Burger Man, Inc. v. Jordan Paper Products, Inc., 2--775A178

• Decision Date: 18 August 1976
• Docket Number: No. 2--775A178,2--775A178
• Citation: 352 N.E.2d 821,170 Ind.App. 295
• Parties: BURGER MAN, INC., and Vesco Corporation, Appellants, v. JORDAN PAPER PRODUCTS, INC., Appellee.
• Court: Indiana Appellate Court

Page 821

352 N.E.2d 821

170 Ind.App. 295

BURGER MAN, INC., and Vesco Corporation, Appellants, v. JORDAN PAPER PRODUCTS, INC., Appellee.

No. 2--775A178.

Court of Appeals of Indiana, First District.

Aug. 18, 1976.

Gregory B. Smith, Smith & Smith, Muncie, for appellants.

Charles R. Clark, White, Pierce, Beasley & Gilkison, Muncie, for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE:

The instant case was transferred from the Second District to this office on July 15, 1976, in order to lessen the disparity in caseloads between the Districts.

Defendants-appellants Burger Man, Inc. (hereinafter Burger Man) and Vesco Corporation (hereinafter Vesco) appeal from the award of a judgment of $22,089.48 plus costs in favor of plaintiff-appellee Jordan Paper Products, Inc. (hereinafter Jordan).

We affirm.

FACTS:

The facts necessary for our disposition of this appeal are as follows: Burger Man was an Indiana corporation which operated a chain of restaurants in Ohio and Indiana until December, 1973. It was a totally owned subsidiary of Vesco. The management of the two organizations overlapped, but was not identical.

Jordan is an Indiana corporation engaged in the wholesale distribution of paper products. It warehouses products for its customers at its place of business in Muncie.

Nelson Heinrichs (hereinafter Heinrichs) is the president of Jordan. He testified that Larry Lattomus (hereinafter Lattomus), who was on the Board of Directors of both Burger Man and Vesco as well as being president of Burger Man, entered into an oral agreement with him for the warehousing and sale of special print merchandise around the middle of 1970. Special print merchandise is any particular item that has a special print that identifies with the customer.

The dispute between the parties herein arose when Burger Man denied, and refused to pay, the amount claimed to be owed by Jordan. Jordan sought to recover against Vesco on the theory that Vesco and Burger Man were so closely connected that the corporate veil of these two legal entities should be pierced, or alternatively, because of certain statements made by Lattomus to Heinrichs he could reasonably believe Lattomus had the authority to bind Vesco.

ISSUES:

I. Did irregularities in the proceedings, orders, acts, rulings, or procedures of the trial court, or misconduct of Jordan, alone or in combination, work a denial of a fair trial for Vesco and Burger Man?

II. Is the judgment supported by sufficient evidence as to Burger Man?

III. Is the judgment supported by sufficient evidence as to Vesco, so as to render it liable for the debts of its subsidiary?

IV. Did the trial court have in personam jurisdiction over Vesco?

V. Did the Statute of Frands bar the enforcement of the alleged contract against Vesco?

VI. Did the proffered newly discovered evidence require the granting of a new trial?

VIII. Should defendants' Trial Rule 41(b) motion have been granted?

DECISION:

ISSUE ONE:

Burger Man and Vesco argue that the proceedings in the trial court were so confusing and improper that they were denied a fair trial.

The record discloses that Jordan filed a complaint on November 9, 1973, seeking to recover money which allegedly was due because of their contract with Burger Man. The pre-trial conference was scheduled for September 16, 1974, the morning of the trial. Following the conference, the court did not enter a pre-trial order.

We agree that error was committed, but do not feel that the errors were of such magnitude that a reversal is required.

Ind. Rules of Procedure, Trial Rule 61 provides:

'No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order in anything done or omitted by the court or by any of the parties is ground for granting relief under a motion to correct errors or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.'

See also, Ashley v. City of Bedford (1974), Ind.App., 312 N.E.2d 863, 876.

Vesco and Burger Man first argue that the trial court committed reversible error by admitting into evidence Jordan's exhibit number one because it was not attached to or included in appellee's complaint.

Ind. Rules of Procedure, Trial Rule 9.2(A) provides:

'When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.' (Our emphasis.)

We feel Vesco and Burger Man have misconstrued the above cited trial rule. Before the original or a copy of a written instrument must be filed with the complaint, it is necessary that the pleading be founded upon the written instrument. Jordan's Complaint for Money Due does not indicate that its claim is founded on a writing executed by the parties. Furthermore, Jordan's answers to interrogatories propounded by Vesco and Burger Man clearly indicate that the contract being sued upon was oral.

The record thus leads us to the inescapable conclusion that Jordan's exhibit number one was not the foundation of its complaint, but rather was evidence that an oral contract had existed, and currently was existing, between the parties.

Vesco and Burger Man next complain that the trial court erred by overruling its Motion for a More Definite Statement which sought to raise the issue of Jordan's failure to attach documents to its complaint approximately nine months after the motion was filed.

Vesco and Burger Man seek to utilize Ind. Rules of Procedure, Trial Rule 12(E) in a manner in which it was not intended to be used. The appellants' proper course of action to discover any documents in the possession of Jordan would have been to have utilized one of the discovery vehicles provided by our trial rules and not through a TR. 12(E) motion to make more specific.

We are unable to find any error which would require us to reverse this case because of the court's delay in ruling on the TR. 12(E) motion.

We feel that any error which may have been caused as a result of the trial court's failure to rule upon motions in the most expeditious manner was waived as a result of the inaction of Vesco and Burger Man.

Vesco and Burger Man had in the trial court an adequate remedy to cure the error of which they presently complain. Ind. Rules of Procedure, Trial Rule 53.1 provides in relevant part:

'. . . The court shall hear motions without delay when hearing is required or granted, and shall rule upon a motion promptly after hearing thereof, or after filed when no hearing is required or granted. . . . Upon failure of a court to enter a ruling upon a motion within thirty (30) days after it was heard or thirty (30) days after it was filed . . . if no hearing was required, the submission of such motion may be withdrawn, and the judge before whom the cause is pending may be disqualified therein; in which event, the case shall be transferred to a judge to be appointed by the Supreme Court, except that this provision shall not apply where: . . .' (Our emphasis.) ¹

Vesco and Burger Man's failure to utilize the proper procedure to correct any error which existed because of the court's delay in ruling constituted a waiver of the error. See TR. 61, supra; and Umbstead et al. v. Preachers' Aid Society of the Northwest Indiana Conference of the Methodist Episcopal Church (1944), 223 Ind. 96, 103, 58 N.E.2d 441, 443. For the same reason, we find that the trial court's failure to rule on appellants' Motion for Joinder of an Indispensible Party, and for Judgment on the Evidence, was waived. Preston v. Hammond (1972), 153 Ind.App. 447, 287 N.E.2d 774.

Vesco and Burger Man next contend that reversible error was committed when Jordan's exhibit number one was not produced in response to their interrogatories. The record discloses the following interrogatory and answer thereto:

'8. Will you attach, without a specific court order, a copy of each such record of the alleged oral contract to answers to these interrogatories?

Answer: Yes.'

Jordan does not dispute the fact that its exhibit number one was not turned over in response to this request.

We feel that Jordan's failure to turn over this exhibit in response to Vesco and Burger Man's interrogatories was not reversible error, albeit regrettable conduct, for two reasons.

First, although a TR. 33 interrogatory is a proper discovery method to determine the existence of documents, it is not a proper discovery tool to compel the production of documents. If a party desires another party to produce documents the proper method to compel such production would be through a TR. 34 Motion to Produce Documents. To allow a party to compel the production of documents by filing interrogatories, would be to allow them to by-pass the more stringent requirements of TR. 34. This rule provides, inter-alia:

'The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. Service is dispensed with if the whereabouts of the parties is unknown. * * *' (Our emphasis.)

Although we have been unable to find an Indiana case directly on point, this is the clear import of the Federal decisions which we have examined after which our trial rules are patterned. Linko v. Cleveland-Cliffs...