BCC Products, Inc., and Roger Brunette, Jr. v. Roger Brunette, Sr., and Pauline Brunette ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
Nov 16 2012, 9:26 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:
P. ADAM DAVIS MICHAEL R. AUGER
Davis & Sarbinoff, LLC Franklin, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BCC PRODUCTS, INC. and ROGER )
BRUNETTE, JR., )
)
Appellants-Plaintiffs, )
)
vs. ) No. 41A01-1201-CC-28
)
ROGER BRUNETTE, SR., and PAULINE )
BRUNETTE, )
)
Appellees-Defendants. )
)
________________________________________
ROGER BRUNETTE SR., PAULINE )
BRUNETTE and BRUNETTE MARINE )
ASSOCIATES, INC., )
)
Counter-Plaintiffs/Third Party Plaintiffs, )
)
vs. )
)
BCC PRODUCTS, INC. and ROGER )
BRUNETTE, JR., )
)
Counter-Defendants/Third Party Defendants. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Kevin M. Barton, Judge
Cause No. 41D01-0903-CC-452
November 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Roger Brunette, Jr. (Junior) and BCC Products, Inc. (collectively, “Appellants”),
appeal portions of the trial court’s decision in favor of Roger Brunette, Sr. (Senior), Pauline
Brunette, the Roger Brunette, Sr. Revocable Trust, the Pauline Brunette Revocable Trust, and
Brunette Marine Associates, Inc. (collectively, “Appellees”). In turn, Appellees cross-appeal
issues decided against them in the trial court’s order. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 6, 2009, Appellants sued Appellees:
. . . to recover a 2004 Black Chevy Avalanche Truck . . . for damages for
issuance of a check for $4,770.00 without authorization . . . for damages for
transfer of a Lincoln Town Car without authorization . . . for return of certain
personal property; and . . . for treble damages under Indiana Code 34-24-3-1.
(Appellant’s App. at 41.)1 On May 19, Appellees filed an answer and asserted three
counterclaims:
Count I – Breach of Lease between Roger Brunette and Pauline Brunette and
BCC Products, Inc.
Count II – Breach of Contract between BCC Products, Inc. and Brunette
Marine Associates, LLC
Count III – Breach of Contract between BCC Products, Inc. and Roger
Brunette, Sr.
(Id. at 42.) On January 19, 2010, Appellees filed a motion for partial summary judgment
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The parties have not provided the original and amended complaints or the Appellees’ answers and
counterclaims in the record before us. We therefore rely solely on the reiteration of the issues by the trial court
in its order.
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based on Appellees’ breach of lease counterclaim. On March 15, the trial court granted the
motion in favor of Appellees with regard to liability in contract but awarded no damages
therefor.
On May 14, Appellants filed a motion for summary judgment, and Appellees filed
their motion in opposition to Appellants’ motion for summary judgment and counter-motion
for summary judgment. The trial court held hearings August 4 and September 8, and granted
summary judgment for Appellants regarding Senior’s issuance of a check for $4,770.00
without authorization and Senior’s transfer of a Lincoln Town Car, reserving the issue of
damages for trial. The trial court granted summary judgment for Appellees regarding the
“three piles of personal property,” (id. at 97), and a breach of contract claim involving
Brunette Marine Associates, LLC. All other issues were reserved for trial.
On August 2, and September 20, 2011, the trial court held hearings regarding the
remaining issues. On November 10, the trial court entered findings of fact and conclusions
thereon. Based thereon, the trial court awarded BCC Products $42,735.00, Junior $620.00,
and the Roger Brunette and Pauline Brunette Revocable Trusts $38,610.00. The trial court
also awarded interest on all judgments and assessed the costs against Senior.
On December 12, Appellants filed a motion to reconsider and correct error; a motion
for hearing on the motion to correct error; and motion for leave to submit newly discovered
evidence. The trial court denied the motion for leave to submit newly discovered evidence as
moot, denied the motion for a hearing, and granted the motion to reconsider and correct error.
The trial court found its original order should have included a judgment for Appellant’s
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return of security deposit claim in the amount of $5,073.75. It awarded Appellants the
amount for the security deposit claim, and it denied Appellant’s claim for treble damages
pursuant to Ind. Code § 34-24-3-1.
DISCUSSION AND DECISION
A trial court has broad discretion in ruling on a motion to correct error. Volunteers of
Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind. Ct. App. 2001). We will
reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the decision
was against the logic and effect of the facts and circumstances before the court or if the court
misapplied the law. Id.
The trial court sua sponte made findings of fact and conclusions thereon regarding
Appellant’s motion to correct error. When a trial court makes findings and conclusions sua
sponte, our standard of review is well-settled:
Where the trial court enters specific findings sua sponte, [ ] the specific
findings control our review and the judgment only as to the issues those
specific findings cover. Where there are no specific findings, a general
judgment standard applies and we may affirm on any legal theory supported by
the evidence adduced at trial.
We apply the following two-tier standard of review to sua sponte
findings and conclusions: whether the evidence supports the findings, and
whether the findings support the judgment. Findings and conclusions will be
set aside only if they are clearly erroneous, that is, when the record contains no
facts or inferences supporting them. A judgment is clearly erroneous when a
review of the record leaves us with a firm conviction that a mistake has been
made. We consider only the evidence favorable to the judgment and all
reasonable inferences flowing therefrom, and we will neither reweigh the
evidence nor assess witness credibility.
Trust No. 6011, Lake County Trust Co. v. Heil’s Haven Condominiums Homeowners Ass’n,
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967 N.E.2d 6, 14 (Ind. Ct. App. 2012).
Pursuant to Indiana Appellate Rule 9(F)(5), a notice of appeal must contain a
transcript of the proceedings if “the appellant intends to urge on appeal that a finding of fact
or conclusion thereon is unsupported by the evidence or is contrary to the evidence.” The
Appellants make multiple arguments that there was no evidence to support some of the trial
court’s findings. In their cross-appeal, Appellees rely on evidence designated as part of
summary judgment. However, the final order was not based solely on the evidence
designated as part of summary judgment. The trial court so noted in its final judgment: “The
above cause of action came before the Court for trial by court on [the] date of August 2, 2011
and September 20, 2011.” (Appellant’s App. at 22.) The court’s order on Appellant’s
motion to correct error was based on Appellant’s contentions regarding the same evidence.
Our Indiana Supreme Court has addressed a party’s failure to include a transcript on
appeal when factual issues are presented and held “failure to include a transcript works a
waiver of any specifications of error which depend upon the evidence.” In re Walker, 665
N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160
(Ind. 1992)). Further, our Appellate Rules require an argument “contain the contentions of
the appellant on the issues presented, supported by cogent reasoning. Each contention must
be support by citations to authorities, statues, and the Appendix or parts of the Record on
Appeal relied on[.]” App. R. 46(A)(8)(a). As neither party provided us transcripts of the
multiple hearings held in this case, as the issues presented by both parties were fact-sensitive,
and as the parties’ arguments did not include support from citations to the transcript, all
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issues presented by both parties are waived.2 Accordingly, we affirm the decision of the trial
court.
Affirmed.
NAJAM, J., and KIRSCH, J., concur.
2
In addition to the Appellate Rule violations noted above, Appellants’ counsel did not comply with App. R.
43(D), which provides “the typeface shall be 12-point or larger in both body text and footnotes.” In various
parts of the Appellants’ brief, the font size falls well below twelve-point, making the text difficult to read.
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