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Lack of transcript limits review of fire damages award on appeal

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A panel of the Indiana Court of Appeals rejected an appeal seeking full compensation after an Allen County fire in large part because the appealing party included no transcript of the trial court proceedings.

A jury found that a company breached its contract to insulate a building after a worker dropped a portable light onto the attic floor and installed insulation over the fixture, resulting in the fire. The jury then used the Indiana Comparative Fault Act to determine the contractor was 55 percent to blame and the building owner 45 percent. The building owner was awarded $154,144.65 of the total damages of $280,263.

In Lifeline Youth & Family Services v. Installed Building Products, Inc. d/b/a Momper Insulation, 02A03-1211-CT-502, Lifeline won the breach of contract ruling but appealed a trial court denial of its motion to correct error, arguing it should have been awarded the full amount of damages. Lifeline claims the jury erroneously applied comparative fault to its breach of contract claim.

“Momper argues that Lifeline has waived any challenge to the jury’s award of damages because Lifeline ‘did not object to the [damages] verdict before the jury was dismissed,’” Judge Rudy Pyle III wrote for the panel that also included judges Michael Barnes and James Kirsch.

“Lifeline responds to Momper’s argument by chastising Momper for stating that Lifeline did not object to the jury’s damages verdict without citing to the Transcript or Appendix. Nevertheless, Lifeline then does the same thing and asserts — without citation to the record — that it objected to the damages verdict ‘[u]pon completion of the trial’ and made an ‘oral motion’ asking the trial court to increase the damages award to $280,263.00,” Pyle wrote.

Failure to include the transcript in this case contravened Indiana Appellate Rule 9(F)(5), the panel noted.

“Our Indiana Supreme Court has addressed an appellant’s failure to include a transcript on appeal when factual issues are presented and held that ‘[a]lthough not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence,’” the panel ruled.

“Because Lifeline relies on the evidence presented during the jury trial in support of its argument challenging the amount of the jury’s damages verdict, we must conclude that Lifeline has waived any such damages argument and has failed to prove that the trial court abused its discretion by denying its motion to correct error,” Pyle wrote.



 
 

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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