feM and did not sell to M and ‘voluntar- have not revealed & [I [I IFR] IFR] public ily’, they the fact that I M property that would lose their <& has no plans definite for anyway, litigation the use of the and that because of thou- fees, sands of expenses they acres of real estate it and would be which worse acquired vicinity in the they conveyed by off if of the Breed than deed. Vigo Plant in Sullivan and Counties in- 8. In reliance on & M and [I IFR’s] cluding the property. Harlan In this liti- representations, false and because the gation «feM and have admitted [I concealed, true facts were Emma and that there using is no likelihood of signed option, James Harlan and la- real estate for purposes in the signed conveying ter the deed 60 acres to twenty years. next [IFR]. 15. «feM and use of the threat [I IFR’s] April acquiring 9. In after acquire of eminent domain to Harlans’ property, publicly Harlan I & M an- property speculative pur- for remote or expand plant nounced it would the Breed poses, their concealment of the lack of by building generat- megawatt two 1300 any commitment to use the land for a ing units at the Breed site. A few weeks public purpose, and determination later, project, & M announced the to continue to hold land taken under the Project known as had been indefi- public threat of eminent domain when no nitely postponed. By March that contemplated century, use is in this has project entirely. had been cancelled disregard rights been in reckless event, assuming I briefly & M did citizens, including of Indiana Emma Har- intend to additional build two units at lan, willful, and has been malicious and Breed, approved design there are no oppressive. drawings showing or other records that together M and «fe acted [I property the Harlan would have been throughout the transactions described project. contrary, used On the for above. public project announcement site, 17. The facts set forth in each of the stated it would be on 6300 acre findings by above have been logically shown clear which would not have encom- convincing and evidence. passed Vigo Harlan County, which was of more than deceased, 18. James Harlan is now and acquired by 9000 acres M and «fe Emma Harlan has succeeded to his inter- [I Vigo in Sullivan and Counties. est the 60 acres. 2601’, ‘Project injury

10.Since cancellation of suffered actual from [Emma] approved «fe has had no other M draw- «fe and fraudulent conduct [I M] [I IFR’s] ings any specific plan expansion acquiring retaining property. and her plant. estate, by the Breed is Real which its nature Could;hereby compensa- did not wish The unique, and which assesses [Emma] M sell, tory damages taken from her in the amount of was One Dol- [I obtaining ($1.00) the deed to punitive damages After lar and and IFR]. and rented the Fifty ($50,- & M amount of Thousand Dollars year 000.00) for a cropland against IFR], Harlans jointly, back & and ” two, honor their did not written but and favor of [Emma].... ground agreement to rent the back to Record, vol. IV at 409-13. for the nominal of $100.00

Harlans sum suspected per Then after she she year. ISSUES defrauded, [Emma], personally had been approximately & M and IFR attorneys, re- by her retained and arguments subarguments and in which time quired spend great amount of every finding attack each and M and and effort because of & IFR’s] conclusion entered the trial court. conduct, including investigation re- Twenty-eight arguments of those claim facts, legal re- search of the relevant the various either are not search, pursuit litigation of this supported by contrary the evidence or are consumption of time and its attendant to the evidence. shall the is- We restate expense, and at trial. dollar before sues as follows: injury to amount of the actual [Emma] Sufficiency of the evidence. I. substantial, obviously I, A(i), (ii), (iii),(iv) argument amount, Point a dollar does not disclose *5 (v) 4; (vi) Finding all attack attacks the Court determines that which reason 5; (vii) Finding Finding attacks 6. damages of compensatory should $1.00 to awarded [Emma]. I, C(i) (ii) argument Point and attacks requires an public 7; (iii) Finding 20. The interest Finding attacks 8. punitive damages sufficient to award of I, D(i), (ii) (iii) argument Point and at- punish M and for their fraudu- & IFR] [I 9; (iv) Finding Finding tack attacks willful, malicious, lent, oppressive and 12; (vi) (v) Finding attacks attacks conduct, by the clear reckless as shown 13; (vii) (viii) Finding and attack Find- evidence, convincing and and to deter ing 14. in future. them from such conduct (iii) VI, A(i), (ii), argument and Point (iv) Finding 19. attack CONCLUSIONS OF LAW VI, B(i), (ii), (iii) argument and Point plaintiff, Emma 1. The law with (iv) Finding 15. attack Harlan, against & M and and IFR]. finding erred in The trial court II. acquired M and 2. & and have predicated upon fraud can be property through held fraud. the Harlan intentions. of future statements M and can hold the &[I finding The trial court in III. erred property in deed to the Harlan construc- predicated upon the fraud can grantors. for the Emma Har- tive trust agent. I M and IFR’s opinion of & having of lan succeeded to the interest in applying IV. The trial court erred in it is held James Harlan “necessity” standards. eminent domain trust for her. constructive holding The V. trial court erred Judgment compensatory pu- plan. alter its that & M could not against damages entered nitive should be The imposing VI. trial court erred in jointly. M and &[I trust. a constructive JUDGMENT refusing VII. The trial court erred in de- findings on to make affirmative hereby ordered to & M and are limitations, laches, of statute of fenses par- convey Emma Harlan the 40 acre to estoppel. parcel cel and the 20 acre which Harlans conveyed to damages [IFR]. VIII. No actual were shown. fact, erred in assessing

IX. The trial court acquiring were the property for punitive damages. speculative purposes. remote and I M& fraudulently IFR further intimidated X. The erred in ordering trial court the Harlans the threat with of eminent restitution. (which,

domain under the facts and circum- DISCUSSION AND DECISION stances, they right use) had no to if the Harlans did not accede to their demands. ISSUE I: rescission, sought by relief Emma was approach I M IFR’s & and to this damages, compensatory punitive dam- boldly series of issues is to assert that each ages. findings, mentioned or a there of, supported by either evi utility may Before a exercise its evidence, to contrary dence or was and right domain, of eminent there must abe they argue then the evidence most favor present necessity. Meyer v. NIPSCO say, it to able themselves. Suffice 254 Ind. 258 N.E.2d 57. While issues, disposition of these we exam have utility may condemn for future challenged ined the record that the and find use, the fairly future use must be supported by the were reasonably needed. & M Electric Co. v. contrary and were not it. We remind I Schnuck Ind. 298 N.E.2d appellate and IFR of the standard 436. A maintain an action review, as was stated Walters v. Dean purely speculative condemnation for fu Ind.App., 497 N.E.2d 254: ture Meyer, supra, needs. Id. weigh the rejected neither evidence nor court condemnation for a “[W]e use six judge Rather, credibility years of witnesses. to ten purpose the future. The we examine only prevent that evidence and rea- the rule is to power abuse of the support sonable making appropriations inferences which the tri- speculative, al Thompson monopolistic, court’s purposes, decision. State foreign other Ind.App. legitimate objects contemplated by the condemning trans. denied. In a case tried to the corporation’s charter. Coun *6 Estates, jury try court without we will not (1970), reverse Inc. v. NIPSCO 254 clearly 108, unless the is Ind. 258 decision erroneous. N.E.2d Procedure, 52(A); Ind.Rules of Trial Rule Thus, representations by I & M and (1984), Ind.App., Stubbs v. Hook 467 need, agent IFR’s of a and the 29, denied; N.E.2d trans. Hurt v. Polak acquire threat to use domain to eminent the (1979), Ind.App., N.E.2d 1051. 397 The Harlans’ patently were false and judgment of a will be trial court found to misrepresentations fraudulent. Such were clearly only upon be erroneous when our present facts, and not statements of all review of the evidence we are left future intentions. The status of plans the with a firm that a mistake conviction has IFR, was only known to I & M and and not been University made. Sys- Casework too, That, attorney. Harlans or their tems, (1977), Ind.App. Inc. v. Bahre 172 fact, opinion, as I & M and IFR 624, 155, 362 N.E.2d trans. denied. The argue. The upon Harlans relied those mis judgment of court up- the trial must be representations property they and sold had upon held if any legal it can sustained be selling. no intention of Such acts were not theory supports. which the voluntary, argued by as also I & M and Hurt, supra at 1053.” IFR. through II ISSUES X: Fraud the inducement of a con case, theory The as tract is a Emma’s reflected basis for rescission. Shuee v. the by pleadings by 432, found Ind.App. the trial Gedert 182 395 court, is that I IFR fraudulently & M and N.E.2d Grissom Moran represented 119, a present Ind.App. need for the real 290 N.E.2d reh. denied when, for public utility purposes estate Ind.App. 292 N.E.2d 627.

3Q7 Generally, bringing party an action for anee of the real estate to with- [Emma] has ordering fraud an election between two reme- out the same time [Emma] contract, $36,179.00 may he the refund dies: affirm retain which re- [Emma] benefits, damages; may conveyance, plus seek or he ceived for the interest. contract, any rescind the return benefits determining punitive the amount of received, quo. returned to the status damages to entering be awarded and in If he elects to rescind the contract he judgment, carefully the Court considered general damages, recover but is judgment these The matters. entered entitled to quo, be returned to the status the Court is intended to return the real usually which necessitates a return of mon- rightful estate to its owner at a net cost ey things paid or other or received under to & M and sufficient to deter contract, plus special reimbursement as them from similar in acquiring conduct damages, expenditure reasonable real estate in the future. proximate incurred as a result of the fraud- The Court determined that a net cost to However, rescinding ulent conduct. price & M and paid for the

party must restore all benefits received $50,000.00 plus land would be the mini- under the contract. Smeekens v. Ber- might mum amount which achieve the trand 262 Ind. required deterrent effect. Instead of or- Shuee, supra; Grissom, supra; 14 I.L.E. dering pay & M and [Emma] (1959). sec. 41 $36,179.00 Fraud in return for reconveyance of assessing punitive the land and damages damages may Punitive award $86,000.00 more, judgment was Generally, ed for fraud. an award for com entered a form which would have the pensatory damages prerequisite is a to an same net parties. effect on the There however, punitive damages; award for are substantial reasons believe that granting of equitable affirmative relief will judgment the net cost of this to & M[I support punitive damages. an award of might be insufficient to deter (1985), Ind.App., Dotlich v. Dotlich them from similar conduct in the future. N.E.2d trans. denied. Anything less would have no deterrent proceeded Emma upon theory of re- effect at all. appro- could not be [Emma] complaint, scission in her and offered to priately repay ordered to against any damages offset to which she price increasing punitive without $36,179.00, entitled the sum of which damage appropriately.” award the Harlans had property. received for the Record, vol. IV at 491-2. Under the law and the facts as found of the trial court should be court, would, the trial Emma under a re- upheld any theory. if it is sustainable theory, scission be entitled to the return of *7 (1983), Flynn Ind.App., v. Barker 450 her required but would be to denied, 934, 105 N.E.2d 469 cert. U.S. restore to & M and IFR the (1984). S.Ct. 83 L.Ed.2d 270 Two bas price. Emma would entitled to reim- judg es are here to sustain the bursement expenses, for reasonable but ment; judgment, one is construction of the she would general not be entitled to dam- judg and the other is modification of the ages. damages Punitive could also be ruling in ment the trial court its on the judgment, awarded. In its the trial court motion to correct error. reconveyance ordered ordering without the purchase price. restoration of the theOn judgment A is construed in the error, judgment face of the there was same manner as a contract would be. The argued which was in the motion to correct language ambiguous judgment of a is ruling error. In its on the motion to cor- persons when it would lead two reasonable error, rect the trial court stated: to different as to its effect and conclusions contended, meaning. construing language & and have When the “[I among things, judgment, reviewing other that the Court could of a the court will judgment not enter a ordering reconvey- attempt provisions to read all of the of a 308

judgment argue so as to them all effec I M additionally render & and IFR that In Flynn, supra. tive. the construction holding the trial them court erred to reviewing may judgment, of a the court “necessity” eminent domain standards be- record, including not look at the entire conveyance the cause Harlans’ volun- findings, argu complaint, limited to the tary. perceive We that the basis the ment, evidence, ascertain the mean and to misrepresentation action is a blatant of a ing judgment. and effect of the ex State need, present existing the result of which I Jewelry rel. v. Enterprises, Booth Beck acquired property & M it otherwise could (1942), 41 Inc. 220 Ind. N.E.2d get. specula- not Whether its motive was Cleavenger, 134 Admr. v. Rueth values, or to put tion of land the lnd.App. N.E.2d base, into the rate the evidence does not event, any represented show. & M a A judg trial court correct a Likewise, that did I M staus not exist. & judgment ment to make the conform argue and IFR the trial erred in court the original entry intent of trial court the holding plan. that I & M could not its alter judgment. Flynn, supra. Such ruling The obvious basis of the is that I & discretion, abuse of even the not an where alter, plan only possibility. M had no to petition to amend was filed four months entry judgment after the of a the trial finally I M and IFR claim the trial judgment amended the an court to correct making findings erred in on court ambiguous omission. Lankenau v. Lanke laches, affirmative defenses of statute Ind.App. 45, nau N.E.2d limitations, and estoppel. Our examination Procedure, Under Ind.Rules Trial of the record reveals were 59(J)(3) court, Rule the trial findings entitled to favorable on those is- error, ruling may: the motion correct on to Again, I request sues. & M IFR us to “(3) alter, amend, modify judg- reweigh or correct the evidence and our substitute

ment; judgment for that of trial court. (4) amend findings or correct or reasons, all For this cause is above 52(B).” judgment provided as in Rule affirmed. Procedure, Ind.Rules of Trial Rule Judgment affirmed. 52(B), court, permits upon the trial its own or motion with or as of the motion to ROBERTSON, J., concurs. error, open judgment correct to or or make amend new and enter a RATLIFF, C.J., opinion. concurs with judgment, new combination thereof. RATLIFF, Judge, concurring. Chief Thus, ample authority permits exists which court, up including majority opinion a trial to least twice states that ruling error, on the judgment motion correct of the trial court must be alter, modify judgment upheld any legal amend or its if upon with it can be sustained perfectly limitation. from theory supports. out It is clear which the evidence At complaint, theory the judgment, the 306 and 308. While this is indeed the case, ruling involving general finding and the the motion rule cases error, correct that the intent of the trial Shrum Dalton court, entering judgment, Ind.App., was that such is not the *8 punitive damages upon Emma was to judgment receive rule where the is based equitable special findings based on relief in the of fact made amount and entered $86,179.00, Procedure, against pursuant which was offset the to Ind.Rules of Trial price $36,179.00. findings result are en- special That Rule Where reached, tered, the affirm appellate can still whether we denom tribunal ground inate the method we at it the court’s which arrived trial judgment, supports, as construction of the must de- the or modifi which original judgment by specific findings cation of the rul if the ade- the termine are ing motion quate support on the to correct error. the trial court’s decision. Exterminating Company, Inc. v. Orkin (1984), Ind.App., 466 N.E.2d

Walters

Shrum, 442 N.E.2d at 372. case, spe-

In this I find the trial court’s judg- sustain

cial sufficient to its Therefore, I

ment. concur. Monroe, D. Jurgemeyer,

Chris Voelz & Monroe, Columbus, appellant. for Pearson, Linley Gen., E. Atty. Michael Worden, Gen., Deputy Atty. Gene Office of Gen., Atty. Indianapolis, appellee. . SEELEY, Appellant, D. Richard ROBERTSON, Judge. Appellant-defendant Seeley Richard ap- Indiana, Appellee. STATE of peals molesting, his conviction of child a No. 03A01-8606-CR-00163. felony, contending Class C that the trial court failed state sufficient reasons Indiana, Appeals Court of increasing presumptive sentence First District. years. three Feb. We affirm. sentencing

The court’s order reads: The defendant has committed an act deprives opportu- of an which victim nity experience pristine, under- standing loving relationship. In- deed, shallow, emp- the victim has ty dirty point of reference as to the relationships physical emotional and be- Indeed, dep- men tween and women. lasting, rivation will have terrible effects upon only upon the victim but those intimately Particularly around her. ter- rible, history proceeds is the which [sic] Taking it. as true the victim’s rendition relationship history of the between victim, it can defendant and prosecution, said that but for this with future defendant would continue sodomy. Un- acts molestation questionably defendant has visited great dispair emotional and hurt [sic] upon family. victim and acts come from a man who is not Such justice sys- unfamiliar with our criminal contact, although prior tem. Such rela- tively compared with criminal his- small others, of the un- tories of is indicative *9 setting in a likelihood of rehabilitation