Mitchell v. Mitchell

• Decision Date: 23 June 1997
• Docket Number: No. 45A03-9606-CV-205,45A03-9606-CV-205
• Citation: 685 N.E.2d 1083
• Parties: Eura F. MITCHELL, Appellant-Defendant, v. Pamela D. MITCHELL, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1083

685 N.E.2d 1083

Eura F. MITCHELL, Appellant-Defendant, v. Pamela D. MITCHELL, Appellee-Plaintiff.

No. 45A03-9606-CV-205.

Court of Appeals of Indiana.

June 23, 1997.

Joseph S. Reid, Griffith, for Appellant-Defendant.

Eugene M. Feingold, Steven P. Kennedy, Munster, for Appellee-Plaintiff.

OPINION

GARRARD, Judge.

Eura Mitchell ("Flossie") ¹ appeals the trial court's award of $35,000.00 to her step-daughter Pamela Mitchell ("Pam"), claiming that the damage award was clearly erroneous, that the trial court erred by awarding Pam attorney's fees, and various errors in the admission of evidence.

We affirm in part and reverse in part.

FACTS

This appeal arises over a long-standing and often bitter dispute between Flossie and Pam over pictures, home movies, and personal effects of Lester Mitchell ("Lester"). Pam is Lester's daughter from his first marriage and Flossie was Lester's second wife. The dispute between the two women began when Lester died in 1987 and Flossie was named administratrix of Lester's estate. During the pendency of the estate administration, Pam filed petitions and objections to Flossie's handling of the estate. Pam and Flossie also clashed over pictures and memorabilia that Pam attempted, unsuccessfully, to retrieve from Flossie. Finally on February 1, 1991, Pam and Flossie executed an agreement to settle their differences and close the estate. The agreement required Flossie to allow Pam to copy specific photographs and stated that though Flossie did not know if any of the requested items existed, she would turn over for reproduction any photographs, movies, or videos she discovered. It also stated that Flossie would attempt to reproduce a list of people who sent flowers to Lester's funeral, and give Pam a leather wallet and a mold of Lester's face if they were found. On June 28, 1993, after repeated attempts to force Flossie to produce the requested items, Pam filed suit against Flossie for specific performance of the contract.

After filing suit, Pam sought to depose Flossie, but was met with stiff resistance from Flossie. Finally, on April 7, 1994, Flossie was deposed. At this deposition, Flossie produced several of the photographs called for in the agreement and stated that she had found other photographs and videos of Lester which she would allow Pam to copy. Flossie did not explain why she had not found and/or produced these items earlier, and continued to claim that she could not recreate the list of floral donors Pam requested. However, Flossie did state that a Book of Remembrance from Lester's funeral existed. The Book of Remembrance, when later given to Pam, contained a list, written in Flossie's handwriting, of over 100 people who sent flowers to Lester's funeral.

A bench trial was held on March 4 and 5, 1996. Pam testified that the items she sought were tremendously important to her and were of immense sentimental value. When questioned as to the value of the items to her and the amount of damages caused by Flossie's withholding the items, Pam expressed difficulty in placing a dollar figure on items with little market value, but great sentimental value. She eventually testified, over the repeated objections of Flossie, that her damages were between $35,000.00 and $50,000.00 for her time, travel, and expense in trying to retrieve the items. Later, Pam also testified that the value to her of the items she had yet to receive was between $77,000.00 and $100,000.00.

During the trial, Pam sought to introduce the deposition of Betty Jernigan, a friend of Flossie's. In the deposition, Betty testified that Flossie repeatedly told her in 1981 that she (Flossie) would "get Pam" when Lester died. When introducing this deposition, Pam's attorney asked the trial judge if he wanted the deposition read from the witness stand or whether the judge would prefer to read it on his own. The judge responded that he would rather read it on his own. Flossie did not object to this procedure. The deposition was not, however, formally admitted into evidence by the trial court.

On March 21, 1996, the trial court entered its specific findings of fact and conclusions of law as requested by Pam under IND. TRIAL RULE 52(A). In its order, the trial court detailed Pam's attempts to obtain the items called for in the agreement and Flossie's failure to fulfill her obligations under the agreement. The trial court also found that Flossie acted willfully, intentionally, and in bad faith in failing to provide the requested items and that Flossie's behavior was obdurate. Flossie was ordered to comply with the agreement, produce the requested items, and pay Pam $35,000.00 as damages for the wilful three year delay in complying with the agreement. In addition, the trial court ordered Flossie to pay Pam's attorney's fees in the amount of $14,457.50 due to Flossie's obdurate behavior. Flossie appeals this decision.

ISSUES

Flossie presents six issues on appeal which we consolidate and restate as:

I. Whether the trial court erred in considering the deposition of Betty Jernigan.

II. Whether the trial court erred by allowing Pam to give an opinion about her damages.

III. Whether the trial court's award of $35,000.00 in damages was clearly erroneous.

IV. Whether the trial court erred in awarding Pam attorney's fees due to Flossie's obdurate behavior.

V. Whether the trial court erred by substituting its own language for that of the agreement between Pam and Flossie.

DISCUSSION

We initially must discuss the standard of review. Because Pam requested specific findings of fact and conclusions of law under T.R. 52(A), we cannot affirm the judgment on any basis, but instead must decide whether the trial court's findings support the judgment. Summit Bank v. Quake, 631 N.E.2d 13, 15 (Ind.Ct.App.1994). In our review, we first determine whether the evidence supports the findings, and then decide whether the findings support the judgment. Id. We will reverse the judgment only if it is clearly erroneous. Id.

Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inference from the evidence to support them. [Citation omitted]. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility.

Id. With this standard in mind, we now turn to Flossie's claims.

I. Deposition of Betty Jernigan

Flossie claims that the trial court relied on the deposition of Betty Jernigan to make its finding of obdurate behavior and thus erred by considering evidence not properly admitted. Pam argues that the deposition was for all intents and purposes admitted by the trial court and, regardless, the deposition was merely cumulative and therefore any error was harmless. We agree that the admission of the deposition was, at most, harmless error.

"Any error in the admission of evidence is harmless if the same or similar evidence is submitted without objection." Homehealth, Inc. v. NIPSCO, 600 N.E.2d 970, 974 (Ind.Ct.App.1992), reh'g denied. The trial court, in its findings of fact, does not state that it relied solely on Betty's deposition for its finding of obdurate behavior and our review of the record reveals ample evidence other than Betty's deposition to support this finding. The evidence showed that Flossie produced photographs at her deposition that Pam had sought for three years and did not explain why she had been unable to produce them. Flossie also testified at her deposition that she could not produce a list of flower donors, yet she admitted to knowing of the Book of Remembrance which contained just such a list, in her own handwriting. Flossie does not now, nor did she then, object to the admission of this testimony. We hold that other evidence existed to support the trial court's finding of obdurate behavior and, therefore, any error in the admission of Betty Jernigan's deposition ² was harmless.

II. Opinion as to Damages

In her next claim, Flossie argues that the trial court erred when it allowed Pam to give her opinion about her damages because such testimony was irrelevant and prejudicial. ³ Pam counters that because damages were in dispute and, in this case, difficult to value, her testimony was extremely relevant. Furthermore, Pam argues, testimony as to damages is inherently prejudicial, but that her testimony was not unduly prejudicial and, thus, admissible. The testimony in controversy consisted of Pam's attempt to place a dollar amount on her expense and loss caused by Flossie's delay in complying with the terms of the agreement. After much difficulty and repeated interruptions by Flossie's attorney, Pam stated that her damages, consisting of the time, expense, and emotional suffering caused over the seven years since her father died, were between $35,000.00 and $50,000.00.

"The trial court has broad discretion in ruling on the admissibility of evidence and in determining its relevance. We will disturb its ruling only upon a showing of abuse of that discretion." Forrest v. State, 655 N.E.2d 584, 587 (Ind.Ct.App.1995), trans. denied. Under Indiana Rule of Evidence 402, relevant evidence is admissible. "Evidence is relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Sturgis v. State, 654 N.E.2d 1150, 1152 (Ind.Ct.App.1995), trans. denied.

A material issue at trial was the damages that Pam had suffered from the delay in producing the photographs and other memorabilia. In the present case, the valuation of the damages was especially difficult because of the sentimental value of the items and because, as Pam admits, the items had little or no market value. Because the damages consisted of the emotional loss and expense caused by Flossie's inaction, Pam was in the best position to...