Lystarczyk v. Smits
| Citation | 435 N.E.2d 1011 |
| Decision Date | 26 May 1982 |
| Docket Number | No. 3-781A186,3-781A186 |
| Parties | John LYSTARCZYK, Erma Lystarczyk, Appellants-Defendants, v. Vernon C. SMITS, d/b/a Able Realty, Plaintiff-Appellee. |
| Court | Court of Appeals of Indiana |
W. Russell Sanford, Plodowski & Sanford, South Bend, for appellants-defendants.
Charles A. Asher, South Bend, for plaintiff-appellee.
Vernon C. Smits doing business as Able Realty and John and Erma Lystarczyk 1 had entered into a contract whereby Smits was to build Lystarczyk a house as close as possible to a model home Smits had built and Lystarczyk was to pay Smits $34,600. From a jury trial, Lystarczyk appeals the award to Smits of compensatory damages, punitive damages, and attorney fees for Lystarczyk's breach of the contract. Lystarczyk raises the following issues for our consideration: 2
(1) Are the compensatory damages excessive and contrary to law?
(2) Was it proper to award prejudgment interest and was the prejudgment interest properly calculated?
(3) Is the award of punitive damages and attorney fees supported by sufficient evidence?
(4) Did the trial court err by refusing to give a tendered instruction?
Smits raises the issue of whether he should be awarded by this Court ten percent damages because Lystarczyk brought this appeal. 3
We affirm in part, reverse and remand in part, and deny the assessment of appeal damages.
In his complaint and at trial, Smits alleged that (1) Lystarczyk had paid only $24,000.00 of the $34,600.00 contracted price for the construction of the house, (2) Lystarczyk delayed construction and added to the expense of construction of the house by harassing workers and limiting their access to the construction site, (3) Lystarczyk had not paid for "extras" added to the house that Lystarczyk had requested in addition to what was in the contract, and (4) Lystarczyk had done these things in a malicious, fraudulent, willful and wanton, reckless, oppressive, and outrageous manner in wholesale disregard of the dire consequences to Smits. The jury awarded $13,450.00 compensatory damages, $3,000.00 attorney fees, and $1,000.00 punitive damages.
On appeal, Lystarczyk argues that the compensatory damages are excessive and contrary to law because they are not supported by sufficient evidence of probative value. Lystarczyk recognizes the standard set forth in Palmer v. Decker (1970), 253 Ind. 593, 255 N.E.2d 797, 798: in reviewing the evidence on appeal we look to the evidence most favorable to Smits to determine if there is substantial evidence of probative value or reasonable inferences therefrom to sustain the judgment of the trial court. We will reverse the judgment only if the evidence and reasonable inferences are undisputed and could only lead to a verdict contrary to that reached by the jury.
Lystarczyk argues that Smits admitted that several items of the house were in need of correction and that it would have cost $500.00 to $700.00 to make the corrections before Lystarczyk moved into the house. Lystarczyk argues that at least $500.00 should have been set off against the amount of compensatory damages awarded. We disagree.
The testimony to which Lystarczyk refers is as follows:
This testimony could reasonably be interpreted to state that if Smits did all the repairs before Lystarczyk moved into the house, including work that the subcontractors really should do, it would have cost $500 to $800.00. Smits did not testify to a specific amount that it would cost him to make repairs in addition to the work the subcontractors were obligated to perform. We can not agree with Lystarczyk that the evidence before the trial court proves that Smits was put in a better position than he would have been by $500.00.
Lystarczyk also argues that $50.00 should have been set off against the damages awarded because Smits admitted in his opening statement that Lystarczyk had legitimately expended this amount to repair his garage door. Smits' attorney stated the following in opening argument:
Indiana has not previously stated if and when an attorney's remarks during opening statement are binding upon the client as an admission of fact which relieves the opposing party of the duty to present evidence of that fact. After considering the reasoning of other jurisdictions, we conclude that an attorney can make an admission during opening statement that is binding upon his client and relieves the opposing party of the duty to present evidence on that issue. McLhinney v. Landsdell Corp. of Maryland (1969), 254 Md. 7, 254 A.2d 177, 180; Erwin v. Thomas (1973), 267 Or. 311, 516 P.2d 1279, 1280; DeArmon v. City of St. Louis (1975), Mo.App., 525 S.W.2d 795, 799; Fireman's Fund American Insurance Companies v. Central Securities, Inc. (1971), 208 Kan. 263, 491 P.2d 914, 916; Phillis Development Co. v. Commercial Standard Insurance Co. (1969), Okl., 457 P.2d 558, 560; Miller v. Johnston (1969), 270 Cal.App.2d 289, 75 Cal.Rptr. 699, 705; see Samuels v. Spangler (1969), Ky., 441 S.W.2d 129, 131; see LaRocco v. Fernandez (1954), 130 Colo. 523, 277 P.2d 232, 234; see Trollope v. Koerner (1970), 106 Ariz. 10, 470 P.2d 91, 95.
Usually, an opening statement is used to acquaint the judge and jury with the facts that counsel intends to prove; it is not substantive evidence. McLhinney, supra. If an attorney makes a clear and unequivocal admission of fact, he or she has made a judicial admission 4 which is binding upon his or her client. 5 DeArmon, supra. A mere outline of anticipated proof upon any of the issues of the case is not to be regarded as a binding admission, Id. Where there is ambiguity or doubt in a statement, it is presumed that the attorney did not intend to make an admission. Fireman's Fund American Insurance Companies, supra.
Smits' attorney did not make a clear and unequivocal admission that fifty dollars was spent to correct defects of the house. The attorney's mere outline of anticipated proof upon this issue cannot be regarded as a binding admission.
Lystarczyk argues that Smits used a lesser quality joist in the construction of the house than was required by the contract. He argues that $2,500.00 should be set off against the compensatory damages awarded. Lystarczyk recounts the evidence most favorable to his position and attempts to discredit the evidence most favorable to the judgment by arguing that Smits' testimony is based upon conjecture; therefore, it is incompetent. Suffice it to say that when all of Smits' testimony is considered, it is obvious that his testimony is based upon personal knowledge. The testimony of Smits and Graves 6 conflicted. The jury resolved this conflict in Smits' favor. Therefore, as Lystarczyk noted, we view the evidence in the light most favorable to Smits. Lystarczyk was not entitled to a $2,500.00 set-off.
Lystarczyk argues that prejudgment interest should not have been granted. Prejudgment interest is proper when the damages are ascertainable in accordance with fixed rules of evidence and accepted standards of valuation at the time the damages accrued. Indiana Industries, Inc. v. Wedge Products (1982), Ind.App., 430 N.E.2d 419; Fort Wayne National Bank v. Scher (1981), Ind.App., 419 N.E.2d 1308, 1310; Zalud v. Ethan Associates (1981), Ind.App., 418 N.E.2d 309, 314. As we recently noted in Indiana Industries, Inc., supra, the "ascertainable" standard is in reference to the amount of damages as distinguished from the liability for those damages. The trier of fact must always exercise its judgment to determine the liability for damages; however, prejudgment interest is proper where the trier of fact need not exercise its judgment to assess the amount of damages.
Contrary to Lystarczyk's assertions, the trier of fact did not have to exercise its judgment to assess the amount of damages once it had determined the liability for damages. Both the amount owed on the contract and the cost of extras was specifically set forth. The award of damages was therefore a mere mathematical computation once liability had been determined. It was proper to award prejudgment interest. 7
Lystarczyk also argues that the jury awarded Smits excess prejudgment interest. He argues that...
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