Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Dec 17 2014, 10:27 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                        ATTORNEY FOR APPELLEE:

ANDREW S. WILLIAMS                              BRYAN H. BABB
BRIAN L. ENGLAND                                Bose McKinney & Evans LLP
RYAN J. GUILLORY                                Indianapolis, Indiana
Fort Wayne, Indiana
                                                JEFF SHAW
                                                Bloomington, Indiana


                                          IN THE
                    COURT OF APPEALS OF INDIANA

JAMES ROOF,                                     )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1402-CT-106
                                                )
DAVID ASHER,                                    )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable David J. Dreyer, Judge
                           Cause No. 49D10-1008-CT-33914


                                    December 17, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

         Appellant-Defendant, James Roof (Roof), appeals the jury’s verdict, awarding

$240,000.00 to Appellee-Plaintiff, David Asher (Asher).

         We affirm.

                                          ISSUES

         Roof raises one issue on appeal, which we restate as follows: Whether the trial

court abused its discretion by tendering an additional instruction following a question

from the deliberating jurors regarding a perceived conflict between a state statute and a

local ordinance.

         In his Appellee’s brief, Asher raises one issue, which we restate as: Whether he is

entitled to reimbursement of his appellate attorney’s fees pursuant to Ind. Appellate Rule

66(E).

                         FACTS AND PROCEDURAL HISTORY

         On May 5, 2010, Roof was traveling southbound on Meridian Street in

Indianapolis, Indiana, when he made a right-hand turn onto Michigan Street. Roof turned

into the right lane on Michigan Street, traveling at approximately 25mph, when he passed

Asher, who was riding a motorized scooter in the far right bicycle lane. Approaching the

intersection with Illinois Street, Roof veered left to turn onto Illinois Street but then

realized that Illinois is a one-way northbound. At that point, Roof attempted to turn right

to head north onto Illinois Street and collided with Asher.

         On August 2, 2010, Asher filed his Complaint, alleging that Roof negligently

drove his vehicle into his scooter, and requesting damages. On November 5 through


                                              2
November 7, 2013, the trial court conducted a jury trial. At the close of the evidence, the

trial court tendered twenty-six instructions to the jury.          After deliberations had

commenced and before the verdict was returned, the jurors submitted three questions to

the trial court. The question relevant for purposes of this appeal read: “There are two

contradictory laws. The State law Instruction #14 and City ordinance Instruction #17.

Which is in effect or takes priority?” (Appellant’s App. p. 70).

       Jury Instruction # 14 referred to Indiana Code section 9-21-8-2(b)(2) which

provided, “in part, as follows: upon all roadways, a vehicle proceeding at less than the

normal speed of traffic at the time and place under the conditions then existing shall be

driven as close as practicable to the right-hand curb or edge of the roadway.”

(Appellant’s App. p. 37). Instruction #17 incorporated Marion County Municipal Code

Section 441-371, and stated:

       When the events in this case happened, Section 441-371 of the Marion
       County Municipal Code provided as follows:

       (a) Bicycle paths and lanes shall be used exclusively for the operation of
       bicycles unless signage specifies joint use with pedestrians.
       (b) With the exception of a moped being operated exclusively with human
       muscular power, no person shall operate any other conveyance in a
       designated bicycle path or lane.
       (c) A person may operate a motor vehicle upon a bicycle lane for the
       limited purpose of making a turn, entering or leaving an alley, private road,
       or driveway.

       If you decide from the greater weight of the evidence that a person violated
       Section 441-371 of the Marion County Municipal Code, and that the
       violation was not excused, then you may decide that person was at fault.

(Appellant’s App. p. 40).




                                             3
       The trial court consulted with counsel of both parties as to its response to the

jurors’ question. During these discussions, Asher requested that an additional instruction

be proffered, instructing the jury to “try to resolve it without a conflict” but if the jury

found a conflict with the state statute expressly permitting the activity and a city

ordinance forbidding it, then “that’s an impermissible conflict and the state statute []

expressly permits that activity.” (Transcript p. 408). On the other hand, Roof objected to

the proposed instruction because it would imply “that the ordinance would be found

unconstitutional.” (Tr. p. 409). Concluding that it failed to see the conflict, the trial court

decided to “err on the side” of giving an additional jury instruction. (Tr. p. 410). After

bringing the jury back into the courtroom and without re-reading the other jury

instructions, the trial court tendered the twenty-seventh jury instruction, which provided:

       Governmental actions, including ordinances, taken under the grant of police
       power, must be in reasonable furtherance of the goals of the health, order,
       morals, or safety of society at large. Like statutes, ordinances are presumed
       to be valid. However, an impermissible conflict with state law will be
       found if an ordinance seeks to prohibit that which a statute expressly
       permits. If the state has not chosen to occupy an area to the exclusion of
       municipal regulation, a city may impose additional, reasonable regulations,
       and may supplement burdens imposed by non-penal state law, provided the
       additional burdens are logically consistent with the statutory purpose.

(Appellant’s App. p. 51). Upon its reading, the trial court sent the jury back to the jury

room to resume deliberations. Later that day, the jury returned a verdict, assigning Roof

sixty percent of the fault and awarding Asher $240,000.00 in damages. On December 6,

2013, Roof filed a motion to correct error which was deemed denied forty-five days later

on January 20, 2014.

       Roof now appeals. Additional facts will be provided as necessary.


                                              4
                             DISCUSSION AND DECISION

       Roof contends that the trial court abused its discretion by proffering an additional

instruction when, during deliberations, the jury perceived a conflict between two

previously given instructions.     However, prior to turning to the merits of Roof’s

argument, we must address Asher’s contention that Roof waived his claim.

                                         I. Waiver

       Asher’s claim of waiver is centered on two grounds: (1) Roof failed to include

verbatim the objection to the jury instruction in the argument section of his appellate brief

and (2) Roof’s objection at trial is distinct from his argument on appeal.

                                  A. Verbatim Inclusion

       Pursuant to Indiana Appellate Rule 46(A)(8)(e) “[w]hen error is predicated on the

giving or refusing of any instruction, the instruction shall be set out verbatim in the

argument section of the brief with the verbatim objections, if any, made thereto.” The

failure to comply with this mandate “results in waiver of the issue.” Taylor v. State, 587

N.E.2d 1293, 1303 (Ind. 1992), reh’g denied. Asher asserts that because Roof omitted to

comply with the Appellate Rule by failing to include his verbatim objection to the

additional jury instruction, he waived the argument for our review.

       The requirement instituted by our Appellate Rule is “more than a mere formality.”

Reed v. State, 702 N.E.2d 685, 690 (Ind. 1998). It plays an important role in assuring that

this court has a complete and accurate record of what transpired before the trial court. Id.

In the context of jury instructions, the requirement ensures that the court has a record of




                                             5
what the jury was actually instructed so that it may make informed decisions as to the

propriety and the consequences of the giving or the refusing of any instructions. Id.

       Here, Roof, as appellant, presented this court with a record that is complete with

respect to the issues raised on appeal and provided us with the transcript of the

proceedings before the trial court. See App. R. 9(F)(5); 50. In the fact section of his

appellate brief, Roof included the additional jury instruction verbatim, accompanied by

citations to the record. While it is true that the verbatim objections are not set out, Roof’s

objection is included as a paraphrase with appropriate references to the transcript pages.

Even though Roof did not explicitly follow the mandate of App. R. 46(A)(8)(E), his

“brief substantially complies with the rules and is of sufficient cogency that it can be

responded to by appellees with undue hardship or extraordinary expense.” Dahlberg v.

Ogle, 364 N.E.2d 1174, 1175 (Ind. 1977). Concluding that the purpose of App. R.

46(A)(8)(e) is satisfied as we are able to make an informed decision based on the

documents before us, we will not waive Roof’s argument on this ground.

                                         B. Objection

       Next, Asher contends that Roof’s objection to the additional jury instruction

before the trial court is different from the one he asserts on appeal.          To preserve

erroneous instructions on appeal, Roof was required to make a timely, specific objection

to the instruction at trial. See Ind. Trial Rule 51(C). An objection which is not specific

preserves no error on appeal. Southport Little League v. Vaughan, 734 N.E.2d 261, 273

(Ind. Ct. App. 2000), trans. denied. In addition, a party claiming error in the giving of an

instruction is limited to his stated objection at trial. Id.


                                                6
        In the present case, Roof objected at trial to the giving of an additional instruction

as follows:

        I would object to the proposed instruction because to me it implies that the
        ordinance would be found unconstitutional. Essentially that would be the
        ultimate result if they find a conflict we’re saying that this Marion County
        City Ordinance --- City Council ordinance is unconstitutional. Like you,
        Judge, I don’t see the conflict here. I read the statute it says to the right
        hand curb or edge of the roadway. You know, as [Asher] acknowledge[s],
        we haven’t really argued that there’s a conflict of the laws and the time for
        that would have been passed for us but as I read it talks about the roadway
        and I think we probably argued to a different interpretation of roadway
        versus --- as travel lanes and whether that extend[s] into the bike lane as
        well.

(Tr. pp. 409-10). After objecting, the trial retired to

        [] go look real quick and I’ll type something out. You guys can sit here and
        I’ll bring it back --- I’ll bring it to you and I know that [Roof] objects
        regardless of what I put together[.]

(Tr. p. 411). Prior to actually proffering the additional instruction to the jury, the trial

court confirmed with Roof that he “continued to object,” which Roof affirmed. (Tr. p.

411).

        On appeal, Roof asserts that the trial court abused its discretion by giving an

additional instruction because it “improperly invited the jury to determine whether the

Marion County Ordinance conflicted with state law, and thus, whether it was

constitutional.” (Appellant’s Br. p. 6) As secondary arguments, Roof claims that the jury

instruction was unnecessary because it was misleading and confusing and, even if the

instruction was properly tendered, the trial court abused its discretion by reading it in

isolation. Because Roof’s secondary arguments were not developed before the trial court,

he has waived those issues for our review. See Southport Little League, 734 N.E.2d at


                                               7
273. Therefore, we will only address Roof’s contention based on his constitutionality

argument.

                                    II. Jury Instruction

       Turning to the merit of Roof’s contention, we note that instruction of the jury is

left to the sound judgment of the trial court, and our review of a trial court’s decision in

this regard is highly deferential: we will not disturb the court’s judgment absent an abuse

of discretion. City of Terre Haute v. Simpson, 746 N.E.2d 359, 367 (Ind. Ct. App. 2001),

trans. denied. The purpose of an instruction is to inform the jury of the law applicable to

the facts without misleading the jury and to enable it to comprehend the case clearly and

arrive at a just, fair, and correct verdict. Southport Little League, 734 N.E.2d at 273.

       After deliberations had commenced and before the verdict was returned, the jurors

submitted three questions to the trial court, one of which is relevant for purposes of this

appeal.   This question read:      “There are two contradictory laws.         The State law

Instruction #14 and City ordinance Instruction #17. Which is in effect or takes priority?”

(Appellant’s App. p. 70). Upon notifying counsel for both sides, the trial court studied

the question with the parties’ attorneys and stated:

       As I told you this doesn’t matter I --- it’s apparent to me why they think it’s
       contradictory but that doesn’t make any difference to the case. My first
       inclination, as I told you, was to tell them just to continue to deliberate and
       not provide an answer but there are other possibilities and our law and I
       think our jury rules provide for other things to assist the jury if possible and
       so I want to give each side an opportunity to think about it and give any
       ideas.

(Tr. p. 405). While Asher requested an additional jury instruction to guide the jury in

construing a statute and an ordinance, Roof objected to the proffer of any instruction


                                              8
because it would imply “that the ordinance would be found unconstitutional.” (Tr. p.

409).

        When confronted with a question from a jury which has commenced deliberation,

the challenge to the trial court is to respond in a manner which accords with the legal

requirements for final instructions and which is fair. Jenkins v. State, 424 N.E.2d 1002,

1003 (Ind. 1981). Indiana Code section 34-36-1-6 governs the procedure a trial court

must follow when answering a jury question submitted during deliberations. That statute

provides:

        If, after the jury retires for deliberation:
        (1) there is a disagreement among the jurors as to any part of the testimony;
        or
        (2) the jury desires to be informed as to any point of law arising in the case;
        The jury may request the officer to conduct them into court, where the
        information required shall be given in the presence of, or after notice to, the
        parties or the attorneys representing the parties.

The statutory phrase “any point of law arising in the case” is construed narrowly and

mandates that the trial court inform counsel and provide a discrete answer only when the

jury question “points to ‘an error or legal lacuna in the final instructions.’” Henri v.

Curto, 908 N.E.2d 196, 205 (Ind. 2009). Once the trial court, in the exercise of its

discretion, has determined that a question posed by the jury relates to the jury’s desire to

be informed as to any point of law arising in the case, the court then must supply the

requested information, to the extent that it consists of an answer to the legal questions.

Foster v. State, 698 N.E.2d 1166, 1170 (Ind. 1998). This statutorily prescribed procedure

for dealing with jury questions applies in criminal as well as civil cases. Wray v. State,

720 N.E.2d 1185, 1189 (Ind. Ct. App. 1999).


                                              9
       Here, the jury requested guidance as to the precedence between a statute and a city

ordinance. Unlike Roof, we find that the jury was not intending to declare the ordinance

unconstitutional; rather, the jury sought clarification on the interrelationship between a

statute and an ordinance. Therefore, properly characterizing this question as a legal

lacuna in the final instructions, the trial court was mandated to answer the jury’s question.

In providing a response, the trial court relied on Hobble v. Basham, 575 N.E.2d 693 (Ind.

Ct. App. 1991), where this court analyzed whether a city ordinance conflicted with a

statute:

       Governmental actions, including ordinances, taken under the grant of police
       power, must be in reasonable furtherance of the goals of the health, order,
       morals, or safety of society at large. Like statutes, ordinances are
       presumptively valid and the party challenging an ordinance bears the
       burden of proving invalidity. In construing the statute or ordinance, all
       doubts are to be resolved against the challenger and, if possible, the
       ordinance is to be construed as valid. An impermissible conflict with state
       law will be found if the Ordinance seeks to prohibit that which a statute
       expressly permits. If the state has not chosen to occupy an area to the
       exclusion of municipal regulation, a City may impose additional,
       reasonable regulations, and may supplement burdens imposed by non-penal
       law, provided the additional burdens are logically consistent with the
       statutory purpose.

Id. at 696-97 (internal references omitted).

       Upon the jury’s request to be clarified as to the legal relationship between a statute

and a city ordinance, i.e. “which is in effect or takes priority,” the trial court proffered an

additional instruction which was drafted verbatim from the Hobble analysis. (Tr. p. 405).

Properly exercising its role to determine the law and within the mandate of I.C. § 34-36-

1-6, the trial court “discreetly” and concisely provided the jury with guidance to facilitate




                                               10
its continuing deliberation. See Henri, 908 N.E.2d at 205. Therefore, we conclude that

the trial court did not abuse its discretion by giving the jurors an additional instruction.

                               III. Appellate Attorney’s Fees

       In his appellee’s brief, Asher requests this court to award him appellate attorney’s

fees, contending that Roof committed procedural bad faith pursuant to Ind. Appellate

Rule 66(E) by disregarding the content requirements of the rules of appellate procedure.

       Indiana Appellate Rule 66(E) provides, in pertinent part: “[t]he [c]ourt may assess

damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the [c]ourt’s

discretion and may include attorney’s fees.” Our discretion to award attorney’s fees

under this Rule is limited, however, to instances when an appeal is permeated with

meritlessness, bad faith, frivolity, harassment, vexatiousness, or purposes of delay.

Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Additionally, while

Indiana Appellate Rule 66(E) provides this court with discretionary authority to award

damages on appeal, we must use extreme restraint when exercising this power because of

the potential chilling effect upon the exercise of the right to appeal. Id.

       Indiana appellate courts have formally categorized claims for appellate attorney

fees into “substantive” and procedural” bad faith claims. Id. To prevail on a substantive

bad faith claim, the party must show that the appellant’s contentions and arguments are

utterly devoid of all plausibility. Id. Procedural bad faith, on the other hand, occurs

when a party flagrantly disregards the form and content requirements of the rules of

appellate procedure, omits and misstates relevant facts appearing in the record, and files a

brief written in a manner calculated to require the maximum expenditure of time both by


                                              11
the opposing party and reviewing court. Id. at 346-47. Even if the appellant’s conduct

falls short of that which is “deliberate or by design,” procedural bad faith can still be

found. Id. at 347.

       Reiterating his waiver argument, Asher asserts that because Roof only raised

issues which were effectively waived as these had not been presented to the trial court

and failed to comply with App. R. 46(A)(8)(e), Roof’s appeal was “devoid of all

plausibility” and appellate attorney’s fees should be assessed. (Appellee’s Br. p. 16). We

disagree.

       Finding that Roof’s verbatim inclusion of the additional jury instruction, together

with his paraphrased objection and appropriate references to the record and transcript

amounted to substantive compliance with App.R. 46(A)(8)(e), we declined to waive

Roof’s argument. Also, having effectively preserved his constitutionality objection to the

additional jury instruction, Roof prevented complete waiver of his argument for our

review and we addressed this particular contention on its merits. While Roof’s appellate

brief undeniably included omissions and inadequacies, we cannot say that his brief was

calculated to expend the maximum amount of review time and was permeated with such

bad faith as to warrant an award of appellate attorney’s fees. We deny Asher’s request

for appellate attorney’s fees.

                                      CONCLUSION

       Based on the foregoing, we conclude that (1) the trial court did not abuse its

discretion by tendering an additional instruction to the jury after deliberations had started,

and (2) Asher is not entitled to appellate attorney’s fees pursuant to App. R. 66(E).


                                             12
     Affirmed.

MATHIAS, J. and CRONE, J. concur




                                   13
