Ballard's Estate v. Ballard

• Decision Date: 27 April 1982
• Docket Number: No. 1-281A40,1-281A40
• Citation: Ballard's Estate v. Ballard, 434 N.E.2d 136 (Ind. App. 1982)
• Parties: In the Matter of the ESTATE OF John A. BALLARD, Deceased, the Citizens State Bank, Administrator, W. W. A., Plaintiff-Appellant, v. Joseph V. BALLARD, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 136

434 N.E.2d 136

In the Matter of the ESTATE OF John A. BALLARD, Deceased the Citizens State Bank, Administrator, W. W. A. Plaintiff-Appellant, v. Joseph V. BALLARD, Defendant-Appellee.

No. 1-281A40.

Court of Appeals of Indiana, First District.

April 27, 1982.

Bruce Markel, III, Markel, Markel & Markel, Brownstown, for plaintiff-appellant.

William L. Thompson, Allen & Thompson, Salem, Robert L. Mellen, Mellen, Mellen & Wood, Bedford, for defendant-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Citizens State Bank (Bank), in the capacity of successor administrator of the estate of John A. Ballard (decedent), appeals a negative judgment entered in the Lawrence Circuit Court in a trial by the court which found in favor of defendant-appellee Joseph V. Ballard (Ballard) in an action for fraud and forfeiture of contract.

We affirm.

STATEMENT OF THE FACTS

On October 1, 1966, the decedent and his wife entered into a contract for the conditional sale of real estate with Ballard, their son. It involved the sale of the decedent's farm to Ballard and reserved a life estate for decedent and his wife. Shortly after the decedent's death on April 1, 1968, Ballard showed the contract to the other heirs. Ballard was appointed administrator to the decedent's estate on April 16, 1968, and made some contract payments toward purchase of the real estate. Thereafter, Ballard resigned as administrator on February 10, 1977. On February 25, 1977, the Bank was appointed successor administrator by the court and Ballard was ordered to make a verified final accounting of the decedent's estate. On April 22, and 25, 1977, Ballard personally delivered two checks to one Curtis Benter, a cashier of the Bank, who deposited the money into the decedent's estate account. The first of these checks was for $9,832.50 and was made payable to "John A. Ballard Estate." The check bore the legend "For pay on contract." The second check was for $3,305 and inscribed on it was "Contract payment." Mr. Benter testified he assisted Ballard to calculate those figures. He also testified that he knew of the land sales contract between Ballard and the decedent. The title to the bank account was: "John A. Ballard Estate, Joe V. Ballard, Administrator."

ISSUES

The Bank presents seven issues for review which we have consolidated into the following five arguments: Whether the trial court erred:

I. in suppressing in evidence the admission of the decedent's will;

II. in admitting in evidence two letters which are hearsay;

III. in dismissing the jury at the close of the Bank's case-in-chief;

IV. in dismissing Count one of the Bank's amended complaint; and

V. in making findings of fact and conclusions of law which are contrary to law.

DISCUSSION AND DECISION

Issue I. Will

The Bank argues Ballard fraudulently induced the decedent to sign the contract and it attempted before trial to offer as proof the will of the decedent under the state of mind exception to the hearsay rule. However, the trial court suppressed the admission in evidence of the will for the reason that it was merely a self-serving declaration and had no probative value on whether the decedent had contracted for the sale of the real estate with Ballard.

Ballard had filed a motion in limine to suppress the admission in evidence of the decedent's will which the trial court granted eight months before trial. At trial, the Bank never made a tender of the will or offer of proof during its case-in-chief. An offer to prove is required to preserve error in sustaining a motion in limine. State v. Church of the Nazarene of Logansport, (1978) 268 Ind. 523, 377 N.E.2d 607; Freson v. Combs, 433 N.E.2d 55 (Ind.App.1982). The Bank failed to make an offer of proof, and therefore, no issue was preserved for appellate review.

Issue II. Admission of letters

After the Bank presented its evidence and the trial court dismissed the jury, Ballard was allowed to introduce in evidence two letters written by his attorney to another attorney. The letters were admitted to show Ballard's intent to pay the balance of the purchase price on the contract. The Bank argues the letters were hearsay, and therefore, inadmissible evidence of declarations made out of court by another person directed to one not a party or witness.

As a general rule, out of court statements offered in court for the truth of the matter therein are hearsay; however, where the statements are not offered for the purpose of proving the facts asserted, they are not hearsay. Blue v. Brooks, (1973) 261 Ind. 338, 303 N.E.2d 269. Not all testimony about extrajudicial utterances of a third person made outside the presence of the parties qualifies as hearsay evidence. Whether it is hearsay depends on the purpose for which it is offered. Blue, supra.

It can be said that the letters demonstrate Ballard's intent to pay the balance due on the contract. Ballard testified he instructed his attorney to write the letters and send him copies of the letters. Therefore, they do evidence his intent to pay off the contract. The Bank counters this proposition and contends the letters cannot be evidence of Ballard's state of mind because he did not write them. Even so, the Bank has not shown what harm was caused by their admission. The trial court has considerable latitude in admission or rejection of evidence and it is only when an error by the trial judge relates to a material matter, or is of such character as to substantially affect the rights of the parties that such an error justifies reversal. School City of Gary v. Claudio, (1980) Ind.App., 413 N.E.2d 628. Erroneous admission of inadmissible evidence is not grounds for reversal where such evidence is merely cumulative in nature. D. H. v. J. H., (1981) Ind.App., 418 N.E.2d 286; Haskett v. Haskett, (1975) 164 Ind.App. 105, 327 N.E.2d 612. Furthermore, the harm arising from evidentiary error is lessened if not totally annulled when the trial is by the court sitting without a jury. King v. State, (1973) 155 Ind.App. 361, 292 N.E.2d 843. Testimony of Ballard earlier revealed that he had attempted to obtain a Federal Land Bank loan to pay off the balance due on the contract. Thus, the admission of the two letters, even if improper, is merely cumulative evidence of Ballard's intent to pay off the contract. The trial court, therefore, did not commit reversible error in allowing their admission.

Issue III. Dismissal of jury

Initially, Ballard filed a request for a trial by jury of all issues. However, four months before trial, he moved for separate trials pursuant to Ind. Rules of Procedure, Trial Rule 42. Ballard sought a trial by jury as to the first count on fraud and a trial to the court as to the second and third counts on cancellation of the contract. The memorandum in support of the motion pointed out that the allegation in Count one was misrepresentation, a legal issue triable by a jury. The issues presented under Counts two and three sought cancellation of the contract, liquidated damages and declaratory relief, all equitable matters triable by the court. The Bank objected to Ballard's T.R. 42 motion for separate trials and the trial court denied the motion after taking it under advisement, thus granting a trial by jury on all issues. However, at the close of plaintiff's case-in-chief and out of the presence of the jury, Ballard filed motions for judgment on the evidence as to Count one and to withdraw issues presented in Counts two and three from the jury. The trial court granted both motions and dismissed the jury, stating that the balance of the case sounded totally in equity.

The Bank argues the allegations under Count two are purely factual matters for a jury to decide. Breach of contract, the Bank continues, is traditionally an action at law. The Bank further asserts that Count three, while seeking a declaration of the legal rights and duties of the parties, requires a determination of substantial questions of fact for a jury.

Ind. Rules of Procedure, Trial Rule 39(A)(2) provides:

"If a party demands a jury trial on any issue upon which he is entitled to jury trial as of right in the case, the court shall grant it on that issue."

In Indiana, it is a well established rule that where a cause of action contains matters which are both in law and in equity, and the issues are essentially equitable, the entire proceedings will be tried in equity. Jones Drilling Corporation v. Rotman, (1964) 245 Ind. 10, 195 N.E.2d 857; Fish v. Prudential Insurance Company of America, (1947) 225 Ind. 448, 75 N.E.2d 57; Lewandowski v. Beverly, (1981) Ind.App., 420 N.E.2d 1278; Winney v. Board of Commissioners of the County of Vigo, (1977) Ind.App., 369 N.E.2d 661; Hiatt v. Yergin, (1972) 152 Ind.App. 497, 284 N.E.2d 834.

The right to a trial by jury is guaranteed only in those actions which were triable by jury at common law prior to June 18, 1852 as set forth under Ind. Rules of Procedure, Trial Rule 38(A). See also, City of Indianapolis v. Schmid, (1968) 251 Ind. 147, 240 N.E.2d 66; 4 Works' Indiana Practice § 63-1 at 37 (1974). T.R. 38(B) clearly provides that a demand for trial by jury is permissible "of any issue triable of right by a jury." (emphasis added). It then follows, is the instant case one where a jury trial can be demanded? To answer this question we must determine whether the issues in Counts two and three are essentially equitable or legal. As Judge Lybrook said in Winney, supra, at 664, "the critical distinction to be made, as stated in Hiatt, is the character of the claim itself-that being either equitable or legal." The court in Winney, guided by the pronouncements in Hiatt, determined the character of the claim by focusing on the totality of the pleadings and relief sought.

Count two alleges that the terms of the contract permit cancellation of the contract and repossession of the real estate upon Ballard's failure to make contract payments, insure improvements and pay...