Nehi Beverage Co., Inc. v. Petri

is not sufficient to demonstrate that it was COMPANY,

indеed the defendant who was convicted of INC. NEHI BEVERAGE Sullivan, prior supra. offense. While and Marvin INDIANAPOLIS OF (Defendants), Farber, Appellants acknowledges point, the State it never- theless that a sufficient link is es- tablished the records reflect not where PETRI, as Trustee Joe J. Vernon same name but also same birth date Advertising Inc. Creditors’ security number. In social Trust, Appellee-Cross-Appellant contention, cites State Fozzard v. (Plaintiff), (1988),Ind., 518 Sapp State N.E.2d 789 and (1987), Ind., v. State 513 N.E.2d 178. The State’s is not well taken. Company, Royal Crown Cola prior Fozzard the documents of convic- Cross-Appellee. tions contained both same birth date 49A04-8802-CV-53. No. photograph and a which the could Indiаna, Appeals of compare Court of with the defendant seated Fourth District. present courtroom. In the no such evidence was during introduced the en- 4,May phase hancement of the trial. In Sapp the Rehearing July Opinion on copies State introduced Depart- certified ment of Correction records with the defen- name, birth,

dant’s security date of social

number, fingerprints physical de- Furthermore,

scription. produc- the State

ed fingerprinting expert who testified fingerprints

that the defendant’s matched

those in again, the records. Once no such during

evidence was introduced the en- phase

hancement Finally, the trial. we

note the Bureau of Motor Vehicles record

and the abstract of court record contained find, therefore,

different birth dates. We evidentiary link per- is too tenuous to juror

mit a beyond reasonable to find Livingston pre-

reasonable doubt driving while intoxicat-

viously convicted alleged charging in the Informa-

ed as was

tion. reasons, is af- this cause

For the above remanded part and reversed and

firmed court is ordered to vacate part. The trial D ‍‌‌‌‌​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌​​‌‍as a Class judgment of conviction Livingston accord-

felony and resentence

ingly. part and reversed

Judgment affirmed part. BUCHANAN, JJ.,

ROBERTSON and

concur. (Trustee) Advertising, entered re- man spectively verdict, (2) a claim remоved by the court on decision consideration.1 We consider and decide the issues Appellant

as relate to Farber. Plaintiff-Appellee Cross-Appellant New- appeals man’s trustee on the claim removed from the court’s considera- tion. We affirm. eight Farber lists issues. Consolidated rephrased they

and erred are: whether the court giving 1.2 the court’s final instructions 9, 10, 13, 14, 15, numbered 20; and refusing part Appellant’s and or all of 1, 4,2, tendered instructions numbered and ap- Richards, Indianapolis, for Dean E. pellants. granting judgment 2. Nehi on enrichment; the Trustee’s claim Ellis, Mishkin, Mish- Michael 0. Sidney Maher, India- Cromer, & kin, Eaglesfield denying appellant 3.3 Farber’s motion napolis, аppellee-cross-appellant. for evidence; for a Dickinson, ‍‌‌‌‌​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌​​‌‍Price, Price J. Henry Curtis J. 4.4 awarding prejudgment interest. Thomas W. Indianapolis, Delaney, & Cross-Appellant Newman’s trustee Sturm, Wiley, Rein & L. Queen, Michael presents one issue: D.C., cross-appel- Washington, Fielding, lee. 1. trial court erred re- whether the moving the Trust- from consideration CONOVER, Presiding Judge. unjust enrichment. ee’s claim of Defendants-Appellants Beverage Nehi FACTS appeal Company and Marvin Farber from money judgments Plaintiff-Ap- in favor of began April, This case as a sim- Petrie, ple trustee of Joe Nehi pellee Vernon J. New- collection case. Newman sued Regardless petition bankruptcy 1. Nehi filed a while this of whether such failure was delib- appeal pending. stay provi erate or was The automatic negligence, result of Rich- 362(a)(1) precludes ards professional sion of 11 U.S.C. has considera breached his responsibili- ty any tion of issues as relate to this Nehi. court. His inaction regard in this required us to judicial assume the role represented Nehi and Farber are “detec- both at- tive" to matter, ferret out the truth of torney Only Dean E. Richards. after we re- ex- pending process in the record, an inordinate bankruptcy amount viewed the notice, noted a 1985 judicial pursuit time in detriment of issued an order to show cause did litigants appeals other Richаrds, whose pend untimely also response, deign here. to in- We direct Richards’s provisions attention to the bankruptcy petition. form us about the 1988 Conduct, of Rules of 3.1, Professional recognize Rule Mer- and understand the automatic Contentions, 3.3, itorious Claims and stay Rule provisions Bankruptcy Can- Code are ef- Tribunal, dor 3.5, Toward the Impar- and Rule filing fective from the time of whether or not tiality (c). Tribunal, Decorum of the we are notified. subsection time the conceding While counsel petition not have was filed until our order to show violated the cause, letter of these rules actively pursued so as to appeal warrant Richards disciplinary proceedings, unquestionably behalf of both he has Nehi and Farber. He moved for spirit violated their granted inaction in this extensions of time to file briefs re- gard. on behalf of both then filed them. He took all both, attorney these actions as the never Appellant’s 2. issues 1-5. informing us our consideration was limited to by operation of 11 U.S.C. § Appellant's issue 7. Further, response Richards's to our order to days cause show was 16 late and did not men- Appellant’s issue 8. bankruptcy tion the 1985 notice which was its subject. parties The other to this told us petition the 1985 had been dismissed. Beverage Company, Indianapolis Inc. of Conrail, of them. Cf. Hebei v. (Nehi) alleged Ind., on its account. Newman (claimed error $47,750. prayed owed Nehi that considered); about refused instructions not amount, plus prejudgment interest and Stepp v. Review Board pleadings, costs. After a storm of claims, cross (substantial compliance parties, and the addition of new 8.3(A)permitted with A.R. issues); consideration August, case came to trial in late 1987. At Lambert v. Farmers Bank trial, plaintiff the time of was Vernon (failure Ind.App., 519 N.E.2d J. Petrie as trustee for Joe Newman Adver- 8.3(A)(4),(7) comply pre- with A.R. did Trust; tising, Inc. Creditors Defendants appellate review); Co., Captain clude Beverage Indianapolis, were Nehi Co. of Steinberg Inc. v. N.E.2d Inc., Royal Marvin Crown Cola (claimed trans. denied (R.C.); аgainst against Co. R.C. had a cross-claim waived). sufficiency of Ap- about Nehi; and Nehi had a counterclaim pellants demonstrating bear the burden of R.C. through error. This court will not sift record to locate error so as to state an complaint The Trustee’s sixth amended appellant’s case for him. Matter Loeb alleged Count all defendants were indebt- (1986), Ind.App., 492 N.E.2d Advertising, ed to Joe Newman advertising unjustly Inc. for services, II Count thereby, enriched and in Count III Appellate 8.3(A)(4)requires Rule an agreed pay up R.C. had to Nehi to one-half appellant’s brief to contain a statement of advertising campaign’s of the Newman was the third cost and the says: case. It party beneficiary (4) A statement of the case. The trial, thereof. At the court took from the briefly statement shall first indicate jury consideration of the II Trustee’s Count nature of the proceed- the course of enrichment. The then re- ings, disposition and its in the court be- $42,800 turned a verdict of for Newman’s low, including a verbatim statement of against I, Nehi on Count not but judgment. R.C., against $86,625 or Farber a verdict of The statement of the case is intended to against for Newman’s Trustee Far- setting proce- assist this court by forth the ber, but found favor of on R.C. Count posture dural appellant of the case. An III. The trial court entered on need not include the contents and dates of together pre-judgment these verdicts interest of with pleadings, hearings, orders, all but it is $12,292.27 I, $23,- on Count necessary which the issues on accurately report ail entries III, on 677.50 court on its own then entered and costs. The trial explain the court’s actions and affect Moore v. State $47,750 for Newman’s Trustee Ind.App., 426 N.E.2d II, Nehi on Count and found in favor of diligent probing, Here with the informa- not, Defendants R.C. It did nuggets required by tional the rule can be however, award interest on its superfluous found buried within overbur- judgment. den contained in Farber’s statement of the Farber’s motion to correct error and anything case. It is a but brief and contains Newman’s Trustee’s motion to ror were denied. er- correct plethora of information extraneous to the They appeal cross-ap- purpose Posey of the rule. Cf. Matter of peal respectively. (puni- 513 N.E.2d necessary Additional facts as are stated attorney noncompli- tive ance fees awarded for below. 8.3(A); Posey Lafayette A.R. v. with (1987),Ind., Bank & Trust Co. DISCUSSION (award punitive attorney fees af- (a) Appellant’s Noncompliance Brief: transfer). petition firmed Appellate with Rules. 8.3(A)(5) requires appellant’s A.R. an generally appellant’s We first note brief have statement facts. The comply brief submitted Farber fails to says: rule Procedure, Appellatе with Ind.Rules of (5) A statement of the facts relevant 8.3(A)(4),8.3(A)(5) 8.3(A)(7). Rule review, presented to the issues prefer to decide cases on the appropriate references to the record. merits rather than on technicalities. How The statement need not make references ever, we deem errors an will waived where parts particularly of the record not appellant’s noncompliance is rules related to involved the error impedes so substantial it our consideration claimed. specific objection. Terre Haute timely facts consists Farber’s statement of (1984), Ind. summary Hospital v. El-Issa Regional of testi a witness witness denied; 1371, 1376, App., trans. to his conten mony purportedly favorable Mutual Ins. Co. of facts Farm Bureau This is not a statement United tions. within the 522, 526; 8.3(A)(5). Ind.App., 463 N.E.2d meaning of A.R. Cook 51(C). Procedure, Trial Rule nar Ind.Rules of of facts should be a concise statement light in a most favor rative of facts stated Farber did record shows A review this It should not be judgment. able argumentative. 7, 8, 9, 13, instructions object to court’s not summarize It should 14, 15, Appellate of these or 16. review testimony Corp. of each witness. FMC instructions waived. (1988),Ind.App., 526 N.E.2d Brown v. 723, quote argument does not Farber’s n. v. Dean Walters quotes 19 and instructions 10 and court’s 247, 249; Lucas v. Frazee argument only part of instruction 20. The (1984), Ind.App., 471 N.E.2d n. quote objections to 19 and 20. dоes not objection to num argument quotes the The ber 8.3(A)(7) requires appellant’s A.R. an objection claims it is an but section. The

brief to have rule objection made. 8 for which no number provides part relevant Appellate review of these instructions argument. assigned An Each error 8.3(A)(7). A.R. waived. appel- in the motion to correct errors that lant intends to raise shall be specifically and followed set forth (ii) Instructions Refused argument applicable thereto. asserts court erred failing give all of his tendered instruc the conten- argument The shall contain 1 tions dered instruction and 2. We note defendant’s ten the appellant respect thе with to tions of 1 number was modified support the reasons in presented, issues given as court’s instruction number 8. along to the with citations of contentions Defendant’s instruction 2 number was mod authorities, statutes, the parts of the given ified and as court’s instruction num showing upon, and a clear record relied above, ber 9. As noted Farber made no sup- issues and contentions of how the objection to court’s instructions 8 and 9. particular facts port thereof relate object Failure to error. to the modification waived the case under review. of Transport Sims Motor Lines v. predicated giving on the error is When Ind.App. 344, 352, 126 Davis 130 instruction, any the in- refusing of 82, 85. verbatim in shall be set out struction Farber asserts the court erred re- the argument section the the verbatim of brief fusing 5, his tendered instructions objections, any, made but does not set out the instructions of- alleged in the mo- Any error thereto. 8.3(A)(7). required by fered as A.R. These as correct errors not treated tion to are issues waived. shall be deemed waived. herein directed (Our emphasis). 8.3(A)(7) appellants to set requires A.R. (2) Judgment Court’s on Unjust the En- challenged instructions and out verbatim richment Claim—Count II to them. Farber’s objections the made Farber next jury’s contends the ver rule, noncompliance dis- wholesale dicts and judgments the entered below, precludes re- detail cussed in morе Counts and III should be set aside be of his first five issues. view cause are inconsistent with and con trary to judgment the court’s (b) on Count II. The Issues judgment Because on Count II was entered (1) first Farber’s five issues aver the in favor of he has no cause to gave court structions when it court's in- erred complain. One appeal cannot judgment a 7, 8, 9, 10, 13, 14, 15, 16, in his favor unless he is in some manner 19, and ‍‌‌‌‌​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌​​‌‍20. Farber contends the aggrieved thereby. Givan v. U.S. by refusing parts court erred or all of Ind.App. 133 N.E.2d 578. 1, 2, 4, his tendered instructions City Indianapolis v. Indiana State Cf. of Board Tax Commissioners of (i) Instructions Given Ind. (one who injury has no demonstrable party may has no standing No claim error toas appeal). giving of an instructiоn he unless makes a may grant court motion for Judgment Motion for defendant’s Denial of Evidence judgment on the evidence only when there is evidence on one or contends the court erred when it Farber of plain- more of the critical elements denied his motion the evi- or the tiff's cause action evidence with Procedure, T.R. 50. dence. IndJEtules respect thereto is without conflict and The motion was made after Newman’s only to leads inferences favor of the Farber, Nehi, Defendants Trustee rested. Procedure, Indiana Rules defendant. presented and R.C. then their Far- cases. 50(A); Trial Rule Welch v. Railroad us ber does not tell whether motiоn (1986), Ind.App., Crossing, Inc. judgment on the evidence was renewed at there N.E.2d failure where the end of the trial. Farber’s motion to proof on an essential element correct asserted denial the motion plaintiff’s the trial court improper evidence of- because "... taking jury. the case correct from fered Farber was insufficient as a Niagra Machine and Tools Craven 1:2). (Paragraph matter of 3 of R. law.” Works, (1981), Ind.App., 417 support Farber’s memorandum 1165, (1981), granted grounds, reh. other argued motion trustee Newman’s failed trans. denied. present any evidence either Farber or Nehi court consider property belonging to converted Newman. evidence and reasonable inference to be argues the evidence is On drawn the evidence sufficient insufficient to show Farber converted claim, or if support there is evidence property of another. Farber “there people differ allowing reasonable as finding is no evidence to result, then on the evidence corporation sepa- Farber treated as a Ind., improper. is 468 N.E.2d 205. Jones v. Gleim entity rate from himself and his business affairs and could be held liable the Kroger Store v. Presnell Co. Sav-On corporation (Appellant’s of his debts ...” (1987), Ind.App., 515 N.E.2d 46-47). Brief In this ledger points only plaintiff’s exhibit agree with Newman’s trustee. showing loan sheet Farber’s transaction arguments Farber’s are nothing more than personal with Nehi and a set-off of debts bare assertions the trial court erred him. from monies due serts were rendered for Nehi and Farber further as- denying his motion for judgment on the “all witnesses testified” all services evidence. presents Farber intelligible no Farber argument relating evidence to the motion. always acting on behalf of Nehi. Farber Farber only directs our attention plain to Newman’s abandoned its asserts Trustee (R. 10:2291), tiff’s cuss exhibit does not dis party beneficiary theory. third Farber any it, testimony concerning and thus claims there was evidence his acts made plaintiffs does not show how exhibit 40 joint him a venturer R.C. Nehi. with only leads to an inference in his favor. single Kopis Farber’s is argues Trustee citation to Newman’s Farber has v. Sav age Ind.App., this make waived contention failure to N.E.2d perti- about which he cogent argument, by “undoubtedly failure to cite to asserts it supports record, by failing Farber parts point.” (Ap nent cite addition, to ... this Brief, pellant’s 46). 8.3(A)(7). pertinent authority. argue A.R. In Farber does not must, how the argues facts and the law Trustee Farber of that case to, relate to this but failed show the evidence was with- contention. susceptible only out an conflict and This issue is waived failure to make in inference his favor. The trustee notes cogent argument. 8.3(A)(7); A.R. Captain must, error, Farber evidence and to show set forth the Co., v. Stenberg Inc. Ind.App., demonstrate evidence it were in his inferences from favor. noted, recently As when (4) Prejudgment Interest reviewing ruling ... trial court’s on a evidence, Finally, motion for Farber contends the court erred by awarding stan this court is dards which same prejudgment bound interest on the trial governed upon court’s verdicts counts I and III. Judg- in first instance. v. ment decision Tancos was not rendered Farber on (1986), Ind.App., I, N.E.2d Inc. Count A.W. thus he cannot appeal from it. Products, Givan, Riley Inc. v. supra. Senco We consider the issue 561. A trial as it N.E.2d relates Count III. supports his explain not which evidence prеjudgment argues awards Farber damages not why 24-4.- could be IND. CODE governed are interest on the fixed sums al- argues simply determined Farber 6-1-101,5 24-4.6-1-102.6 has waived this leged in accord to be owed. Farber not ascertainable damages were cogent argu- failing to make a accepted issue rules of fixed Procedure, A.R. Courtesy ment. Ind.Rules evaluation, citing standards 8.3(A)(7). (1983), Ind. Labs Enters, v. Richards summarizes App., CROSS-APPEAL (1983), Ind. v. Schact of Rosner cases Trustee con- Cross-appellant Newman’s 1079, and Nationwide App., 452 it removed erred when the court tends from v. Nettle Ins. Co. Mutual of its jury consideration relate them not does but 434 this II was removed complaint. Count R.C.’s defendant jury consideration argues Trustee Farber fails Newman’s remand Trustee seeks motion. Newman’s statutes, fails to set forth set out relevant the extent this issue. To trial on for new argument, the cases cited his to this facts, fails to relate II relates to defendant judgment on Count appeal, point to and fails to relevant opinion Nehi, expresses no be- court portions grounds, or relevant stayed of it cause our consideration record in Trustee interest was correct. Farber’s motion to correct of his contention. The bankruptcy. of Nehi’s pending resolution opines prejudgment assessment of 362(a). the court 11 U.S.C. § The Trustee notes of R.C. and Far- favor entered еrror raised no things as now on this count. ber being prejudgment issue about assessment recover from the Trustee cannot stand jury. The Trustee a function of the asserts this count. them on case has payment the amount of never been due sum, Trustee Newman’s controversy. enrichment, eq while unjust claims of first note IND.CODE 24-4.6-1-101 We nature, claims quasi-contract are uitable applies judgments only, to interest on jury under T.R. tried to a prejudgment interest awards. IND. primary and to both lengthy citation With 24-4.- 24-4.6-1-102 and IND.CODE CODE 6-1-103 ar authority, secondary Newman’s concern the rate of interest to be enrichment arose unjust gues the claim it is to be applied and the time from which remedy for breach of аs a in the law courts applied. pay. implied promise to noting “equitable Citing cases our agree with Farber’s asser enrichment, nature” R.C. in awarded prejudgment tion interest be argue II was a claim separately damages is the award of ascertain where is unavailable. jury trial equity for which in accord fixed rules of evidence able and evaluation, recently As we discussed: accepted Lys standards (1982), Ind.App., tarczyk v. Smits right civil cases is simple and where a guaranteed N.E.2d mathematical the amount found liable. only in those actions which computation operate can by jury were to June prior triable at common law for which the defendant 18, 1852. Ind.Rules of Proce- Department dure, Indiana 38(A); Trial Rule Estate Ballard of of Service, v. Lance (1982), Public Chair Ind.App., v. Ballard 434 N.E.2d Welfare 1373, (1988), Ind., 523 N.E.2d 136,140. Equity claims are to be tried to demonstrate such Farber fails to the court. Beverly Lewandowski v. not con (1981), is not the case here. Farber does Ind.App., 1278, 420 N.E.2d He Therefore, test the amount of the interest. key the determination to be damages not ascertainable asserts accord with fixed rules were made is whether the claim involved is of legal equitable Ballard, or in character. of He does accepted standards evaluation. supra at Winney v. Board Com- of ment-, 5. 24-4.6-1-101. Maximum interest rate.—In- or judgmеnts money terest on (2) whenever ren- percent An annual rate of twelve [12%] dered shall be from the date of the return of the by parties. there was no contract the finding verdict or of the court until satisfaction at: 6. 24-4.6-1-102. agreement. Rate in absence of agreed parties rate, upon agree The rate —When the original do not con- upon tract sued which interest shall not on loans or money, exceed an annu- forbearances of percent goods al rate of higher things twelve though even or [12%] a in action shall be at the rate of may rate eight percent of interest per have payment been [8%] annum until of charged аccording prior judg- judgment. contract

85 (1977), 624, Ind.App. 174 equity, missioners 369 thus no garded as an action 661, recognizes jury trial). N.E.2d 664. Indiana denying request a a character of an action is deter- “[t]he phrases Our quasi- courts have used substance, mined its caption its or contract, implied-in-law, contract construc- English formal denomination.” Coal contract, quantum synon- tive meruit (1981), v. Ind.App., Durcholz 422 Co. v. ymously. Biggerstaff Vanderburgh Hu- 302, making N.E.2d 308. In such a de- (1983),Ind.App., Society mane 453 N.E.2d termination, we must examine the totali- 363, 364, are legal n. 1. These fictions ty pleadings of the relief sought. prevent providing remedy unjust a en- (1972), 497, v. 152 Yergin Ind.App. Hiatt richment, thereby promoting justice eq- (overruled 834, 284 N.E.2d 846-847 on uity. But, Biggerstaff, 453 N.E.2d at 364. grounds). other legal are created fictions courts of Co., Ag-Chem Midwest Fertilizer Inc. v. They law. at law and not in triable (1987), Equipment Co. 510 equity, entitled to thus one is 232, Accord, N.E.2d Jones v. Maren See, e.g. them. Board Commis- of (1988), go Bank State 526 N.E.2d County, supra. Decatur The sioners of 709, 713. Appellate Illinois in a Court of decision in case both II alleged precedents, recently Counts and accord with our dis- provided advertising services, gener- the confusion cussed reason for wares, goods, and merchandise to all defen- when one “claims” ated It enrichment. allegation dants. Count added said: “advertising advertising services and theory plaintiff on which the in this enjoyed, the benefit thereof and utilized kept have been damages, unjust suit money seeks en It defendants[.]” richment, sometimes referred to as resti averred the reasonable of the value servic- tution, implied law, quasi- contract $47,750, es was the same as the amount contract, in assumpsit, or an action averred in Count I. long law, product tradition in Unjust alleged in enrichment as Count II (Board and is an action at law. High equitable requiring is but the reason way v. City Commissioners Bloom payment for goods value of and services (1911), 164, 173, ington Ill. 253 97 N.E. received. (1971), Enterprises, Cato Inc. v. Fine 280, 284-85; Realtors, Dickerson ‍‌‌‌‌​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌​​‌‍Inc. v. 174, Ind.App. 163, 149 (1974), 1060, 1063, Ill.App.3d Frewert 16 146, theory claiming 154. The case of a 445, 448; 307 Restitution, see N.E.2d Restatement of unjustly defеndant has been enriched (1937); Introductory Note 1 legal E.g. equitable. be either Board of Palmer, (1978); sec. 1.2 1 Restitution A. County Commissioners Decatur Corbin, 19, (1 Contracts, sections 20 vol. 471, Greensburg Times 215 Ind. 1952); Dobbs, 4.2, ed. 232 emanates from the decision of the Remedies sec. at 480, 459, 19 (quasi-con N.E.2d 462-463 (1976).) equity The confusion with law), imposed tracts are or created reh. King’s 647, 215 Ind. 20 denied Bench in 1760 in case of Moses v. (quasi-contracts obligations 648 are created Eng.Rep. 2 Macferlan, Burr. by law); ordinarily law and enforced at common 676, where Lord Mansfield stated that Fertilizer, supra (indemnity Midwest obligation came “from defendant’s upon alleged claim was based breach of justice” founded in ties of natural warranties, express implied actions at (See equity plaintiff’s “the 1 case.” law); Indianapolis Raceway Park v. Cur Palmer, 1.2, (1978); sec. Restitution at 7 557, 559, Ind.App. tiss Highway Board Commissioners v. (unjust enrichment comes City 253 Ill. Bloomington purview within the action based on 285.) 97 N.E. As Palmer ex quasi-contract); Galtry and In re plains, concerning the statement ac Ind.App. quasi-contract being equitable tion of has (the appellate court, affirming a final ac times, repeated many been but counting, approval HOFFMAN, J., in concurs result. presented. record here we dis- separate Count III states a and distinct claim. argument actually cern Trustee s A. to be he As to Farbеr. legally Simply stated, was press entitled to have both his ex- Trustee had day in quasi-contract contract and court as to theories Farber and totally was suc I, submitted to a cessful. jury instructed Count express so Trustee’s con claim, could submitted, it should recover: determine under tract turned which one Trustee was jury re the trial court’s a verdict in Trustee, failure to favor of and do so constitutes a new the trial requiring judgment reversible error court entered against disagree. “in principal trial. We $86,625.00 sum of prejudgment interest thereon in the question The central here is whether the $28,677.50 sum of $110,302.50 for a total of trial failing court’s error in to submit plus Thus, (R. the costs of 4:828). this action[.]” quasi-contract Trustee’s claim to the currently Trustee is entitled to recov warranting constitutes reversible error money er all the to which he is entitled new on that issue as to RC and Farber under these II, facts because Count (as original opinion, noted in our Nehi’s quasi-contract theory, sought to recover for filing an bankruptcy petition of a constituted goods identical and services rendered election of remedies and its has by Thus, Newman. if even the cause were prejudice), been dismissed with or whether returned ory quasi-contract for trial on the the such again Having error is harmless. judgment thereon was also recov ques- reviewed matter as tо this against ered in Trustee, favor of tion, again we determine the trial court’s “our Rules do permit more than one regard error in this harmless and af- .was single satisfaction for a wrong,” as Trustee judgment firm the below. admits in his Petition for Rehearing. Since judgment rendered on includes appellate proce- Our rules of trial and all the relief to which Trustee is entitled quite specific dure are as to when and for collection of judgment any judgment what reasons trial court error shall be preclude would collection of appeal. deemed harmless or reversible on rendered in favor of in jury trial paid Procedure, Indiana Rules of Trial Rule 61 on Count II. The first when reads, pertinent part would constitute a setoff the sec No error either the admission or the ond, when rendered. Buffalo exclusion of evidence and no error or (1982), Ind.App., Buffalo defect in any ruling or anything order in 714; 17 Ind. Law Encyclopedia, Judgment, done or ground omitted the court ... Sec. (1959 West Publ. Co. reprint, —1st setting for ... aside a verdict or 1974). Thus, remand for trial on Count II for vacating, modifying or otherwise dis- would be a useless exercise. The error is turbing or ... reversal harmless as to Farber. on appeal, unless refusal to take such Company. Royal Crown Cola B. As to appears action to the court inconsistent Finally, question central justice. substantiаl The court at express quasi-contract both Trustee’s every stage of proceeding must dis- theories, i.e., pay whether RC was liable to regard any error or defect in pro- goods for the and services rendered ceeding which does not affect the sub- Newman, fully fairly was tried and stantial rights parties. of the (Empha- determined favor of RC supplied). sis under complaint. I of sixth Trustee’s amended relationship It determined no 15(E) Appellate provides Rule existed between RC and Newman which rendered RC liable for stayed any judgment be nor shall ... payment of the reversed, part, where it or whole goods and services rendered Nehi and Far that the merits аppear to the court shall ber Newman. tried and fairly have been the cause of determined fairly tried and that issue Because (Em- court below. in the below, at it is now in the court determined supplied). phasis rela- such a the existence rest. Without obligation to legal can have tionship, RC question the central is whether the services, even goods and those pay for (a) trial court’s error affected the substan- theory. quasi-contract Trustee’s under Thus also rights complaining (b) tial in of the party, and RC, court’s the trial as to spite error, merits of the was harmless. fairly cause tried and determined below. criteria, Rehearing is also Under both court’s еrror on we believe the trial Petition Trustee’s adjudged must be harmless denied. CHEZEM,J., HOFFMAN, J., concur. notes the trial of court way refers to the in which a claim should guardianship protec statement a is for the approached be action it is clear that the “since ward, guardi tion and benefit of its an. The trial court not its given the relief is at law and is a said there also “... no (1 Palmer, simple money judgment.” by enrichment should ever accrue 1.2, (1978).) Law of at 7 Restitution sec. guardian any means to the whatsoever ”); Springmann ... Sikich v. 221 (a pro 809 Ind. Partipilo Ill.App.3d v. Hallman ceeding accounting generally for an is re- 109 Ill.Dec. ON PETITION FOR OPINION in complaint based II of was this quasi-contract. REHEARING of law claim the common tri- jury entitled Trustee was Newman’s counsel, by has Appellant Marvin regard is in upon error this al it. Rehearing appeal for filed a Petition harmless. it all the matters deny because which we presents obviously origi- alter fully II are discussed our Counts and single recovery a Cross-Appellant for Vernon J. Pe- opinion. of native theories nal tri, one recovery upon Adver- Judgment of the Joe Newman wrong. as Trustee recovery (Trustee) preclude judgment tising, Trust also Inc. Creditors’ should 8(A) per our rehearing cross-appeal, T.R. his upon the other. While for petitions it not con does pleading, claiming court committed reversi- mits alternаtive the trial for a sin refusing than one satisfaction to submit both the the done more gle wrong. error ble Here, the trustee can either quasi-contract theories for contract and arising a con from the account jury’s recover on tract consideration. Advertising and between support position In Trustee quasi- recover or he can parties these required he should not be to elect at the by law arising upon obligations contract close of the evidence which these alter- under cannot recover them. He between both native theories should be considered the quasi-contract a contract claim a jury. Hе claims both should been have Thus, obligation.7 at the claim for same jury the it submitted to under which one was entitled to citing (1908), so could determine taken should have trial court the recover, he jury. the I or from either Count Clothing Model House Hirsch jury’s taking II from the Thus, of Count its Ind.App. 85 N.E. 719 correct, the even for consideration was position. postulates of his He he the trial court wrong reasons. Where required “guess” should not be which wrong result, the correct but for reaches a reasons, likely these two theories would more found meritorious be if he In Matter will we affirm. because Corp. Ind. Supply Garden & Turf incorrectly, “guessed” he would lose denied. trans. App., 440 N.E.2d both counts. bankruptcy petition Nehi chose to file a Hirsch, plaintiff’s complaint alleged appeal Thus, pending. while this was it express one count for breach of an and one contract has made an election of remedies. quantum appel- for meruit. The contract, lee testified there was a definite rem of election of The doctrine appellee’s attorney made the remark: inconsist where remedies are applies edies “Yes, sir; say meaning there a we Systems, E.g. Loving ent. v. Ponderosa was”— Appellant argued definite contract. the tri- (1985), Ind., Inc. al court not requiring appellee erred pursue federal Here, a has elected Nehi is, upon paragraph elect which com- appeal. That bankruptcy of this instead plaint depend he recovery would at discharge an deter sought it amount has close of the evidence. The seeking Hirsch court a rather than mined to be owed determination said: the amount In this instance place. in the first owed Whether there was a definite contract bankruptcy is pursuit question of the federal purely was of fact for the appeal. pursuit jury. entirely inconsistent with By It was the province within repudi bankruptcy determine, Nehi of the pursuing jury to all evidence, Cf. Interna right ates the basis whether a to recоver had Marcus, upon paragraph. Co. v. been tional Shoe established either (plaintiff Tex.Civ.App., 410 S.W.2d If no there was to warrant a remedy and its recovery paragraph, elected an inconsistent the second find; defendant was appellee claim an individual could so but enti- bankruptcy claim when it filed tled to abandoned against have the evidence submitted ego, purported alter defendant’s consideration. There was corporation). evidence, bankrupt submitting the in- proper structions, jury. dismissed with appeal is ordered Nehi’s litigants, prejudice. As all other Hirsch, 85 N.E. at 720. In this how- is affirmed. trial court’s ever, required court never make to inapposite ‍‌‌‌‌​‌​​‌​​​‌​‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌​​‌‍such an election. Hirsch CHEZEM, J., concurs. precise under the state

Case Details

Case Name: Nehi Beverage Co., Inc. v. Petri

Court Name: Indiana Court of Appeals

Date Published: Jul 10, 1989

Citation: 537 N.E.2d 78

Docket Number: 49A04-8802-CV-53

Court Abbreviation: Ind. Ct. App.