*1 awarding Craig The Board’s decision ben- dependent
efits as af- presumptive
firmed.
BUCHANAN, (sitting by designa- C. J.
tion), CONOVER, J., concur. LYSTARCZYK, Lystarczyk,
John Erma
Appellants-Defendants, SMITS, Realty,
Vernon Able C. d/b/a
Plaintiff-Appellee.
No. 3-781A186. Indiana, of Appeals of
Court
Third District.
May *2 Sanford, Plodowski &
W. Russеll San- ford, Bend, appellants-defend- for South ants. Asher, Bend, plain-
Charles A. South tiff-appellee.
STATON, Judge. doing business as Able Vernon C. Smits Erma Realty Lystarczyk1 and John and was whereby into a contract Smits entered a house as close as to build a model home had built possible to $34,600. and was to trial, appeals the From a damages, compensatory award to damages, fees for punitive Lys- Lystarczyk’s breach of the contraсt. following issues for our tarczyk raises consideration:2 damages exces- (1) compensatory Are the to law? contrary sive and prejudgment to award (2) proper Was it in- prejudgment was the interest and properly terest calculated? Lystarczyk’s brief have parties The issues stated Hereinafter the will be referred to as Lystarczyk. reworded. been consolidated and judgment Is the award оf sustain punitive of the trial court. supported by sufficient We will reverse the only if evidence? evidence and reasonable inferences un- disputed could only lead to a verdict Did refusing the trial court err contrary to that reached jury. give a tendered instruction? that Smits admit Smits raises the issue of whether he *3 ted that several items of the in house were by per- should awarded this ten Court and need of сorrection that it would have brought cent because Lystarczyk cost to to $700.00 make the correc $500.00 appeal.3 this tions Lystarczyk before moved the into part, We affirm in remand in reverse and Lystarczyk argues house. that at least part, deny and the of appeal assessment should have been set off the against $500.00 damages. compensatory damages amount of awarded. Wе disagree. I. to which testimony Lystarczyk refers Compensatory Damages is as follows: trial, his complaint In and al- at “Q. I know dispute Now there is a here leged paid that only had things as to who caused certain not $24,000.00 $34,600.00 of the price contracted finished, putting to be but that house, (2) for the Lys- construction of the let you give your aside me ask to tarczyk delayed added to construction and it today bеst estimate of what expense the of construction house of the or you would cost for to take a crew harassing workers their limiting and access go pick to back and crew anyone site, (3) to the construction Lystarczyk had back and finish or go and fix these not paid “extras” added the house items, that any drywall cracks in that had requested addition house, any replacement, any trim сontract, to what was in the Lys- and efflorescence, any problems with tarczyk had done things these in a mali- doors, exterior, any any interior or cious, fraudulent, wanton, willful reck- and caulking any bathrooms and
less, oppressive, and manner in outrageous staging? metal [sic] disregard wholesale dire the conse- Well, I di- really you “A. think quences $13,- to Smits. The jury awarded up. Any problem vide this $3,000.00 compensatory 450.00 damages, at- drywaller’s would be the drywalling fees, torney and punitive dam- I shouldn’t have to responsibility. ages. for that. appeal, argues On that understand, go “Q. you but if I compensatory damages are excessive and it sub- today wasn’t the back contrary law because not they sup- are responsibility what contractor’s ported probative sufficient evidence of it today would cost to fix that? Lystаrczyk recognizes value. standard between say eight “A. I would and thir- set forth Palmer v. Decker teen, fourteen-hundred-dollars. 593, reviewing Ind. 798: in Now, the evidence on appeal “Q. you we look to the evi- what would it cost fix most brought dence favorable to to determine items had those been if probative there substantial attention your evidence of before Mr. value or reasonable inferеnces therefrom to Mrs. moved in? case-in-chief). 3. Smits that all is- Smits’ cites waived the close of as 50(A). regarding Procedure, sufficiency authority sues presented of the evidence Ind. Rule Rules of Trial 50(A) argu- at trial because did not TR. does judgment Thompson renew his motion for on the evi- has been in 4 ment. This noted Hostetler, (Lystarczyk dence at the close of all Indiana Forms of Practice and Plead- еvidence (1981). ing, p. had moved for a on evidence at 50-10 Indiana has not stated if previously five. Probably “A. about attorney’s during when an remarks “Q. About five-dollars? [sic] opening binding upon statement “A. to seven-hundred. Five client as an admission of fact which relieves “Q. These subcontractors would party present of the opposing duty fix obligated been to come back and considering After evidencе of that fact. these items? con reasoning jurisdictions, of other we can an admis clude that an make “A. Yes. statement that is bind during opening sion “Q. ready And stood to call them you opposing relieves the ing upon his client and back? evidence on party duty present (Emphasis added.) right.” “A. That’s Corp. McLhinney v. Landsdell issue. (1969), 254 254 A.2d Maryland Md. reasonably could be inter- testimony This (1973), 267 Or. Erwin v. Thomas preted to state that if did all *4 1279, 1280; City DeArmon v. of St. 516 P.2d repairs before moved into 799; 795, (1975), Mo.App., 525 Louis S.W.2d house, work that the subcontrac- including Insurance Com Fireman’s Fund American do, have cost really tors should it would Securities, (1971), Inc. 208 panies v. Central testify to a to Smits did $500 $800.00. 916; 263, 914, Phillis Devel Kan. 491 P.2d it cost him to specific amount that would Insur opment Co. v. Commercial Standard repairs make in addition to the work the 560; 558, (1969), Okl., ance 457 P.2d Co. obligated perform. to subcontractors were (1969), Cal.App.2d Miller v. Johnston 270 with that the agree We can not 705; 289, 699, v. Cal.Rptr. 75 see Samuels proves evidence before the trial court that 129, (1969), Spangler Ky., 441 S.W.2d position in a better than he put Smits was (1954), 130 Colo. see LaRocco v. Fernandez by would have been $500.00. 523, 232, Koer Trollope 277 P.2d see argues that Lystarczyk also $50.00 (1970), ner 106 Ariz. 470 P.2d against have been set off is Usually, opening an statement awarded bеcause admitted in his acquaint judge jury and used to opening statement that had le- prove; it is the facts that counsel intends to gitimately expended repair this amount to McLhinney, su not substantive evidence.. garage attorney his door. stated the Smits’ and If an makes a clear pra. following argument: in opening fact, has of he or she unequivocal admission “Now, Lystarczyks have claimed binding is judicial admission4 which made a home— that these defects have made the DeArmon, supra. upon his or her client.5 have reduced the market value of the upon anticipated proof A mere of outline going to an they home and that cost case is not to be any of the issues of the money remedy. extreme amount of admission, binding Id. regarded as a record, However, in it should be noted in a аmbiguity Where there is or doubt show, and the evidence will that to date statement, that the presumed it is spent two- they paid fact have —have Fire did to make an admission. not intend remedy these hundred-and-fifty-dollars Compa American Insurance man’s Fund terrible Two-hundred extremely defects. nies, supra. So, unnecessary. of that amount was make a clear short, attorney did not spent fifty-dollars on the Smits’ fifty that dоllars unequivocal admission total of all these defects.” by opposing party. stipulation judicial as evidence introduced 4. A admission is a formal 64 L.Rev. 1121. de- Columbia element of a claim or that concedes fense; therefore, the issue conclu- it determines by showing his of fraud In the absence of a entirely dispenses sively the need for fur- attorney, his the actions of is bound a client An evidеntial ad- ther on that issue. evidence attorney. Dubois Circuit Court State v. party of or conduct mission is a statement 177, 178. Ind. spent was where proper to correct defects of the house. the trier of fact need not attorney’s anticipated judgment mere outline of its exercise to assess the amount proof upon regarded damages. this issue cannot be as binding admission. Contrary assertions, to Lystarczyk’s argues of fact that used a trier did not have to exercise its quality joist lesser assess the amount of damages construction of the once liability house than it determined was the contract. damages. Both the argues amount owed on the He that set off should be and the cost against specifi contract of extras was the compensatory damages award cally forth. The of damages set award was ed. recounts the most evidence therefore a mere computation mathematical favorable to position attempts his liability once had been determined. It was discredit the evidence most favorable to the proper award prejudgment interest.7 judgment by arguing testimony that Smits’ conjecture; therefore, is based upon it is also that argues jury incompetent. it say Suffice that when prejudgment awarded Smits excess inter- considered, testimony all Smits’ it is interpreting est. He the evi- obvious that his testimony upon is based the light dence in most favorable knowledge. personal testimony owing the debt was due and from October conflicted. Graves6 15,1977 (the through October date resolved this conflict favor. judgment). agree We due to the follow- Therefore, noted, as Lystarczyk we view ing computations: light the evidence in the most favorable to Owed on contract 9,600.00 *5 $ to the house + Extras added 1,583.83 Lystarczyk Smits. was not to a entitled $2,500.00set-off. to TOTAL owed Smits construc- 11,183.83 $ tion II. = $11,183.83 annum for 2 $1,860.99 8% on per years Prejudgment Interest Total for construction 11,183.83 $ + interest 1,860.99 years argues Lystarczyk prejudgment that interest have granted. should not been Damages end of 2 at 13,044.82 years $ Prejudgment is proper interest when the = 28.59 annum for 10 on 8% days per $ damages are ascertainable in accordance Damages end of 2 at 13,044.82 years $ with fixed accepted rules of evidence and 28.59 for 10 + Interest days standards of valuation at the dam time the ages Industries, accrued. Indiana Inc. v. TOTAL DAMAGES 13,073.41 $ Wedge (1982), Products Ind.App., 430 Damages awarded 13,450.00 $ N.E.2d Wayne Fort National Bank v. damages Actual -13,073.41 (1981), Ind.App., Schеr 419 N.E.2d damages 376.59 Excess $ (1981), Zalud v. Ethan Associates Ind. damages The award of should decreased App., 418 N.E.2d recently As we by $376.59. Industries, Inc., noted in supra, Indiana “ascertainable” standard is in reference III. damages the amount of distinguished as Sufficient Evidence from the liability for those The damages. Damages A. Punitive trier of always fact must judg exercise its ment to the liability determine for dam there is Lystarczyk argues that insuffi- аges; however, prejudgment puni- interest is award of cient evidence Lystarczyk’s stopped running expert 6. Graves was interest. We witness. of did not $1,000.00 set-off; Lystarczyk find therefore, entitled to Lystarczyk also that if we found that stop running his of tender did not Lystarczyk was entitled to a set-off at least interest. $1,000.00, payment then he tendered full December of 1977and such tender reasonably could infer jury The there is no evidence because tive such that or bad faith Lystarczyk fraud evidence that oppression, from the above fraud, malice, gross that one could find payment to dur trying delay was Smits con- mingle in the oppression negligence, or They of the house. ing the construction troversy. Lystarczyk pre that have concluded could arguing for this really is and frustrat of the house completion vented fa light evidence in a weigh the Court to gain en sub-contractors to attempts ed we cannot do as we This vorable to him. correct defects. so that could trance nor determine the evidence weigh neither Lys- that jury could further conclude witnesses. B & T Distrib credibility of had cre used the situation he tarczyk then (1977), utors, 266 Ind. Inc. v. Riehie payments withhold from ated as a reason to 178, 180. view We the evidence Latеr, offered to settle Smits. inferences therefrom the reasonable $1,000 than the con dispute for less light most favorable Smits. also conclude price. could tracted judg- favorable to the evidence most Lystarczyk’s certain inconsistencies that ment as follows: and' is Smits testimony demonstrat depositions and trial signed a contract which Smits payment avoid attempted he had ed that possible house as close as build jury could therefore through perjury. The During home had built. to the model oppres there was evidence conclude that house, told construction of the sion, fraud, faith. or bad money not have the Smits that he did due for the construction pay the installment
of the house. told Smits Attorney Fees B. Lystarczyk’s paid would not be until litiga party each to the Generally, Later, sold.8 рresent home was Excep fees. must his own counsel tion house tem- of the new stopped construction tions, created use of the which have been he assurance that porarily until he received court, do exist. powers of the equitable After construction paid. would be Stem, B. Inc. Umbreit Chester it was com- new house resumed but before 1116, 1119. was Ind.App., newly moved into the pleted, Lystarczyk under what knowl- awarded his house without *6 constructed edge. excep then frustrated Smits’ behavior” known as the “obdurate by denying house complete efforts to the tion; equitable power to the court uses its him access to the house. who has be a defendant impose costs on faith. Id. haved in bad of the occupancy
During Lystarczyk’s house, pleaded newly constructed recognizes that when pay him so that he could with may be awarded it the house. building punitive pay bills incurred fees; however, he need- how he explained attorney to award proper keep his small construction money ed the that he had only testified argues that Smits with- passed months Two going. business $2,005.00 by fees the for expended complaint about struc- any out or payment evidence argues that this of trial. He dаte Then,9 Lystarczyk told Smits tural defects. $3,000.00 support is insufficient money rest of the pay he would not him the agree. We award. of the house be- owed for the construction Financing, Inc. v. Janko In Aircraft U.S. was not entitled to the cause he felt Smits 295, 287 at Ind.App., 407 N.E.2d (1980), vich in the price full due to the defects contract court writing for this Chipman, Judge Later, all house. offered $1,000.00 wrote: price. but of the contract plead- Smits first months after This was four Lystarczyk’s present 9.
8. was not mort- home explained needed payment how he gaged. ed for going. keep payment to his business 1017 (4) involved, counsel evidence present “When does not The amount expended as hours of to the in behalf his imposed by The time limitations client perhaps out-of-pocket or her circumstances. the risk is expenses, then taken that a See, (1978), Fox v. Galvin Ind.App., subsequent attorney’s may award of 103, 108. present any N.E.2d Smits did not considered, on appeal, as excessive concerning evidence these factors. may any since the record not indicate of is attorney’s award fee not justification for the amount awarded. supported by sufficient evidence. He that in noted cases tried without IV. judge been there had instances where a Instruction judicial taken notice of the reasonableness court ten- Lystarczyk’s The trial refused of judge an fee.10 The could take no. 6. judicial dered instruction notice of attor what a reasonable this was reversible error. disa- We ney fee would be because she was he or gree. familiar the action and the amount was required. work that v. Gerbe Geberin When we consider er whether 255, 41, (1977), rin 172 Ind.App. ror results from the refusal of a tendered jury, not being confronted with instruction, we must determine whether basis, daily such matters on a not make can instruction correctly tendered states judgment. the same law, (2) is there evidence in the record to legal stands profession on instruction, (3) giving of the plane the same with other professions substance of the instruction is covеred in litigation involving professional fees. Proof accepted court. another instruction the nature of services 30, Dahlberg Ogle (1978), v. 268 Ind. rendered and the reasonableness 159, 164-165. The instruction refus charge Deatherage made.11 v. Walker court ed the trial is as follows: 845, 847; (1980), Ala.Civ.App., 387 So.2d was in force with- “There an ordinance 256, Lyle Lyle (1964), Fla.App., 167 So.2d County Joseph, of St. State 257; State, By Through Highway State Indiаna, provided part: which 460, (1978), Commission v. Marsh 175 Mont. or any person ‘It be unlawful for shall 43; 38, (1980), 575 P.2d Trudel v. Trudel persons holding valid licens- annual Or.App. 608 P.2d required, any pub- es as herein to wire WilliamsburgNursing Home, Paramedics, Inc. v. limits building, lic or within the private Inc., (1970), Tex.Civ.App., 460 S.W.2d unincorporated areas of St. Jo- Co., Casper Gifford v. Inc. Sign Neon Indiana, seph County, by the except Wyo., 618 An exam P.2d who property, individual owns the *7 ple of the various may factors which be lighting heating by or or for electricity determining considered when objectively repair or power, use of electrical or to attorney reasonable award of include wires, change any electrical wire or following: the expose appli- sell or for sale electrical (1) time, labor, The and skill devices, ances, apparatus, designed to perform legal properly, the service of or to electrical part attached involved, difficulty The of the issues currents, in lighting, heating power or private fee in or said customarily charged any place building The the in ’ services, locality legal for similar county...
10. Usually 703; Buesking may judicial App., the trial court 422 N.E.2d Belcher not take v. (1978), Ind.App., notice of the fee 371 N.E.2d 420. reasonableness of the opportunity without disclosure at trial and an object. the con- Marriage Gray 11. A standard would undermine In lesser Re Ind. public the bar. in the bench and fidence of the HOFFMAN, Judge, concurring Presiding 3,No.
“Ordinance in result. preponderance from a you “If find plaintiff violated the the evidence that reached the I concur in the result construction of de- in the this ordinance however to ad- mаjority. compelled I am home, plaintiff should not then fendant’s fees. dress the issue of portion of the sum for that any recover judicial may court take Generally, a trial with electrical work contract concerned attorney fee notice of what a reasonable electrical performing the or the cost of should be. work.” (1974), 261 Ind. Lockyear In re con- as follows: Smits evidence was 440; N.E.2d Kennedy, a licensed electri- Dick tracted (1964), 245 Ind. McDaniel v. McDaniel cian, work on the house. do the electrical sup- all the holes in the men drilled ran wiring which the through port (1981), Ind.App., beams Marriage Gray In re the Kennedy wire. wired ran the box every box and internal circuit breaker L Ass’n. v. First & Valley First Bank S he did not stated that the house. Smits (1980), Ind.App., 412 N.E.2d wiring. do observe his men judge trial is an is true because the This thе base the support right may in his own expert There is no evidence The ordinance knowledge experience the instruction. giving of award on his an unlicensed it is unlawful for generally states that Fox legal profession. See The evidence in building. wire a person to 103. In (1978),Ind.App., 381 N.E.2d Galvin per a licensed only reveals that the record determination, trial making such a trial court did son the house. The wired fact-finder in acting as the a case judge is the tendered in not when it refused err jury. without a tried struction. however, a dif- presents case present tried before This case was ferent situation. V. acted as the therefore jury. not Generally, jurors do finder of fact. Damages necessary to make a expertise damages attor- regarding a reasonable determination 15(G) against Lys- AP. be аssessed under must be suffi- fee. In such cases there ney 15(G) tarczyk. AP. states: support evidence in the record cient If the Appellant. “Damages Against The record jury’s determination. judgment, appeal court on affirms evi- contain sufficient present case does not in favor of the damages may be assessed of attor- jury’s award dence (10%) cent exceeding per ten appellee fees. ney money judgments, upon judgment, in the discretion and in other cases
court; court shall remand such and the
cause for execution.”
As we have not affirmed inappropriate.
completely, remanded part,
Affirmed in reversed and *8 appeal damages denied. part, J.,
GARRARD, concurs.
HOFFMAN, J., P. concurs in result
opinion.