Sullivan Builders & Design v. Home Lumber, 02A04-0403-CV-158.

• Decision Date: 16 August 2005
• Docket Number: No. 02A04-0403-CV-158.,02A04-0403-CV-158.
• Parties: SULLIVAN BUILDERS & DESIGN, INC. d/b/a Sullivan Builder & Developer, Joe Sullivan Homes, Inc. and Joseph Sullivan, Appellants-Defendants, v. HOME LUMBER OF NEW HAVEN, INC., Appellee-Plaintiff.
• Court: Indiana Supreme Court

834 N.E.2d 129

SULLIVAN BUILDERS & DESIGN, INC. d/b/a Sullivan Builder & Developer, Joe Sullivan Homes, Inc. and Joseph Sullivan, Appellants-Defendants, v. HOME LUMBER OF NEW HAVEN, INC., Appellee-Plaintiff.

No. 02A04-0403-CV-158.

Court of Appeals of Indiana.

August 16, 2005.

Publication Ordered September 9, 2005.

Charles E. Davis, Swift & Finlayson, Fort Wayne, for Appellants.

R. Brock Jordan, Jennifer E. Riley, Rubin & Levin, P.C., Indianapolis, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants, Joe Sullivan Homes, Inc. (Sullivan Homes) and Joseph Sullivan (Sullivan) (collectively, the Sullivan Defendants) appeal the trial court's judgment in favor of Appellee-Plaintiff, Home Lumber of New Haven, Inc. (Home Lumber).

We affirm.¹

ISSUES

The Sullivan Defendants raise seven issues on appeal, which we consolidate and restate as the following two issues:

1. Whether the trial court abused its discretion in granting Home Lumber's motion to amend the proposed pre-trial order and admitting Sullivan Homes' credit application and Sullivan's guaranty agreement into evidence; and

2. Whether the trial court's judgment in favor of Home Lumber is clearly erroneous.

FACTS AND PROCEDURAL HISTORY

In May 2002, Home Lumber filed its Complaint on Account, Account Stated and Guaranty against the Sullivan Defendants. In August 2002, that case was consolidated for discovery and trial with another case previously initiated by Home Lumber against Sullivan Builders & Design, Inc. that was pending in the Allen County Circuit Court. After being continued from the original trial date, the trial on the consolidated cases was scheduled for October 15, 2003.

On September 30, 2003, the parties filed a proposed pre-trial order, which included proposed exhibits. Included in these exhibits was proposed Exhibit 3, described in the pre-trial order as "Exhibit #3 — Credit application of [Sullivan Homes] with [Home Lumber], including the guaranty of [Sullivan]. Defendants object to this exhibit." (Appellants' App. p. A-216). In fact, proposed Exhibit 3 consisted of portions of two documents, namely, the front side of a credit application executed by Sullivan in 1980 as sole proprietor of Joe Sullivan Homes and the back side of a different credit application and guaranty agreement for Sullivan Homes, executed by Sullivan in 1985.²

On October 13, 2003, two days before trial, Home Lumber filed its Motion to Amend Proposed Pre-Trial Order, requesting permission to amend the pre-trial order by replacing the erroneously-included first page of proposed Exhibit 3 with the front side of the 1985 Sullivan Homes credit application and guaranty agreement (substituted Exhibit 3) and by adding an additional exhibit, Exhibit 7, a copy of a letter Home Lumber sent to Sullivan in 1995. On that same date, Home Lumber also contacted the Sullivan Defendants to notify them of the motion and to inform them that Home Lumber would agree to a continuance in order to allow the Sullivan Defendants to conduct discovery related to substituted Exhibit 3 and Exhibit 7.

On October 15, 2003, the day of the trial, a pre-trial discussion was held concerning Home Lumber's Motion to Amend Proposed Pre-Trial Order. At the pre-trial proceedings, the Sullivan Defendants objected to Home Lumber's motion, arguing that they would be prejudiced if it were granted. Home Lumber again offered to agree to a continuance of the trial and further offered to waive its claim to attorney fees if Sullivan Defendants would agree to amend the pre-trial order. Sullivan Defendants rejected Home Lumber's offer. The trial court advised that it would not rule on Home Lumber's Motion until after the trial but that, if all other conditions of admissibility were met, the trial court would admit substituted Exhibit 3 and Exhibit 7 conditionally, pending its ruling on the motion.

But when Home Lumber moved to admit Exhibit 7 at the trial, Sullivan Defendants objected on the basis of Home Lumber's failure to disclose Exhibit 7 in the proposed pre-trial order and lack of foundation, and the trial court appears to have sustained the objection.³ Following the trial, the trial court issued its Court Findings and Orders (October 20 Order), granting Home Lumber's Motion in its entirety and explaining as follows:

There was no evidence that the omission of [substituted Exhibit 3 and Exhibit 7] from attachments to the pre-trial order was intentional and the [c]ourt is convinced that the case was more fairly tried on the facts than would have been possible without these exhibits.⁴

(Appellants' App. p. A-23).

In the October 20 Order, the trial court also entered judgment in favor of Home Lumber and against the Sullivan Defendants.⁵ With regard to Sullivan Homes' liability, the trial court found that "[f]rom June 11, 1996[,] through November 20, 1997, [Home Lumber] provided goods and materials to [Sullivan Homes] on accounts and account stated for which [Sullivan Homes] has not fully paid" and that the principal balance owed on said accounts at the time of trial was $116,886.50. (Appellants' App. p. A-22). As to Sullivan's liability, the trial court found that Sullivan "is liable to [Home Lumber] on his guaranty to the same extent and in the same amount as [Sullivan Homes] owes [Home Lumber] on its account." (Appellants' App. p. A-23).

On January 5, 2004, the Sullivan Defendants filed their Motion to Correct Error. On February 5, 2004, the trial court conducted a hearing on the motion, at the conclusion of which the trial court took the matter under advisement. On February 12, 2004, the trial court denied the Sullivan Defendants' Motion to Correct Error.

The Sullivan Defendants filed their Notice of Appeal on March 12, 2004. Shortly thereafter, the court reporter advised that the compact disc containing the recording of the trial had been lost. The trial court ordered the parties to confer and attempt to establish a statement of evidence in accordance with Rules 31 and 33 of the Indiana Rules of Appellate Procedure.

On October 5, 2004, the Sullivan Defendants filed their Defendants' Motion to Certify Statement of Evidence and Proposed Statement of Evidence. On October 26, 2004, Home Lumber filed its Plaintiff's Verified Response to Defendants' Proposed Statement of Evidence, contending that the statement of evidence submitted by the Sullivan Defendants was "incomplete, argumentative and biased" and requesting that the trial court deny the Sullivan Defendants' Proposed Statement of Evidence and certify Home Lumber's attached Verified Statement of Evidence. (Appellants' App. p. A-291). On December 13, 2004, the parties filed a joint statement of evidence. On December 15, 2004, the trial court conducted a hearing on the joint statement.

On January 4, 2005, the trial court issued its Order or Judgment of the Court, denying the Sullivan Defendants' Motion to Certify Statement of Evidence and granting Home Lumber's request that the trial court certify Home Lumber's Statement of Evidence. In this Order, the trial court certified that Home Lumber's Verified Statement of Evidence, attached as Exhibit A, together with the additions and modifications of the trial court, attached as Exhibit B, in combination, constituted the evidence heard at trial on October 15, 2003.

The Sullivan Defendants now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Motion to Amend and Exhibit 3

The Sullivan Defendants contend first that the trial court abused its discretion in granting Home Lumber's Motion to Amend Pre-Trial Order and admitting substituted Exhibit 3, Sullivan Homes' credit application, into evidence.⁶ In considering whether to permit a modification from the pre-trial order, the trial court considers both the danger of surprise or prejudice to the opponent and the goal of doing justice to the merits of the claim. Daub v. Daub, 629 N.E.2d 873, 875 (Ind.Ct.App.1994), trans. denied. The trial court may also consider the extent to which permitting a late amendment will disrupt an orderly and efficient trial of the case or of other cases in the court and whether there has been bad faith or willfulness in failing to comply with the court's existing order. Id.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004). An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Moreover, we will not reverse the trial court's admission of evidence absent a showing of prejudice. Wilkinson v. Swafford, 811 N.E.2d 374, 386 (Ind.Ct.App.2004).

The Sullivan Defendants now appear to contend specifically that the trial court abused its discretion in granting Home Lumber's motion and admitting substituted Exhibit 3 into evidence because (1) there was a lack of foundation for the admission of substituted Exhibit 3, and (2) Indiana Evidence Rule 803 prohibits the introduction of evidence that lacks sufficient trustworthiness and here the credit application was "altered or forged and was not reliable, as no witness could testify who signed, when it was signed or under what circumstance it was signed on the line for President of [Sullivan Homes]." (Appellants' Br. pp. 9, 12). However, the record establishes that the Sullivan Defendants did not object to the admission of substituted Exhibit 3 on either of these grounds at the trial. According to the Verified Statement of Evidence, the Sullivan Defendants instead objected to substituted Exhibit 3 "on the basis that it was not attached to the Proposed Pre-Trial Order." (Appellants' App. p. A-344). As we have previously held that a party may not raise one ground for objection at trial and argue a different ground on appeal, we find that the Sullivan Defendants have waived the issue for our review. See Simmons v. State, 714 N.E.2d 153, 155 (Ind.1999)....