FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

JAMES B. GLENNON ROBERT R. FOOS, JR.

GEORGE D. PILJA Lewis Wagner, LLP

Foran Glennon Palandech Ponzi Indianapolis, Indiana 

& Rudloff, PC

Chicago, Illinois

IN THE

COURT OF APPEALS OF INDIANA

LIFELINE YOUTH & FAMILY SERVICES, )

INC., )

)

Appellant-Plaintiff, )

)

 vs. ) No. 02A03-1211-CT-502

)

INSTALLED BUILDING PRODUCTS, INC., )

d/b/a Momper Insulation, )

)

Appellee-Defendant. )

APPEAL FROM THE ALLEN CIRCUIT COURT

The Honorable Thomas J. Felts, Judge

Cause No. 02C01-0906-CT-32 

September 18, 2013

OPINION – FOR PUBLICATION

PYLE, Judge
2

STATEMENT OF THE CASE

Lifeline Youth & Family Services (“Lifeline”) appeals the trial court’s denial of its 

motion to correct error following a jury verdict and award of damages entered in favor of 

Lifeline and against Installed Building Products, Inc. d/b/a Momper Insulation 

(“Momper”).

 We affirm.

ISSUE

Whether the trial court erred by denying Lifeline’s motion to correct error 

that requested the trial court to increase the amount of the jury’s award of 

damages that was entered in favor of Lifeline. 

FACTS1

In January 2008, Momper installed insulation in the attic of a building owned by 

Lifeline. A fire occurred in the attic, causing damage to Lifeline’s building. 

On June 19, 2009, Lifeline filed a three-count complaint for damages against 

Momper, raising claims of: (1) negligence; (2) breach of implied warranty; and (3)

breach of contract. In regard to the negligence claim, Lifeline alleged that Momper had 

acted negligently when it dropped a portable light fixture onto the attic floor; installed

insulation over the light fixture; and failed to inspect the attic after installation of the 

insulation. For the breach of implied warranty claim, Lifeline alleged that Momper had 

installed the insulation in an unsafe manner and that it was not fit for its intended 

purpose. Finally, Lifeline alleged that Momper had breached its contract with Lifeline by 

 

1 The underlying facts of this case are somewhat limited because Lifeline did not request a copy of the 

transcript from the jury trial. Instead, we have had to glean the facts from the limited information 

included in Lifeline’s Appendix, including the trial court’s final jury instructions and the verdict form 

returned by the jury.
3

failing to perform the work as set forth in Momper’s invoice.2 More specifically, Lifeline 

alleged that Momper had “improperly installed the R-19 (4 inches) blown wood fiber in 

the ceiling of the building.” (App. 58). 

A jury trial was held August 21 through August 23, 2012. Lifeline proceeded on 

the three claims in its complaint, and the trial court instructed the jury as to the elements 

necessary before damages could be awarded for those claims. The parties stipulated to 

the amount of damages sustained, which was set forth in one of the final jury instructions:

The parties in this case have agreed that certain facts are true. You 

must accept these facts as true:

Although [Momper] denies that it is liable to [Lifeline] for any damages 

sustained by [Lifeline] as a result of the fire that is the subject of this 

litigation, the parties hereby stipulate and agree to the following:

1. The cost to repair is the proper measure of the damages sustained to 

[Lifeline’s] building as a result of the subject fire;

2. The cost to repair the damages sustained to [Lifeline’s] building as a 

result of the fire included $280,263.00, exclusive of any interest;

3. The repairs to [Lifeline’s] building were preformed [sic] as 

described in the invoices produced by [Lifeline] to [Momper];

4. The repairs performed on [Lifeline’s] building were reasonable and 

necessary to return the building to its pre-fire condition; and

 

2 Momper’s invoice, which was attached to Lifeline’s complaint, provided that Momper had performed 

the following work: 

INSTALL R-19 (4 INCHES) BLOWN WOOD FIBER IN THE CEILING OF THE 

BUILDING[.] WRAP ALL RECESS CAN LIGHTS, FIREPLACE, AND WATER 

HEATER FLUES WITH UNFACED FIBERGLASS BATTS. INSTALL

CARDBOARD AROUND SIDES OF LID AND R-38 FIBERGLASS OVER SCUTTLE 

COVER AS NEEDED. STAPLE FACT CARD NEAR ATTIC OPENING.

(App. 59).
4

5. Lifeline paid $280,263.00 to contractors and vendors to perform 

these repairs.

(App. 37). 

The trial court instructed the jury regarding the apportionment of fault for 

comparative fault and instructed the jury that consideration of Lifeline’s fault was an 

issue as to Lifeline’s negligence claim. The trial court also instructed the jury—in two 

separate instructions—that it “must not consider comparative fault when considering 

whether to award damages for [Lifeline] for its breach of contract claim.” (App. 47).3 

Instead, the trial court provided specific instructions regarding damages for the breach of 

contract claim. The trial court instructed the jury that “[t]o recover damages . . . for 

breach of contract,” Lifeline was required to prove that: (1) the parties entered into a 

contract; (2) Momper had breached its contract with Lifeline; (3) Momper’s breach 

damaged Lifeline; (4) the parties “reasonably anticipated that those damages could/might 

occur when they entered into the contract;” and (5) Momper’s breach was a “responsible 

cause of those damages.” (App. 44). The trial court also informed the jury that “[i]n a 

claim for breach of contract, a party may recover only those damages that are the natural 

and proximate consequence of the breach, and those reasonably anticipated by the parties 

when they entered into the contract.” (App. 50). Additionally, the trial court provided 

the jury with a verdict form that provided a space for the jury to assess fault to each party. 

 

3 The other jury instruction provided: “You must not consider comparative fault in deciding whether 

[Momper] breached its contract with [Lifeline].” (App. 45). 
5

The verdict form also contained a space for the jury to indicate, by placing a check mark, 

whether or not Momper had breached its contract with Lifeline.

4

 

The jury returned a verdict in favor of Lifeline and against Momper and awarded 

damages in the amount of $154,144.65. Specifically, the jury determined that Lifeline 

was forty-five percent at fault and that Momper was fifty-five percent at fault. The jury 

also determined, as indicated by its check mark on the verdict form, that Momper 

breached its contract with Lifeline. The two-page jury verdict form, which is at issue in 

this appeal, appears as follows: 

 

4 Lifeline indicates that it requested the trial court to insert this breach of contract language into the 

comparative fault verdict form so that the jury could have a place for the jury to “memorialize” its 

decision on Lifeline’s breach of contract claim. (Lifeline’s Br. 4). Because Lifeline did not request the 

jury trial transcript, we cannot verify the origination of the language in the verdict form or whether there 

was any objection to the same. 
6

(App. 22-23). The trial court entered judgment on the jury’s verdict.

Lifeline then filed a motion to correct error, claiming that the jury had erred in its 

calculation of damages. Lifeline did not include a copy of its motion to correct error in 

its Appellant’s Appendix but asserts in its appellate brief that it filed its motion under 

Trial Rule 52(A)(2), which is a claim that a jury verdict is “inadequate.” During the 

hearing on Lifeline’s motion, Lifeline argued that the jury erroneously applied 

comparative fault to its calculation of damages on its breach of contract claim. Lifeline 

argued that it did not want to disturb the jury’s general verdict in its favor but stated that 

it sought to have the trial court “correct an error that the jury made in which damages [it 

was] awarding for the breach of contract claim.” (Tr. 6). Lifeline requested the trial 

court to award Lifeline damages in the amount of $280,263.00, which it argued would be 

consistent with the jury’s finding that Momper had breached the contract. Momper 
7

argued that the jury’s finding that Momper breached the contract did not equate to a 

determination that the jury intended to award damages on the breach of contract claim. 

Momper argued that the jury’s damages verdict was consistent with the jury’s verdict 

regarding negligence and its determination of comparative fault, which Lifeline did not 

challenge. The trial court denied Lifeline’s motion to correct error. Lifeline now 

appeals. 

DECISION

Lifeline challenges the amount of the damages the jury awarded to Lifeline and 

argues that the trial court abused its discretion by denying its motion to correct error. 

Specifically, Lifeline contends that the jury’s verdict awarding Lifeline damages totaling 

$154,144.65 was improper because it claims that the jury erroneously applied 

comparative fault to Lifeline’s breach of contract claim. To support its argument, 

Lifeline points to check-marked space—which was inserted on the jury comparative fault 

verdict form—indicating that the jury had determined that Momper had breached its 

contract with Lifeline. Lifeline reasons that because the jury determined that Momper 

had breached the contract, then the jury must have also determined that Lifeline was 

entitled to recover damages from that breach of contract. Thus, Lifeline argues that the 

jury’s damages verdict should be increased and that it is entitled to the stipulated 

damages amount of $280,263.00 for the jury’s determination that Momper had breached 

its contract with Lifeline.5

 

5 Lifeline, however, does not challenge the jury’s comparative fault allocation of forty-five percent to 

Lifeline or the amount of damages as it relates to its negligence claim. Additionally, Lifeline does not 
8

On appeal, we review a trial court’s ruling on a motion to correct error for an

abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 

(Ind. 2003). We will reverse a trial court’s ruling on a motion to correct error “only 

where the trial court’s judgment is clearly against the logic and effect of the facts and 

circumstances before it or where the trial court errs on a matter of law.” Perkinson v. 

Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).

“A jury determination of damages is entitled to great deference when challenged 

on appeal.” Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001). As 

our Indiana Supreme Court has explained:

Damages are particularly a jury determination. Appellate courts will not 

substitute their idea of a proper damage award for that of the jury. Instead, 

the court will look only to the evidence and inferences therefrom which 

support the jury’s verdict. We will not deem a verdict to be the result of 

improper considerations unless it cannot be explained on any other 

reasonable ground. Thus, if there is any evidence in the record which 

supports the amount of the award, even if it is variable or conflicting, the 

award will not be disturbed.

Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 1994), reh’g denied, 

trans. denied (citations omitted)). Additionally, our Supreme Court observed:

Our inability to actually look into the minds of the jurors is, to a large 

extent, the reason behind the rule that we will not reverse if the award falls 

within the bounds of the evidence. We cannot invade the province of the 

jury to decide the facts and cannot reverse unless the verdict is clearly 

erroneous.

Id. (quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971), reh’g 

denied). Furthermore, “[t]he Law indulges every reasonable presumption in favor of the 

 

challenge any of the trial court’s jury instructions regarding the elements necessary to be proven by 

Lifeline to recover damages under its various claims.
9

legality of jury verdicts, and corrective action should only be taken when the verdict or 

verdicts are ‘inconsistent because [of] a logical or legal impossibility.’” Tincher v. 

Davidson, 762 N.E.2d 1221, 1226 (Ind. 2002) (quoting Indianapolis Newspapers, Inc. v. 

Fields, 254 Ind. 219, 259 N.E.2d 651, 668 (1970), cert. denied). 

Here, the jury’s verdict form shows that the jury found that Momper was negligent 

and was at fault for fifty-five percent of the resulting damages while Lifeline was at fault 

for forty-five percent. Thus, the jury awarded Lifeline damages in the amount of 

$154,144.65. The verdict form also reveals that the jury—as indicated by its check 

mark—found that Momper had breached its contract with Lifeline. Lifeline contends that 

this check-mark on the comparative fault jury verdict form also indicates that the jury 

intended to award damages for the breach of contract and further contends that the jury 

then erroneously applied comparative fault to the amount of damages recoverable for the 

breach of contract. Lifeline’s argument on appeal focuses on the assertion that 

comparative fault is not applicable to a breach of contract claim. 

Lifeline’s reasoning as to the jury’s intentions and Lifeline’s argument seeking 

reversal of the jury’s award of damages miss the mark.6 No one disputes the assertion 

that comparative fault does not apply to a breach of contract claim. See Parke State Bank 

v. Akers, 659 N.E.2d 1031, 1035 (Ind. 1995) (explaining that “Indiana does not recognize 

comparative causation in breach of contract claims”) (citing Fowler v. Campbell, 612 

N.E.2d 596, 602 (Ind. Ct. App. 1993)), reh’g denied. Indeed, the trial court specifically 

 

6

In support of its argument on appeal, Lifeline cites to two federal trial court orders that are available on 

Westlaw but are not reported in the F.Supp.2d. 
10

instructed the jury that it was not to consider comparative fault when deciding whether to 

award damages for Lifeline’s breach of contract claim.

Instead, 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.” (Momper’s Br. 8) (citing DDR Computer Serv. Bureau v. Davis, 411 N.E.2d 

722 (Ind. Ct. App. 1980)). 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. (Lifeline’s Reply Br. 6). Lifeline then contends that the 

trial court erred by denying its motion to correct error because it alleges that “the 

evidence presented at trial supports the jury’s finding that Momper breached the parties’

contract and that the total damages attributable to that breach were $280,263.00 as 

reflected on the Verdict Form.” (Lifeline’s Reply Br. 11-12). 

As noted above, we do not have a transcript of the jury trial because Lifeline did 

not request transcription of the trial. Therefore, we have no specific information 

regarding the evidence presented to support the jury’s damages verdict, any discussions 

or objections surrounding the trial court’s jury instructions on damages, or the procedural 

events surrounding the jury’s verdict awarding damages. 

Lifeline’s failure to submit a transcript of the jury trial is in contravention of 

Indiana Appellate Rule 9(F)(5), which provides that an appellant’s Notice of Appeal shall 
11

designate “all portions of the Transcript necessary to present fairly and decide the issues 

on appeal.” Appellate Rule 9(F)(5) further provides that, “[i]f 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 Notice of Appeal shall request a Transcript of all the 

evidence.” 

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.’” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) 

(quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind. 1992)). 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. See, e.g., Ostrowski v. Everest 

Healthcare Indiana, Inc., 956 N.E.2d 1144, 1147-48 (Ind. Ct. App. 2011) (holding that 

appellant waived argument by failing to comply with the appellate rule requiring him to 

designate relevant portions of the transcript necessary to decide issue on appeal); Fields 

v. Conforti, 868 N.E.2d 507, 511 (Ind. Ct. App. 2007) (explaining that appellant’s 

arguments that depended upon the evidence at trial were waived by appellant’s failure to 

request a transcript of the bench trial). See also Kocher v. Getz, 824 N.E.2d 671, 675 

(Ind. 2005) (holding that, where appellant challenged the amount of appeal bond but 
12

failed to provide a transcript of the relevant hearing, appellant failed to demonstrate that 

the trial court abused its discretion in amount ordered).7

Affirmed.

KIRSCH, J., and BARNES, J., concur. 

 

7 Momper also raises an argument regarding the abolishment of special verdicts and interrogatories under 

Trial Rule 49 and specifically contends that the jury’s determination that Momper had breached the 

contract was a special interrogatory and that it could not be used to overturn the jury’s general verdict 

form on comparative fault. See Tincher, 762 N.E.2d at 1226 (citing State Highway Dep’t v. Snyder, 594 

N.E.2d 783 (Ind. 1992) and Buckland v. Reed, 629 N.E.2d 1241 (Ind. Ct. App. 1994)) (holding that a 

jury’s verdict form on comparative fault was a general verdict and could not be “impeached by the 

calculation form”). Given our disposition of this appeal, we need not address this argument and will 

leave the matter for another day.