Indiana Tri-City Plaza Bowl, Inc. v. Glueck's Estate, TRI-CITY

• Decision Date: 29 June 1981
• Docket Number: TRI-CITY,No. 3-180A17,3-180A17
• Citation: 422 N.E.2d 670
• Parties: INDIANAPLAZA BOWL, INC., Appellant (Plaintiff/Cross-Defendant), v. The ESTATE OF Charles H. GLUECK and Rebecca A. Glueck, Appellees (Defendants/Cross-Complainants).
• Court: Indiana Appellate Court

Page 670

422 N.E.2d 670

INDIANA TRI-CITY PLAZA BOWL, INC., Appellant (Plaintiff/Cross-Defendant), v. The ESTATE OF Charles H. GLUECK and Rebecca A. Glueck Appellees (Defendants/Cross-Complainants).

No. 3-180A17.

Court of Appeals of Indiana, Third District.

June 29, 1981.

Palmer C. Singleton, Jr., Gregory R. Lyman, Singleton, Levy & Crist, Highland, for appellant.

Lowell E. Enslen, McHie, Enslen & Myers, Hammond, John W. Barce, Barce, Vann & Ryan, Kentland, for appellees.

STATON, Judge.

Indiana Tri-City Plaza Bowl, Inc. (Bowl) appeals the trial court's entry of judgment for Rebecca A. Glueck, individually and as widow of and on behalf of Charles H. Glueck, deceased (Glueck) on Glueck's counterclaim for damages. From the bench trial and the specific findings of fact and conclusions of law, Bowl raises the following issues for review:

(1) Did the trial court err in denying Bowl's motion for a continuance?

(2) Did the trial court fail to exercise its independent judgment when it adopted verbatim Glueck's proposed findings of fact and conclusions of law?

(3) Did the trial court err in making the following findings of fact:

(a) Bowl breached the Settlement Agreement by unreasonably withholding approval or disapproval of the proposed parking lot plans;

(b) Bowl forwarded an uncertified accounting to Glueck.

(4) Did the trial court err in admitting certain evidence over Bowl's hearsay objection?

(5) Did the trial court err in assessing damages?

We reverse as to Issue 5 and affirm all other issues.

In 1959, Bowl and Glueck signed a lease agreement which required Glueck to provide Bowl with adequate paved parking and a building for Bowl's bowling alley. From 1959 to 1970, Bowl used the parking facilities of the adjacent shopping center owned by Glueck. In 1970 the shopping center went into receivership. The trustee erected a fence to prevent Bowl's customers from parking at the shopping center. Bowl decreased the amount of rent it was paying. Bowl filed a claim for damages and specific performance of the lease. Glueck counterclaimed (misnamed a cross-complaint, Ind. Rules of Procedure, Trial Rule 13) for damages and an accounting. The parties voluntarily attempted to resolve their disputes by executing a settlement agreement, denominated as the Memorandum of Understanding. Three months after the settlement agreement was executed, Glueck amended her counterclaim to allege breach of the settlement agreement. Before the bench trial, the parties stipulated (1) all issues of law and fact were merged into the settlement agreement; (2) the complaint, answer and counterclaim were dismissed; (3) the amended counterclaim would survive.

I. Continuance

Bowl contends the trial court erred in denying its motion for a continuance. Bowl's motion stated its president, Louis Gelfand, would be unable to attend the trial due to illness. An affidavit from his physician stated Gelfand was suffering from transient paralysis or brain spasm, hypertension, and a cardiac problem. The physician had prescribed that Gelfand go to a warmer climate to recover. Bowl contends that these facts establish good cause within the meaning of TR. 53.4.

Bowl failed to establish good cause within the meaning of TR. 53.4. TR. 53.4 requires Bowl to include in its affidavit "what facts (it) believes to be true, and that (it) is unable to prove such facts by any other witness whose testimony can be readily procured." Even if Bowl had complied with TR. 53.4, the trial court is not required to grant a motion for a continuance. City of Indianapolis v. Ervin (1980), Ind.App., 405 N.E.2d 55. The trial court has the discretion necessary for granting continuances. We will reverse only for a clear and blatant abuse of that discretion. Id. Bowl must show the harm resulting from the denial of its motion in order to demonstrate an abuse of discretion by the trial court. Id.

The trial court did not abuse its discretion. Bowl has not demonstrated the harm it suffered from the denial of its motion. Bowl makes the bald assertion that it was unable to present relevant testimony from Gelfand, but never hints what this testimony would have been.

Bowl also contends Gelfand should be viewed in the same light as a party to the action when the motion for continuance is considered. Bowl argues a corporation can only act through its officers and Gelfand, as president, was intricately involved in all facts relevant to the action.

Bowl's argument does not preclude the possibility of other officers of the corporation being able to fulfill the role at trial Bowl wishes to assign only to Gelfand. Present at trial was Erwin Korzen, who was responsible for the management and day to day operation of Bowl. He was also an operating partner, secretary of the corporation, and Gelfand's son-in-law. He had attended the meeting in which the settlement agreement had been negotiated. He had contacted the accountants for the information the settlement agreement required Bowl to give to Glueck and he had received Glueck's plans and specifications for the parking lot. Bowl has not demonstrated how it was harmed by Gelfand's absence. The trial court did not err in denying Bowl's motion for a continuance.

II. Verbatim Adoption

Bowl contends the trial court erred by failing to exercise its independent judgment when it adopted verbatim Glueck's proposed findings of fact and conclusions of law. At the conclusion of the bench trial, the trial court requested the parties to submit proposed findings of fact and conclusions of law pursuant to TR. 52(C). Bowl invites us to scrutinize the findings of fact and conclusions of law and to give them less weight. We decline its invitation.

When the trial judge signs the findings of fact and conclusions of law, they become the court's findings of fact and conclusions of law. Wyoming Farm Bureau Mutual Insurance Co. v. May (1967), Wyo., 434 P.2d 507, 515; Kamuchey v. Trzesniewski (1959), 8 Wis.2d 94, 98 N.W.2d 403, 407. The court is responsible for their correctness. Id. These findings of fact and conclusions of law are not weakened because they were adopted verbatim. Saco-Lowell Shops v. Reynolds, 141 F.2d 587 (4th Cir. 1944). If the proposed findings of fact and conclusions of law did not state the facts as the trial court found them to be, it would not have adopted them as its own. TR. 52(C) encourages the trial court to request the parties to submit proposed findings of fact and conclusions of law. These findings will not be set aside unless clearly erroneous. TR. 52(A), AP. 15(N).

III. Findings of Fact

Bowl contends there was insufficient evidence for the trial court to make the following findings of fact: (1) Bowl breached the settlement agreement by unreasonably withholding approval or disapproval of the proposed parking lot plans; (2) Bowl forwarded an uncertified lineage accounting to Glueck.

When we review the findings of fact of the trial court, we neither weigh the evidence nor determine the credibility of the witnesses. B & T Distributors, Inc. v. Riehle (1977), 266 Ind. 646, 366 N.E.2d 178, 180. The considerations of the weight of the evidence and the credibility of the witnesses are left exclusively to the trier of facts. The findings of fact will be disturbed only if the record discloses there were neither facts nor inferences upon which to base the findings. Id.

The settlement agreement required Glueck to submit to Bowl the proposed plans and specifications for the parking lot. Bowl had the right to approve the plans, but its approval could not be unreasonably withheld.

Glueck hired a registered architect ¹ to prepare plans and specifications in accordance with the specifications in the Gary City Code, Brunswick Corporation standards, and the other requirements of the settlement agreement. After Glueck delivered the plans to Bowl for approval, Bowl failed to respond for four months; however, Bowl did send Glueck what it denominated "specifications." ² During the trial, Bowl's witness testified the "specifications" were not for the proposed parking lot. Rather, a contractor had merely guessed what might be needed for a parking lot. Bowl's response contained neither approval nor disapproval of the parking lot plans. This evidence was sufficient for the trial court to find that Bowl failed to approve or disapprove the parking lot plans.

Bowl contends Glueck had to establish that Bowl acted in bad faith in failing to approve the plans for the parking lot because the plans had to conform to the personal satisfaction of Bowl. Although Indiana has not previously discussed the situation of a party to a contract having his duty of performance conditioned upon his own satisfaction, other jurisdictions have. A minority of jurisdictions use one standard which gives the party to be satisfied an unqualified right of rejection in all circumstances unless he acts fraudulently. ³ The majority of jurisdictions use two standards, reasonable person and good faith, to determine if a party has been satisfied. ⁴

When the standard of the reasonable person is used in determining whether satisfaction has been received, dissatisfaction can not be claimed arbitrarily, capriciously or unreasonably. Satisfaction is said to have been received if a reasonable person in exactly the same circumstances would be satisfied. The reasonable person standard is employed when the contract involves commercial quality, operative fitness, or mechanical utility which other knowledgeable persons can judge. Weisz Trucking Co., Inc. v. Wohl Construction (1970), 13 Cal.App.3d 256, 91 Cal.Rptr. 489; see Collins v. Vickter Manor (1957), 47 Cal.2d 875, 306 P.2d 783 (soil compaction report and maps); see Bowie v. Bankers Life Co. (10th Cir. 1939), 105 F.2d 806 (evidence of insurability); Kadner v. Shields (1971), 20 Cal.App.3d 251, 97 Cal.Rptr. 742 (first encumbrance on luxury home); Radlo of Georgia, Ind. v. Little (1973), 129 Ga.App. 530, 199 S.E.2d 835 (caring and feeding of...