Ingmire v. Butts
| Decision Date | 25 September 1975 |
| Docket Number | No. 2--1172A111,2--1172A111 |
| Citation | 334 N.E.2d 701,166 Ind.App. 139 |
| Parties | Maurice INGMIRE and Bruce Vancauwenbergh, Appellants, v. Cecil BUTTS and Donis Butts, Appellees. |
| Court | Indiana Appellate Court |
David M. Adams, Castor, Richards & Adams, Noblesville, for appellees.
Defendant-Appellants Maurice Ingmire and Bruce VanCauwenbergh (Lessees) appeal from a trial court judgment for damages and ejectment arising out of their occupancy of real estate owned by Plaintiff-Appellees Cecil Butts and Donis Butts (Lessors), maintaining that the damages awarded to Lessors were excessive, erroneous exclusion of certain parol evidence, and failure to follow Rule TR. 53 in the appointment and functioning of the Master Commissioner.
We affirm.
When this case was originally considered on June 27, 1974, it was determined that the Lesseees pursued an appeal to this court without a final judgment having been rendered by one with judicial power and authority to do so. Ingmire v. Butts (1974), Ind.App., 312 N.E.2d 885.
Accordingly, we suspended consideration of the Lessees' appeal and instructed 'the Hamilton County Circuit Court to order the filing of a Master Commissioner's Report by the Commissioner and to enter final In compliance, the Master Commissioner submitted his report on September 20, 1974, which the trial court adopted the same day as its final judgment.
judgment in accordance with provisions of Rule TR. 53 . . .'. Id. at p. 890.
Lessees now appeal from this judgment.
The record, when viewed most favorably to Lessors as Appellees and the judgment of the trial court, reveals the following facts:
On April 3, 1963, Defendant-Appellants Ingmire and VanCauwenbergh (Lessees) entered into a three-year lease of the subject property owned by Plaintiff-Appellees Cecil and Donis Butts (Lessors).
Under the lease, Lessees agreed that they would not 'make any alterations, amendments or additions to the buildings on said premises, without the written assent' of the Lessors. However, a typewritten addendum provided that 'Lessee may erect additional storage facilities, not attached to the building * * *.' (Emphasis supplied).
The leased premises consisted of a single story cement block building, 50 feet by 60 feet, covered with a clear span roof. Lessors had used the building as a garage and hardware store prior to 1963. In 1949, Lessors installed steel columns under one of the trusses which served to support the lower beam whenever an engine hoist was used. Nothing else was attached to the trusses and Lessors encountered no problems with the roof leaking.
When the Lessees took possession, they used the premises for a motorcycle shop.
In 1965 a windstorm caused minor damage to the roof (installed in 1954 or 1955), which damage was repaired by replacing 20 board feet of roof sheeting. After this repair, the roof did not leak.
Renewals of the lease were made in 1966 and 1968, the last renewal ending April 30, 1973.
In 1969 and 1970, Lessees constructed an additional storage floor in the building. This storage floor was of wooden construction, nailed to and suspended from the trusses, and covered about two-thirds of the building. The addition was used for storing heavy motorcycle parts, frames, etc. The trusses were equipped with turnbuckles which could be used to adjust and equalize the load imposed on the trusses by the new construction.
Contemporaneously with the installation of the 'second floor,' the roof of the building began to leak. Lessors and their witnesses attributed the leakage to the effect of the weight of the added construction and parts therein. The downward force of this additional weight, they testified, caused distortion of the trusses. As the trusses bent, they pulled away from the roof, causing nails to pull through the roof and the entire roof to sag. This damage to the roof was the source of the leakage problem.
On the other hand, Lessees' expert witness stated that the steel columns added by Lessors twenty years previously had overstressed the trusses. He admitted, however, that he had not considered the extra load added by the parts room in making his calculations. Lessees testified that Lessors had orally agreed to fix the leaking roof in return for Lessees' promise to install an acoustic ceiling in a portion of the building. Lessors denied making any sort of agreement to fix the roof.
There was evidence that Lessees damaged the premises in other respects. For example, Lessees allowing pipes in a ladies' restroom to freeze, which caused them to burst. Thereafter some of the plumbing was torn out, fixtures damages or removed, the door was boarded over and the restroom was used for a dog house.
In September of 1970, Lessees stopped making rent payments. On August 19, 1971, Lessors responded by filing a complaint in Hamilton Circuit Court, seeking rent and damages. Lessees continued to withhold their rent, and a second suit was filed on January 25, 1972 asking for immediate possession. Lessors posted bond and a Writ of Ejectment was issued. At this time Lessees were fourteen months in arrears in their rent payments.
On February 9, 1972, Lessees stipulated that they would pay the back rent and keep the rent current. Lessors in turn agreed to request the Sheriff not to execute the Writ until further notice, pending trial of the issues. However, the Lessees subsequently became Two Hundred Forty Dollars ($240.00) in arrears and failed to pay the May, 1972, rent on time.
The two suits were consolidated for trial. The Master Commissioner of the Hamilton Circuit Court, who had been appointed on January 3, 1972, by the Hamilton County Circuit Court Judge, heard the evidence apparently with the acquiescence of both parties as no objection was filed.
On September 20, 1972, the Master Commissioner submitted his report, which the trial court adopted as its final Judgment on the same day. The judgment awarded damages in the amount of Three Thousand Four Hundred Ten Dollars ($3,410.00) to Lessors and directed that the Writ of Ejectment should be executed.
The trial court did stay execution of the ejectment, provided Lessees pay the damages within twenty-one (21) days of the judgment. Subsequently, the court again stayed execution of the Writ pending appeal, so that Lessees enjoyed possession of the premises for the full term of the lease as extended, i.e., to April 30, 1973.
In alleging and arguing error in granting ejectment, Lessees raise certain issues as to ejectment claiming estoppel and waiver of re-entry. Inasmuch as Lessees remained in possession for the full term of the extended lease, issues relating to ejectment or forfeiture have long since become moot and therefore will not be treated. 1
Remaining for determination are these issues:
As to ISSUE ONE, Lessees challenge the award of damages as 'excessive' because the weight of evidence did not support the award.
Lessors reply that the testimony amply supported the trial court's assessment of damages and Lessees simply seek a reweighing of the evidence.
As to ISSUE TWO, Lessees argue that the trial court erred in not allowing Lessees to testify as to an alleged parol agreement entered into whereby Lessors would repair the roof in exchange for Lessees' installation of a suspended ceiling.
Lessors respond that Lessees' Motion to Correct Errors did not raise this issue with sufficient specificity to preserve it on appeal, contrary to Rule TR. 59(G).
As to ISSUE THREE, Lessees contend that the trial court's appointment of the Master Commissioner and his subsequent actions did not comply with Tr. 53.
Lessors answer that the appointment of the Master Commissioner and the proceedings pursuant to this appointment were in substantial compliance with TR. 53.
CONCLUSION--It is our opinion that the award of damages in the amount of Three Thousand Four Hundred Ten Dollars ($3,410.00) was not excessive.
While Lessees' issue of excessiveness comes perilously close to being waived for failure to make cogent argument or cite applicable authority, 2 we will briefly consider the merits of this question.
In order to justify a reversal on the ground of excessive damages, the amount of damages assessed must appear to be so outrageous as to impress the court as being motivated by passion, prejudice, and partiality. New York Central Railroad Co. v. Johnson (1955), 234 Ind. 457, 127 N.E.2d 603; Northern Indiana Public Service Co. v. Otis (1969), 145 Ind.App. 159, 250 N.E.2d 378; City of Evansville v. Rinehart (1968), 142 Ind.App. 164, 233 N.E.2d 495; Hines v. Nichols (1921), 76 Ind.App. 445, 130 N.E. 140.
Reversal is not justified, however, if the amount of damages awarded is within the scope of the evidence before the court. Northern Indiana Public Service Co. v. Otis, supra; First Bank & Trust Co. of South Bend v. Tellson (1954), 124 Ind.App. 478, 118 N.E.2d 496.
Lessors testified that the replacement of the roof would cost Ten Thousand Dollars ($10,000.00). Included in this figure were the sheeting and roofing materials, labor to remove the old roof, and labor to install the new roof. Lessors' witness Virgil Lee Butts testified that the lowest estimate he had received for the same work was around Five Thousand Dollars ($5,000.00) or Six Thousand Dollars ($6,000.00).
Lessees suggest that the court abused its discretion by not accepting their expert's estimate of Two Hundred Dollars ($200.00) for repairs. A careful reading of the record reveals that the Two Hundred Dollar ($200.00) figure was the estimate for repairing the damage and distortion in two of...
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