Sandock v. FD BORKHOLDER CO., INC.
396 N.E.2d 955
Ind. Ct. App.
1979
Check Treatment

*1 955 discharge. Rehborg discharge to a To at Rehborg superior entitled 1971, trial circuit de novo in the court. IC purpose court level frustrates of CR. 35-1-13-3, (Burns Ind.Ann.Stat. 9-721 § 4(C) early is to trials. It which assure also Ed.); Rodriguez Code rel. ex v. Grant State results in abuse which Utterback 642, (1974), Circuit 309 Court against: court cautioned N.E.2d de 145. A trial novo is a trial from legal “The courts are under moral beginning is a trial if had as no protect mandate to the constitutional action whatever had been in the instituted but rights persons, accused should Hensley lower (1969), court. v. 251 State entirely acting not from relieve them rea- 633, questions Ind. 244 225. All N.E.2d sonably in their own will behalf. presented legitimately which arise on the right vigorously to a speedy enforce the record, regardless of they whether trial, but we do not accused intend urged or in the City relied on lower court. persons escape by should trial abuse of (1941), 1021, of Minden v. Harris 196 La. designed the means that we have for Assuming arguendo 200 So. 449. that Reh- protection.” their borg did object prior fail to city 310 N.E.2d at 554. trial, he was precluded objecting not superior at the court trial. ex rel. Cf.State consequence As a waiver Rehborg Rodriguez Court, v. supra Grant Circuit sought finding and judg- the benefit of a (submission in city to court court trial does upon city ment the merits in the court. right constitute waiver of to trial Upon losing his case court Rehborg in that jury court). Rehborg circuit did not complain should not heard to right discharge. waive his timely, pro- trial was not but should rather The order of the trial court is ceed his challenge affirmed. with upon the merits. This result best serves the GARRARD, J.,P. concurs. justice judicial economy. interests HOFFMAN, J., opinion. dissents with I grant ap- would therefore the State’s peal Rehborg’s mo- instructions that HOFFMAN, Judge, dissenting. discharge tion be denied trial I dissent result from the reached proceed on the merits of this case majority opinion. Superior Porter Court. While I agree Rehborg’s superior court be de should novo I cannot discharge

assent to his under provision 4(C). Rehborg speedi-

of CR. That was not

ly brought at city to trial court level is no at consequence subsequent appeal his SANDOCK, Sandock, Betty Melvin Sam on the merits of case. his Sandock, Ruby and B. & S. Rehborg require comply did not Sandock, Inc., Appellees-Plaintiffs, protest ment that be made to the court at opportunity

the first that a defendant v. reasonably aware or presumed should be COMPANY, INC., F. BORKHOLDER D. aware that date his trial falls outside the Appellant-Defendant. permissible speedy for a Ut bounds trial. No. 3-179 A 685, terback v. State 310 Ind. 552; Mayes Indiana, N.E.2d v. State 162 Ind. Appeals Court 186, App. Regardless N.E.2d Third District. Rehborg when received notice of the trial Nov. date he had to move for dis opportunity Rehearing Denied Jan. charge before of March commencement 1, 1978 trial. to timely present His failure his contention to waive the issue

forever. *2 Bend, for Mirkin, appellant-

Sam South defendant. Asher, Hack, &

Myron J. Hack South Bend, appellees-plaintiffs. STATON, Judge. Sandock, (Sandock) D. Inc. and F.

B. & S. (Borkholder), en- Company, Inc. into a for the construction tered contract a concrete block addition Borkholder of pre-existing The addi- Sandock’s structure. used as a retail showroom tion was furtherance of Sandock’s and warehouse in carpet business. furniture and Sandock for its in- was unable to use addition use, however, recurring of a tended problem on the inside of one of the moisture seeking both com- filed suit walls. Sandock tri- pensatory After com- court, al was awarded by amount of damages in the pensatory $8,711.69 $6,500.00. amount of Court, Borkholder appeal In its sup- is not (1) contends that: evidence; (2) ported by sufficient court erred granting substantial probative evidence of dismissal; motion for an value support based on an (3) erred in awarding puni- the trial court examination of the most favorable tive damages.1 prevailed together to the party that below inferences can reasonable affirm in part. and reverse *3 Davidson, drawn Peters v. therefrom. Inc. (1977), Ind.App., 359 N.E.2d 556. Such an

I. examination in the instant case discloses Sufficiency of the Evidence supported by the is suffi- judgment argument with respect cient evidence. to the sufficiency of the evidence is two First, fold. argues Borkholder that because II.

Sandock has been able to use certain areas of the storage, addition for Sandock was Involuntary Dismissal not damaged argument at all. This is with the close of Sandock’s case-in- unsightliness out merit. of At Because the of chief, moved for involuntary Borkholder an walls, one of the Sandock was able to pro are Involuntary dismissal. dismissals use the as addition a showroom. Because 41(B), vided for in perti TR. which reads in of the dampness, only was Sandock able to nent as follows: use part of storage. the addition for Addi tionally, life of the useful the addition was “After plaintiff party the or less than it would have been had the con issue, upon burden of proof an an pursuant proceeded struction action the a jury, tried court without specifications embodied in the contract. has completed presentation the of his evi- proved Sandock that it damaged. had been thereon, dence the opposing party, with- out waiving right to his offer evidence Borkholder’s second attack on the the granted, may event the motion is not sufficiency the of evidence concerns testi ground move for a on the dismissal monial as to of conflicts the cause the mois considering the all evidence and reasona- problem. ture Several witnesses testified ble inferences therefrom in favor of the problem the moisture was not attribut directed, party to the to whom motion is work, able to Borkholder’s while others tes true, is there no substantial evidence tified that it was. Borkholder maintains probative of the material value sustain conflict, that because judgment of that the against allegations party whom the of the was not supported by sufficient evidence. as trier motion is directed. court In propounding argument, them may facts then determine has misconstrued the trial court’s function against plaintiff render judgment as the finder facts and our function as a any decline render until court appellate case review. The . . close of all evidence. .” heard below without the intervention of a jury. Accordingly, it was the function of was no Borkholder contends that the trial to weigh probative court the evidence and substantial evidence of value con- credibility cerning assess in an resolve effort to amount here, When, disputes. factual as the suffi were incurred the trial by Sandock and that as ciency of the is raised an issue granting therefore erred in not on appeal, our function is to determine if motion.2 presented making

1. Borkholder’s additional contention that 2. Borkholder evidence after contrary Generally, presen- subsequent has the motion. the law been comply waived of its tation of failure to evidence constitutes a waiver Procedure, requirements City of Ind. error in the Rules denial of such a motion. Appellate 8.3(A)(7). Weenig Ind.App. Indianapolis Rule v. Wood v. Nickel And, Ind.App., generally, 349 N.E.2d 235. conclusion by this Court that the sufficient evidence was Several of Borkholder’s variances testimony from which offered Sandock undisclosed, reasonably specifications could have con- from the the trial court addition was not suitable variances consti cluded that variances.3 Such latent contemplated misrepresentation. the con- purposes for the a form of fraud or tute testimony further properly tract. offered thus have The trial court could required remedy accompa the amount concluded that tortious $17,- slightly in excess of defects would breach. nied the was, therefore, evi- sufficient 000. There however, any public perceive, fail to Borkholder’s motion for dence overcome imposition puni- by the interest affected dismissal. damages. Borkholder and Sandock tive possessed bargaining power both be- equal III. agreement was reduced fore after their *4 was not writing. to Borkholder’s conduct Damages Punitive term in “oppressive” as that is used the many in re Borkholder failed damages. punitive of See Vernon context specifications spects comply with the em Sharp v. Casualty Fire & Insurance Co. constituted a bodied in the contract. This 599, 173. Nor (1976), 264 Ind. 349 N.E.2d As this Court breach of the contract. case say can we in this that the variances Carlo, Wil recently noted in Monte Inc. v. Al- safety public. of the endangered the 673, N.E.2d (1979), Ind.App., puni cox 390 ac- though we do not condone generally not damages tive are recoverable war- tions, those actions say we cannot that Rather, contract. in for breach of actions ranted, Vernon Fire guidelines under the of non-breaching limited party is to recov the imposition Casualty progeny, & and the its damages. ering compensatory Punitive of was entitled punitive damages. Sandock damages only recoverable when tortious are compensation for all of its accompanies mingles with the conduct Borkhold- proximately resulted from which public the inter appears breach it that breach, puni- not entitled to er’s but it was effect est the deterrent would be damages. tive punitive Pon damages. of the Hibschman 310, is re- tiac, judgment trial court (1977), Batchelor 266 Ind. The of the Inc. v. it awards 362 versed to the that N.E.2d extent judgment these do not support Under circumstances we believe the would eliminate the propriety proceed the need discussion the of that Borkholder’s decision to constitut- for a of involuntary of in denial of a motion an dismissal. ed a waiver error denial of the the 369, Ind.App. I, 332 Winston v. State 165 in Section motion. Nor is our conclusion supported by N.E.2d supra, was that the dispositive issue. of this In sufficient evidence Here, however, Sep- the commenced on trial evidence, reviewing sufficiency the of the we testimony 6, days of tember 1977. After two able to all of the evidence most were examine The the trial was recessed for five months. Sandock, including February favorable to that evidence trial resumed on during day, at elicited during Borkholder’s case-in-chief its case-in-chief the next concluded denial of The review of the which Borkholder made its motion. rebuttal. Our time dismissal, however, involuntary judge five indicated that because of the motion for the month he have to the first evidence recess would review is limited to an examination testimony days’ present- two he could rule on the before was most favorable which to Sandock congestion filing Because of the of the court prior motion. the motion. ed delay Hence, the would calendar and that proceed to discuss the denial of we will judge result trial was so that the if the recessed dis- an Borkholder’s motion for testimony, judge could review earlier missal. present asked if its evi- it would understanding forming g., dence with the he would E. some the concrete blocks ruling until reserve on motion he had supposed with filled foundation were testimony. opportunity prior to review the after the mortar. An conducted examination presented its Borkholder consented and then completion revealed the addition implicitly de- case-in-chief. The motion was blocks were filled. not so nied when entered for Sandock. respects, In all other judg- controlling question The cations. is wheth- ment is affirmed.4 er the reasonable or merely deviations were hand, negligent on they the one or whether

HOFFMAN, J., concurs. accomplishedthrough or a fraud reck- GARRARD, J., P. concurs in part probable and less conse- indifference to part opinion. dissents in quences on the other.4 GARRARD, Presiding Judge, concurring latter, If the facts I established have dissenting in part. public problem no identifying interest I to be builders majority disposition requiring concur with the served in However, issues I disagree & II. I public buildings deterred fraud- court’s treatment of the punitive damages building ulently disregarding require- code issue. ments or those contained specifications agreed they have to comply Pontiac,

In Hibschman Inc. v. Batchelor with. our Supreme application Court reexamined the problem presented present ap- in the damage arising awards claims peal appellant might while the have from a breach of contract. The ob- attempted to demonstrate on the facts in served that where the of party fraud, recklessness, etc. were breaching his contract also established all established, totally he has failed to do tort, elements of a common law puni- *5 appears so. it that the Since trier fact tive damages might be awarded.1 362 might have such inferred intent court, N.E.2d 847. The apparently intend- infer, evidence and the so court indeed did ing expansion foregoing,2 then we not may reweigh the or search stated punitive damages might be disputed. the record to find it fraud, available “whenever the elements of simply has error failed to demonstrate on malice, gross negligence oppression min- facts, accordingly, and the award should gle the controversy.” 362 N.E.2d 847.3 be affirmed. The court then stated in- either stance, to justify punitive a award “it must

appear public interest will be effect” deterrent

award. 362 N.E.2d 848.

While some further delineation

necessary clearly pre- draw the lines Hibschman,

scribed it not necessary

our decision in this case.

The basic simple. contentions are

addition contracted for did meet

purchaser’s expectations. appears It

were deviations from specifi- appeal Citing Casualty 4. Sandock contends that 3. is frivolous Vernon Fire & Ins. Co. v. urges damages pur- Sharp us to award additional Ind. 15(G). suant to AP. of our Because resolution issue, of the Sandock’s we must decline interesting regard note that 4. In it is request. party significance to the neither much attaches employed fact that the builder the architect Assuming aggra- that the was of the agreement purchaser that his sentially es- necessary vated kind award of good supply the addition workmanlike manner. Compare Mfg. Walling Flint & Co. v. Beckett N.E.