Vernon v. Acton, 49A02-9702-CV-121

Citation693 N.E.2d 1345
Decision Date16 April 1998
Docket NumberNo. 49A02-9702-CV-121,49A02-9702-CV-121
PartiesKirk E. VERNON and Martha Vernon, Appellants-Plaintiffs, v. Adam J. ACTON, Appellee-Defendant.
CourtCourt of Appeals of Indiana
OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Plaintiffs-Appellants Martha and Kirk E. Vernon (Vernons) appeal the trial court's adverse judgment.

We affirm.

ISSUES

The Vernons present three issues for our review, which we restate and consolidate as follows:

1. Whether the trial court erred in proceeding with a bench trial;

2. Whether the trial court erred in the admission of evidence; and

3. Whether the evidence was sufficient to sustain the judgment.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the judgment follow. The Vernons were involved in a car accident with Adam J. Acton (Acton) on May 9, 1995. The parties proceeded to a mediation with Paul Pettigrew on October 23, 1995; the mediation concluded that day. The Vernons filed a complaint for damages alleging negligence on December 5, 1995. Acton responded on February 29, 1996, and filed a counterclaim for breach of settlement agreement. The Vernons replied to the counterclaim on March 11, 1996. Acton then filed a motion to enforce settlement agreement and a motion for attorney's fees. Evidentiary hearings were conducted on August 13, 1996, and October 18, 1996. On November 26, 1996, the court entered its findings of fact and conclusions of law and judgment requiring the Vernons to accept the settlement and pay attorney's fees. The Vernons now bring this timely appeal. Additional facts will be provided as needed.

DISCUSSION AND DECISION
I. Request for Jury Trial

The Vernons argue that they were denied their constitutional right to a jury trial provided by art. I, § 20 of the Indiana Constitution. "In all civil cases, the right of trial by jury shall remain inviolate." Ind.Const. art I, § 20. Ind. Trial Rule 38(B) requires that a party file a written demand for a jury trial with the court and serve it on the other parties within ten days after the first responsive pleading to the complaint, cross-claim, or other claim. T.R. 38(B). The Vernons filed a demand for jury trial in accord with this rule, one pursuant to his original complaint and one in response to Acton's counter-claim. (R. 2, 7, 33). Ind. Trial Rule 39(A)(2) requires the trial court to grant the Vernons request for a jury trial on any issue on which they are entitled to a jury trial. T.R. 39(A)(2).

To determine whether the Vernons are entitled to a jury trial on the issue before us we must decide whether the case involves an equitable or legal cause of action. Baker v. R & R Const., Inc., 662 N.E.2d 661, 665 (Ind.Ct.App.1996), reh'g denied. "If any essential part of a cause of action is equitable, then the rest of the case is drawn into equity and the whole is tried by the court." Levinson v. Citizens Nat. Bank of Evansville, 644 N.E.2d 1264, 1267 (Ind.Ct.App.1994), trans. denied; Baker, 662 N.E.2d at 665.

The issues scheduled for the bench hearing in August, continued in October, were Acton's motion to enforce settlement agreement and motion for attorney's fees which were filed in response to the Vernons' complaint. To determine whether an action is an equitable one we look at the complaint, the rights and interests involved, and the relief demanded. Levinson, 644 N.E.2d 1264. In requesting that the trial court enforce the settlement agreement, Acton is requesting the court to order specific performance. Specific performance is a matter of equity. Id. Therefore, the matter before the trial court was one of equity, and the Vernons were not entitled to a jury trial.

II. Evidence

Our standard of review in this area is well-settled. The admissibility of evidence is within the sound discretion of the trial court, and "[t]he decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in denial of a fair trial." Spires v. State, 670 N.E.2d 1313, 1315 (Ind.Ct.App.1996). In determining admissibility of evidence, the reviewing court will only consider that evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Reaves v. State, 586 N.E.2d 847, 857 (Ind.1992) (quoting Russell v. State, 460 N.E.2d 1252, 1254 (Ind.Ct.App.1984)). Additionally, a claim of error for admitting or excluding evidence cannot be brought unless a substantial right of the party is affected, and a specific and timely objection and offer of proof was made to preserve the error for review. Ind.Evidence Rule 103(a); Carter v. State, 634 N.E.2d 830, 833 (Ind.Ct.App.1994); Borkholder v. State, 544 N.E.2d 571, 574 (Ind.Ct.App.1989) (holding that this rule applies to constitutional errors as well).

The Vernons contend that the trial court committed reversible error in the admission of certain evidence and the exclusion of other evidence. Pettigrew, the mediator, testified over the Vernons' objection that an agreement between the two parties was reached during the mediation and what the terms of that agreement were, but that it was never reduced to writing and signed by the parties. Additionally, David Young, the claims representative for Farmer's Insurance, was permitted to testify that a settlement agreement was reached during the mediation and the sum of that settlement. However, neither witness was permitted to testify as to what transpired during mediation beyond that information.

Both parties point to Ind. A.D.R. 2.11, about the confidentiality of mediation, to make their respective cases. However, A.D.R. 1.4 states that: "these rules shall apply in all civil and domestic relations litigation filed in all Circuit, Superior, County, Municipal, and Probate Courts in the state." Ind. ADR 1.4; Anderson v. Yorktown Classroom Teachers Ass'n, 677 N.E.2d 540, 542 (Ind.Ct.App.1997). Because the complaint was not filed until December 5, 1995, after the mediation had taken place, the Indiana Rules of Alternative Dispute resolution do not apply in this case. See Anderson, 677 N.E.2d at 542 (holding that the ADR rules were not invoked when the parties went to arbitration and no case had been filed with an Indiana state court).

Therefore, we must base our decision on Ind.Evidence Rule 408, which states:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim, which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass alternative dispute resolution.

Evid.R. 408. This rule does not require the exclusion of evidence when that evidence is offered for "another purpose." Thomas v. Thomas, 674 N.E.2d 23, 26 (Ind.Ct.App.1996), reh'g denied, trans. denied; Hahn v. Ford Motor Co., 434 N.E.2d 943, 956 (Ind.Ct.App.1982). The evidence admitted here is not about liability or invalidity of a claim, but to show whether or not a settlement agreement was reached. This is within the rules' contemplation of "another purpose" and therefore was properly admitted under Evid.R. 408. Thomas, 674 N.E.2d at 26.

Next, we must address whether the trial court properly excluded the testimony of Young at trial. The Vernons asked Young if he remembered a discussion that took place during the mediation; Young was not permitted to answer. (R. 225). Although this question was clearly soliciting evidence of statements made during the contract negotiations, the Vernons argue that they were not offering the evidence to show liability or validity of the claim, but to show whether or not a settlement agreement was reached. If the evidence addresses whether or not a settlement agreement was reached and not the merits of the negligence action, the trial court erred in excluding this testimony. Evid.R. 408; Thomas, 674 N.E.2d at 26; Hahn, 434 N.E.2d at 956.

However, this is not yet dispositive. "Reversible error may not be predicated upon an erroneous evidentiary ruling unless a substantial right of a party is affected." Marchal v. Craig, 681 N.E.2d 1160, 1163 (Ind.Ct.App.1997); Ind.Evidence Rule 103(a). Therefore, we must determine whether or not the exclusion caused prejudice to the Vernons. Gouge v. Indiana Commuter Transp. Dist., 670 N.E.2d 363, 367 (Ind.Ct.App.1996); Donaldson v. Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1170 (Ind.Ct.App.1994).

When the trial court excludes evidence, the proponent must make an offer of proof to preserve the ruling for appellate review. Paullus v. Yarnelle, 633 N.E.2d 304, 307 (Ind.Ct.App.1994), reh'g denied.

An offer of proof provides the appellate court with the scope and effect of the area of inquiry and the proposed answers, in order that it may consider whether the trial court's ruling excluding the evidence was proper. Thus, the offer of proof must demonstrate the substance, purpose, relevance, and materiality of the excluded evidence in order to enable the appellate court to determine on appeal whether the exclusion was proper.

Id.; Donaldson, 632 N.E.2d at 1170. Here, although Vernon discussed the merits of his objection with the trial court judge, he never made an offer of proof on this point. 1

On appeal this court must determine whether the Vernons were prejudiced by the exclusion of Young's testimony. We cannot make that determination unless we have some idea what...

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3 cases
  • Arhelger v. State
    • United States
    • Court of Appeals of Indiana
    • June 22, 1999
    ...cross-examination." TANFORD at 22 (1998). Professor Tanford was referring in particular to a 1998 case from this Court, Vernon v. Acton, 693 N.E.2d 1345 (Ind.Ct.App.1998),trans. granted, which "cited approvingly one of the old cases stating that an offer of proof is improper on cross-examin......
  • Vernon v. Acton
    • United States
    • Supreme Court of Indiana
    • June 30, 2000
    ...the existence of any agreement, the plaintiffs raised multiple issues on appeal. The Court of Appeals affirmed. Vernon v. Acton, 693 N.E.2d 1345 (Ind.Ct.App. 1998). We granted transfer and requested additional briefing regarding issues related to the Indiana Rules for Alternative Dispute Re......
  • Vernon v. Acton, CV-121
    • United States
    • Supreme Court of Indiana
    • September 9, 1998
    ...170 706 N.E.2d 170 Vernon v. Acton NO. 49A02-9702-CV-121 Supreme Court of Indiana September 09, 1998 693 N.E.2d 1345 Transfer ...

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