Bud Wolf Chevrolet, Inc. v. Robertson

• Decision Date: 01 June 1987
• Docket Number: No. 2-1084-A-322,2-1084-A-322
• Parties: BUD WOLF CHEVROLET, INC., Appellant (Defendant Below), v. George and Patsy ROBERTSON, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 567

508 N.E.2d 567

BUD WOLF CHEVROLET, INC., Appellant (Defendant Below), v. George and Patsy ROBERTSON, Appellees (Plaintiffs Below).

No. 2-1084-A-322.

Court of Appeals of Indiana Second District.

June 1, 1987.

Rehearing Denied July 1, 1987.

Gregory L. Noland, Emswiller & Noland, Indianapolis, for appellant.

John A. Young, John D. Cochran, Jr., Young, Cochran & Reese, Indianapolis, for appellees.

OPINION ON PETITION FOR REHEARING

SULLIVAN, Judge.

Appellees George and Patsy Robertson (Robertsons) have filed their Petition for Rehearing asking that we alter our decision of August 4, 1986 [Bud Wolf Chevrolet, Inc. v. Robertson (1986) 2d Dist. Ind.App., 496 N.E.2d 771]. Robertsons present two alternative arguments. First, they ask this court to alter the determination that Bud Wolf Chevrolet, Inc. (Bud Wolf) did not waive its right to object to the sufficiency of the evidence supporting the jury's award of punitive damages. Second, they allege that there was sufficient evidence under the law of the case to support the jury's award of punitive damages.

We disagree with Robertsons' argument regarding waiver and write to clarify our position on that issue. However, we agree with Robertsons' argument regarding the law of the case, and accordingly take this opportunity to modify our original opinion and reinstate the jury's award of punitive damages.

ISSUE I

On direct appeal we held that under Indiana Trial Rule 50(A)(4), Bud Wolf's tender of a jury instruction upon the issue of punitive damages did not constitute a waiver of its right to challenge the sufficiency of the evidence supporting the jury's award of punitive damages. Robertsons argue that this holding is in direct conflict with this court's decision in Tutwiler v. Snodgrass (1981) 2d Dist. Ind.App., 428 N.E.2d 1291, and that it contravenes the ruling precedent established by our Supreme Court in Thornton v. Pender (1978) 268 Ind. 540, 377 N.E.2d 613.

Robertsons are correct that our holding conflicts with Tutwiler. In Tutwiler, the appellant attempted to challenge the sufficiency of the evidence supporting an award of punitive damages. Despite appellant's argument that Trial Rule 50(A)(4) permitted the issue of the sufficiency of the evidence to be raised, this court, without discussion of the implications of Trial Rule 50, held that the appellant had waived the issue by failing to object to the jury instruction on punitive damages.

Our reading of Trial Rule 50 now leads us to the conclusion that our decision on this issue in Tutwiler was incorrect. Trial Rule 50(A)(4) provides:

"(A) Judgment on the evidence--How raised--Effect. Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict. A party may move for such judgment on the evidence.

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(4) In a motion to correct errors;"

The rule clearly permits a challenge to the sufficiency of the evidence to be made in a motion to correct errors, the procedure followed by Bud Wolf. We are unable to see how a party could waive this avenue of relief by failing to object to an instruction. To so hold would circumvent the apparent intent of the rule.

By clear dictate of the Rule itself, the argument is not waived by failure to question the sufficiency of the evidence either at the close of plaintiff's case or at the close of all the evidence. It therefore stands to reason that a more remote objection, such as to an instruction upon the particular issue, is not required.

Additionally, even without regard to the provisions of Trial Rule 50, we fail to see how Bud Wolf's tendered instruction could be reasonably considered as a waiver of its challenge to the sufficiency of the evidence supporting the punitive damages award. The instruction read as follows:

"If you find that George and Patsy Robertson are entitled to recover, then in addition to the actual damages to which you find them entitled, you may award an additional amount as punitive damages if you find by clear and convincing A party is entitled to an instruction if it is within the issues and if there is any evidence fairly tending to support it. Campbell v. City of Mishawaka (1981) 3d Dist. Ind.App., 422 N.E.2d 334. However, a party is entitled to an award of punitive damages only if the evidence supporting the award is clear and convincing. Travelers Indemnity Co. v. Armstrong (1982) Ind., 442 N.E.2d 349. Bud Wolf's tender of its instruction was at most a concession that there was some evidence fairly tending to support an award of punitive damages. It was by no means a concession that the evidence was clear and convincing.

                evidence that Bud Wolf Chevrolet, Inc., acted with malice, fraud, gross negligence or oppressiveness which was not the result of a mistake of fact or law, honest error or [sic] judgment, overzealousness, mere negligence or other human failing in the sum as you believe will serve to punish the Defendant and to deter it and others from like conduct in the future."   Record at 113
                

Robertsons also argue that our Supreme Court's decision in Thornton v. Pender, supra, 377 N.E.2d 613, requires a determination of waiver. However, Thornton is inapplicable. In Thornton, the plaintiffs argued on appeal that an instruction was erroneously given because there was no evidence to support it. The court determined that the plaintiffs had waived their challenge to the instruction by failing to object to the instruction at trial.

If, in the case before us, defendant were to argue that punitive damages was not an appropriate issue we would decline to review that assertion. By its tender of a punitive damage instruction it has conceded that punitive damages is an issue. See City of Gary v. Archer (1973) 3d Dist., 157 Ind.App. 477, 300 N.E.2d 687. The defendant has not conceded, however, that the evidence submitted to the jury was so clear and convincing as to justify an award of such damages.

A review of case law appears to support our position in this respect.

A defendant who tenders an instruction setting forth the material elements of recovery necessary to be proved by plaintiff does not thereby waive the right to assert that such evidence as introduced by plaintiff is insufficient to support a verdict. See Emhardt v. Collett (1921) 191 Ind. 215, 131 N.E. 48. By tendering such an instruction, a defendant does not concede the adequacy of the evidence. He is entitled to assist in providing the jury the legal principles which should guide its determination, without foreclosing his right to question an adverse verdict. See Indianapolis Horse Patrol, Inc. v. Ward (1966) 247 Ind. 519, 217 N.E.2d 626.

In Memorial Hospital of South Bend, Inc. v. Scott (1973) 261 Ind. 27, 300 N.E.2d 50, our Supreme Court held that although plaintiff by tendering an instruction concerning contributory negligence could not object to submission of that issue to the jury, such instruction did not preclude a determination that the evidence was insufficient to prove plaintiff's contributory negligence.

In Richardson v. Scroggham (1974) 1st Dist., 159 Ind.App. 400, 307 N.E.2d 80, this court held that the defendant was entitled to contest punitive damages as excessive even though he did not object to the plaintiff's instruction which permitted an award of punitive damages.

The appellate court in Richardson very clearly delineated between a challenge to the instructions on damages and a challenge to the amount of those damages. More to the point, however, the First District considered and discussed defendants' argument that no punitive damages were appropriate despite the failure to object to the punitive damages instruction. To the same effect is Harper v. Goodin (1980) 1st Dist. Ind.App., 409 N.E.2d 1129, which held that determination of the sufficiency question as to punitive damages mooted an issue whether failure to object to the punitive damage instruction constituted waiver.

In short, we hold that Bud Wolf did not waive its argument upon sufficiency of the

evidence by tender of a punitive damage instruction. ¹

ISSUE II

Robertsons next argue that the instructions as submitted to the jury allowed the jury to make its award of punitive damages. Robertsons do not dispute our earlier interpretation of the standard of proof which must be met before an award of punitive damages is proper. See Bud Wolf Chevrolet, Inc., supra, 496 N.E.2d at 776-777. Rather, Robertsons contend that this court applied a standard which, although correct, was not contained in the instructions given the jury and which therefore should not have been applied on appeal.

Instructions given without objection become the law of the case. Poor Sisters of St. Francis Seraph of Perpetual Adoration, Inc. v. Catron (1982) 2d Dist. Ind.App., 435 N.E.2d 305. The record does not indicate any objections made to the instructions received by the jury on punitive damages and the clear and convincing standard. Thus, the propriety of the jury's award of punitive damages must be measured against the standard established by the instructions, regardless whether the instructions provide a complete or correct statement of the law. See Royer v. Pryor (1981) 1st Dist. Ind.App., 427 N.E.2d 1112.

We find Robertsons' argument convincing. In our original opinion, we attempted to wrest the proper standard for awarding punitive damages from the general instructions given the jury. Upon re-examination of those instructions, we agree that the proper standard is simply not to be found therein. The instructions given the jury allowed it to award punitive damages if it found by clear and convincing evidence that Bud Wolf acted with malice, fraud, gross negligence or oppressiveness which...