Radio Distributing Co., Inc. v. National Bank and Trust Co. of South Bend, 3-1284A351
| Decision Date | 05 March 1986 |
| Docket Number | No. 3-1284A351,3-1284A351 |
| Citation | 489 N.E.2d 642 |
| Parties | RADIO DISTRIBUTING COMPANY, INC., Defendant-Appellant, v. The NATIONAL BANK AND TRUST COMPANY OF SOUTH BEND, Indiana, et al., Plaintiffs-Appellees. |
| Court | Indiana Appellate Court |
Jeffery A. Johnson, Robert J. Palmer, May, Oberfell, Helling & Lorber, South Bend, for defendant-appellant.
John B. Ford, Jones, Obenchain, Ford, Pankow & Lewis, South Bend, for plaintiffs-appellees.
This lawsuit revolves around a piece of commercial real estate located in South Bend which the bank as trustee had leased to Radio Distributing, and an alleged breach of that lease by Radio Distributing. Radio Distributing answered that if it had breached the lease, the trustee had failed to act to mitigate its damages and made certain counterclaims that are immaterial to this appeal. The lease between the trustee and Radio Distributing contained a clause providing that Radio Distributing would pay the attorney's fees and expenses incurred by the trustee in enforcing the lease or remedying its breach.
At a pretrial conference in May of 1982, the parties were ordered to exchange lists of witnesses, their respective contentions, and proposed stipulations prior to September 10, 1982 so that a pretrial order could be entered on that date. Trial was set to commence September 23, 1982.
On November 15, 1982 the trial court reset the trial to January 14, 1983. On January 10, 1983 the trustee filed its list of witnesses, exhibits, and contentions. On December 1, 1983 trial of the case was reset for March 14, 1984.
The trustee requested another pretrial conference which was held on December 27, 1983. Apparently it was at this conference that Radio Distributing first filed its list of witnesses although it had been ordered to file these materials by September 10, 1982. The trustee was given until January 10, 1984 to amend its own list of witnesses, contentions, and exhibits. A pretrial order was to be filed by February 1, 1984.
The proposed pretrial order was finally submitted on March 13, 1984, the day before trial. It named as witnesses for Radio Distributing two persons, John Ayers and John Fischer, who had not been on the list filed in December, but also stated that the trustee objected to these additions. In a hearing held on the morning of trial, the judge ruled that neither of these witnesses would be permitted to testify.
The case was tried before the court on March 14 and 19, 1984. At the start of its case in chief, Radio Distributing attempted to call Fischer and Ayers, and the trustee renewed its objection, which the trial court sustained. Radio Distributing then made the following offers of proof:
"MR. JOHNSON: That if John Ayres [sic] were called to testify here today he would testify principally that in 1976, late 1976, early 1977, during the course of a conversation he had with Mr. Cleppe of The National Bank and Trust Company, Mr. Cleppe told him that Logan Industries could take possession of building 1212; that Logan Industries would not have to pay any rent for the use of building 1212; he gave as a reason for this the fact that there was probate litigation "pending and that The National Bank didn't know to whom the rental payment would be made, and as far as he was concerned they could take possession of the building. The National Bank's position would be that they weren't in possession, but as far as he was concerned they could take possession.
Further, the testimony would show that Mr. Ayres [sic] was an agent of Logan Industries, employed by Logan Industries, and was negotiating with Mr. Cleppe in his capacity as an agent of Logan Industries for the purpose of negotiating a lease and/or purchase of building 1212.
Further, that Logan Industries did take possession of building 1212 in late 1976, early 1977, the specific date of which he is not certain, and remained in possession of the building until such time as Logan Industries moved out in 1981 when they went out to their present location at the South Bend Industrial Park; that to his knowledge Logan Industries did not pay any rent for the use of building 1212 during this period of time.
MR. JOHNSON: If John Fischer were allowed to testify here today in this matter he would testify as to the following facts:
He is an employee and agent of Logan Industries; that he was the founder of Logan Industries in 1955, and remained its Chairman until approximately 1972; that from his personal knowledge as an employee, and he has remained in the employment of Logan Industries through today, that if he were called to testify here today he would state that from his own personal knowledge Logan Industries was in possession of building 1212 beginning as early as the fall or early winter, 1976; that Logan Industries remained in possession of building 1212 until they moved to their present location at the South Bend Industrial Park in 1981; that during the period that they were in possession, to the best of his knowledge Logan Industries did not pay any rents for the use of that building.
Further, that Logan Industries was in possession of building 1212 with the knowledge and consent of The National Bank."
In Findings of Fact and Conclusions of Law dated August 23, 1984, the trial court found for the trustee on the trustee's claims for breach of lease and for attorney's fees and found against Radio Distributing on its defenses and counterclaims, including its defense that the trustee had failed to act reasonably to mitigate damages.
On October 22, 1984 Radio Distributing filed its motion to correct errors. Affidavits by both Ayers and Fischer were attached to it. In his affidavit, Fischer stated that Logan Industries had offered to pay rent for the use of the premises and that the trustee had refused this offer.
The trial court denied Radio Distributing's motion to correct errors on December 7, 1984. On January 8, 1985 the trustee petitioned for an award of additional attorney's fees to cover expenses after trial. On February 28 the record of the case was filed in the clerk's office. On May 24 the trustee petitioned this court for attorney's fees to cover the expenses of appeal.
In its appeal Radio Distributing makes the following allegations:
1) That the trial court acted contrary to law or abused its discretion in refusing to allow Ayers and Fischer to testify.
2) That the trial court erred in refusing to allow the same witnesses to testify as "rebuttal" witnesses.
3) That certain of the trial court's findings of fact and conclusions of law were contrary to the evidence and constitute reversible error.
4) That attorney's fees claimed by the trustee for the costs of certain post-trial work performed by its lawyers in connection with this case are not proper subjects for an award.
Before turning to the main contentions of the parties, we should consider the effect of the affidavits attached to Radio Distributing's motion to correct errors. In its reply brief, Radio Distributing claims that under Indiana Rules of Procedure, Trial Rule 59(H), we must accept all the allegations in the affidavits as true since no affidavits were filed by the trustee. It should be noted that Fischer's affidavit differs materially from the offer of proof made at trial, in that it alleges that the trustee was offered and refused rent from Logan Industries.
Trial Rule 59(H) applies to motions to correct errors based on facts outside the record. Examples of motions based on facts outside the record include motions based on newly discovered evidence, accident or surprise which could not have been guarded against. 4 Harvey and Townsend, Indiana Practice 131. An affidavit under this rule may not be used to bring forth evidence that a party merely neglected to submit during the trial. Mid-States Aircraft Engines v. Mize Co. (1984), Ind.App., 467 N.E.2d 1242.
In this case there is no contention that the evidence of Fischer and Ayers was not available at trial. The error, if any, resulted when the trial court excluded the testimony of the two witnesses. The details of their testimony go only to the magnitude of the error. TR 59(H) and the cases under it are therefore inapplicable.
Did the trial court act contrary to law or abuse its discretion in excluding the testimony of Fischer and Ayers? The following recapitulates the sequence of events:
June 21, 1979 Complaint filed
October 25, 1979 Answer and counterclaim
filed
May 28, 1982 Court conducts pretrial
conference and orders
exchange of witness lists
statements of contentions
and proposed stipulations so
that a comprehensive order
can be entered September
10, 1982. Trial set to
commence September 23
November 15, 1982 Trial reset for January 14,
1983
January 10, 1983 Trustee files list of
witnesses, exhibits and
contentions with court.
January ? Trial continued (no docket
entry in transcript)
November 29, 1983 Trustee requests additional
pretrial conference;
conference set for December 27.
December 1, 1983 Trial set to commence March
14, 1984.
December 27, 1983 Pretrial conference. Radio
Distributing files list of
witnesses, etc. Trustee
given until January 10, 1984
to supplement its list of
witnesses, contentions.
Fully executed pretrial order
to be filed by February 1,
1984.
March 13, 1984 Proposed pretrial order
submitted naming Fischer
and Ayers as witnesses and
stating
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