Fricke v. Gray

• Decision Date: 16 February 1999
• Docket Number: No. 49A02-9705-CV-281,49A02-9705-CV-281
• Citation: 705 N.E.2d 1027
• Parties: Steven D. FRICKE and Cheryl Fricke, Appellant-Petitioner, v. Lynnette GRAY, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1027

705 N.E.2d 1027

Steven D. FRICKE and Cheryl Fricke, Appellant-Petitioner, v. Lynnette GRAY, Appellee-Respondent.

No. 49A02-9705-CV-281.

Court of Appeals of Indiana.

Feb. 16, 1999.

James C. Spencer, Indianapolis, Indiana, Attorney for Appellant.

Peter A. Schroeder, Ellen White Quigley, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge

STATEMENT OF THE CASE

Plaintiffs-Appellants Steven D. Fricke and Cheryl Fricke (the "Frickes") appeal a jury verdict against them and in favor of Defendant-Appellee Lynnette Gray ("Gray") in a legal malpractice action.

We affirm.

ISSUES

The Frickes raise several issues for our review which we restate as:

I. Whether the trial court committed reversible error by admitting evidence of Steven Fricke's prior convictions.

II. Whether the trial court committed reversible error by admitting Steven Fricke's income tax returns.

III. Whether the trial court committed reversible error by refusing to give the Frickes' tendered instruction regarding ambiguity.

IV. Whether the trial court committed reversible error by denying the Frickes' motion for judgment on the evidence.

V. Whether the jury verdict was contrary to law.

Gray raises two issues which we restate as:

VI. Whether the trial court committed reversible error in excluding evidence of fraud.

VII. Whether the trial court committed reversible error by denying Gray's motion for judgment on the evidence.

FACTS AND PROCEDURAL HISTORY

On January 17, 1992, the Frickes' house caught fire. The Frickes previously had obtained homeowners insurance coverage with Cincinnati Insurance Company ("Cincinnati"). On March 6, 1992, the Frickes filed a proof of loss under that policy with Cincinnati claiming $335,679.00 as the replacement value of the property they lost in the fire.

In June of 1992, Steven Fricke received a notice from Cincinnati that Cincinnati was going to deny the Frickes' claim. The Frickes contacted Gray to represent them against Cincinnati and paid a retainer fee totaling $1,500.00 in April of 1992. Gray filed a lawsuit in Johnson County on the Frickes' behalf on February 3, 1993. The case was moved to federal court and was dismissed because it was not filed within the limitation set by the policy. The homeowners policy stated that no suit could be commenced against Cincinnati after the one year anniversary of the loss.

The Frickes' filed a complaint against Gray, and her law partners, Tom G. Jones, and Russell A. Johnson, on December 6, 1994, alleging negligence and requesting damages for the failure to file the lawsuit on behalf of the Frickes within the one year limitation contained in the insurance policy. Tom G. Jones was dismissed from the lawsuit on December 30, 1996, and Russell A. Johnson was dismissed from the case by oral motion during the trial.

The trial began January 14th and ended January 17th, 1997, with the jury returning a verdict in favor of Gray. This appeal ensued. Additional facts will be provided below.

DISCUSSION AND DECISION

I. PRIOR CONVICTIONS EVIDENCE

The Frickes filed a Motion in Limine on January 10, 1997, requesting the exclusion of the following:

Any evidence concerning criminal convictions against the Plaintiffs that occurred more than ten (10) years prior to this date or before January 13, 1987.

(R. 82). The trial court denied that portion of the motion in limine.

At trial, the following transpired when defense counsel cross-examined Steven Fricke:

Mr. Fricke, you've been convicted twice of the possession of stolen property, is that correct?

Mr. Pleasants: Your Honor, I would have to object, I believe this is a violation of the Motion in Limine Order.

Mr. Schroeder: That Order was denied.

The Court: It's not in violation.

Mr. Pleasants: All right.

(R. 495). No other objection was made.

On appeal the Frickes make several arguments in support of their contention that reversible error occurred. They argue that 1.) Gray's counsel failed to lay a proper foundation for introduction of that evidence at trial, 2.) the trial court erred in denying the motion in limine as to the prior convictions, and 3.) Gray's counsel failed to comply with Ind. Evidence Rule 609's requirement of written notice of intent to use the evidence. Gray contends that those issues were not properly preserved for appeal because a different reason for the objection was argued at trial. We agree with Gray.

Our supreme court has held that an objection must be specific in order for the issue to be preserved for appellate review. Willis v. State, 510 N.E.2d 1354, 1357 (Ind.1987), cert. denied, 484 U.S. 1015, 108 S.Ct. 721, 98 L.Ed.2d 670. Moreover, where, as here, the party states one reason for an objection at trial, he cannot rely upon another argument for the objection on appeal. See, Palmer v. State, 640 N.E.2d 415, 423 (Ind.Ct.App.1994).

We have held that in order to preserve error in the overruling of a pre-trial motion in limine the appealing party must object to the admission of the evidence at the time it is offered. Id. at 427. A motion in limine is not a final ruling on the admissibility of evidence, and a ruling on the motion does not preserve the error for appeal. Id.

Here, the objection made at trial was that the question violated the order in limine. The Frickes did not argue that an improper foundation had been laid, that the trial court erred in denying that portion of the motion in limine, or that Evid. R. 609's notice requirement had been violated. By failing to make those additional arguments made here on appeal, to the trial court, the Frickes have failed to preserve those arguments for our review.

II. ADMISSION OF INCOME TAX RETURNS

Next, the Frickes challenge the admission into evidence of the Frickes' income tax returns. Gray's theory was that evidence of the Frickes' income helped to establish that they could not have sustained a loss worth $335,679.00. Exhibit G, the 1988 return, was admitted over a relevancy objection. Exhibits H, I, and J, the 1989, 1990, and 1991 returns respectively, were admitted over objections based upon relevancy and violation of a motion in limine.

In the January 10, 1997 motion in limine, the Frickes had requested the exclusion of any evidence concerning state and federal income tax returns. That portion of the motion in limine was denied.

As we have stated above, a motion in limine is not a final ruling on the admissibility of evidence and a ruling on the motion does not preserve the error for appeal. Palmer, 640 N.E.2d at 422. Appellant's objection at trial was that the motion in limine order had been violated. Our review of the record shows that the request to exclude income tax returns as evidence was denied. Therefore, the order was not violated. Moreover, no further objection was made to preserve the issue for appeal when the evidence was offered.

Appellant also objected on the ground that the income tax return evidence was irrelevant. We have held that such a general objection fails to preserve any error for appellate review. See, Mills v. State, 648 N.E.2d 1212, 1213 (Ind.Ct.App.1995). The trial court did not commit reversible error.

III. TENDERED INSTRUCTION ON AMBIGUITY

The Frickes tendered instructions at trial, two of which, Instruction No. 6 and Instruction No. 10, were refused by the trial court and are the subject of this appeal. The Frickes claim that the trial court committed reversible error by refusing those instructions. Gray contends that this issue was not properly preserved for appeal. However, Gray contends, in the alternative, that even if the issue were properly preserved no error occurred.

Tendered Instruction No. 6 read as follows:

Where a contract is ambiguous, it will be construed most strongly against the party preparing it or employing the words concerning which doubt arises. This rule of construction is one of last resort, applicable only where the language of the instrument will equally admit of [sic] either of two or more interpretations.

(R. 203).

Tendered Instruction No. 10 read as follows:

Contracts must be given such reasonable construction as will give effect, if possible, according to the parties' intention. Accordingly, a construction of a contract that is inequitable and gives an unfair or unreasonable advantage to one of the parties will be avoided. Thus, ambiguous contracts will be construed to avoid an unreasonable result.

(R. 207).

When reviewing a trial court's refusal to give an instruction, we consider whether the instruction is a correct statement of the law, whether there is evidence to support giving the instruction, and whether the substance of the instruction is covered by other instructions given by the court. Snow v. State, 560 N.E.2d 69, 72 (Ind.Ct.App.1990). The manner of instructing a jury lies within the sound discretion of the trial court, whose ruling will not be reversed unless the instruction error is such, taken as a whole, that the charge to the jury misstates the law or otherwise misleads the jury. Reaves v. State, 586 N.E.2d 847, 855 (Ind.1992).

In the present case, the Frickes requested that the trial court find the insurance contract to be ambiguous because of alleged inconsistent facts regarding the information provided in applying for the policy. Cincinnati indicated that it was denying coverage in part because of misrepresentations made on the application. On appeal, however, the Frickes argue that certain provisions of the policy are inconsistent, thereby rendering the policy ambiguous.

The question of whether an insurance contract is ambiguous is one of law to be determined by the trial court. Millspaugh v. Ross, 645 N.E.2d 14, 16 (Ind.Ct.App.1994). Here, the trial court determined that there was no ambiguity in the policy itself. Therefore, there would be no evidence to support giving the instructions at issue. Further, the Frickes are attempting to make a different argument on appeal than that which was made before the trial court. The...