In June 1989, as part of a settlement agreement, Techwerks, Inc. sold computer software it had developed to Foodwerks Acquisition Corporation “FAC” for almost $2 million. Part of the sale price was financed over five years, and FAC signed a promissory note for $564,784.43. Two years later FAC and Compris Technologies, Inc. FAC’s successor in interest, sued Techwerks, Packs Group, Inc., Frank Bender and Jack Bender collectively “Techwerks”, alleging that Techwerks had breached the settlement agreement and had slandered Compris’ title to the software. Techwerks filed a counterclaim for breach of contract, suit upon the note, and other relief. Following a jury trial, the trial court entered judgment on the verdict in favor of FAC and Compris on the slander of title and breach of contract claims. And although the jury verdict did not address the promissory note, the trial court also awarded Techwerks judgment on the note. In Case Number A05A0024, Compris and FAC appeal, contending the trial court erred in entering judgment on the note when claims pertaining to the note were not submitted to the jury. In Case Number A05A0025, Techwerks cross-appeals, contending that the trial court erred in refusing to amend the pretrial order and in granting or denying various motions, that the jury’s verdict is against the weight of the evidence, and that the court miscalculated the interest due on the promissory note. Because the facts and arguments in both cases overlap and arise from the same order entering final judgment, we consolidate these appeals.
Our review of the record reveals the following.1 These appeals arise out of a decades-long dispute over rights to computer software. In 1982, Jack Bender formed Packs Group, a software development company. Packs Group developed software for use on IBM and NCR computers. In 1986, Bender and Packs Group hired software designer James Melvin. Melvin developed touchscreen point-of-sale software for use in the fast food industry. The software, originally called “the Point,” was later renamed “Foodwerks.” Because Packs Group had legal and financial problems, most of which stemmed from litigation with IBM and NCR, Bender transferred the assets of Packs Group to Techwerks, Inc., a company owned by his brother, Frank Bender. Jack Bender and Melvin continued working on the Foodwerks software at Techwerks. In 1988, Techwerks hired Paul Eurek to market the Foodwerks software. Techwerks was undercapitalized, so the Benders borrowed heavily from a friend, Peter Pelz, to keep the company operational.
