Lindenborg v. M & L Builders & Brokers, Inc.
| Decision Date | 30 October 1973 |
| Docket Number | No. 2--1072A75,2--1072A75 |
| Citation | 302 N.E.2d 816,158 Ind.App. 311,39 Ind.Dec. 323 |
| Court | Indiana Appellate Court |
| Parties | Paul G. LINDENBORG and Alice L. Lindenborg, Appellants, v. M & L BUILDERS AND BROKERS, INCORPORATED, Appellee. |
James K. Sommer, E. Timothy Quino, Sommer, Tinkham, Barnard & Freiberger, Indianapolis, for appellee.
Dr. and Mrs. Paul Lindenborg contracted with M & L Builders, Inc. for the construction of their new home. Disagreements arose during the construction period over specifications and the quality of workmanship. The Lindenborgs moved into their new home without attending the property closing since they felt that most of the disagreements had not been settled. Many attempts were made by both parties to compromise their differences. Finally, M & L Builders, Inc. filed an action of ejectment against the Lindenborgs and later sold the home to a third party. The Lindenborgs filed an action for rescission, special damages and prejudgment interest. M & L Builders, Inc. filed a counterclaim which alleged breach of contract and requested damages. The trial court found that the contract had been mutually rescinded and entered a judgment for the Lindenborgs in the sum of Six Thousand Four Hundred Three Dollars and Twenty-Six Cents ($6,403.26). Both the Lindenborgs and M & L Builders, Inc. filed motions to correct errors which were denied by the trial court.
The Lindenborgs' motion to correct errors raises these issues on appeal:
The motion to correct errors filed by M & L Builders, Inc. raises these issues as cross-errors on appeal:
Our opinion concludes that the trial court committed no errors upon any of the issues above. We affirm.
Many meetings took place between Art Mullin, a representative of M & L Builders, Inc. and the Lindenborgs before the signing of the 'standard form' contract on March 30, 1966 and the payment of Eight Thousand Dollars ($8,000.00) by the Lindenborgs. The blanks in the 'standard form' contract were filled in, but the attached four (4) pages of specifications were modified to include the verbal changes urged by the Lindenborgs. The Lindenborgs were told that the signing of the 'standard form' contract was a necessary Construction began in April, 1966. Completion was scheduled for mid-September, 1966. During construction, the Lindenborgs noted over one hundred defects in workmanship and variances from the agreed specifications. Many of these defects were illustrated by photographs. The Lindenborgs did not attend the property closing set for November 30, 1966. They were moving into the new home. Their former home had been sold.
formality to allow the construction of their home to begin.
The Lindenborgs' attorney submitted a written list of objections to M & L Builders, Inc. on December 15, 1966. This list was supplemented by an architect's report on December 29, 1966. The architect's report set forth additional work that he felt necessary and recognized the very poor laying of the driveway. After a conference between the Lindenborgs and M & L Builders, Inc., an offer of compromise was given to the Lindenborgs by M & L Builders, Inc. based upon the architect's report. A counter-offer of compromise was made by the Lindenborgs. This offer had an alternative. M & L Builders, Inc. should remedy the defects in the home; or the Lindenborgs would release M & L Builders, Inc. from their obligation under the contract in return for the restitution of their Eight Thousand Dollars ($8,000.00) plus payment for the numerous improvements added to the home by the Lindenborgs during their occupation of the home.
M & L Builders, Inc. filed an ejectment action to oust the Lindenborgs. They were ejected from the home on February 15, 1967. Two days later, the Lindenborgs notified M & L Builders, Inc. in writing that they viewed the contract between them rescinded and requested the return of their money as well as damages. M & L Builders, Inc. sold the home to a third party and paid nothing to the Lindenborgs.
The Lindenborgs filed an action for rescission, restitution of their Eight Thousand Dollars ($8,000.00) and special damages which included prejudgment interest. They admitted liability for the reasonable rental value of the home during their short stay prior to being ousted and the value of the furniture paid for by M & L Builders, Inc. which they took with them upon leaving the home. M & L Builders, Inc. filed a counterclaim for breach of contract and requested damages. A seven (7) day trial commenced on May 25, 1971. The transcript contains eight hundred and seventy-four (874) pages. No request for findings of fact under Rule TR. 52(A) of the Indiana Rules of Civil Procedure, I.C.1971 34--5--1--1 was made. On June 7, 1972, the trial court entered judgment for the Lindenborgs in the sum of Six Thousand, Four Hundred Three Dollars and Twenty-Six Cents ($6,403.26) and found against M & L Builders, Inc. on its counterclaim. Both the Lindenborgs and M & L Builders, Inc. filed motions to correct errors which were denied by the trial court.
These issues are presented for our review on appeal by the Lindenborgs:
M & L Builders, Inc. raises these issues in its cross-appeal:
court err in returning the Eight Thousand Dollars ($8,000.00) paid by the Lindenborgs when the contract provided that such amounts were to be retained by the contractor and applied against the damages?
The contract at issue in this action was entered into between the Lindenborgs and M & L Builders, Inc. Subsequent to the signing of that contract, the corporate name M & L Builders, Inc. was changed to M & L Builders and Brokers, Inc. The Lindenborgs' legal action was commenced against M & L Builders and Brokers, Inc. Prior to the trial, the corporate name was changed back to M & L Builders, Inc. The judgment of the trial court was entered against M & L Builders and Brokers, Inc. In this appeal, the Lindenborgs assert as error the discrepancy between the corporate name against which judgment was entered and the actual name of the corporation at the time of judgment. The sole authority cited for this proposition is Rule TR. 59(A) of the Indiana Rules of Civil Procedure which denotes the situations in which the trial court shall enter an order correcting error prior to judgment.
The changing of the corporate name does not affect the liability of the corporation. See Rice v. Fletcher Savings & Trust Co. (1939), 215 Ind. 698, 22 N.E.2d 809; State Exchange Bank v. Paul (1915), 58 Ind.App. 487, 108 N.E. 532. Any possible error resulting from such a mistake by the trial court is harmless. See Allison v. Boles (1967), 141 Ind.App. 592, 230 N.E.2d 784 and Emison v. Henderson (1967), 141 Ind.App. 240, 227 N.E.2d 457. This Court will not reverse for such error. Quinn v. Peru Transit Lines, Inc. (1967), 141 Ind.App. 111, 226 N.E.2d 546.
Rule AP. 15(D) of the Indiana Rules of Appellate Procedure provides that a defect in form such as this is unavailable as a ground for reversal and grants the power to this Court to deem the judgment as amended on appeal. Pursuant to Rule AP. 15(D), this Court orders the judgment to be amended to conform to the present corporate name.
ISSUE TWO: Prejudgment Interest.
Prejudgment interest is statutory in Indiana. I.C.1971, 24--5--1--3; Ind.Stat.Ann. § 19--12--103 (repealed). 1 This statute allows the award of interest prior to judgment for certain types of obligations. 2 The main thrust of the Lindenborgs' claim for interest is in the context of special damages stemming from a source outside the statute.
The Lindenborgs suggest as authority for their position the early Indiana Supreme Court decision of New York, Chicago & St. Louis Ry. Co. v. Roper (1911), 176 Ind. 497, 96 N.E. 468. In Roper, supra, the Court was faced with a situation where the trial court had awarded prejudgment interest on the Appellee's claim for the negligent destruction of his home. The basis of that award was the concept that the Appellee should be compensated for the full amount of the tortious injury to his property, i.e., a return of Roper to the status quo. In affirming the grant of prejudgment interest, the Court noted that a statutory provision for such a claim in contractually oriented actions did not foreclose the award of interest as an element of damages in a tort action.
As a standard governing the award of prejudgment interest in actions not governed by statute, the Court in Roper adopted a test dictated by the Utah Supreme Court in the case of Fell v. Union Pacific Railway Company (1907), 32 Utah 101, 88 P. 1003. In ...
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