Indiana Law Review


1977] SURVEY-CIVIL PROCEDURE AND JURISDICTION 51

deemed to have continuously existed since the date""* of its ter-
mination or revocation, thus eliminating any questions about the

validity of corporate acts during the hiatus. A conforming amend-
ment was made to section 23-1-7-4 to eliminate the prior procedure
of reinstating a corporation whose existence has terminated pur-
suant to its articles by amending its articles to extend its duration.

There is no quarrel with a procedure streamlining the process of
reinstating corporations that have failed to file annual reports, since

it is a common occurrence. The only question that this author has is
that the Act does not indicate the duration of the reinstated cor-

poration. There is no problem for a corporation with a perpetual

duration whose articles were revoked, but there is for a corporation
whose existence was limited to, for example, five years. Is its dura-
tion perpetual? The statute is silent and should be clarified.
However, a strong argument can be made that by deleting the
language in section 23-1-7-4 concerning amending the articles, the
legislature has demonstrated an intent that the newly reinstated

corporation would have perpetual duration. Those responsible for
reinstating such a corporation could, of course, amend the articles
pursuant to the regular amendment process"* if they wished to limit
its duration.

IV. Civil Procedure and Jurisdiction

William F. Harvey*

A. Jurisdiction and Service of Process

1. Quasi in Rem Jurisdiction. — A fitting introduction to this
section is the penetrating opinion of the United States Supreme

"'IND. Code § 23-3-4-1.6(c) (Supp. 1977). The courts are divided as to whether a cor-

poration with a revoked charter had de facto status during the period of revocation.

Compare Spector v. Hart, 139 So. 2d 923 (Fla. Ct. App. 1962) with Moore v. Rommel,

233 Ark. 989, 350 S.W.2d 190 (1961). A statutory provision granting de facto status has
been declared unconstitutional. See Gano v. Filter-Aid Co., 414 S.W.2d 480 (Tex. Ct.

App. 1967). An interesting question is whether the new provision would make the
penalty provision of Ind. Code § 23-l-10-5(a) (1976) inapplicable where the business was

conducted "knowingly and willfully and with intent to defraud" during the period the

articles were revoked.

"«IND. Code § 23-1-4-1 (1976).
*Dean, Indiana University School of Law — Indianapolis. A.B., University of

Missouri, 1954; J.D., Georgetown University, 1959; LL.M., Georgetown University,

1961.

The author wishes to extend appreciation to Gary Price for his assistance in the
preparation of this discussion.



52 INDIANA LAW REVIEW [Vol. 11:51

Court in the case of Shaffer v. Heitner.^ While a detailed analysis is

beyond the scope of this article, it appears that the holding was aim-

ed at extending the minimum contacts standard elucidated in Inter-
national Shoe Co. V. Washington^ to exercises of in rem jurisdiction
and particularly to the exercise of quasi in rem jurisdiction. The
Court announced, as a general proposition, that "all assertions of

state court jurisdiction must be evaluated according to the stan-

dards set forth in International Shoe and its progeny."^ The ap-

pellants in this case were sued in Delaware by a nonresident plain-

tiff who filed for a sequestration of Delaware property of the
nonresident defendants. The trial court sequestered a significant
amount of the defendants' stock by placing a "stop transfer" order
on the books of the Greyhound corporation. Apparently, none of the

certificates representing the seized property were physically pre-

sent in Delaware. The appellants argued that the ex parte se-
questration did not afford them due process of law, and that the pro-

perty was not subject to attachment in Delaware.
Although the Court relied on both the constitutional argument

of appellants and the remedy afforded by the standard enunciated in
International Shoe, it is apparent that pragmatic considerations had

much influence on the decision not to permit quasi in rem jurisdic-
tion in this instance. The Supreme Court noted that cases of this
type present the clearest illustration of the need for a single stan-

dard for assessing allegations of jurisdiction. The Court pierced the
quasi in rem fiction, stating that especially in the instance of a se-
questration proceeding, the underlying purpose is to compel a per-

sonal appearance by the defendant. The Court said that "if a direct
assertion of personal jurisdiction over the defendant would violate

the Constitution, it would seem that an indirect assertion of that
jurisdiction should be equally impermissible."^ It is this author's opi-

nion that the language of Indiana Trial Rules 4.4 and 64 is consistent

with the holding expressed by the United States Supreme Court in
this case.^

'97 S. Ct. 2569 (1977).

^326 U.S. 310 (1945).

W S. Ct. at 2584-85.
Vd. at 2583.

*Ind. R. Tr. p. 4.4 outlines the requirements for service of process on non-

residents for acts done within this state; it is the so-called "long-arm" provision of the
trial rules. IND. R. Tr. P. 64 outlines procedures and requirements for seizure of per-
sons or property, including attachment and garnishment.

For an application of this decision in Indiana law, see In re Marriage of
Rinderknecht, 367 N.E.2d 1128 (Ind. Ct. App. 1977), in which the Indiana Court of Ap-
peals stated that a dissolution of marriage, while traditionally characterized as an in

rem proceeding, must now meet the "minimum contacts" test described in Shaffer v.
Heitner. The court held that the minimum contacts test must be applied to two issues



1977] SURVEY-CIVIL PROCEDURE AND JURISDICTION 53

2. Service of Process.— In Roberts v. Watson,'' the Indiana
Court of Appeals held that mere compliance with the procedures for
service of process outlined by Trial Rule 4.1(AKl) will not be suffi-
cient where there is no actual service.^ The summons issued in this
case, naming Opal V. and Ronald G. Roberts as defendants, went to
the residence of Ronald G. Roberts, then separated from his wife.
Opal first learned of the action when judgment was executed
against her. The court held that the service of process did not con-
form to Trial Rule 4.1(A)(1) since the agent selected by plaintiffs, the
United States Postal Service, did not in fact send the summons and
complaint to Opal's "residence, place of business, or place of

employment." The court believed the risk of misfeasance should be
born by the party utilizing a particular means of service rather than
the party prejudiced by the lack of notice and opportunity to be
heard.* The court also rejected plaintiffs' contentions that the ser-
vice was sufficient under Trial Rule 4.6(A)(2), which provides for ser-
vice on organizations, or that the service was "reasonably calculated
to inform" according to Trial Rule 4.15(F), holding that Trial Rule
4.15 has no application where there has not been actual service on a
party."

in a dissolution proceeding: (1) whether there are requisite minimum contacts present

to allow the court to adjudicate the marital status of the parties, and (2) whether there

are requisite minimum contacts present to allow the court to adjudicate the rights and
obligations which are incidents to the marriage. Applying two different levels of

minimum contacts, the court noted on the first issue that an Indiana residence of one
of the parties satisfied the minimum contacts needed to adjudicate marital status (ie.,

enter a decree). However, as to property rights, etc., the court said that minimum con-

tacts are satisfied if the nonresident can be categorized under Trial Rule 4.4(A)(7) or

another constitutionally permissible standard, or, if the nonresident fails to make a
timely objection to the exercise of in personam jurisdiction. The court of appeals found

that in personam jurisdiction could not properly be asserted under either standard

necessary as a prelude to adjudication of rights and obligations. Hence, the court of ap-

peals affirmed as to the portion of the decree effecting the dissolution of marriage but

reversed that part which dealt with adjudication of the rights and obligations. Note

that the jurisdictional issues were resolved against the backdrop of the Supreme

Court's discussion in Shaffer v. Heitner.

•359 N.E.2d 615 (Ind. Ct. App. 1977).

'IND. R. Tr. p. 4.1(A)(1) provides in part:

Service may be made upon an individual, or an individual acting in a
representative capacity, by (1) sending a copy of the summons and complaint
by registered or certified mail or other public means by which a written
acknowledgment of receipt may be requested and obtained to his residence,
place of business or employment with return receipt requested and returned
showing receipt of the letter ....
•359 N.E.2d at 619-20.

'The court summarily rejected a claim that Opal and Robert became partners by
estoppel when they entered into a commercial lease with plaintiffs, stating that defen-
dants held themselves out as husband and wife, not partners. Id. at 620.



54 INDIANA LAW REVIEW [Vol. 11:51

3. Coordinate Jurisdiction. —In State ex rel International
Harvester Co. v. Allen Circuit Court,^° the facts disclosed that the

City of Fort Wayne and the City of New Haven had been attemp-
ting to annex the same geographical area for a number of years.
Remonstrances were filed in the Whitley Circuit Court, protesting

the actions of New Haven (1972), and in the Allen Circuit Court, pro-
testing the actions of Fort Wayne (1974). The general rule has been
that where two courts of coordinate jurisdiction exert authority
over cases where there is identity of subject matter and identity of
parties, the jurisdiction of the court first acquiring jurisdiction is ex-

clusive until final disposition of the case. In International Harvester,

the Indiana Supreme Court discussed the extent to which the
general rule would apply to cases where parties and subject matter
are only substantially similar.

Justice DeBruler, writing for a unanimous court, said that, not-

withstanding the lack of identity of parties, the similarity of issues

was substantial enough to require a writ ordering the Allen Circuit
Court to stay its proceedings pending final adjudication by the

Whitley Circuit Court. While not establishing a litmus test for cases

of this nature, the court relied on the "outcome determinative"

nature of the proceedings sought to be stayed. ^^ This indicates that

the extent to which an exercise of jurisdiction would be outcome-

determinative may be the focus of analysis in further battles over
coordinate jurisdiction when there is only substantial similarity bet-
ween subject matter and parties.

-4. Municipal Notice Statutes. — An apparent conflict has
developed among the districts of the Indiana Court of Appeals as to
interpretations of the statutes requiring notice of claim as a condi-

tion precedent to suit against municipal entities. ^^ A recent decision
of the Third District Court of Appeals in City of Fort Wayne v.
Cameron^' appears to conflict with a prior decision of the Second
District in Geyer v. City of Logansport^* on the issue of substantial
compliance with statutory notice requirements. In Cameron and
Geyer, no timely notice was given by the plaintiffs, but the respec-
tive municipal police agencies conducted investigations of the in-

cidents; both plaintiffs were shot by police officers of the
municipalities. The Second District Court of Appeals in Geyer held
that actual knowledge of the accident, as well as an investigation of
the accident conducted by the municipality, satisfied notice re-

""352 N.E.2d 487 (Ind. 1976).

"Id. at 489.

'"See, e.g., Ind. Code § 34-4-16.5-7 to -12 (1976).
"349 N.E.2d 795 (3d Dist. Ind. Ct. App. 1976).
"346 N.E.2d 634 (2d Dist. Ind. Ct. App. 1976).



1977] SURVEY- CIVIL PROCEDURE AND JURISDICTION 55

quirements of the applicable statute/^ On the other hand, the
Cameron court held that "mere actual knowledge" of the occurrence
by municipal agents is insufficient'* and stressed the necessity of the

plaintiff actually giving the notice required by the relevant statute.''
The First District, in City of Indianapolis v. Satz,^^ described the

disparity in the above-cited cases as drawing a "fine line between
substantial compliance and non-compliance" with notice statutes.'*

The First District distinguished Cameron from Geyer, stating that
the investigation in Cameron was a routine matter that was re-
quired whenever a police officer discharged a weapon on duty, while
the Geyer investigation was conducted by the sheriff and the in-
surer of the defendant city. Yet, the distinction noted does not ap-

pear to be consistent with the conclusion of the First District that
where "the purpose of the notice statute has been fulfilled there is
substantial compliance with said statute."^" The fact remains
that there is no definitive ruling on what criteria fulfill the purpose
of the municipal notice statutes, and the stage appears to be set for

a final disposition by the supreme court.^'

''The statute here at issue, ch. 16, § 1, 1967 Ind. Acts 21, was repealed in 1974.

For present law, see Ind. Code § 34-4-16.5-7 (1976), which substituted a 180-day notice

period for the prior 60-day period.

The court relied on Aaron v. City of Tipton, 218 Ind. 227, 32 N.E.2d 88 (1941),

which held that the purpose of statutes requiring notice to a municipality was to in-

form the city with reasonable certainty as to time, place, and cause of the accident.

'«349 N.E.2d at 800 (citing Touhey v. City of Decatur, 175 Ind. 98, 93 N.E. 540

(1911)).

"Id. at 800 (citing Thompson v. City of Aurora, 263 Ind. 187, 325 N.E.2d 839

(1975)).

'«361 N.E.2d 1227 (1st Dist. Ind. Ct. App. 1977).

''Id. at 1230.

"Id. at 1231 (citing Galbreath v. City of Indianapolis, 253 Ind. 472, 479, 255 N.E.2d

225, 229 (1970)).

"After the Survey went to press, the Indiana Supreme Court handed down two
companion cases reversing the Third District Court of Appeals in City of Fort Wayne
V. Cameron and reversing in part and affirming in part the Second District Court of
Appeals decision in Geyer v. City of Logansport.

In Geyer v. City of Logansport, 370 N.E.2d 333 (Ind. 1977), the supreme court

reversed the court of appeals determination that the notice requirements were fulfill-

ed, thus barring recovery against the city, but affirmed that part of the decision per-

mitting suit against the police officer in his individual capacity. The supreme court
stated that the purpose of the notice statute is to inform the city officials with

"reasonable certainty" of the accident and circumstances in order that the city may
determine possible liability and prepare a defense to the claim. In addition, the court

noted that the clear language of the statute in question placed an affirmative duty

upon the plaintiff to deliver a writing to the city that described the claim.

In reversing City of Fort Wayne v. Cameron, 370 N.E.2d 338 (Ind. 1977), the
supreme court simply held that if a party was mentally and physically incapacitated to
the extent that he could not comply with the provisions of the notice statute, he will

have a "reasonable time after his disability was removed within which to file the



56 INDIANA LAW REVIEW [Vol. 11:51

5. Change of Venue. — In the case of Gulf Oil Corp. v. McManus,^
the Indiana Court of Appeals construed the meaning of the term

"trial" in the context of the waiver provisions of Trial Rule 76(7).^'

After the appellee had filed a purported class action, the trial court,

pursuant to Trial Rule 23(C)(1), set a class action determination hear-

ing for June 13, 1974. The trial court set this date by order book en-

try on May 14, 1974. On June 6, 1974, after the order setting the
hearing, but before the hearing itself, appellee moved for a change

of venue, which was granted by the trial court. After denial of a mo-

tion to vacate the change of venue, appellants perfected an in-

terlocutory appeal.

In considering whether a Trial Rule 23(C)(1) hearing constitutes

a trial, the court of appeals first considered the general notion of a

"trial" as an adjudication upon the factual merits of a claim and a

disposition of a "distinct and definite branch of the litigation."^* The

court then drew an analogy to the "collateral order doctrine" of
Eisen v. Carlisle & Jacquelin.'^ Eisen held that the determination
under the counterpart federal rule, at least where there are no viable

individual plaintiffs, constitutes a final judgment. The court of appeals

held that the hearing provided by Trial Rule 23(C)(1) resulted in a

collateral order disposing of a distinct branch of the litigation, and

the appellee had waived his right to a change of venue by failure to

object or request a change for more than three weeks after the May
14, 1974, entry. However, Judge Staton, in concluding his dissenting

opinion, wrote that "23(C)(1), by its own terms denies any finality on
the merits."^"

notice to the city." To hold otherwise, said the court, would be to deprive a litigant

of his constitutional right to a "remedy by due course of law."

The Satz decision is the subject of a petition to transfer filed with the supreme

court June 1, 1977.

"363 N.E.2d 223 (Ind. Ct. App. 1977).

"IND. R. Tr. p. 76(7) provides in part:

[A] party shall be deemed to have waived a request for a change of judge or

county if a cause is set for trial before the expiration of the date within

which a party may ask for a change, evidenced by an order-book entry and
no objection is made thereto by a party as soon as such party learns of the
setting for trial. Such objection, however, must be made promptly and

entered of record, accompanied with a motion for a change from the judge or

county (as the case may be) and filed with the court.
"363 N.E.2d at 225.

"417 U.S. 156 (1974).

"363 N.E.2d at 227 (Staton, J., dissenting). Ind. R. Tr. P. 23(C)(1) provides:

As soon as practicable after the commencement of an action brought as a
class action, the court, upon hearing or waiver of hearing, shall determine by

order whether it is to be so maintained. An order under this subdivision may
be conditional, and may be altered or amended before the decision on the
merits.



1977] SURVEY- CIVIL PROCEDURE AND JURISDICTION 57

In the case of State Travelers Insurance Co. v. Madison Superior

Court,^ the Indiana Supreme Court clarified the availability of
automatic change of venue to a third-party defendant. The plaintiff
sued to recover for damages resulting from an automobile accident.
Eventually, the plaintiffs complaint was dismissed and the defen-
dant received a default judgment on a counterclaim. The defendant
then filed a motion in a proceeding supplemental to enforce the

default judgment, and the original plaintiff (now the judgment defen-

dant) filed a summons and third-party complaint against Travelers
Insurance Company. Travelers responded with a motion to dismiss
and a motion for a change of venue, both of which were overruled

by the trial court. Travelers subsequently petitioned the supreme
court to vacate the trial court's order denying the motion for change

of venue. The supreme court commented generally that proceedings
supplemental are considered to be summary; no answer or affidavit
is intended or required. Here, however, the dispute between
Travelers and the judgment defendant presented a new issue, not
summary in nature. The court held that thelnew issue required a
responsive pleading and was therefore governed by Trial Rule
76(2).^«

The supreme court carefully distinguished State Travelers In-
surance from State ex rel Yockey v. Superior Court,^^ which held

that for purposes of Trial Rule 76 the issues shall be deemed first
closed on the merits upon the filing of the defendant's original

answer.^" The court said the competing policies that were balanced
in Yockey, considerations of a fair trial and the need to avoid pro-

tracted litigation, are presented in a different light when a third
party defendant is impleaded subsequent to the original complaint.

The court refused to extend the holding of Yockey and ruled that
the issue between Travelers and the judgment defendant had not

been closed at the time the motion was filed and that the trial court
was required to grant the change of venue.

"354 N.E.2d 188 (Ind. 1976).

''IND. R. Tr. p. 76(2) provides in part:

In any action except criminal no change of judge or change of venue from the

county shall be granted except within the time herein provided. Any such ap-
plication for a change of judge or change of venue shall be filed not later

than ten [10] days after the issues are first closed on the merits.

^261 Ind. 504, 307 N.E.2d 70 (1974), discussed in Harvey, Civil Procedure and
Jurisdiction, 1976 Survey of Recent Developments in Indiana Law, 10 Ind. L. Rev. 88,
98 (1976) [hereinafter cited as Harvey, 1976 Survey].

'"Strictly construed, this "original" answer would have been the answer of the
original defendant in the primary personal injury lawsuit.



58 INDIANA LAW REVIEW [Vol. 11:51

B. Pleadings and Pre-Trial Motions

1. Attacks on Jurisdiction. — The defendant in Weenig v.
Wood^^ moved to dismiss the complaint pursuant to Trial Rule

12(B)(2), alleging that there was no showing made in the pleadings

that the extraterritorial summons served on defendant was suffi-
cient to satisfy the requirements of Trial Rule 4.4 and confer per-

sonal jurisdiction. The Indiana Court of Appeals stated that there is

a presumption under our current rules of procedure, as well as

under past practice,^^ that the court has jurisdiction over the parties

as well as the subject matter. Therefore, the plaintiff need not make
jurisdictional allegations in the complaint. Should the defendant

choose to attack the presumption of jurisdiction, he bears the

burden of proof upon that issue, unless the lack of jurisdiction is ap-

parent on the face of the complaint. The court noted that a defen-

dant may attack jurisdiction in one of two ways. He may plead it as
an affirmative defense under Trial Rule 8(E), or he may simply move
to dismiss under Trial Rule 12(B)(2) for lack of personal jurisdiction.

The court held that the defendant in Weenig had not carried his
burden in the 12(B)(2) motion presented; consequently, the trial court

had properly denied the motion to dismiss.^'

An important caveat to the presumption of subject matter
jurisdiction noted in Weenig is found in the decision of the Seventh
Circuit Court of Appeals in Sparkman v. McFarlin^ in which the
Seventh Circuit discussed the jurisdictional limits of an Indiana cir-
cuit court judge with general jurisdictional powers conferred by
statute.'" Despite the general grant of power, the court held that a

"349 N.E.2d 235 (Ind. Ct. App. 1976).

'Vd at 240 (citing First Bank v. Crumpacher, 120 Ind. App. 317, 90 N.E.2d 912
(1950)).

'^To the same effect as Weenig v. Wood, regarding the presumed jurisdiction of a
court, is Cunningham v. Universal Battery Div., 352 N.E.2d 83 (Ind. Ct. App. 1976),
holding that in a suit to enforce a foreign judgment it is not necessary to allege
jurisdiction of the foreign court, an allegation of the judgment itself being sufficient to
place the matter in issue.

'*552 F.2d 172 (7th Cir. 1977).

'"Ind. Code § 33-4-4-3 (1976) states:
Said court shall have original exclusive jurisdiction in all cases at law and in

equity whatsoever, and in criminal cases and actions for divorce, except

where exclusive or concurrent jurisdiction is, or may be conferred by law
upon justices of the peace. It shall also have exclusive jurisdiction of the set-
tlement of decedents' estates and of guardianships: Provided, however. That
in counties in which criminal or superior courts exist or may be organized,
nothing in this section shall be construed to deprive such courts of the

jurisdiction conferred upon them by laws, and it shall have such appellate
jurisdiction as may be conferred by law, and it shall have jurisdiction of all
other causes, matters and proceedings where exclusive jurisdiction thereof is
not conferred by law upon some other court, board or officer.



1977] SURVEY-CIVIL PROCEDURE AND JURISDICTION 59

judge may not "arbitrarily" order or approve anything presented to
him. The court said that the action of the trial court must have a
statutory or common law basis in order to qualify as a valid exercise
of jurisdiction. Moreover, the court stated that an action of the trial

court must have a rational relation to existing statutory or common
law principles in order to qualify as a valid exercise of the court's in-

herent power to fashion new common law.**
2. Collateral Estoppel —In Ragnar Benson, Inc. v. William P.

Jungclaus Co.,^'' the same defendants were sued for damages arising
from the same construction accident by two different plaintiffs in
separate courts of general jurisdiction (Hancock Circuit Court and

Marion Superior Court). One aspect of the litigation in both the
Marion and Hancock courts was a cross-claim filed by the appellant
(defendant #1) against the appellee (defendant #2) for indemnifica-

tion. The Marion Superior Court granted the appellee's motion to
dismiss with respect to the cross-claim and entered final judgment

on the matter. Thereafter, the appellee made this dismissal in the
Marion court the subject of a motion for summary judgment on the
identical cross-claim filed in the Hancock court. The appellee v>

asserted collateral estoppel, based on the prior dismissal in the

Marion court. The trial court granted summary judgment and the
court of appeals affirmed that decision.

The court of appeals held that a final judgment entered on a mo-
tion to dismiss under Trial Rule 12(B)(6) constitutes an adjudication

on the merits, which will bar a subsequent assertion of the issues

which were the subject of the motion. By way of limitation, the
court said that not all Trial Rule 12(B) dismissals would bar later

claims. For example, a 12(B)(6) motion would not bar a later claim, if

based on the absence of a real party in interest.** The court rejected
the appellant's argument that collateral estoppel applied only to ac-
tions initiated subsequent to a final determination, and it stated that

it is the entry of judgment of dismissal which provides the founda-
tion for estoppel, not a ruling denying the same.

3. Motion to Strike. —In the case of Nihiser v. Sendak,^^ the
plaintiff sought injunctive relief to restrain the enforcement of a

statute which labelled the display of obscene films a nuisance. One
of the motions filed by the defendants was a motion to strike a
paragraph of the plaintiffs complaint pursuant to Federal Rule of

"•The Sparkman case discussed the concept of subject matter jurisdiction in the
context of judicial immunity.

"352 N.E.2d 817 (Ind. Ct. App. 1976), vacating 340 N.E.2d 361 (Ind. Ct. App.
1976). See also Harvey, 1976 Survey, supra note 29, at 105.

"352 N.E.2d at 820 (citing State v. Rankin, 260 Ind. 228, 294 N.E.2d 604 (1973)).
"405 F. Supp. 482 (N.D. Ind. 1974).



60 INDIANA LAW REVIEW [Vol. 11:51

Civil Procedure 12(F), which is identical to its counterpart in the In-

diana Trial Rules. The paragraph stated generally that the defen-

dants were "harassing" the plaintiffs business enterprise without

providing notice and an opportunity to be heard." The defendants

alleged that the vagueness of the paragraph in question required

that it be stricken. The district court denied the motion, stating first

that motions to strike are viewed with disfavor and infrequently

granted. In order to prevail, the court held that the movant must

show that the challenged allegation is unrelated to the plaintiffs

claims and so unworthy of defense that its presence will prejudice

the defense. In the instant case, the court said that while the

paragraph may be vague in content, it was consistent with the plain-
tiffs allegations and could not cause any prejudice to the defen-

dants.

-4. Pleadings Under the Trial Rules. —The case of Nelson v.
Butcher*^ serves as a reminder to counsel to evaluate possible pro-

cedural defects in light of our modern trial rules. In an action for
default on a land contract, the appellants filed a counterclaim for

wrongful ejectment. The appellees claimed that this issue became
moot when appellants neither posted bond nor remained in posses-
sion during trial, as required by a statutory provision.*^ The Indiana
Court of Appeals held that the authority cited was not sufficient to
establish a waiver of claim under the new rules of procedure. The
court said that Trial Rules 12(A) and 13(B) distinguish between per-
missive and mandatory counterclaims, "but abrogate all restrictions
on the right to plead a counterclaim.""

5. Third-Party Practice. —In City of Elkhart v. Middle ton,** the
Indiana Supreme Court, in a case of first impression, examined the
relationship between Trial Rules 14 and 20, which generally describe

procedures for third-party practice in Indiana. Plaintiff, a construc-

tion contractor, sued the City of Elkhart for damages incurred due

to additional labor costs allegedly resulting from faulty plans sup-

plied by the city. The city then attempted to file a third-party com-
plaint against the estate of Middleton (the engineer on the project)

^''Specifically, the paragraph at issue stated: "And further, [the defendant should

be enjoined] from otherwise harassing plaintiff in the conduct of its lawful business,

without first securing and providing for, after due notice to the plaintiff, a judicially

superintended prior adversary hearing on the issue of obscenity, in the constitutional

sense." Id. at 497.

*'352 N.E.2d 106 (Ind. Ct. App. 1976).

"Ch. 254, § 3, 1927 Ind. Acts 741 (repealed 1973). For present law, see iND. CODE §
32-6-1.5-1 to -12 (1976).

"352 N.E.2d at 114.

"356 N.E.2d 207 (Ind. 1976). Also discussed in Harvey, 1976 Survey, supra note

29, at 100.



1977] SURVEY- CIVIL PROCEDURE AND JURISDICTION 61

pursuant to Trial Rule 14(A)/^ The trial court denied this effort, and
the court of appeals affirmed," holding that the application of Trial

Rule 14(A) is within the discretion of the trial court, subject to

reversal only for abuse of discretion.

The supreme court, speaking through Justice Prentice, vacated
the opinion of the court of appeals, with respect to its application of

Trial Rule 14(A), and held that the review for abuse of discretion

must "evaluate the action of the trial court upon the reasons
specifically articulated."^^ Such review may not be based upon
reasons postulated by the reviewing court merely to uphold the

decision of the trial court. Quoting extensively from a treatise on

the subject," the court noted that the scope of discretion of the trial

court vis-a-vis Trial Rule 14 centered on a just, speedy, and inexpen-

sive determination of the cause, seeking to avoid inconsistent

results and multiple litigation. Here, the findings of the trial court

dealt with the merits of appellant's claim, rather than the pro-

cedural effects of its grant or denial; this substantive focus was in-
correct, and therefore the trial court had abused its discretion.

The lesson of the case is clear. When reviewing the propriety of
Trial Rule 14 motions, the trial court does have discretion, but that

discretion must be directed at the underlying purpose of the rule. If
the right to implead is at issue, the trial court must rest its decision
upon procedural factors, such as considerations of delay, complica-

tions of trial, and prejudice to the parties. The use of discretion over
third-party practice to determine substantive or jurisdictional ques-

tions is improper and an abuse of discretion. It would seem that this
decision has direct impact upon review of other discretionary acts of
a trial court, at least when the discretion is directed at a procedural
aspect which sets forth clearly articulated purposes as guideposts

for the trial judge.

C. Pre-Trial Procedures and Discovery

1. Guardian for Minor. —In Richardson v. Brown,*^ the minor
plaintiff filed suit in her name alone seeking recovery for personal
injuries. On the first day of trial, the plaintiff moved to substitute a

"Ind. R. Tr. p. 14(A) provides in part: "A defending party, as a third-party plain-
tiff, may cause a summons and complaint to be served upon a person not a party to the
action who is or may be liable to him for all or part of the plaintiffs claim against him

t»

"City of Elkhart v. Middleton, 346 N.E.2d 274 (Ind. Ct. App. 1976), vacated, 356

N.E.2d 207 (Ind. 1976).
*'356 N.E.2d at 210.
*»2 W. Harvey, Indiana Practice 86 (1970).
"362 N.E.2d 197 (Ind. Ct. App. 1977).



62 INDIANA LAW REVIEW [Vol. 11:51

court-appointed guardian as plaintiff. The trial court refused this re-
quest. On appeal from an adverse judgment, the Indiana Court of
Appeals agreed with the plaintiffs contention that the language of

Trial Rule 17(C)^ is mandatory in nature and permits no discretion

by the trial court in permitting representation of an incompetent by

a guardian. However, the court went on to state that the error com-
mitted by the trial court must be considered in conjunction with
Trial Rule 61." On this standard, the appellant must show not only
that error occurred, but that the error "was prejudicial and harmed
her case."^^ Since the plaintiff had failed to demonstrate such pre-

judice, the court of appeals found no reversible error and affirmed.

2. Intervention by Insurer.— TTial Rule 24 was the focus of at-
tention in Vernon Fire & Casualty Ins. Co. v. Matney.^^ Matney was
injured in an accident caused by an uninsured motorist (Thoms) and
subsequently filed an action against Thoms. Matney notified his in-
surer, Vernon, of the initiation of the suit. In addition, Matney gave
Vernon detailed notice of every major step in the litigation between
Matney and Thoms. Following a favorable judgment, Matney
demanded payment under the uninsured motorist provisions of his
policy and Vernon refused. Matney then filed an action against Ver-
non and received summary judgment therein. On appeal, Vernon
challenged the effect of the Thoms judgment and claimed prejudice
due to lack of intervention. The court reasoned that where the in-
sured files suit against an uninsured motorist without joining the in-

surance carrier, the "interests of justice, the avoidance of multiple

litigation and the conservation of judicial time"" compel a conclusion

'°IND. R. Tr. p. 17(C) states in part:

The court, upon its own motion or upon the motion of any party, must notify

and allow the representative named in subsection (3) of this subdivision, if he

is known, to represent an infant or incompetent person, and be joined as an

additional party in his representative capacity. If an infant or incompetent

person is not represented, or is not adequately represented, the court shall

appoint a guardian ad litem for him.

''IND. R. Tr. p. 61 provides:

No error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order in anything done or omitted by the court or by

any of the parties is ground for granting relief under a motion to correct er-

rors or for setting aside a verdict or for vacating, modifying or otherwise

disturbing a judgment or order or for reversal on appeal, unless refusal to

take such action appears to the court inconsistent with substantial justice.

The court at every stage of the proceeding must disregard any error or

defect in the proceeding which does not affect the substantial rights of the

parties.

"362 N.E.2d at 199.

''351 N.E.2d 60 (Ind. Ct. App. 1976). The case represents the first explicit recogni-
tion of an insurer's right to intervene.

'*Id. at 64.



1977] SURVEY-CIVIL PROCEDURE AND JURISDICTION 63

that would require intervention by an insurer. The court concen-

trated on the language of Trial Rule 24(A)(2), which confers the right

to intervene on a party when the litigation "may as a practical mat-
ter impair or impede his ability to protect his interest . . . ."^^

Here, the court noted that if intervention were not allowed, a
formidable barrier would be placed before the carrier in a subse-

quent suit due to the stare decisis effect of the decision.^' Moreover,

a decision not permitting intervention would allow the insured and

insurer to continue litigation until a favorable judgment is received,

ignoring adverse results of the initial litigation. Since Vernon had

received ample notice of the original action, the court held that it

was obligated to intervene if it desired to raise any of the defen-
dant's defenses and would be bound by the judgment against
Thoms absent such intervention.

3. Discovery. — The Indiana Court of Appeals in Newton v.
Yates^^ directed considerable attention to Trial Rule 26(B). The at-
tempted discovery in this case related to a claim against an insurer

for punitive damages; this claim evolved from the primary suit seek-

ing recovery from an uninsured motorist (Yates). Newton had filed a
motion for discovery of an extensive amount of documentary
material of the insurer, the greater portion of which was excluded
by the trial court. The court of appeals grounded its review in the
two-step approach enunicated in Trial Rule 26(B), namely, (1) that

the matter requested must be relevant to the issues to be tried, and

(2) if relevant, the matter must not be protected by a privilege or
immunity. The court first held that the trial court's in camera in-
spection of the disputed documents, while a rare occurrence, is a

valid exercise of discretion. The court then considered the question
of privilege, citing a line of federal cases flowing from Hickman v.
Taylor,^^ and expanding the scope of immunity to include: agents of
attorneys,^' information gathered in anticipation of litigation by the

client,**' privilege of a corporation as a client when consulting an at-
torney in a legal capacity,'^ and the extension of the attorney-client

'">IND. R. Tr. p. 24(A)(2) provides:

Upon timely motion anyone shall be permitted to intervene in an action when
the applicant claims an interest relating to a property fund or transaction

which is the subject of the action and he is so situated that the disposition of

the action may as a practical matter impair or impede his ability to protect
his interest in the property, fund or transaction, unless the applicant's in-

terest is adequately represented by existing parties.

"351 N.E.2d at 64.

"353 N.E.2d 485 (Ind. Ct. App. 1976).
'•329 U.S. 495 (1947) (establishing the "work product" rule).

"Alltmont V. United States, 177 F.2d 971 (3d Cir. 1949).

•"Guilford Nafl Bank v. Southern Ry. Co., 297 F.2d 921 (4th Cir. 1962).
•'Radiant Burners, Inc. v. American Gas Assoc, 320 F.2d 314 (7th Cir. 1963).



64 INDIANA LAW REVIEW [Vol. 11:51

privilege to attorneys who are exclusive employees of a corporation
(ie., house counsel)/^

The court endorsed these decisions and held that the documents

at issue fell within their purview. In addition, the court held that a

mere allegation of need and unavailability will not establish the

"good cause" necessary to overcome a privilege.'' Finally, the court

recited and endorsed the "principle of judicial parsimony," which

allows a court to delay or suspend discovery on one issue if the out-

come of another issue will dispose of the entire case."
The Indiana Supreme Court in Chambers v. Public Service Co.^^

vacated a decision of the court of appeals which had reversed a trial

court ruling on certain interrogatories proffered by appellant. The
supreme court held that although the term "relevance" has greater

latitude in discovery than at trial, "the information sought must be
admissible or reasonably calculated to lead to admissible evidence."*"

In examining the rejected interrogatories, the court held that none

of the information sought was relevant to the issues at trial in the
land condemnation proceeding. The decision obviously vitiates the
use of discovery techniques as a means to engage in a "fishing ex-
pedition" and indicates that the question of relevance in a discovery

dispute must be resolved with an eye to the ultimate issues to be
tried in the particular case.

With respect to the use of depositions at trial in lieu of oral
testimony," the Indiana Court of Appeals in Wells v. Gibson Coal

Co^^ held that the application of Trial Rule 32(AH3) is to be

tempered with trial court discretion.** Thus, where the deposition in
issue is replete with explicit statements emphasizing the witness' in-

ability to attend the trial, it is not necessary that corroborating

'^Malco Mfg. Co. V. Elco Corp., 45 F.R.D. 24 (D. Minn. 1968).
''353 N.E.2d at 492 (citing 8 C. Wright & A. Miller. Federal Practice and Pro-

cedure § 2025 (1970) dealing with the analogous federal rule and the standards set
forth therein).

"353 N.E.2d at 491. See also 8 C. Wright & A. Miller, Federal Practice and
Procedure § 2040 (1970).

"^355 N.E.2d 781 (Ind. 1976).

"Id. at 784.

"Ind. R. Tr. P. 32(A) states in part:

The deposition of a witness, whether or not a party, may be used by any par-
ty for any purpose if the court finds: (a) that the witness is dead; or (b) that
the witness is outside the state, unless it appears that the absence of the

witness was procured by the party offering the deposition; or (c) that the
witness is unable to attend or testify because of age, sickness, infirmity, or

imprisonment; or (d) that the party offering the deposition has been unable to

procure the attendance of the witness by subpoena.
«''352 N.E.2d 838 (Ind. Ct. App. 1976).

"/d at 841.



1977] SURVEY-CIVIL PROCEDURE AND JURISDICTION 65

evidence be presented to support the trial court's determination

that the deposition falls within the guidelines of 32(A)(3)(c). Of

course, this discretionary power also applies to other appropriate
categories of Trial Rule 32(A)(3).'''

Finally, the court of appeals in Burger Man, Inc. v. Jordan Paper
Products, Inc.''^ held that although a Trial Rule 33 interrogatory is a

proper method to discover the existence of documents, it is not a
device to compel production of those documents. A Trial Rule 34 mo-
tion to produce documents is the proper procedure to compel pro-

duction. To hold otherwise, said the court, would allow parties to
use interrogatories to by-pass the strict requirements of Trial Rule

34 with respect to the particularity of inspection and the need to

specify a reasonable time, place, and manner for inspection of
documents produced.'^

D. Trial and Judgment

1. Voir Dire.—Anderson v. State,''^ although a criminal case,
has important implications for voir dire examination in civil cases.

At issue was a local rule that limited voir dire to a total of 20
minutes, requiring counsel to reserve time for subsequent rounds. In

its decision, the Indiana Court of Appeals noted that under Trial

Rule 47 and Criminal Rule 12 the trial court has discretion on

whether or not to allow attorneys to question prospective jurors

directly or whether to conduct the examination itself. However, the
court could find no rule or decision which abolished the right of at-

torneys to ask questions indirectly on voir dire. While recognizing

the possibility of waste and abuse,'* the court could find no support

for an inflexible time limit as a proper restriction on voir dire. The
court distinguished recent Indiana Supreme Court opinions which
sanctioned remedial practices which either eliminate all direct voir

dire interrogation'^ or permit only twenty minutes of direct ex-

amination, supplemented by questions submitted by the parties

through the judge. The court held that the rule as applied in the ins-
tant case contravened the right to a trial by an impartial jury and

the correlative right to participate in voir dire to the extent

necessary for an intelligent exercise of peremptory challenges.'®

'°C/. Cooper v. Indiana Gas & Water Co., 362 N.E.2d 191 (Ind. Ct. App. 1977)
(citing Wells and applying the discretionary standard to Trial Rule 32(A)(3)(e)).

"352 N.E.2d 821 (Ind. Ct. App. 1976).

"M at 827.
"359 N.E.2d 594 (Ind. Ct. App. 1977).

''Id. at 598.

'"Id. (citing White v. State, 330 N.E.2d 84 (Ind. 1975)).

"M (citing Owens v. State, 333 N.E.2d 745 (Ind. 1975); Hart v. State, 352 N.E.2d
712 (Ind. 1976)).



66 INDIANA LAW REVIEW [Vol. 11:51

In the case of Hunter v. State,'''' another local court practice

governing voir dire was at issue. The trial court had issued an order

which required submission of questions twenty-four hours prior to

trial. The state failed to comply with this order but was permitted

to conduct oral voir dire after the court's examination. The defen-
dant had complied with the order. The court of appeals rejected ap-
pellant's equal protection argument, stating that the conduct of voir

dire is within the discretion of the trial court, subject to reversal on-

ly for abuse of discretion and prejudice resulting therefrom. Noting

that the purpose of voir dire is to determine whether a prospective

juror is able to deliberate fairly on the issue of guilt,^* the court said

that the appellant failed to show that the action of the trial court
was detrimental to that purpose and therefore affirmed on that
issue.

2. Judgment on the Evidence. —The Indiana Court of Appeals
in McKeown v. Calusa'^ discussed the proper factors to be addressed
in considering a Trial Rule 50 motion for judgment on the evidence.
The court noted that the trial court is not allowed to weigh evidence
or to resolve credibility questions in order to grant such a judg-

ment. Yet, there must be some evidence of probative value*" on each
element of the claim asserted, and if absent, the motion is properly
granted. While the ascertainment of the probative value of direct
evidence is seldom problematic, circumstantial evidence does
present difficulties. The court stated that if an ultimate fact in issue
can exist as a reasonable inference from circumstantial evidence, the
motion should be denied, but if the circumstantial evidence does not

create a reasonable inference to an ultimate fact, the motion may be
granted.

An example of the above reasoning is found in Huff v. Travelers
Indemnity Co.^^ wherein the Indiana Supreme Court found a grant of
judgment on the evidence to be clearly erroneous since the trial
court had, in effect, weighed the evidence in order to grant the mo-
tion. The court held that where there is relevant evidence to sup-
port each essential element of the plaintiffs claim, but the trial

court still believes that the weight of the evidence is contrary to the

verdict, then the appropriate remedy is an order for a new trial pur-

"360 N.E.2d 588 (Ind. Ct. App. 1977).

"Id. at 594 (citing Lamb v. State, 348 N.E.2d 1 (Ind. 1976)).
"359 N.E.2d 550 (Ind. Ct. App. 1977).

•"The court defines evidence of probative value as evidence "carrying the quality

of proof and having fitness to induce conviction upon each element of the claim . . . ."

Id. at 553.

"363 N.E.2d 985 (Ind. 1977). See also Harvey. 1976 Survey, supra note 29, at 97.



1977] SURVEY- CIVIL PROCEDURE AND JURISDICTION 67

suant to Trial Rule 59(E), not a judgment on the evidence under

Trial Rule 50.«='

3. Declaratory Relief. —In City of Evansville v. Grissom,^ the
Indiana Court of Appeals stressed the basic requirement that a

justiciable controversy exist between parties before a declaratory

judgment is proper. In this case, every allegation found in ap-

pellant's complaint was admitted in appellee's answer. Moreover,

each party prayed for the same relief, asking that certain statutes

be declared unconstitutional. Holding that the appellant did not pre-

sent the trial court with a "true adversary situation upon which

every decision must rest,"" the court affirmed the dismissal of the

complaint.

4. Summary Judgment —The issue in Equitable Life Assurance
Society of the United States v. Crowe^^ was whether the trial court
had met the required two-prong test in granting a summary judg-
ment, namely, (1) that the trial court make an affirmative finding
that there is no genuine issue as to any material fact, and (2) that

the court state with particularity its reasons for granting a sum-

mary judgment.** Appellant relied on the second prong of the test,
as codified in Trial Rule 56(C), and argued that the trial court had
erred by failing to designate the issues and claims which presented

no genuine issue as to any material fact. The court of appeals found
this contention meritless, quoting an author on the subject to the ef-

fect that the "purpose of the rule is to enable the case to proceed in

an orderly manner if partial summary judgment is entered.""
Therefore, when the trial court grants a summary judgment upon all
the issues or claims in the case, the requirement of Trial Rule 56(C)
requiring designation of claims and issues is rendered superfluous.

5. Default —In Henline, Inc. v. Martin,^^ the court of appeals
held that an entry of default,*' as opposed to a default ywdgrmew^,'" is

an appealable ruling as defined by Trial Rule 60(B)" and authorized
by Trial Rule 60(C). This holding differs from federal practice in
which the entry of default is treated as an interlocutory order and

'Ud. at 994.

"349 N.E.2d 207 (Ind. Ct. App. 1976).

''Id. at 209.

'=354 N.E.2d 772 (Ind. Ct. App. 1976).

'This test was first enunciated in Singh v. Interstate Fin. Inc., 144 Ind. App. 444,

246 N.E.2d 776 (1969).

"354 N.E.2d at 776 (quoting 3 W. Harvey, Indiana Practice 542, 547 (1970)).
«'348 N.E.2d 416 (Ind. Ct. App. 1976).

»«See Ind. R. Tr. P. 55(A).

»"See Ind. R. Tr. P. 55(B).

"Ind. R. Tr. P. 60(B) states: "[T]he [trial] court may relieve a party . . . from a
final judgment, order, default or proceeding . . . ."



68 INDIANA LAW REVIEW [Vol. 11:51

not subject to immediate appeal.*^ However, even assuming that ap-

pellants had properly appealed the mere entry of default, the court

held that the trial court had not abused its discretion by refusing to

grant relief. The facts showed that a claims adjuster who had receiv-
ed service did not act promptly due to business pressures resulting

from a tornado but that he had acted immediately when he noticed
the service papers at a later date. The court said that the fact that

another trial court might not have abused its discretion by granting

relief in these circumstances does not permit the inference that the

trial court here abused its discretion by not granting relief.^^

6. Relief from Verdict — Trial Rule 59(E) was the subject of
considerable discussion during the survey period; the decisions in

Weenig v. Wood^* and Nissen Trampoline Co. v. Terre Haute First

National Bank^^ reversed actions taken by the trial court under the

auspices of this rule. In Weenig, the trial court reduced a jury ver-

dict for compensatory and punitive damages and entered a judg-

ment for the reduced amount. The plaintiff cross-appealed the reduc-

tion, claiming that his constitutional rights had been violated;"

simultaneously, the defendant argued that the trial court sits as a

"thirteenth juror," and, therefore, the decision was entitled to a
strong presumption of correctness, subject to reversal only for

abuse of discretion.*^

In resolving the conflict, the court of appeals first recited those

options available to the trial judge who has determined a jury's
award to be improper because it is excessive or inadequate. The

judge could (1) enter final judgment on the evidence for the amount

of proper damages, (2) grant a new trial, or (3) grant a new trial sub-
ject to additur or remittitur.'* After determining that the form of

relief granted by the trial court was allowable under the first op-
tion, the court of appeals went on to reverse the trial court's use of
the option in this particular case. Although there is authority per-

mitting a trial court to vary a jury award without granting a new
trial," the court held that a trial court could properly exercise that

"See 10 C. Wright & A. Miller. Federal Practice and Procedure § 2692, at
297; § 2693, at 306-07 n.65 (1973).

"348 N.E.2d at 420. See also Green v. Karol, 344 N.E.2d 106 (Ind. Ct. App. 1976),

discussed in Harvey, 1976 Survey, supra note 29, at 112.
"349 N.E.2d 235 (Ind. Ct. App. 1976).
''358 N.E.2d 974 (Ind. 1976).

"Ind. Const, art. 1, § 20 provides: "In all cases, the right of trial by jury shall re-

main inviolate."

"The defendant relied on Bailey v. Kain, 153 Ind. App. 657, 192 N.E.2d 486 (1963).
"See Ind. R. Tr. P. 59(E)(5).

"Ind. R. App. P. 15(N). See generally 4 W. Harvey & R. Townsend, Indiana
Practice in (1971).



1977] SURVEY- CIVIL PROCEDURE AND JURISDICTION 69

authority only when the jury verdict was erroneous as a matter of
law. Hence, a trial court is not empowered under Trial Rules 50 or
59 to weigh conflicting evidence and enter a definitive and different

judgment/"" The role of the trial court as a "thirteenth juror" ex-
tends only to the ability to weigh evidence in order to prevent an

abuse of the jury system, not to abrogate it. This permits the trial

court to grant a new trial or grant a new trial subject to additur or
remittitur, where appropriate, while preserving the constitutional
right to a jury trial.

In Nissen Trampoline, a sharply divided Indiana Supreme Court
shed new light on the ability of a trial court to grant a new trial
when the jury's verdict is against the weight of the evidence. In this
case, the plaintiff sued Nissen and others to recover for injuries

resulting from the use of an "aqua diver" device. Subsequent to a

verdict for the defendant, the trial court ordered a new trial pur-
suant to Trial Rule 59(E)(7V" and entered findings on the evidence

presented. These findings were based upon undisputed evidence

which showed that the warnings and instructions accompanying the

aqua diver were not adequate and that Nissen had knowledge from

prior testing that injuries of the type plaintiff sustained could occur,

due to the present design of the device. The supreme court
reversed,^"^ stating that the trial court had failed to set out the "sup-

porting and opposing evidence"'"^ relating to those elements which

plaintiff was required to prove under his theory of the case. Ap-
parently, because the trial court was unable to disclose from the
evidence presented what kind of warning was required or what
design was proper, the decision to grant the new trial was not the

'""Essentially the standards for granting a judgment on the evidence under Trial

Rule 50 and a final judgment under Trial Rule 59(E)(5) are equivalent. Judgment on the
evidence is appropriate under both rules where there is a total absence of evidence or

legitimate inferences therefrom upon an essential issue in plaintiffs case or where the

evidence is unconflicting and susceptible of only one inference, and that inference is in

favor of the movant. See Huff v. Travelers Indem. Co., 363 N.E.2d 985 (Ind. 1977).

""IND. R. Tr. p. 59(E)(7) states in part:

In reviewing the evidence, the court shall grant a new trial if it deter-
mines that the verdict of a nonadvisory jury is against the weight of the

evidence; and shall enter judgment, subject to the provisions herein, if the

court determines that the verdict of a nonadvisory jury is clearly erroneous

as contrary to or not supported by the evidence, or if the court determines

that the findings and judgment upon issues tried without a jury or with an

advisory jury are against the weight of the evidence.
""358 N.E.2d 974 (Ind. 1977) (Givan, C.J., DeBruler & Prentice, JJ., concurring;

Arterburn & Hunter, JJ., dissenting with separate opinions).
""Id. at 977. Ind. R. Tr. P. 59(E)(7) states: "[I]f the decision is found to be against

the weight of the evidence, the finding shall relate the supporting and opposing

evidence to each issue upon which a new trial is granted . . . ."



70 INDIANA LAW REVIEW [Vol. 11:51

result of a rational judicial process but an exercise in speculation

and hypothesis.

The need to revise Trial Rule 59(E)(7) in light of Nissen Tram-

poline requires some comment. First, it seems logical to conclude

that when Trial Rule 59(E)(7) speaks about a decision against the
weight of the evidence, it presupposes a conflict in the evidence and

does not address cases where the evidence is undisputed. Second,

the language of the section should be revised to preclude a require-

ment that the trial court must formulate an instruction or speculate
on the design of a product. Otherwise, the trial court itself must

take an adversary role, a position which is abhorrent to a rational

judicial process. Finally, the findings requirement of Trial Rule

59(E)(7) should be applied only to insure fulfillment of its underlying

purpose: to prevent arbitrary and capricious awards of new trials
and to prevent its use as a technical harpoon to control trial court

decisions.

8. Relief from Judgment —The Second District Court of Ap-
peals in Kelly v. Bank of Reynolds^°* and the Third District in In re
Marriage of Robbins^"^ severely limited Yerkes v. Washington

Manufacturing Co.,^"^ which had held that the only method for set-
ting aside a default judgment is through the use of a Trial Rule 60
motion. In Kelly, suit was filed and the defendant entered an ap-
pearance through counsel. Subsequently, the defendant's attorney

was granted leave to withdraw. The trial court ruled that the effect
of the withdrawal was as if the attorney had never appeared, even
though an answer and counterclaim had been filed. The bank asked
for and received a default judgment.

Following judgment, the defendant retained new counsel who fil-
ed a timely Trial Rule 59(A)(2) motion, claiming accident and sur-

prise. The trial court overruled this motion, stating in part that it

was "not the best remedy to attack the question."^"^ Counsel then fil-

ed a Trial Rule 60 motion which was overruled, but he did not file a
second motion to correct errors addressed to the Trial Rule 60 mo-

tion. The court of appeals held that where an alleged error of law

forms the basis of a default judgment, the allegations may be
presented in a motion to correct errors. Hence, the effect of

counsel's withdrawal on the status of the pleadings he filed is

distinctly a legal issue and is therefore susceptible to question in a

'"ass N.E.2d 146 (2d Dist. Ind. Ct. App. 1976).
"">358 N.E.2d 153 (3d Dist. Ind. Ct. App. 1976).
'"•326 N.E.2d 629 (1st Dist. Ind. Ct. App. 1975), discussed in Harvey. Civil Pro-

cedure and Jurisdie tio'o, 1975 Survey of Recent Developments in Indiana Law, 9 Ind.
L. Rev. 83 (1975).

'"'358 N.E.2d at 148.



1977] SURVEY-CIVIL PROCEDURE AND JURISDICTION 71

motion to correct errors. The ruling on the motion to correct errors
is a final judgment and an appeal may be taken therefrom, not-
withstanding the subsequent Trial Rule 60 motion.

The Third District Court of Appeals in Robbins painted with a
much broader brush, reasoning that the expansive language of Trial
Rule 59(A)(9)^"* as to the sixty-day time period allowed for filing of a

motion to correct errors includes the additional equitable purposes

stated in Trial Rule 60(B). The court held that a motion stating a
Trial Rule 60 purpose, regardless of its denomination, should be

treated as a Trial Rule 59 motion if filed within the sixty-day time

period.'"' Conversely, after the sixty-day period a motion which

states a Trial Rule 60 purpose, regardless of its denomination, must
be treated as a Trial Rule 60 motion. If the trial court renders a

judgment by granting or denying this Trial Rule 60 motion, a motion

to correct errors is a prerequisite to appeal.

In relatively short order, the First District, which had originally

authored the Yerkes opinion, extended the reasoning of the above-

cited cases to the issue presented in Roberts v. Watson.^^° The court
in Roberts held that although relief from a void judgment may be
sought under Trial Rule 60(B)(6), the appellant's motion to correct er-

rors was a permissible vehicle for allegations of error. The cases,
when viewed in seriatim, appear to extend the interplay of Trial
Rules 59 and 60 far beyond the default grounds before the court in
Yerkes so as to include all Trial Rule 60 grounds, at least insofar as

the sixty-day period after entry of judgment is concerned."'
This line of cases has hopelessly obscured the already murky re-

quirements for post-judgment relief in Indiana practice. By whittling
at the Yerkes decision, these cases create potential problems for the

trial counsel who files what he thinks is a Trial Rule 60 motion
within the sixty-day time limit controlling Trial Rule 59 motions.

Relying on In re Robbins, the trial judge could, within his discre-

tion, treat that motion as a Trial Rule 59 motion. The overruling of
the motion would open the door for a direct appeal by counsel.

However, if the same judge retained the same pleading until the

""Ind. R. Tr. p. 59(AM9) allows for correction of errors "[fjor any reason allowed by

these rules, statute or other law."

'"Subject, of course, to the "second motion" requirements of Ind. R. Tr. P. 59. See

Grove, The Requirement of a Second Motion to Correct Errors as a Prerequisite to

Appeal, 10 Ind. L. Rev. 462 (1977).

""359 N.E.2d 615 (1st Dist. Ind. Ct. App. 1977).

'"See In re Marriage of Robbins, 358 N.E.2d 153, 156 (Ind. Ct. App. 1976) (concurr-

ing opinion); cf. Covalt v. Covalt, 354 N.E.2d 766, 768 n.3 (Ind. Ct. App. 1976) (wherein

Judge Buchanan states he would place the burden upon the party invoking Trial Rule

60 to show why the issues involved could not have been litigated through a Trial Rule
59 motion).



72 INDIANA LAW REVIEW [Vol. 11:51

sixty-first day after judgment, he could rule upon it as a legitimate

Trial Rule 60 motion, which would require a motion to correct errors

as a prerequisite to appeal.

Furthermore, Kelly, which allows a motion to set aside a judg-

ment to be filed as a Trial Rule 59 motion when alleging "purely

legal" errors, raises additional questions for the appellate courts.

The question of which allegations are "purely legal" and which

allegations are "purely factual" creates an abysmal quandary for an

appellate court which must determine whether the motion before

the court is a timely filed Trial Rule 59 motion or an independent

Trial Rule 60 motion which requires a Trial Rule 59 motion as a

prerequisite to appeal. The scope of this Article precludes a detailed

consideration of all possible ramifications of these decisions, but

counsel should be aware of the volatile nature of the subject and the

strong possibility that future decisions will be forthcoming.

8. Correction of Clerical Errors. —The court of appeals held in
Auto-Teria, Inc. v. Ahern^^^ that the trial court had abused its discre-

tion under Trial Rule 60(A)''^ in denying a petition for correction of

error where the only evidence before the trial court indicated that a
clerical error had been committed and that such refusal would

deprive the movant of the right to appeal. The uncontroverted facts
disclosed that appellant's motion to correct errors was filed on June

4 , 1973, the last day in which appellant could make a timely filing.
However, the court clerk had moved the file stamp to June 5, 1973,
in anticipation of the next day's business. The court said that under
these circumstances the error was clerical,"* and a nunc pro tunc en-

try was the appropriate remedy. The court also stated that a
writing in the record, such as the motion to correct errors, could be

used as the basis of the amended nunc pro tunc entry,
9. Injunctions. —In Cement-Masonry Workers Local 101 v.

Ralph M. Williams Enterprises,^^^ the trial court granted the plain-
tiffs request for a temporary restraining order; after an evidentiary
hearing the court entered findings of fact and granted a temporary
injunction. Thereafter, in a pre-trial order issued prior to the con-

sideration of the plaintiffs request for a permanent injunction, the
trial court stated that it would not consider evidence presented in

the previous hearing for the temporary injunction because the initial

burden and question of proof differed from that considered in the

final hearing on the merits. The trial court then granted a perma-
nent injunction and awarded damages.

"'352 N.E.2d 774 (Ind. Ct. App. 1976).

'"Ind. R. Tr. p. 60(A) permits the court to correct clerical mistakes sua sponte or

upon motion by a party.

"'See 4 W. Harvey & R. Townsend, Indiana Practice 205 (1971).
"'350 N.E.2d 656 (Ind. Ct. App. 1976).



1977] SURVEY- CIVIL PROCEDURE AND JURISDICTION 73

The Indiana Court of Appeals reversed, stating that although
the trial court was not bound by the findings entered in the
previous hearing, Trial Rule 65(AK2) clearly requires that any ad-

missible evidence received in an application for a preliminary injunc-

tion "becomes part of the record" at trial."* Hence, the trial court

must consider evidence entered in a prior hearing, as well as newly
entered evidence, in reaching a decision granting or denying a per-

manent injunction. The action of the trial court in the instant case,
which explicitly precluded consideration of the prior evidence, con-

stituted reversible error.

Trial Rule 65(C) requires that an applicant for a restraining

order or preliminary injunction give security in an amount the court
"deems proper" for damages actually incurred by a party found
wrongfully enjoined. In Howard D. Johnson Co. v. Parkside
Development Corp.,^" the applicant did post a bond pursuant to
Trial Rule 65(C), but following the hearing on the preliminary injunc-

tion, one of the defendants argued that the bond was insufficient
and requested the trial court to increase the amount of the bond.
The trial court refused this request, and eventually the application
for a permanent injunction was denied. In the course of the appeal,
the defendant alleged that the trial court had erred in not increas-

ing the bond. The court of appeals disagreed, stating first that the
time for posting bond had passed when the defendant had made the
request; therefore, a subsequent increase would have been more in
the nature of a forfeiture than a bond. Second, the fixing of security

is a discretionary function of the trial court, and a showing that ac-
tual damages exceeded the amount of the bond is not conclusive of
an earlier abuse of discretion. However, the court of appeals went
on to make an important interpretation of the recovery provision of
Trial Rule 65(C). The court stated that the security provision merely
serves as a manifestation of the financial responsibility of the plain-

tiff. Because of the unavoidably speculative factors by which it is fix-

ed, only the surety should be bound by its amount. The court held,
therefore, that the recovery of costs and damages by a defendant
wrongfully enjoined need not be limited to the amount of the bond
posted; the defendant may recover any damages in excess of the
bond directly from the plaintiff."*

"'Ind. R. Tr. p. 65(A)(2) states: "[A]ny evidence received upon an application for a

preliminary injunction which would be admissible upon the trial on the merits becomes

part of the record on the trial and need not be repeated upon the trial."
'"348 N.E.2d 656 (Ind. Ct. App. 1976).

'"This decision overrules Harless v. Consumers' Gas Trust Co., 14 Ind. App. 545,

43 N.E. 456 (1896) (holding that absent a showing of malice or lack of probable cause in

seeking injunction, defendant's recovery would be limited to the amount of security

given).



74 INDIANA LAW REVIEW [Vol. 11:51

10. Special Judges. — The respondent in In re May^^^ alleged
that the trial court judge lacked jurisdiction under Trial Rule

79(11)'^" to issue a contempt citation because the respondent had

named the judge as a defendant in an action for declaratory relief.
The court of appeals rejected this contention on two grounds. First,

the contempt conviction was based on statements made in a motion

to correct errors in an independent civil action, rendering Trial Rule

79(11) inapplicable. Second, the court held that a judge may still cite
a party for contemptuous statements directed toward the bench,

even though the judge will not ultimately hear the merits of the

case.'^'

E. Appeals

Filing a praecipe for a record of the proceedings is required to

initiate an appeal. ^^^ The question in Seco Chemicals, Inc. v.
Stewart^^^ was whether a cross-appellant must make a separate fil-
ing of a praecipe in order to preserve his question for appeal. The
court of appeals noted initially that a party must assign and
preserve a cross-error by means of a separate motion to correct er-
rors filed fifteen days after the service of the opposing party's mo-

tion to correct errors. ^^^ Further, the cross-appellant must, within

thirty days of the filing of the appellant's brief, file a brief on the

issues involved in the cross-error, as well as an answer to the ap-

pellant's brief.'^^ The court found that the cross-appellant complied
with the above requirements and held that once the appellant invok-

ed appellate jurisdiction by filing its praecipe, the purpose of Ap-

pellate Rule 2(A) was fulfilled, and the cross-appellant would be ex-
cused from compliance. The court did, however, limit its holding to
the facts of the case, wherein the appellant had praeciped the entire

record.^^^

In Indiana State Board of Tax Commissioners v. Lyon &
Greenleaf Co.,^^'' the appellee contended that the appellant had waiv-

ed the asserted errors based on the appellant's failure to set forth

'"358 N.E.2d 138 (Ind. Ct. App. 1976).

"°Ind. R. Tr. p. 79(11) provides in part: "Any regular judge . . . shall be eligible for
appointment in any of such courts as a special judge in any case pending in which he

has not sat as judge or been named on a previous panel, unless he is disqualified by in-
terest or relationship . . . ."

'^'358 N.E.2d at 139 (citing Allison v. State, 243 Ind. 489, 187 N.E.2d 565 (1963)).

"See Ind. R. App. P. 2(A).
'^'349 N.E.2d 733 (Ind. Ct. App. 1976).

'"Ind. R. Tr. P. 59(D).

"''See Ind. R. Tr. P. 8.1(A); 8.3(D).

"•349 N.E.2d at 739 n.l.

'"359 N.E.2d 931 (Ind. Ct. App. 1977).



1977] SURVEY- CIVIL PROCEDURE AND JURISDICTION 75

specifically in its brief, with the arguments applicable thereto, the

errors raised in the appellant's motion to correct errors.'^* The court
of appeals rejected this contention, noting that although the ap-

pellants had grouped several specifications of error together, the

issues raised were sufficiently articulated. Moreover, each grouping

was prefaced with a numerical reference to the appropriate
specification in the motion to correct errors. The court said that
"where there has been substantial compliance with the rules, a

failure to include all that is technically required will not result in a

waiver. ^"

Compare, however, the court of appeals ruling in Brady v.
Eastern Indiana Production Credit Association^^ wherein the court

held that Appellate Rule 11(B)(7)''^ mandates the clerk to collect the

$100 docketing fee before he accepts any appeal as "filed."^'^ In this

case, the appellant's time limit for filing an appeal expired on

November 18, 1975. The appellant mailed the record to the court
clerk on November 17, 1975, but failed to enclose the filing fee. On
November 19, 1975, the clerk notified the appellant of his omission,
the appellant made arrangements to pay, and the clerk filed the
record. Under the facts given, the court ruled that the appellant had
not "filed" the appeal until the ninety-first day after the ruling on

the motion to correct errors; the appeal, therefore, was properly
dismissed. ^'^

Another case construing the requirements of cross-appeal is P-M
Gas & Wash Co. v. Smith}^* The appellees did not file cross-errors
within fifteen days after service of the appellant's motion to correct

errors but instead included alleged cross-errors and cross-appeals as

"''Ind. R. App. p. 8.3(A)(7) states that: "Each error assigned in the motion to cor-

rect errors that appellant intends to raise on appeal shall be set forth specifically and

followed by the argument applicable thereto."
'"359 N.E.2d at 933 (citing Yerkes v. Washington Mfg. Co., 326 N.E.2d 629 (Ind.

Ct. App. 1975)).
"»360 N.E.2d 1267 (Ind. Ct. App. 1977).

'"Ind. R. App. P. 11(B)(7) states that appellant must pay a filing fee of $100 to the

clerk "upon the filing of a petition to transfer or an appeal."

"^The court distinguished between the "submission" of an appeal and the "accep-

tance" of the appeal by the clerk. The appeal is not "filed" until the clerk has signified
acceptance by endorsing it as filed and recording the same. See 360 N.E.2d at 1269 n.l.

"'5Mt see Peters v. Poor Sisters of Saint Francis Seraph Inc., 257 Ind. 360, 274

N.E.2d 530 (1971), in which the supreme court, construing the deposit requirement of

the former statute, stated:

We find nothing either in the statutes or in the case law to indicate that the
deposit is jurisdictional and required to be filed within the twenty-day period

allowed for the filing of petition to transfer. The fact that the deposit was in
fact made prior to this Court's determination of the petition was sufficient.

Id. at 361, 274 N.E.2d at 531.
"^352 N.E.2d 91 (Ind. Ct. App. 1976).



76 INDIANA LAW REVIEW [Vol. 11:51

a part of the appellee's brief on the merits filed in the court of ap-

peals. The appellees argued that the fifteen-day time limitation was

applicable only in those cases where the motion to correct errors is

based upon evidence outside of the record/'^ Although the court

acknowledged the plausibility of appellee's theory, it said that the

clear and separate statement within Trial Rule 59(D) as to time

limits dictated a different result. The court quoted authors on the
subject'*' and held that an assignment of cross-errors must be filed

within fifteen days after service of the opposing party's motion to

correct errors, regardless of whether the motion is, or is not, based

on evidence outside of the record. This ruling is consistent with the

underlying rationale of Trial Rule 59, which allows the trial court to

act upon alleged error without necessitating an appeal.

The question of what constitutes a "judgment" was the subject
of several cases in the court of appeals. For example, in Guido v.

Baldwin,^^'' the trial court in a partition proceeding had vested title

to the property in the respective parties. The appellants filed a
timely motion to correct errors, and the trial court responded by

"amending" its judgment to order a formal survey of the property
awarded to appellants. The trial court overruled the motion in all
other respects. The appellants' second motion to correct errors was
filed and overruled. On appeal, the appellee alleged lack of jurisdic-
tion, apparently on the basis that the amended judgment flowing
from the first motion to correct errors would not become "final" un-
til the survey was completed. The court of appeals rejected this
argument, stating that the trial court had not disturbed the substan-

tive aspect of its judgment. In this case, the court exercised its

discretion under Appellate Rule 4(E) to pass on adjudicated issues
which were severable without prejudice to the parties and heard the
merits of the disputed ownership claims.

In contrast, the court of appeals found the appellant's reliance

on the discretionary features of Appellate Rule 4(E) to be misplaced

in Minor v. Condict.^^ The appellant had received a final judgment
in the trial court but had failed to include a statement of the judg-
ment in the record. The court of appeals, in granting appellees' mo-
tion to dismiss, stated that "a judgment is an essential element of
any appeal."'*' Furthermore, the court said that the discretionary

'"Ind. R. Tr. p. 59(D) requires that a party file cross-errors within 15 days after

the service of the opposition's motion to correct errors.
""352 N.E.2d at 92 (citing 1 A. BoBBiTT, Indiana Appellate Practice and Pro-

cedure 519 (1972): 4 W. Harvey & R. Townsend, Indiana Practice 116 (1971)).
'"360 N.E.2d 842 (Ind. Ct. App. 1977).
'^'360 N.E.2d 857 (Ind. Ct. App. 1977).
'"Id. at 858 (citing Citizen's Nat'l Bank v. Harvey, 334 N.E.2d 719 (Ind. Ct. App.

1975)). See also Harvey, 1976 Survey, supra note 29, at 116.



1977] SURVEY-CIVIL PROCEDURE AND JURISDICTION 11

features of Appellate Rule 4(E) apply only where there is an attemp-

ted appeal from partial judgment which does not dispose of all the

issues. In this case, there was a final judgment disposing of all the
issues, but it was being appealed upon an insufficient record. The
court tempered this apparently harsh result by pointing out that the

appropriate procedure in such a case as this is provided in Appellate

Rule 15(D), which allows an application for certiorari to supplement

the record with an omitted portion of the transcript. Since ap-

pellants had ignored this procedure, the appeal was properly
dismissed.

Successful trial counsel should heed the warning given in Colley

V. Carpenter.^*° The appellee had received a favorable judgment in
the trial court and thereafter failed to file an appellee's brief when
the cause was brought before the court of appeals. The court of ap-
peals held that the appellant's brief would be deemed to be "ac-
curate and sufficient for the disposition of this appeal."'" Further-

more, the court stated that the appellant must only show prima
facie error to win reversal.'" The appellant had presented such a
case and, unchallenged by the appellee, was granted a reversal by
the court of appeals.

The court of appeals presented a primer to the aspiring ap-
pellate attorney in the case of Anderson v. Indiana State
Employees' Appeals Commission.^*^ The case involves much discus-
sion of the detailed requirements of the Appellate Rules, but the

general principles merit attention. In chronological order as they ap-

pear in the appellate process, those principles are: First, the allega-

tions in the motion to correct errors must be discussed with suffi-
cient particularity to inform the trial court and subsequently the ap-

pellate court of the exact legal issue involved;'" second, the ap-

pellant must bring a record which supports his allegations and will
permit an intelligent decision of the issues;'*^ third, the brief must
be prepared in such a manner as to allow each judge, independently
of the record, to consider each question presented;'" fourth, the ap-

pellant must present authority to support his allegations of error or
face waiver;'*^ and fifth, the appellant must demonstrate actual pre-

"°362 N.E.2d 163 (Ind. Ct. App. 1977).

'"Id. at 166.

'"Id. (citing In re Sheeks, 344 N.E.2d 872 (Ind. Ct. App. 1976)).
'"360 N.E.2d 1040 (Ind. Ct. App. 1977).

'"Id. at 1042 (citing Johnson v. State, 338 N.E.2d 680 (Ind. Ct. App. 1975)).
"'Id. (citing Johnson v. State, 258 Ind. 648, 283 N.E.2d 532 (1972); Burns v. State,

255 Ind. 1, 260 N.E.2d 559 (1970)).

'"M at 1043 (citing Thonert v. Daenell, 148 Ind. App. 70, 263 N.E.2d 749 (1970)).
'"Id. (citing City of Indianapolis v. Heeter, 355 N.E.2d 429 (Ind. Ct. App. 1976);

Schmidt Enterprises, Inc. v. State, 354 N.E.2d 247 (Ind. Ct. App. 1976); Weenig v.
Wood, 349 N.E.2d 235 (Ind. Ct. App. 1976)).



78 INDIANA LAW REVIEW [Vol. 11:51

judice by the trial court's decision and do so under the appropriate

standard of review in the given case/**

V. Constitutional Law

Jeffrey W. Grove*

A. Indiana Guest Statute Cases

In what one commentator has characterized as the "second

wave"* of equal protection attacks on automobile guest statutes,

which typically provide that an automobile guest cannot recover

damages against the host driver for injury caused by the host's or-

dinary negligence, the statutes of eight states have been declared

unconstitutional^ while those of eleven states have been upheld/ In-

diana's guest statute is the most recent survivor. It provides:

The owner, operator, or person responsible for the opera-
tion of a motor vehicle shall not be liable for loss or damage
arising from injuries to or death of a guest, while being

transported without payment therefor, in or upon such
motor vehicle, resulting from the operation thereof, unless

'*'Id. (citing Wells v. Gibson Coal Co., 352 N.E.2d 838 (Ind. Ct. App. 1976)).
•Associate Professor of Law, Indiana University School of Law — Indianapolis.

B.A., Juniata College, 1965; J.D., George Washington University Law School, 1969.
The author wishes to express appreciation to Edwin B. Wainscott and William

Dazy, both third-year students at the Indiana University School of Law — Indianapolis,
for their assistance.

'Comment, The Common Law Basis of Automobile Guest Statutes, 43 U.Chi.L.
Rev. 798, 799 (1976). "In the first set of challenges, arising soon after the first statutes

were enacted, acts with typical provisions were uniformly upheld. The leading case of
the series was Silver v. Silver [280 U.S. 117 (1929)] in which the Supreme Court upheld

the Connecticut guest statute . . . ." Id. at 799 (footnotes omitted).

''Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212 (1973); Thompson v. Hagan, 96 Idaho

19. 523 P.2d 1365 (1974): Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Manistee

Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975); McGeehan v.
Bunch, 88 N.M. 308, 540 P.2d 238 (1975); Laakonen v. Eighth Judicial Dist. Court, 91

Nev. 506, 538 P.2d 574 (1975); Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974); Primes
V. Tyler, 43 Ohio St. 2d 195, 331 N.E.2d 723 (1975).

'Sidle V. Majors, 536 F.2d 1156 (7th Cir. 1976) (upholding Indiana's statute);

Beasley v. Bozeman, 294 Ala. 288, 315 So. 2d 570 (1975); White v. Hughes, 257 Ark.

627, 519 S.W.2d 70 (1975); Richardson v. Hansen, 186 Colo. 346, 527 P.2d 536 (1974);

Justice v. Gatchell, 325 A.2d 97 (Del. 1974); Keasling v. Thompson, 217 N.W.2d 687
(Iowa 1974); Botsch v. Reisdorff. 193 Neb. 165, 226 N.W.2d 121 (1975); Behrns v. Burke,
229 N.W.2d 86 (S.D. 1975); Duerst v. Limbocker, 269 Ore. 252, 525 P.2d 99 (1974); Can-
non V. Oviatt, 520 P.2d 883 (Utah), appeal dismissed, 419 U.S. 810 (1974); Tisko v. Har-

rison, 500 S.W.2d 565 (Tex. Ct. App. 1973).