Oliver D. Lambert v. Koenig Equipment, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2017
• Docket: 35A05-1612-PL-2775
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jul 20 2017, 8:49 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Michael T. Yates Kyle C. Persinger More Miller & Yates Spitzer Herriman Stephenson Holderead Fort Wayne, Indiana Conner & Persinger, LLP Marion, Indiana

IN THE COURT OF APPEALS OF INDIANA

Oliver D. Lambert, July 20, 2017

Appellant-Plaintiff, Court of Appeals Case No. 35A05-1612-PL-2775 v. Appeal from the Huntington Circuit Court. The Honorable Thomas M. Hakes, Koenig Equipment, Inc., Judge. Appellee-Defendant. Trial Court Cause No. 35C01-1411-PL-741

Friedlander, Senior Judge

[1] Oliver D. Lambert appeals from the trial court’s entry of judgment in favor of

Koenig Equipment, Inc. following a bench trial. We affirm.

[2] Lambert presents three issues for our review, which we consolidate and restate

as:

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 1 of 13 1. Whether the trial court’s conclusions that Koenig was not negligent and not in breach of the parties’ oral contract are contrary to the evidence. 2. Whether the trial court’s findings of fact are contrary to the evidence and misleading. [3] From November 2012 to January 2013, Koenig performed an engine overhaul

on Lambert’s tractor engine. In doing so, Koenig subcontracted with another

company, Auto Tech, to perform some services of the engine overhaul.

[4] During the 2013 spring farming season, Lambert’s son, Daniel, used the tractor

and noticed that the oil pressure remained low. The Lamberts contacted

Koenig, and Koenig sent someone out with equipment to check the oil

pressure. Varying oil pressures were obtained using different gauges so it was

decided that Koenig would install a new oil pressure relief valve, which it did in

mid-June 2013. Still unsatisfied with the oil pressure, the Lamberts allowed

Koenig to take the tractor back to the shop at the end of June/beginning of

July. At the shop, Koenig removed the oil pump and installed a high-volume

oil pressure pump.

[5] Although all testing by Koenig indicated that the oil pressure was within

manufacturer specifications, Lambert was still unsatisfied. Kenneth Koenig, of

Koenig Equipment, Inc., suggested that Lambert choose a mechanic to test the

tractor’s oil pressure. James Naden was chosen to do the testing, and he did so

in August or September 2013 using an oscilloscope. All test results from this

assessment were within specifications.

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 2 of 13 [6] When the tractor was returned to Lambert after the oscilloscope testing, Daniel

removed the oil pan and the new oil pressure pump. He also checked the oil

pickup tube for leaks. Still dissatisfied with the oil pressure readings, Lambert

hired Hill-T Farm, Inc. to disassemble and rebuild the engine in August 2014.

[7] Lambert then brought this action against Koenig in November 2014. A bench

trial was held in September 2016, after which the parties filed proposed findings

and conclusions. The trial court entered judgment in favor of Koenig, and

Lambert now appeals.

[8] Lambert had the burden of proof at trial and now appeals from a negative

judgment; therefore, he may prevail on appeal only upon establishing that the

judgment is contrary to law. Estate of Kappel v. Kappel, 979 N.E.2d 642 (Ind. Ct.

App. 2012). A judgment is contrary to law when the evidence is without

conflict and leads to but one conclusion, which the trial court did not reach. Id.

In evaluating Lambert’s appeal, we neither reweigh the evidence nor judge the

credibility of the witnesses, and we consider only the evidence most favorable to

the judgment together with all reasonable inferences to be drawn therefrom. Id.

[9] In addition, the trial court entered Indiana Trial Rule 52 findings and

conclusions at the request of Lambert. Our standard of review when the trial

court has set forth specific findings and conclusions at the request of a party is

well settled:

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court’s proximity to the issues, we disturb Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 3 of 13 the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Challengers must establish that the trial court’s findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions. Id. at 651-52 (quoting Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind. Ct. App.

2005), trans. denied).

1. Negligence and Breach of Contract a. Contrary to the Evidence

[10] Lambert contends that the trial court’s conclusions that Koenig was not

negligent and not in breach of the parties’ oral contract are contrary to the

evidence. Particularly, Lambert asserts that Koenig was negligent and breached

the contract by performing in an unworkmanlike manner because it failed to

clean contaminants from the tractor engine.

[11] To recover on his claim of negligence, Lambert must show: (1) a duty owed to

him by Koenig; (2) a breach of that duty; and (3) injury to him resulting from

Koenig’s breach. See Lanni v. Nat’l Collegiate Athletic Ass’n, 42 N.E.3d 542 (Ind.

Ct. App. 2015). In addition, to demonstrate breach of the parties’ contract,

Lambert must prove: (1) the existence of a contract; (2) Koenig’s breach

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 4 of 13 thereof; and (3) resulting damages. Roche Diagnostics Operations, Inc. v. Marsh

Supermarkets, LLC, 987 N.E.2d 72 (Ind. Ct. App. 2013), trans. denied.

[12] In support of his assertions, Lambert points to the testimony of John Miller, a 1 retired engineer, who testified that he found blast media in the oil gallery of the

engine during its second overhaul at Hill-T Farm. Miller expressed his opinion

that the blast media was a result of the overhaul by Koenig and that he did not

believe that an oil change or removal of the oil pan would cause that type of

contamination.

[13] Lambert also refers to the testimony of Phillip Moorman, an employee of

Koenig who performed the majority of the work on the first engine overhaul.

Specifically, Lambert cites Moorman’s responses of “No” when he was asked

on cross-examination whether he was present when Auto Tech performed work 2 on the tractor engine and whether he knew if Auto Tech had aluminum oxide

in their shop at that time. Tr., Vol. II, pp. 212-13. In addition, Lambert points

to Moorman’s inability to recall specific details of the cleaning process of the

engine. Id. at 219.

1 The term “blast media” refers to the abrasive material, such as sand, that is used in the process of abrasive blasting. Abrasive blasting is a method whereby a high-pressure stream of abrasive material is propelled against a surface in order to smooth a rough surface, roughen a smooth surface, shape a surface, or remove surface contaminants. CORROSIONPEDIA, https://www.corrosionpedia.com/definition/21/abrasive- blasting (last visited July 13, 2017). 2 Aluminum oxide is a type of blast media used in abrasive blasting. CORROSIONPEDIA, https://www.corrosionpedia.com/definition/21/abrasive-blasting (last visited July 13, 2017).

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 5 of 13 [14] A review of the evidence most favorable to the judgment shows that Moorman 3 testified at trial that at no part of the overhaul process did he sandblast the

tractor engine and that, to his knowledge, it was not sandblasted by anyone

else. He also testified that the Koenig facility does not have sandblasting

capability, that Auto Tech did not do any sandblasting on the tractor engine, 4 and that, to his knowledge, Auto Tech does not have a sandblast cabinet. In

addition, Moorman was asked to respond to the allegation that he failed to

remove the end plugs for the main oil gallery and failed to do a thorough

cleaning of all lube oil passages. He responded:

A: It’s normal, normal [sic] practice to open up everything on the block and clean out, uh, thoroughly with solvent and air, umm, and a brush if needed. Uh, anytime any work I’ve done, that’s normal practice for me. Umm, I would be surprised if I didn’t do it. Q: Would any point in time at that time would that have ever been sandblasted? A: No. Q: There’s an allegation that blast material was in the main oil gallery, could that have happened during your rebuild of the engine? A: I don’t know how it could have.

3 Sandblasting is a type of abrasive blasting. CORROSIONPEDIA, https://www.corrosionpedia.com/definition/21/abrasive-blasting and https://www.corrosionpedia.com/definition/1003/sand-blasting (last visited July 13, 2017). 4 Abrasive blasting is generally performed in enclosed environments such as blasting cabinets or chambers. CORROSIONPEDIA, https://www.corrosionpedia.com/definition/163/blasting (last visited July 13, 2017).

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 6 of 13 Q: And why is that? A: Umm, we don’t have sandblasting there. Umm, it was, uh, tractor was also located in the front corner of the shop all the way from the door. So, uh, it would be the cleanest part of the shop too. Uh, and we would have no reason to sandblast the block at any point during the rebuild. Id. at pp. 203-04. Further, on cross-examination, Moorman testified that

although it is his usual practice to clean the engine block as thoroughly as

possible, including the end plugs, due to the amount of time that had passed, at

the time of trial he could not specifically recall cleaning the end plugs in this

case. Id. at 218-19.

[15] Moreover, Darrin Walther, a Koenig technician, replaced the tractor’s oil

pressure pump at the end of June/beginning of July 2013. He testified that he

saw no signs of damage to the old pump when he removed it and that he did

not see any blast media:

Q: If there were blast media in the engine, would you have seen it at that time? A: Yeah, I had it in my hands and disassembled part of the procedure. It would’ve been evident right then. Q: If there was blast media in the engine, it would’ve . . . A: Correct. Q: . . . been obvious at that time . . . A: Correct. Q: . . . when you replaced the pump. A: Correct.

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 7 of 13 Id. at 229. Finally, Lambert’s son, Daniel, testified that he performed work on

the tractor engine after the Koenig overhaul. Daniel’s work included fitting a

mechanical liquid fill gauge onto the engine. This was a tool that Daniel made

himself, and he acknowledged that if there was contaminant in this tool, it

would contaminate the engine. Id. at 141. Additionally, Daniel disassembled

the front harmonic balancer, the oil pump, the oil pickup tube, and the oil pan.

He conducted tests on the oil pump and the oil pickup tube, as well as

performing several oil changes and replacement of oil filters on the tractor

engine. Daniel acknowledged on cross-examination that when he disassembled

the oil pan in the late summer or early fall of 2013, he saw no blast media in the

oil. Id. at 142. Thus, the evidence showed that in the eighteen-plus months

between the Koenig overhaul and the second overhaul by Hill-T Farm no one

working on the tractor engine saw blast media. Also in those intervening

months, several people worked on the tractor engine in capacities that allowed

for the possibility of contamination. The evidence here does not lead to

conclusions opposite that reached by the trial court.

b. Res Ipsa Loquitur 5 [16] Lambert additionally alleges that the doctrine of res ipsa loquitur is applicable

to his negligence claim. Our review of the documents on appeal, however,

5 Res ipsa loquitur is a Latin phrase meaning “the thing speaks for itself.” This doctrine provides that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence. BLACK’S LAW DICTIONARY (10th ed. 2014).

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 8 of 13 reveals that Lambert did not present this theory to the trial court. Generally, a

party cannot argue a new theory on appeal that was not presented to the trial

court. Simmons v. State, 773 N.E.2d 823 (Ind. Ct. App. 2002), trans. denied.

Indeed, appellate review presupposes that a litigant’s arguments have been

raised in and considered by the trial court. Plank v. Cmty. Hosps. of Ind., Inc., 981

N.E.2d 49 (Ind. 2013). “Declining to review an issue not properly preserved for

review is essentially a ‘cardinal principal of sound judicial administration.’” Id.

at 53. Accordingly, this argument is waived.

c. Manufacturer’s Manual

[17] Lambert also claims that Koenig was negligent because it failed to follow the

requirements in the manufacturer’s manual for the tractor. He cites two

paragraphs from the section entitled “Cleaning,” which provide:

The best way to clean a crankcase during overhaul is in a chemical “hot tank.” This removes all carbonous material and mineral deposits that collect in the cooling passages. .... All lube oil passages must be thoroughly cleaned. Gallery plugs are to be removed and all passages swabbed with a brush and solvent. Ex. 17, Exhibits Vol., p. 107.

[18] Lambert’s assertion that “[p]ower washing with hot water is neither permitted

nor advised” for the tractor engine is without support. Appellant’s Br. p. 15.

The manual sets forth the best way, according to the manufacturer, to clean the

crankcase. The manual neither states that a chemical hot tank is the required

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 9 of 13 process or the only process to clean a crankcase nor does it state that power

washing with hot water is ill-advised. Furthermore, there was no testimony at

trial that this method of washing a crankcase was improper. Lambert’s 6 argument fails.

2. Findings of Fact [19] Finally, Lambert asserts that several of the trial court’s findings of fact are

contrary to the evidence and misleading. In challenging the court’s findings,

Lambert must establish that they are clearly erroneous; that is, a review of the

record leaves one firmly convinced that a mistake has been made. See Estate of

Kappel, 979 N.E.2d 642.

[20] The portion of Finding of Fact No. 12 with which Lambert claims error,

provides: “Auto Tech did not do any sand blasting of any of the engine parts.”

Appellant’s App. pp. 10-11. The evidence most favorable to the judgment

reveals that Koenig employee Moorman testified at trial that he was familiar

with all the work that Auto Tech performed in this matter and that Auto Tech

did not do any sandblasting of this engine. The evidence supports the finding.

Moreover, Lambert’s argument is an invitation to reweigh the evidence, which

we may not do. See Estate of Kappel, 979 N.E.2d 642.

6 In this section of his brief, in addition to the argument concerning the manufacturer’s manual, Lambert restates the same arguments he made in section 1., a. concerning his allegations that the trial court’s conclusions were contrary to the evidence. Because we have previously addressed those arguments, we do not revisit those issues here.

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 10 of 13 [21] Finding of Fact No. 22 provides: “[The Lamberts] used the Tractor in April[ ]

2013 for the spring farming season. During such time the Tractor was used for

approximately 25 hours.” Appellant’s App. p. 12. On cross-examination at

trial, Daniel testified:

Q: Alright, in 2013, uh, after you received the tractor back from Koenig you used that, uh, for your spring season, correct? A: Yes, as soon as it was returned, yeah. Q: And would you estimate about 25 hours on the tractor that spring? A: Less than that. Q: Alright. What would your estimate be? A: Uh, probably about 12, right around 12 to 14. Q: If you had a, what was [sic] the engine hours when you took it in for overhaul, it was 3,102 hour[s], was it not? A: Yes, yes. Q: And could you turn to Tab number “5” for me, please? A: This, this here? Q: Yes. That should be the MacAllister invoice. A: Okay. Q: And, uh, right below it looks like your name in the upper right-hand corner two lines down, meter reading . . . A: Umm, umm. Q: . . . 3,127. A: Umm, umm. Q: So that’s where I’m getting 25 hours, would you dispute that? A: Well, this didn’t . . . this had maybe run time on it from that was not in the field. Q: Alright. Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 11 of 13 A: You know. Q: But it still had, so the engine would’ve had 25 hours, but you’re saying . . . A: Oh, yeah. Q: . . . it may not be all in the field. A: Exactly, exactly. Tr. pp. 138-40. As before, the evidence here supports the trial court’s finding

and does not convince us that a mistake has been made.

[22] Next, Lambert alleges that Finding of Fact No. 24 is misleading. It states:

“Moorman testified that the oil pressure gauge on the Tractor may show lower

oil pressure as during the overhaul a new rocker arm bracket was installed

which created less oil pressure due to bigger passages.” Appellant’s App. p. 12.

Lambert makes no showing as to how this statement is misleading; rather, his

argument is merely composed of questions that constitute a request to this

Court to reweigh the evidence. We must decline Lambert’s request.

[23] As his final contention, Lambert claims that Finding of Fact No. 44 is

misleading. The court determined that “[Lambert] later had the Tractor engine

rebuilt which lead to higher oil pressure as measured by Daniel including some

as high as 79 psi, which is above the upper end of the recommended oil pressure

of 65 psi.” Id. at 15. The evidence at trial included the tractor manual

specifications that state “[o]il pressure at rated rpm (190˚ - 210˚F oil

temperature)” should be 45 to 65 psi. Ex. 17, Exhibits Vol., p. 105. In

addition, the results of Daniel’s oil pressure test in October 2014 following the

second engine overhaul were admitted. These results show Daniel obtained

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 12 of 13 psi’s in the 70’s, including a psi of 79. Ex. 16, Exhibits Vol., p. 104. We disturb

the judgment only where there is no evidence supporting the findings. Estate of

Kappel, 979 N.E.2d 642. The evidence supports Finding No. 44.

[24] Having concluded that the trial court’s judgment is not contrary to law and that

its findings of fact are supported by the evidence, we affirm the trial court’s

judgment in favor of Koenig.

[25] Judgment affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 35A05-1612-PL-2775 | July 20, 2017 Page 13 of 13