Nehi Beverage Co., Inc. of Indianapolis v. Petri

• Decision Date: 04 May 1989
• Docket Number: No. 49A04-8802-CV-53,49A04-8802-CV-53
• Citation: 537 N.E.2d 78
• Parties: NEHI BEVERAGE COMPANY, INC. OF INDIANAPOLIS and Marvin Farber, Appellants (Defendants), v. Vernon J. PETRI, as Trustee of the Joe Newman Advertising Inc. Creditors' Trust, Appellee-Cross-Appellant (Plaintiff), and Royal Crown Cola Company, Cross-Appellee.
• Court: Indiana Appellate Court

Page 78

537 N.E.2d 78

NEHI BEVERAGE COMPANY, INC. OF INDIANAPOLIS and Marvin Farber, Appellants (Defendants), v. Vernon J. PETRI, as Trustee of the Joe Newman Advertising Inc. Creditors' Trust, Appellee-Cross-Appellant (Plaintiff) and Royal Crown Cola Company, Cross-Appellee.

No. 49A04-8802-CV-53.

Court of Appeals of Indiana Fourth District.

May 4, 1989.

Opinion on Rehearing July 10, 1989.

Dean E. Richards, Indianapolis, for appellants.

Sidney Mishkin, Michael O. Ellis, Mishkin, Cromer, Eaglesfield & Maher, Indianapolis, for appellee-cross-appellant.

Henry J. Price, Curtis J. Dickinson, Price & Delaney, Indianapolis, Thomas W. Queen, Michael L. Sturm, Wiley, Rein & Fielding, Washington, D.C., for cross-appellee.

CONOVER, Presiding Judge.

Defendants-Appellants Nehi Beverage Company and Marvin Farber appeal from money judgments in favor of Plaintiff-Appellee Vernon J. Petrie, trustee of Joe Newman Advertising, Inc. (Trustee) entered respectively upon (1) a jury verdict, and (2) a decision by the court on a claim removed from jury consideration. ¹

We consider and decide the issues only as they relate to Appellant Farber.

Plaintiff-Appellee Cross-Appellant Newman's trustee appeals the court's judgment on the claim removed from jury consideration.

We affirm.

Farber lists eight issues. Consolidated and rephrased they are: whether the court erred by

1. ² giving the court's final instructions numbered 7, 8, 9, 10, 13, 14, 15, 16, 19, and 20; and refusing part or all of Appellant's tendered instructions numbered 1, 2, 4, and 5;

2. granting judgment against Nehi on the Trustee's claim of unjust enrichment;

3. ³ denying appellant Farber's motion for a judgment on the evidence; and

4. ⁴ awarding prejudgment interest.

Cross-Appellant Newman's trustee presents one issue:

1. whether the trial court erred by removing from jury consideration the Trustee's claim of unjust enrichment.

FACTS

This case began in April, 1984, as a simple collection case. Newman sued Nehi Beverage Company, Inc. of Indianapolis (Nehi) on its account. Newman alleged Nehi owed $47,750. Newman prayed for that amount, plus prejudgment interest and costs. After a storm of pleadings, cross claims, and the addition of new parties, the case came to trial in late August, 1987. At the time of trial, the plaintiff was Vernon J. Petrie as trustee for Joe Newman Advertising, Inc. Creditors Trust; Defendants were Nehi Beverage Co. of Indianapolis, Inc., Marvin Farber, and Royal Crown Cola Co. (R.C.); R.C. had a cross-claim against Nehi; and Nehi had a counterclaim against R.C.

The Trustee's sixth amended complaint Count I alleged all defendants were indebted to Joe Newman Advertising, Inc. for advertising services, in Count II they were unjustly enriched thereby, and in Count III R.C. had agreed to pay Nehi up to one-half of the advertising campaign's cost and Newman was the third party beneficiary thereof. At trial, the court took from the jury consideration of the Trustee's Count II for unjust enrichment. The jury then returned a verdict of $42,800 for Newman's Trustee against Nehi on Count I, but not against Farber or R.C., and a verdict of $86,625 for Newman's Trustee against Farber, but found in favor of R.C. on Count III. The trial court entered judgment on these verdicts together with pre-judgment interest of $12,292.27 on Count I, $23,677.50 on Count III, and costs. The trial court on its own then entered judgment of $47,750 for Newman's Trustee against Nehi on Count II, and found in favor of Defendants Farber and R.C. It did not, however, award interest on its Count II judgment.

Farber's motion to correct error and Newman's Trustee's motion to correct error were denied. They appeal and cross-appeal respectively.

Additional facts as necessary are stated below.

DISCUSSION

(a) Appellant's Brief: Noncompliance with Appellate Rules.

We first note generally the appellant's brief submitted by Farber fails to comply with Ind.Rules of Procedure, Appellate Rule 8.3(A)(4), 8.3(A)(5) and 8.3(A)(7).

We prefer to decide cases on the merits rather than on technicalities. However, we will deem errors waived where an appellant's noncompliance with the rules is so substantial it impedes our consideration of them. Cf. Hebel v. Conrail, Inc. (1985), Ind., 475 N.E.2d 652, 661 (claimed error about refused instructions not considered); Stepp v. Review Board (1988), Ind.App., 521 N.E.2d 350, 353 (substantial compliance with A.R. 8.3(A) permitted consideration of issues); Lambert v. Farmers Bank (1988), Ind.App., 519 N.E.2d 745, 747 (failure to comply with A.R. 8.3(A)(4), (7) did not preclude appellate review); Captain and Co., Inc. v. Stenberg (1987), Ind.App., 505 N.E.2d 88, 95, trans. denied (claimed error about sufficiency of evidence waived). Appellants bear the burden of demonstrating error. This court will not sift through a record to locate error so as to state an appellant's case for him. Matter of Loeb (1986), Ind.App., 492 N.E.2d 40, 42.

Appellate Rule 8.3(A)(4) requires an appellant's brief to contain a statement of the case. It says:

(4) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below, including a verbatim statement of the judgment.

The statement of the case is intended to assist this court by setting forth the procedural posture of the case. An appellant need not include the contents and dates of all pleadings, hearings, and orders, but it is necessary to accurately report all entries which explain the court's actions and affect the issues on appeal. Moore v. State (1981), Ind.App., 426 N.E.2d 86, 89.

Here with diligent probing, the informational nuggets required by the rule can be found buried within superfluous overburden contained in Farber's statement of the case. It is anything but brief and contains a plethora of information extraneous to the purpose of the rule. Cf. Matter of Posey (1986), Ind.App., 513 N.E.2d 674, 677 (punitive attorney fees awarded for noncompliance with A.R. 8.3(A); Posey v. Lafayette Bank & Trust Co. (1987), Ind., 512 N.E.2d 155 (award of punitive attorney fees affirmed on petition to transfer).

A.R. 8.3(A)(5) requires an appellant's brief to have a statement of facts. The rule says:

(5) A statement of the facts relevant to the issues presented for review, with appropriate references to the record. The statement need not make references to parts of the record not particularly related to or involved in the error claimed.

Farber's statement of facts consists of a witness by witness summary of testimony purportedly favorable to his contentions. This is not a statement of facts within the meaning of A.R. 8.3(A)(5). The statement of facts should be a concise narrative of facts stated in a light most favorable to the judgment. It should not be argumentative. It should not summarize the testimony of each witness. FMC Corp. v. Brown (1988), Ind.App., 526 N.E.2d 719, 723, n. 1; Walters v. Dean (1986), Ind.App., 497 N.E.2d 247, 249; Lucas v. Frazee (1984), Ind.App., 471 N.E.2d 1163, 1166, n. 1.

A.R. 8.3(A)(7) requires an appellant's brief to have an argument section. The rule provides in relevant part

(7) An argument. Each error assigned in the motion to correct errors that appellant intends to raise on appeal shall be set forth specifically and followed by the argument applicable thereto.

* * *

The argument shall contain the contentions of the appellant with respect to the issues presented, the reasons in support of the contentions along with citations to the authorities, statutes, and parts of the record relied upon, and a clear showing of how the issues and contentions in support thereof relate to the particular facts of the case under review.

When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto. Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived. (Our emphasis).

A.R. 8.3(A)(7) requires appellants to set out verbatim challenged instructions and the objections made to them. Farber's wholesale noncompliance with this rule, discussed in more detail below, precludes review of his first five issues.

(b) The Issues

(1) Farber's first five issues aver the court erred when it gave court's instructions 7, 8, 9, 10, 13, 14, 15, 16, 19, and 20. Farber contends the court erred by refusing parts or all of his tendered instructions 1, 2, 4, and 5.

(i) Instructions Given

No party may claim error as to the giving of an instruction unless he makes a timely and specific objection. Terre Haute Regional Hospital v. El-Issa (1984), Ind.App., 470 N.E.2d 1371, 1376, trans. denied; United Farm Bureau Mutual Ins. Co. v. Cook (1984), Ind.App., 463 N.E.2d 522, 526; Ind.Rules of Procedure, Trial Rule 51(C).

A review of this record shows Farber did not object to court's instructions 7, 8, 9, 13, 14, 15, or 16. Appellate review of these instructions is waived.

Farber's argument does not quote court's instructions 10 and 19 and quotes only part of instruction 20. The argument does not quote objections to 19 and 20. The argument quotes the objection to number 10, but claims it is an objection to number 8 for which no objection was made. Appellate review of these instructions is waived. A.R. 8.3(A)(7).

(ii) Instructions Refused

Farber asserts the court erred by failing to give all of his tendered instructions 1 and 2. We note defendant's tendered instruction number 1 was modified and given as court's instruction number 8. Defendant's instruction number 2 was modified and given as court's instruction number 9. As noted above, Farber made no objection to court's instructions 8 and 9. Failure to object to the modification waived error. Sims Motor Transport Lines v. Davis (1955), 126 Ind.App. 344, 352, 130 N.E.2d 82, 85.

Farber...