# Jackson v. Russell

> Indiana Court of Appeals · October 1, 1986 · 498 N.E.2d 22

URL: https://www.frixlaw.com/law-library/cases/2209523

## Case

- **Full name:** C.W. JACKSON, Defendant/Third-Party Plaintiff-Appellant, v. George E. RUSSELL, Plaintiff-Appellee, and PPG Industries, Inc., Third-Party Defendant-Appellee
- **Court:** Indiana Court of Appeals
- **Decided:** October 1, 1986
- **Citations:** 498 N.E.2d 22; 1986 Ind. App. LEXIS 2974
- **Precedential status:** Published
- **Opinion:** Opinion by Ratliff
- **Judges:** Ratliff, Robertson, Young
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2209523

## Opinion text

RATLIFF, Judge.
STATEMENT OF THE CASE
C.W. Jackson appeals a jury verdict against him for breach of duty in a joint venture, tortious interference with a contract, constructive fraud, and criminal mischief. In addition, Jackson appeals the trial court's failure to declare a mistrial following the disqualification of his lead counsel. We affirm.
FACTS
In 1970, George E. Russell became president of Como Plastics Corporation (Como) in Columbus, Indiana, upon his father's death. Como, a family owned and operated business, manufactured plastic injection molded products. In 1972, Russell accepted an offer to sell Como to PPG Industries, Inc. (PPG) of Pittsburgh, Pennsylvania. The company would be operated in Columbus as a wholly-owned subsidiary of PPG, with Russell serving as its president and chief operating officer. In 1975, PPG merged Como with two other companies forming a new division to be known as the Plastic Fabrication Division (PFD) and appointed Russell vice-president and general manager of the division.
In 1979, Russell learned of a decision by PPG to sell the PFD. Feeling that division losses were largely the result of developmental programs focused on other divisions, Russell believed reorganization of the PFD would produce enormous potential for success. Russell also felt a western facility was necessary, and to that end travelled to Phoenix, Arizona.
While in Phoenix, Russell met C.W. Jackson and explained his plans to purchase the PFD. Russell gave Jackson a copy of his confidential business plan for his proposed new business, Polycorp, Incorporated (Poly-corp). On June 23, 1980, F.B. O'Neil, vice-president of corporate development for PPG, terminated negotiations with Russell
*26
effective June 30, 1980, and informed Russell that PPG intended to cease operations at PFD and liquidate it. Meanwhile, through a series of phone calls, Jackson and Russell discussed financing for the purchase of the PFD. Jackson visited the PFD plant in Columbus, Indiana.
On July 20, 1980, Jackson proposed to Russell, by telephone, that they enter into a joint venture to acquire the PFD. According to their plan, Russell would negotiate the purchase of the PFD for $6.5 million and Jackson would provide the financing. A corporation would be formed to operate the business with Russell as chief officer, with Russell owning two-thirds (%) and Jackson owning one-third (%). The two men would form a partnership to own the real estate on an equal basis, with Jackson managing the partnership.
Russell and his attorney, Stephen Dut-ton, met with Jackson and his attorney Robert Kassing, of Bose, McKinney, and Evans (Bose) on July 28, 1980, and the terms of the agreement were confirmed orally. The parties also discussed control of the corporation in the event of default and a potential buy-sell arrangement. Jackson made an alternate buy-sell suggestion that Russell felt was economically unfair and so the parties used the original corporation and partnership divisions.
On August 19, 1980, Russell executed a Letter of Intent prepared by Dutton which Jackson executed the following day. This letter reiterated, outlined, and enunciated the prior oral understandings
2, An agreement to share profits; and 3. A right of mutual control over the subject matter of the enterprise."
Record at 1869. Final jury instruction number 15 stated:
"Participants in a joint venture have a fiduciary duty to their co-venturers. That fiduciary duty imposes on the participants the obligation of loyalty to their co-venturer and of the good faith, fairness and honesty in their dealings with each other with respect to matters pertaining to the enterprise.
"If you find that a joint venture did exist, and that defendant Jackson did not meet the standard of conduct required of a co-venturer, then you may find for the plaintiff on this claim."
Record at 1870. Jackson made the following objection to these instructions:
"Defendant objects to the giving of Plaintiff's final instruction #13 as an insufficient statement of the law, and an incorrect statement of the 'law on the issue of the joint venture. Defendant objects to the giving of Plaintiff's final instruction #15 on the grounds that there is insufficient evidence to support the giving of a final instruction with respect to the fiduciary duty concerning the existence of a joint venture. This objection also applies-further grounds for objection-also applies to Plaintiff's final instruction #13 concerning existence of a joint venture."
Record at 5448-44.
Under Indiana Rules of Procedure, Trial Rule 51(C) an objection on the grounds that an instruction is an incorrect, incomplete, improper or insufficient statement of law has been deemed insufficient to preserve any error on appeal. Brandon v. State (1978), 268 Ind. 150, 154 , 374 N.E.2d 504, 506-07 ; Whitten v. State (1975), 263 Ind. 407, 413 , 333 N.E.2d 86, 91 ; City of Indianapolis v. Ervin (1980), Ind.App., 405 N.E.2d 55, 62 . Instead, an objecting party must state distinctly the matter to which he objects and the grounds for his objection, before the jury retires. T.R. 51(C). The purpose of this rule "is to give the trial court an opportunity to correct any error if it exists. If this is not done promptly and specifically, the alleged error is waived on appeal." New York, Chicago, & St. Louis R.R. Co. v. Henderson (1957), 287 Ind. 456 , 478, 146 N.E.2d 531, 548 (emphasis in original). In addition, failure to offer a more accurate instruction than the one being objected to will result in waiver of any error resulting therefrom. City of Indianapolis, at 62. While Jackson claims, in his brief, that several elements were omitted from the joint venture instruction given by the trial court, he failed to include these elements in his own tendered instruction. Record at 1266. Jackson's objections were insufficient and he has, therefore, waived any error regarding the joint venture verdict.
*35
Issue Three
Jackson argues that Russell failed to produce sufficient evidence to show that a contract existed between Russell and PPG, of which Jackson had knowledge, and which he induced PPG to breach, to support the jury's verdict of tortious interference. In reviewing sufficiency questions, this court will not reweigh the evidence or assess the credibility of witnesses, but will examine only that evidence most favorable to the judgment and all reasonable inferences to be drawn therefrom. Terre Haute Regional Hospital, Inc. v. El-Issa, M.D. (1984), Ind.App., 470 N.E.2d 1371, 1378 , trans. denied; First National Bank of New Castle v. Acra (1984), Ind.App., 462 N.E.2d 1345, 1348 . We will set aside the jury's verdict only where there is a total lack of evidence or where it is contrary to uncontradicted evidence. Terre Haute, at 1378; First National, at 1348; Trinity Lutheran Church v. Miller (1983), Ind. App., 451 N.E.2d 1099, 1102 , trans. denied. It is from this standard that we address Jackson's sufficiency claim.
Here, Russell presented sufficient evidence to support the jury's verdiet on this issue. Russell argues there were essential ly two contracts established between himself and PPG. The first was the Restated Agreement entered into August 15, 1980, which provided for the sale of the PFD to Russell, with a closing date of September 30, 1980. The second was the oral agreement of September 830, 1980, as consideration for Russell's agreement to assign PPG the right to sell Ideal Mold. This consisted of: PPG's assurance it would sell the PFD to Russell on the same terms if he obtained financing; that it would credit the sale of Ideal Mold to the purchase price; that they would keep each other mutually informed of their efforts; and that it would not sell the PFD to Jackson.
Jackson denies knowledge of the existence of either contract after September 30, 1980. However, there is evidence to the contrary. On September 830, 1980, after quitting the deal with Russell, Jackson telephoned Linge regarding the purchase of the PFD for himself and was informed, by Linge, that PPG would not deal with him since Russell had brought him into the deal. Jackson also approached Butera on that same day regarding the possible purchase of the PFD. Despite this knowledge, Jackson continued to inquire into the possible purchase of the PFD by telephoning O'Neil, PPG's vice-president. In addition, upon discovery, Russell's attorney notified Jackson and PPG of Russell's belief that their actions were contrary to his agreements with PPG. Regardless, PPG eventually sold the PFD to Jackson. Jackson argues that the Restated Agreement expired September 830th and that he had no knowledge of the oral agreements. However, at trial Russell relied on Jackson's actions of September 80th as the basis for his claim of tortious interference with the Restated Agreement which was still in effect. Regardless, this merely asks us to reweigh the evidence, which we are not at liberty to do. Therefore, given our standard of review, we find Russell presented sufficient evidence from which the jury could find the elements necessary to support its verdict of tortious interference.
Issue Four
Jackson further argues that if the verdict for "tortious interference" is retained we must render judgment against PPG for breach of its warranty that it had no contractual obligations with Russell. The PFD agreement between Jackson and PPG upon which Jackson relies states: "[The execution and delivery of and performance under this Agreement ... and its consummation ... will not ... result in any breach of ... any agreement ... to which Seller is a party." Record at 8888. Similar language in a letter dated October 31, 1980, states: "The execution, delivery of and performance under the Agreement ... will not result in a breach of ... contract ... to which PPG is a party...." Record at 4488. Since tortious interference requires the existence of a contract, Jackson asserts that the verdict against him proves PPG breached the above warranty and, there
*36
fore, the jury's verdict on this issue is erroneous.
However, as the evidence demonstrates, the jury's decision that PPG did not breach any warranties to Jackson is not inconsistent with its finding that Jackson tortiously interfered with Russell's contract. As noted above, the basis of Russell's claim of tortious interference involved Jackson's actions on September 80, 1980. This was the final day of the Restated Agreement between Russell and PPG. Execution of the sales agreement between PPG and Jackson took place on October 20, 1980, after the Restated Agreement had expired. The execution of the sale agreement between PPG and Jackson, therefore, could not have resulted in the breach of the Restated Agreement, which no longer existed. Instead, it was Jackson's interference with the Restated Agreement on September 30th which resulted in a breach. Consequently, PPG did not breach any warranty contained in its contract with Jackson.
In addition, the Agreement between Jackson and PPG bars him from relying on any warranties he now asserts regarding the absence of claims made by Russell. Paragraph 16 of that agreement provides:
"Neither party hereto knows of any facts which would make any representations or warranties made in this Agreement by the other party untrue or misleading. No representation or warranty made in or pursuant to this Agreement may be relied upon by Purchaser or Seller if and to the extent such party knows that such representation or warranty is untrue or misleading."
Record at 3388. Hence, if Jackson knew of any facts which would make representations in the agreement misleading or untrue when the contract was negotiated and signed, he could not rely on those representations. 'The evidence demonstrates that Jackson and his attorneys knew Russell had threatened to sue both Jackson and PPG as a result of the proposed purchase but that Russell might agree to release his claim with PPG. Moreover, they knew that a written agreement not to sue PPG was negotiated between Russell and PPG in late October. Jackson also knew the exact terms of Russell and PPG's Restated Agreement which was followed by Jackson and PPG. Finally, PPG had requested indemnification from Jackson in the parties' initial negotiations and Jackson was fully aware that he and PPG had failed to reach an agreement on this issue. Clearly, Jackson was aware of facts which made PPG's warranty misleading or untrue and, therefore, according to Paragraph 16, he is barred from relying on those warranties. The jury did not err in finding for PPG on Jackson's claim of breach of warranty, nor is that decision inconsistent with the tor-tious interference verdict.
Issue Five
Jackson argues that he was not liable for constructive fraud and that the instruction on this issue was erroneous and incomplete. The final instruction on constructive fraud given to the jury stated:
"Another of Russell's claims is based upon a theory of law known as 'constructive fraud. Constructive fraud is a breach of a legal or equitable duty that the law declares fraudulent because of its tendency to deceive others. It is not necessary that plaintiff prove that there was actual dishonesty or an intent to deceive in order to establish constructive fraud.
"In order for Russell to recover on this theory, he must prove: +
1. That Jackson made material representations to Russell that were false;
2. That Russell relied upon these misrepresentations to his detriment; and 3. That Jackson obtained an unfair or unconscionable advantage from these misrepresentations."
Record at 1879. Jackson made the following objection to the instruction:
"Defendant further objects to the giving of Plaintiff's final instruction # 25 with respect to the theory of constructive fraud on the grounds that there is not sufficient evidence with respect to the
*37
submitting this theory to the jury, and is an incomplete and incorrect statement of the law.
"Defendant further objects to the giving of Plaintiff's final instruction #9 with respect to the-again, the constructive fraud on the grounds that there is insufficient evidence to submit that claim to the jury.... To correct the record, I believe I referred at one point to Plaintiff's final instruction #9 on the theory of constructive fraud and an award of punitive damages, and objecting to it on the basis of insufficient evidence. It is marked as Plaintiff's final # 26."
Record at 5444-5446.
As noted previously, an objection that an instruction is an incorrect, incomplete, improper or insufficient statement of law is insufficient to preserve any error on appeal. Brandon v. State (1978), 268 Ind. 150, 154 , 374 N.E.2d 504, 506-07 ; Whitten v. State (1975), 263 Ind. 407, 413 , 333 N.E.2d 86, 91 ; City of Indianapolis v. Ervin (1980), Ind.App., 405 N.E.2d 55, 62 ; TR. 51(C). Instead, a party must state distinctly the matter to which he objects and the grounds for his objection, before the jury retires. TR. 51(C). If this is not done promptly and specifically the alleged error is waived on appeal. New York, Chicago, & St. Louis R.R. Co. v. Henderson (1957), 287 Ind. 456 , 478, 146 N.E.2d 581 , 543. Therefore, Jackson has failed to preserve any error on appeal and the constructive fraud verdict is affirmed.
Issue Six
Jackson asserts that the trial court erred in refusing to admit his tendered Exhibit 287 under the business records exception to the hearsay rule. Exhibit 237 was an internal PPG memorandum from Webb, a PPG attorney, to O'Neil, a PPG vice-president. The parties stipulated as to the authenticity of all exhibits early in the trial proceedings. Jackson attempted to admit the memorandum into evidence on several occasions, but without laying the proper foundation. Jackson appears to argue, however, that the parties' stipulation as to the authenticity of exhibits satisfies the need to lay a proper foundation under the business records exception. .
Jackson failed to overcome the prohibition against hearsay evidence. Traditionally, the business records exception to the hearsay rule permits the admission of documentary evidence if identified by its entrant or one under whose supervision it is kept and shown to be an original or first permanent entry, made in the routine course of business, at or near the time of the recorded transaction, by one having the duty to so record and personal knowledge of the transaction represented by the entry. American United Life Insurance Co. v. Peffley (1973), 158 Ind.App. 29, 36-37 , 301 N.E.2d 651, 656 . More recent case law has relaxed the requirement that the witness laying the foundation must be either the person who made the record, or the record custodian. Baker v. Wagers (1984), Ind. App., 472 N.E.2d 218, 221 , trons. denied. However, in Indiana, it is clear that the witness through which a business record is to be admitted must have personal knowledge of the various elements of the foundation. Wilson v. Jenga Corp. (1986), Ind. App., 490 N.E.2d 375, 377 ; Baker at 221 . Jackson attempted finally to admit Exhibit 287 during the cross-examination of Malarkey, a PPG employee. Malarkey, however, failed to demonstrate any personal knowledge of the memorandum. Jackson's earlier attempts to admit the Exhibit, relying on the assertion that the memorandum was its own foundation, merely asked the court to accept that everything the memorandum said was true and accurate. Jackson did not attempt to lay a proper foundation and therefore the trial court did not err in refusing to admit Exhibit 237 under the business records exception to the hearsay rule.
Issue Seven
Jackson also asserts that the trial court erred in admitting the testimony of John Crane (Crane), a CPA and attorney, regarding the value of the PFD and Russell's loss of future profits. Admissibility of evidence is within the sound discretion of the trial court. We will reverse only where the trial court's action is clearly
*38
erroneous and against the facts and circumstances before the trial court or reasonable inferences to be drawn therefrom. Estate of Ballard v. Ballard (1982), Ind. App., 434 N.E.2d 136, 139-40 ; English Coal Co., Inc. v. Durcholz (1981), Ind. App., 422 N.E.2d 302, 309 , trams. denied. Jackson first argues Crane's testimony was improper because it concerned future profits which, Jackson asserts, are too speculative and conjectural to submit to a jury.
3
Jackson misconstrues Crane's testimony. Crane relied upon the financial performance of the PFD from 1980 through 1984, which was documented, and the most recently available data. Crane, however, did not use this data to project future profits but instead used it to formulate his opinion as to the fair market value of the PFD. Moreover, Russell was not seeking lost future profits. Therefore, the trial court did not err in admitting Crane's testimony regarding the value of the PFD.
Jackson also complains that it was error to admit Crane's testimony comparing the PFD to other companies. However, it was Jackson who elicited this testimony from Crane on cross-examination and Jackson did not move to strike the testimony. In addition, Jackson failed to raise this in his motion to correct error. Consequent ly, Jackson has waived any alleged error regarding this testimony. In re Estate of Paul E. Williams (1980), Ind.App., 398 N.E.2d 1368 , trams. denied.
Issue Eighth
Jackson further argues the trial court erred in modifying his tendered instruction number five. This tendered instruction stated:
"In assessing the fair market value of the PFD when purchased by Mr. Jackson in 1980, you should determine the price which a willing buyer would have paid a willing seller for the PFD at the time of such purchase. In that regard, you may not consider evidence of any profits actually earned by the company after 1980 since that evidence has no tendency to show the fair market value of the PFD in 1980."
Record at 1269. This instruction was given to the jury as modified by striking the last sentence. Jackson asserts this sentence was necessary to cure the prejudice aceru-ing from Crane's testimony.
The giving of instructions is largely a matter entrusted to the trial court's disceretion. Smith v. Insurance Co. of North America (1980), Ind.App., 411 N.E.2d 688 . All jury instructions must be read together and construed as a whole to determine whether the jury was properly instructed. Wiles v. Mahan (1980), Ind.App., 405 N.E.2d 591 . One instruction need not contain all the law pertinent to the case. Chicago, Indianapolis, & Louisville R.R., Inc. v. Freeman (1972), 152 Ind.App. 492 , 284 N.E.2d 133 , trans. denied. Neither will an instruction which is correct be found to be erroneous because it was not an ampler statement of the law. Smith v. State (1980), Ind.App., 403 N.E.2d 869 , trans. denied. In addition, it is not error for a trial court to refuse a tendered instruction the subject of which is adequately covered by other instructions given by the court. Daniels v. State (1980), 274 Ind. 29 , 408 N.E.2d 1244 . Nor does a trial court err for refusing to submit an instruction unless it is under a duty to give the instruction exactly as requested. Mullins v. Bunch (1981), Ind., 425 N.E.2d 164 ; Hahn v. Ford Motor Co., Inc. (1982), Ind.App., 434 N.E.2d 943 , trans. denied.
The trial court did not abuse its discretion by modifying Jackson's tendered instruction number five. As noted above, Crane's testimony concerning the fair market value of the PFD did not harm Jackson.
*39
Moreover, Crane's testimony regarding post-1980 profits was solicited by Jackson upon cross-examination and Jackson did not move to strike this testimony. Waiver of error occurs where an objection to testimony is made and sustained but no motion is made to strike that testimony. Dean v. Dean (1982), Ind.App., 439 N.E.2d 1378, 1385 . The jury was entitled to consider the testimony that Jackson elicited and the trial court was under no duty to give the instruction exactly as tendered. Therefore, the trial court did not err in modifying Jackson's tendered instruction number five by striking the sentence that would have prohibited the jury from considering post-1980 profits of the PFD.
Issue Nine
Jackson next asserts there was insufficient evidence to support the jury's verdict finding him guilty of criminal mischief. Again, when the sufficiency of evidence is questioned, we will neither reweigh the evidence nor judge the credibility of witnesses, but will examine only the evidence most favorable to the verdict together with all reasonable inferences drawn therefrom. We will set aside the jury's verdict only where there is a total lack of evidence or where it is contrary to uncontradicted evidence. Terre Haute, at 1378; First National, at 1348; Trinity, at 1102. The criminal mischief statute states, in pertinent part: "A person who knowingly or intentionally causes another to suffer pecuniary loss by deception ... commits criminal mischief...." Indiana Code seetion 85-48-1-2(a)(2) (Burns 1985). The evidence indicates that Jackson refused to provide financing to purchase the PFD and reneged on the buy-sell agreement at the intended closing. Immediately after quit ting the deal with Russell, Jackson called PPG and offered to purchase the PFD on his own. Russell, of course, was thereafter unable to obtain financing and purchase the PFD. Russell also lost the money he had spent in that pursuit. From this evidence the jury could have found evidence sufficient to support its verdict of criminal mischief.
Jackson bases his sufficiency argument on the lack of evidence to support the notion that his actions amounted to deception. Jackson argues his own definition of deception to reach this conclusion, citing Indiana Code section 35-48-5-3 which is the section dealing with forgery and fraud. Jackson also cites California case law in an attempt to support his substitution of "fraud" as a definition for "deception." He then essentially argues that all the elements of fraud must be established in order to prove deception. However, the fraud and deception definitions Jackson cites to deal with a different class of violations than that involved here. More importantly, Jackson failed to object to the criminal mischief instruction as given by the trial court,
4
nor did he offer a more specific instruction or definition of deception. In the absence of a timely objection, a trial court's instructions as read to the jury, even if erroneous, become the law of the case. Roger v. Pryor (1981), Ind.App., 427 N.E.2d 1112, 1115 , trans. denied; Board of Commissioners of Monroe County, Indiana v. Hatton (1981), Ind. App., 427 N.E.2d 696, 699 , trams. denied. In addition, a party who desires a more specific instruction than that given by the trial court must tender it. Nationwide Mutual Insurance Co. v. Neville (1982), Ind.App., 434 N.E.2d 585, 599 , trans. denied. Therefore, the instruction, as read by the trial court, became the law of the case, and Jackson has waived any alleged error on appeal regarding the definition of "deception." Combining Jackson's waiver
*40
of this argument with our deference to the trier of fact when sufficiency of the evidence is questioned, there was no error in the jury's verdict finding Jackson guilty of criminal mischief.
Issue Ten
Stating that it "would have induced clearer juror thinking," Jackson asserts the trial court erred in failing to inform the jury that some of Russell's theories described in the preliminary instructions had been eliminated from their consideration by judgments on the evidence. Jackson's argument is meritless. The court's final instructions identified each of the remaining theories upon which Russell was proceeding, setting out the elements necessary to prove each one. In addition, the verdict form specifically included only those theories the jury was to consider. Furthermore, Jackson neither requested an instruction informing the jury of which theories had been withdrawn, nor did he object to the trial court's failure to give one. Therefore, any alleged error committed by the trial court in failing to instruct the jury as to what matters were withdrawn from its consideration has been waived. Reith, Riley Construction Co. v. McCarrell (1975), 163 Ind.App. 613, 629 , 325 N.E.2d 844, 854 .
Issue Eleven
Jackson also argues the judgment should not exceed $1,255,000.00. The trial court's verdict form divided recoverable damages into two parts, compensatory and punitive. Under Paragraph A(1) the jury determined the amount of compensatory or actual damages to Russell to be $1,255,-000.00. The verdict form then provided the jury with two alternative methods of awarding punitive damages, if they so chose. Paragraph B(1) provided for a statutory punitive award pursuant to Indiana Code section 34-4-80-1 at up to three times the amount of actual damages if the jury found against Jackson on the criminal mischief issue. Paragraph C(1) permitted the awarding of common law punitive damages for other counts. The verdict form specifically instructed the jury that it could not award both types of punitive damages. The jury awarded compensatory damages, under Paragraph A(1), in the amount of $1,255,000.00. The jury then awarded damages in the amount of $745,000.00 under Paragraph B(1). Jackson asserts that since the jury did not state two separate figures under B(1), one for actual damages resulting from criminal mischief, and the other for the penalty (treble damages), it must be assumed the jury assessed only "actual" damages. Since there is nothing to indicate the $745,000.00 was not for "actual" damages, Jackson argues that the trial court erred in assuming this was a punitive award and adding it to the compensatory award. Hence, Jackson argues the trial court erred by allowing more than one recovery for damages by improperly adding the figures.
Indiana Code section 34-4-30-1 provides the basis and recovery for a civil action for criminal mischief:
"If a person suffers a pecuniary loss as a result of a violation of IC 85-48, he may bring a civil action against the person who caused the loss for:
(1) An amount not to exceed three [8] times his actual damages;
(2) The costs of the action; and
(3) A reasonable attorney's fee."
An award pursuant to this statute may be aggregated with compensatory damages as confirmed by Indiana Code section 34-4-30-2:
"Criminal prosecution not a defense-Punitive damages authorized.-It is not a defense to an action for punitive damages that the defendant is subject to criminal prosecution for the act or omission that gave rise to the civil action. However, a person may not recover both:
(1) Punitive damages; and
(2) The amounts provided for under section 1 [34-4-30-1] of this chapter."
Since the jury awarded punitive damages in an amount less than its compensatory damage award, the $745,000.00 was entirely punitive in nature and therefore properly
*41
aggregated with the compensatory award. Hence, the trial court did not err in adding the two amounts together nor did the court permit Russell more than one recovery.
Issue Twelve
Finally, Russell asserts, on cross-appeal, that the trial court erred in granting Jackson's Trial Rule 50 motion regarding Russell's claim for promissory estoppel. Trial Rule 50 permits a trial court to withdraw an issue from the jury and enter a verdict thereon where the issue is not supported by sufficient evidence. Indiana Rules of Procedure, Trial Rule 50. Generally, a motion for judgment on the evidence may be properly granted only where there is no evidence or reasonable inference therefrom to support an essential element of a claim. Stanley v. Fisher (1981), Ind. App., 417 N.E.2d 982, 986 , trans. denied. However, we do not need to address this claim. The general test on appellate review with respect to the impact of errors is whether it appears that a right result was reached. Atwood v. Prairie Village, Inc. (1980), Ind. App., 401 N.E.2d 97, 100 . Given our holding today, sustaining the trial court's verdict favoring Russell in all respects, any possible error committed by the trial court in granting Jackson's T.R. 50 motion is rendered harmless.
We therefore affirm the judgment of the trial court.
ROBERTSON, P.J., concurs.
YOUNG, J., sitting by designation, concurs.
1
. DR 5-101(B) provides:
"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. "
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."
2
. "The exception expressly qualifies the hardship that must be shown to permit continued representation as one that arises 'because of the distinctive value of the lawyer or his firm as counsel in the particular case."" MacArthur, at 1210. An example would be where an attorney acquired unique expertise in a highly technical area where matters are in dispute, and no substitute counsel could adequately represent the client. Another example might be a long-standing professional relationship between an attorney and client whereby the attorney has acquired extraordinary and irreplaceable familiarity with the client's affairs Id., at 1211; Indiana-Kentucky Electric Corp. v. Green (1985), Ind.App., 476 N.E.2d 141, 148-49 , trans. denied. In such instances, weighing the distinctive value of the attorney against the significance of his testimony might warrant invocation of the exception. However, these instances are rare. Consequently, where an attorney chooses to become intimately involved in a client's business, he must be prepared to step aside if those matters result in litigation.
3
. Jackson's reliance on Prudential Insurance Co. v. Executive Estates, Inc. (1977), 174 Ind.App. 674 , 369 N.E.2d 1117 , trans. denied, for his proposition that evidence of future profits is too speculative to submit to a jury is misplaced. The Prudential court merely stated that, under the circumstances of that case, the evidence of future profits was insufficient to place before the jury. Hence, a jury may consider lost future profits, in an appropriate case, provided there is evidence sufficient to avoid mere jury speculation. Prudential, at 702, 369 N.E.2d at 1133 .
4
. The trial court instruction stated:
"One of the plaintiff's claims is based upon the alleged violation by defendant Jackson of an Indiana Statute.
At all times relevant to this transaction, there was in force a statute that provided, in part: A person who:
knowingly or intentionally causes another to suffer pecuniary loss by deception commits criminal mischief."
Record at 1374. Hence, the instruction merely restated Ind.Code § 35-43-1-2(a)(2) defining criminal mischief.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2209523. Public record. Not legal advice.