Grad v. Cross
| Citation | 182 Ind.App. 611,395 N.E.2d 870 |
| Decision Date | 29 October 1979 |
| Docket Number | No. 1-1178A314,1-1178A314 |
| Parties | Melvin P. GRAD, Robert H. Ahr and Capri Builders, Inc., Appellants-Defendants Below, v. Perry W. CROSS and Sybil S. Cross, Appellees-Plaintiffs Below. |
| Court | Indiana Appellate Court |
Bobby Jay Small, Indianapolis, Rex McCoy, McCoy & Husmann, Union City, for appellants-defendants.
John T. Cook and Peter D. Haviza, Winchester, Perry W. Cross and P. Gregory Cross, Muncie, for appellees-plaintiffs.
Melvin P. Grad, Robert H. Ahr, and Capri Builders, Inc. appeal from a decision in a jury trial that awarded compensatory and punitive damages to Perry W. and Sybil S. Cross (Cross). The jury awarded compensatory damages against Grad, Ahr, and Capri in the amount of $11,250, and punitive damages against Ahr and Capri in the amount of $30,000. The compensatory damage award is not challenged in this appeal. Ahr and Capri Builders (hereinafter collectively referred to as Capri) raise certain questions, however, concerning the tender of two instructions regarding punitive damages, whether the evidence supported the award of punitive damages, and whether the amount of punitive damages was excessive. Finding no error in the proceedings below, we affirm.
In reviewing the evidence most favorable to Cross, the record reveals that Cross owned real estate adjoining land owned by Capri. The Cross-Capri common boundary was a straight line running at an approximate 4.5 degree angle in a slight northeasterly direction from the Cross' west boundary for approximately 457 feet. Located along the southern part of the Cross property was a wall-fence-gate line, that like the boundary line, began at the Cross' west boundary and ran to the east boundary line. The fence began at the west side common boundary point of the Cross-Capri property line, and proceeded in a northeasterly direction to the east boundary of the Cross property. The fence however, did not follow the property line, but rather deviated to the north at various depths ranging from a few feet, to over twenty two feet. It is this area, between the fence line and the common boundary, that is the subject matter of this suit.
Capri has argued in its brief that this court should reverse the punitive damage award based upon the rule established in Taber v. Hutson, (1854) 5 Ind. 322, to the effect that punitive damages cannot be assessed against defendants whose acts constituted crimes as well as torts. Capri did not make a specific objection nor tender an appropriate instruction to the trial court. The issue was first raised in their motion to correct errors. The trial court was entitled to have the specific errors in the tendered instructions set out by the defendant, so that the trial court could make the necessary corrections before submitting them to the jury. Scott v. Krueger et al., (1972) 151 Ind.App. 479, 280 N.E.2d 336. Therefore, since this objection was not made prior to final instructions, Capri has not properly preserved an issue for our review. Ind.Rules of Procedure, Trial Rule 51.
In regard to those issues properly preserved for our review, we first consider whether the evidence supported the award of punitive damages and if that award was excessive. An award of punitive damages is proper in a trespass action upon a showing of fraud, malice or oppressive conduct. Indiana & Michigan Electric Co. v. Stevenson, (1977) Ind.App., 363 N.E.2d 1254; Moore v. Crose, (1873) 43 Ind. 30; Nicholson's Mobile Home Sales, Inc., v. Schramm, (1975) Ind.App., 330 N.E.2d 785. Additionally, it is well settled that this court neither weighs the evidence nor resolves questions of credibility of the witnesses. An appellate court views the evidence most favorable to the appellee along with reasonable inferences therefrom, and if there is substantial evidence of probative value to support the decision, the decision will not be disturbed. Shahan v. Brinegar, (1979) Ind.App., 390 N.E.2d 1036; Reith-Riley Construction Co. v. McCarrell, (1975) Ind.App., 325 N.E.2d 844. We will also not disturb a damage award in the absence of a clear showing of passion, partiality or other improper motives by the fact finder. McCarty v. Sparks, (1979) Ind.App., 388 N.E.2d 296.
From a review of the record, we find that there was sufficient evidence from which the jury could have concluded that Capri acted in a wanton, oppressive or malicious manner in clearing the vegetation on the Cross land. There was evidence to the effect that Mrs. Cross told Ahr that their property line extended beyond the fence line, and that she liked the privacy afforded by that area. There was also a preliminary drawing made by Ahr in 1974 and sent to Mr. Cross which showed the Cross-Capri boundary as a straight line, with a 30 foot buffer which Cross had at one time considered purchasing to ensure his privacy. Additionally, five days before the clearing, an attempt to rezone the land was defeated in the City Council, with Mr. Cross leading the opposition. Finally, there was evidence that Capri never bothered to have the land surveyed to indicate the true boundary before it began clearing, 1 and that the property could have been accurately surveyed without destroying the dense vegetation and trees.
In light of the foregoing, we believe Capri has failed to show that the punitive damage award was based on passion or prejudice. We can only assume, therefore, that in considering the issue, the jury properly considered all the facts and reasonable inferences in a rational manner when finding that Capri was liable for punitive damages, and when making its award. Therefore, we find no error in the awarding of punitive damages nor in the amount.
Capri also challenges as error two instructions given by the trial court regarding punitive damages. Capri contends that the trial court's instructions erroneously permitted the jury to award punitive damages based merely on grossly negligent or reckless conduct. Capri argues that the language in...
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