Indiana Law Review


42 INDIANA LAW REVIEW [Vol. 12:30

since the decision of the deputy was a "new determination" rather
than a decision affecting a pre-existing right. The court flatly re-
jected this argument, holding that the quoted amendment was a
curative statute, which would be liberally construed and applied to

situations involving interruption of benefits as well as disputes in-

volving initial determination of eligibility.77 Thus, the case was
ultimately decided by reliance on the clear language of the

legislative amendment expressly authorizing a pre-termination due
process hearing, rather than on a constitutional basis.

Nevertheless, Wilson is an excellent review of procedural due

process considerations, and is highly recommended to both the stu-
dent and practitioner of administrative law. It is especially in-

teresting because, although the decision was eventually anchored in
statutory construction, the court actually structured, in the course

of its opinion, a constitutional argument which supports the results
achieved.

III. Civil Procedure and Jurisdiction

William F. Harvey*

A. Jurisdiction and Service of Process

1. Waiver of Change of Venue.— In Pruden v. Trabits,
1 both

the complaint and a motion for change of venue from the county

were filed on the same day. The court granted the motion for
change of venue and named five counties from which the plaintiff
struck one. The defendants did not, however, strike any counties
within the time limits in Trial Rule 76(9).2

The court of appeals held that Trial Rule 76(9) requires that the
moving party inquire whether the other parties have struck any
county,3 and if they have not, then the moving party must timely re-

77373 N.E.2d at 343-44.

*Dean, Indiana University School of Law— Indianapolis. A.B., University of
Missouri, 1954; J.D., Georgetown University, 1961.

The author wishes to extend his appreciation to Roger D. Erwin for his

assistance in the preparation of this discussion.

^70 N.E.2d 959 (Ind. Ct. App. 1977).
2
Ind. R. Tr. P. 76(9) provides in part: "[T]he parties within seven [7] days

thereafter, or within such time, not to exceed fourteen [14] days, as the court shall fix,

shall each alternatively strike off the names of such counties."
3
Ind. R. Tr. P. 76(9) also provides in part:

If a moving party fails to so strike within said time, he shall not be entitled

to a change of venue, and the court shall resume general jurisdiction of the



1979] SURVEY—CIVIL PROCEDURE 43

quest the clerk to strike for the nonmoving parties.4 Absent a timely

request, the moving party has waived the opportunity for a change

of venue.5

2. Attorney's Duty to Examine Court Records. — An attorney is
not expected to be aware of last minute changes to court records, if

it would be unreasonable to expect him to know of the changes. In
Ed Martin Ford, Inc. v. Martin,* the trial court did not set the date
for the trial until the day on which the trial was to be held. The
Indiana Court of Appeals held that, if an attorney is not aware of

changes in the court record that "a careful and diligent lawyer

would not reasonably have been expected to discover,"7 as in the

present case, then the attorney should not be prejudiced by a failure

to examine the court records.8 Thus, the appellate court ruled that

the trial court had abused its discretion in not granting a motion for

relief from judgment pursuant to Trial Rule 60.9

3. Service of Process on City Attorneys. — Trial Rule 4.6(A)(4), 10
on its face, could be interpreted to mean that, if any statute pro-
vides for an attorney to represent a local government organization,

the attorney must be served with notice of any action brought
against the organization. The court of appeals rejected this inter-
pretation in Antz v. City of Jeffersonville.

11 In that case, the plaintiff

had brought an action to obtain reinstatement and back pay from

the Jeffersonville Fire Department. The trial court dismissed the ac-
tion because no summons had been issued or served upon the Jeffer-
sonville City Attorney, which the trial court held to be required by
Trial Rule 4.6(A)(4).

The Indiana statute governing the dismissal of firemen provides:
"Such city shall be named as the sole defendant and the plaintiff
shall cause summons to issue as in other cases against such city." 12

Service in a suit against a city "may be had upon the mayor, and, in
his absence, upon the city clerk . . . ," 13

cause. If a nonmoving party fails to strike off the names of such counties
within the time limited, then the clerk shall strike off such names for such
party.

4370 N.E.2d at 962.
5/d
6363 N.E.2d 1292 (Ind. Ct. App. 1977).

'Id. at 1295.
8/d
9
I<L

10
Ind. R. Tr. P. 4.6(A)(4) provides for service upon an organization as follows: "In

the case of a local governmental organization upon the executive thereof, and if a
statute provides for an attorney to represent the local government organization, and
an attorney occupies such position, then also upon such attorney."

"363 N.E.2d 1014 (Ind. Ct. App. 1977).
12
Ind. Code § 18-1-11-3 (1976).
n
Id. § 18-1-23-1.



44 INDIANA LAW REVIEW [Vol. 12:42

The city argued that Trial Rule 4.6(A)(4) superseded Indiana
Code section 18-1-23-1. Further, the city argued that the plaintiff
was required to serve or issue process upon the city attorney
because Indiana Code section 18-1-6-13 provides that the city at-
torney "shall have the management, charge and control of the law
business of such city and for each branch of its government .... He
shall conduct all legal proceedings authorized by this act . . . ." 14

The Indiana Court of Appeals rejected this reasoning. It held
that the better interpretation of Trial Rule 4.6(A)(4) is: "[I]f the

statute upon which plaintiff is bringing the action provides for an
attorney to represent the local governmental organization then such

attorney should be notified." 15 Such service, however, would not be
necessary whenever any statute provides for an attorney to repre-
sent the local government.16

B. Pleadings and Pre-Trial Motions

1. Judicial Admission in Pleadings. —An admission in the
pleadings is not always binding upon a party. In Lamb v. Thieme 17

the plaintiff claimed that the defendant had accepted thirty shares

of stock, instead of 120 shares which were originally agreed upon to

secure a promissory note, as discharge of the promissory note. Yet,

the plaintiff averred in his complaint that he owned all 120 shares of
stock. The defendant denied that the plaintiff owned the stock, and
claimed that the plaintiffs admission in the pleadings of full owner-

ship of the stock precluded the plaintiffs assertion that thirty

shares of stock were accepted as an accord and satisfaction.

The court of appeals agreed with the trial court's ruling that the
defendant's denial put the question of ownership in issue.18 Hence,

an admission in the pleadings is not binding upon a party where the
opposing party denies the admission and joins issue upon it. 19

2. Compulsory Counterclaims. — An attorney must carefully
assert all counterclaims which are compulsory, or lose the right to

assert them later. Middelkamp v. Hanewich20 presented the question
of whether a claim in prior litigation between the parties was a com-
pulsory counterclaim and, thus, subject to the principle of res

judicata in a subsequent action.

u363 N.E.2d at 1017 (citing Ind. Code § 18-1-6-13 (1976)).
16363 N.E.2d at 1017 (emphasis added).

"Id.
17
367 N.E.2d 602 (Ind. Ct. App. 1977).

ull at 603.
w/d at 605 (citing Brown v. Grzeskowiak, 230 Ind. 110, 101 N.E.2d 639 (1951)).
20364 N.E.2d 1024 (Ind. Ct. App. 1977).



1979] SURVEY-CIVIL PROCEDURE 45

In 1969, Hanewich was successful in a suit against Middelkamp
to obtain possession of certain land which had been transferred to

Hanewich. In 1973, Middelkamp sued Hanewich, seeking: (1) Specific
performance of an alleged 1966 oral agreement, (2) declaration of a

trust in his favor as to the property, and (3) damages for breach of
an alleged oral agreement to convey. The court of appeals affirmed a
trial court ruling that, since these claims were not asserted as a
counterclaim in the 1969 action, the claims could not be asserted in

the present action.5
21

The Indiana Court of Appeals discussed the relationship of Trial
Rule 13(A) to the doctrine of res judicata. Trial Rule 13(A) could be

the source of the rule which bars a later counterclaim,22 or the result

of the principle of res judicata.
23 Under either view, it is clear that

Trial Rule 13(A) would bar a subsequent assertion of a compulsory

counterclaim. To determine whether a counterclaim is compulsory,
one must first determine whether the claim "[arose] out of the trans-
action or occurrence that is the subject-matter of the opposing party's

claim . . . ."24 This is a test of logical relationship, which may include
a series of transactions.

25
Also, the test broadly interprets the

phrase "transaction or occurrence" to avoid multiplicity of

litigation.
26

In this case, the "same transaction or occurrence" test was met,
as well as the other requirements of Trial Rule 13(A).27

S. Amended Pleadings. —In State Farm Mutual Automobile In-
surance Co. v. Shuman28 suit was brought upon an insurance policy.
Two and a half years after the pre-trial conference and two weeks
before the scheduled trial, the plaintiff was permitted to amend the
complaint by adding a claim for punitive damages. State Farm con-

oid at 1034-36.

^Id. at 1034.
23Jd (citing C. Wright, Handbook of the Law of Federal Courts § 79, at 347 (2d

ed. 1970)).
24364 N.E.2d at 1035 (quoting Ind. R. Tr. P. 13(A)).
26364 N.E.2d at 1035 (citing Moore v. New York Cotton Exch., 270 U.S. 593

(1926)).

M364 N.E.2d at 1035. See Civil Code Study Commission Comments to Ind. R. Tr.
P. 13(A); 2 W. Harvey, Indiana Practice 20 (1970); 6 C. Wright & A. Miller,
Federal Practice and Procedure § 1410 (1971).

"364 N.E.2d at 1035. Ind. R. Tr. P. 13(A) requires that the counterclaim be

mature at the time of the claim, that the court be able to acquire jurisdiction over all
parties, and that the counterclaim not be the subject of another pending action when
the claim is brought.

28370 N.E.2d 941 (Ind. Ct. App. 1977). Other aspects of this case are discussed at
notes 45-48, 61-67, & 173-78 infra and accompanying text.



46 INDIANA LAW REVIEW [Vol. 12:42

tended that the trial court abused its discretion in granting the

plaintiff leave to amend.

The court of appeals held that, under Trial Rule 15(A),29 leave of
court is granted "when justice so requires."30 This means that
amendments are to be freely permitted so that all issues will be
brought before the court.31 The court said that the delay in amen-
ding the complaint, the burden of further discovery, the death of a
witness who was not indispensable, and the increased expense of
discovery did not show that prejudice would result if the amend-
ment were allowed.32

State Farm also contended that the plaintiff could not amend
because defendant's motion to dismiss pursuant to Trial Rule 12(B)(6)

was granted, and that Trial Rule 12(B)(8)33 read in conjunction with
Trial Rule 6(C)34 imposes an absolute deadline of ten days for amend-
ment of the pleadings. The Indiana Court of Appeals held that a mo-
tion under Trial Rule 12(B)(6) merely changes the time limits for
amendment of pleadings as of right, for, if the motion is granted,
plaintiff may amend within ten days as of right.35 After ten days has
expired, an amendment is permitted by leave of court or by the con-

^Ind. R. Tr. P. 15(A) provides in part: "Otherwise a party may amend his
pleading only by leave of court or by written consent of the adverse party; and leave

shall be given when justice so requires."
30370 N.E.2d at 948 (citing Huff v. Travelers Indem. Co., 363 N.E.2d 985 (Ind.

1977)). See Harvey, Civil Procedure and Jurisdiction, 1977 Survey of Recent

Developments in Indiana Law, 11 Ind. L. Rev. 51, 66 (1977) [hereinafter cited as

Harvey, 1977 Survey].
31370 N.E.2d at 948.
32/d
33
Ind. R. Tr. P. 12(B) provides in part:

When a motion to dismiss is sustained for failure to state a claim under
subsection (B)(6) of this rule the pleading may be amended once as of right
pursuant to Rule 15(A) within ten [10] days after service of notice of the

court's order sustaining the motion and thereafter with permission of the

court pursuant to such rule.
M
Ia\ 6(C) provides in part:

The service of a motion permitted under Rule 12(B) alters the time for ser-

vice of responsive pleadings as follows, unless a different time is fixed by the

court:

(2) if the court grants the motion and corrective action is allowed to be

taken, it shall be taken within ten [10] days, and the responsive pleading

shall be served within ten [10] days thereafter.
3B370 N.E.2d at 949. Ind. R. Tr. P. 15(A) provides in part:

A party may amend his pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which no

responsive pleading is permitted, and the action has not been placed upon

the trial calendar, he may so amend it at any time within thirty [30] days
after it is served.



1979] SURVEY-CIVIL PROCEDURE 47

sent of the adverse party.36 Similarly, Trial Rule 6(C)(2) merely

refers to amendments as of right, and does not affect the provisions
of Trial Rule 15(A), except as to amendments as of right.

In State ex rel Crane Rentals, Inc. v. Madison Superior Court31

the Indiana Supreme Court considered the relationship between
Trial Rule 15(C)38 and Trial Rule 76(1), (2).39 The complaint was amended
to bring in four additional defendants, including Crane, nine months
after the answer was filed. Crane then filed a motion for change of
venue from the county. The trial court denied the motion, and this
original proceeding for a writ of mandate was commenced in the
supreme court.

Trial Rule 76(2) requires a motion for automatic change of venue

to be filed within ten days after the issues are first closed on the

merits. The supreme court had already held in State ex rel
Travelers Insurance Co. v. Madison Superior Court, 40 however, that

parties added after the issues were first closed on the merits would

not be barred by the expiration of the ten-day period.41 The trial
court, here, sought to distinguish the present case from Travelers

on the grounds that Crane had a close relationship with one of the

original defendants, and was represented by the same attorney as
that defendant. Thus, the trial court argued, the issues as to Crane

were closed prior to the amended complaint adding him as a party
under the "relation-back" concept in Trial Rule 15(C),

42
or under a

"virtual representation" concept.

The supreme court disagreed with this novel approach, holding
that it would change the purpose of Trial Rule 76(2) "from one of

simply setting a fair time limitation upon the exercise of the right to

eliminating the right entirely for some and requiring that the right
be exercised jointly by groups of others."43

4. Pleading Special Matters. — Trial Rule 9(B) requires: "In all
averments of fraud or mistake, the circumstances constituting fraud

or mistake shall be specifically averred. Malice, intent, knowledge,

36See Ind. R. Tr. P. 12(B)(8).
37365 N.E.2d 1224 (Ind. 1977).

^Ind. R. Tr. P. 15(C) governs the relation back of amendments.
39
Ind. R. Tr. P. 76 governs change of venue.

40354 N.E.2d 188 (Ind. 1976). See Harvey, 1977 Survey, supra note 30, at 57.
"354 N.E.2d at 191.
*2
Ind. R. Tr. P. 15(C) provides in part:

Whenever the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth in the original pleading,

the amendment relates back to the date of the original pleading. An amend-
ment changing the party against whom a claim is asserted relates back if the
foregoing provision is satisified ....
43365 N.E.2d at 1225.



48 INDIANA LAW REVIEW [Vol. 12:42

and other conditions of mind may be averred generally." 44 In State
Farm Mutual Automobile Insurance Co. v. Shuman45 the defendant
argued that the plaintiffs claim for punitive damages, in an action

for breach of contract, failed to comply with the provisions of Trial

Rule 9(B) because fraud was not specifically averred in the com-
plaint.

The court of appeals held that proof of actionable fraud is not
required for an award of punitive damages, since the award may be
based on any serious wrong which is tortious in nature.46 A plaintiff
need only allege a fraudulent state of mind, thus requiring a general

averment pursuant to Trial Rule 9(B).47 Consequently, a complaint
for breach of contract which demands punitive damages need only
allege, generally, a fraudulent state of mind.48

5. Res Judicata and Interpleader. — Trial Rule 22, which pro-
vides for interpleader, states interpleader requires that the plaintiff

"is or may be exposed to double or multiple liability." 49 The question
raised in United Farm Bureau Family Life Insurance Co. v. Fultz50

was whether the acquittal in a criminal trial of the beneficiary of a
life insurance policy, who was charged with the murder of the in-
sured, obviated the need for interpleader in a civil trial. The insurer
alleged that both the beneficiary and the deceased's estate might be

entitled to the proceeds of the insurance policy.

The court of appeals noted that the rule in Indiana is that ac-
quittal in a criminal trial is not res judicata to an issue of civil

liability.
51 Consequently, the beneficiary might not be entitled to the

proceeds of the insurance policy, even though she was acquitted of
murdering the insured. Interpleader pursuant to Trial Rule 22 was
proper in this case because the insurer "is or may be exposed to
double or multiple liability" 52 as required by Trial Rule 22 for an in-

terpleader action.

44
Ind. R. Tr. P. 9(B).

45370 N.E.2d 941 (Ind. Ct. App. 1977). Other aspects of this case are discussed in

notes 28-36 supra; 61-67, & 173-78 infra and accompanying text.
48370 N.E.2d at 950 (citing Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 349

N.E.2d 173 (1976); Jones v. Abriani, 350 N.E.2d 635 (Ind. Ct. App. 1976)). See also

Frandsen, Insurance, 1975 Survey of Recent Developments in Indiana Law, 9 Ind. L.

Rev. 260 (1975).
47370 N.E.2d at 950 (citing Jerry Alderman Ford Sales, Inc. v. Bailey, 154 Ind.

App. 632, 291 N.E.2d 92, affd on rehearing, 154 Ind. App. 657, 294 N.E.2d 617 (1973)).
48370 N.E.2d at 950.
49
Ind. R. Tr. P. 22.

50375 N.E.2d 601 (Ind. Ct. App. 1978).
51ta at 608. See National City Bank of Evansville v. Bledsoe, 237 Ind. 130, 144

N.E.2d 710 (1957); Beene v. Gibraltar Indus. Life Ins. Co., 116 Ind. App. 290, 63 N.E.2d

299 (1945).
52
Ind. R. Tr. P. 22(A).



1979] SURVEY- CIVIL PROCEDURE 49

C. Pre-Trial Procedures and Discovery

1. Pre-Trial Orders. — In City of Hammond v. Drangmeister53

the Indiana Court of Appeals discussed the effect of Trial Rule

16(J)
54 upon the issues raised in the pleadings. The trial court, in the

pre-trial order, sustained a motion to strike the city's exception to

the appraiser's award in an inverse condemnation action. Yet, the

pre-trial order listed the question of damages as the sole issue to be

determined by the jury.

The appellate court affirmed the trial court's ruling that the pre-

trial order preserved the issues of damages for consideration by the

jury.
55 Hence, the issues at trial are as stated in the pre-trial order,

and the pleadings do not control.
56

Trial Rule 16(J) states that a pre-trial order controls the matters

considered at trial "unless modified thereafter to prevent manifest

injustice."
57 The Indiana Court of Appeals in Fruehauf Trailer Divi-

sion v. Thornton58 affirmed a trial court ruling that a pre-trial order

that counsel was instructed to submit one month before trial, and
that was not submitted until the day of the trial, was not binding on

either party.
59 The opposing party had not complained of the delay

until the day of trial. Such dilatory conduct by both parties permit-

ted the trial court to modify the pre-trial order pursuant to Trial

Rule 16(J) "to prevent manifest injustice."
60

In State Farm Mutual Automobile Insurance Co. v. Shuman*1 the
court of appeals held that Trial Rule 16(A)(6)

62 requires the trial

53364 N.E.2d 157 (Ind. Ct. App. 1977).
m
Ind. R. Tr. P. 16(J) provides in part:

The court shall make an order which recites the action taken at the con-
ference, the amendments allowed to the pleading, and the agreements made
by the parties as to any of the matters considered which limit the issues for

trial to those not disposed of by admissions or agreement of counsel, and
such order when entered shall control the subsequent course of action ....
55364 N.E.2d at 161.
66Jd (citing North Miami Consol. School Dist. v. State, 261 Ind. 17, 300 N.E.2d 59

(1973)). See generally Annot., 22 A.L.R.2d 599, § 4 (1952); 62 Am. Jur. 2d Pretrial Con-

ference §§ 33-35 (1972).
57
Ind. R. Tr. P. 16(J).

M366 N.E.2d 21 (Ind. Ct. App. 1977).
59ta at 33.

*°Id. at 34. Accord, State v. Dwenger, 341 N.E.2d 776, 781 (Ind. Ct. App. 1976).
81370 N.E.2d 941 (Ind. Ct. App. 1977). Other aspects of this case are discussed at

notes 28-36 & 45-48 supra and accompanying text; notes 173-78 infra and accompanying
text.

62
Ind. R. Tr. P. 16(A) provides in part: "In any action except criminal cases, the

court may in its discretion and shall upon the motion of any party, direct the attorney
for the parties to appear before it for a conference to consider . . . such other matters

as may aid in the disposition of the action."



50 INDIANA LAW REVIEW [Vol. 12:42

court to enter a pre-trial order where questions of law are raised at
the pre-trial conference.63 Otherwise, it is undoubtedly more difficult
for the parties to present their cases at trial. State Farm, however,

did not object to the failure of the court to enter a pre-trial order. If

a pre-trial order has been entered, an objection is necessary to

preserve the issue for appeal.64 The appellate court held that an ob-
jection is also necessary to preserve the issue for appeal if a pre-

trial order has not been entered.65 Thus, State Farm could not raise
objection to the failure of the trial court to enter a pre-trial order.

Even if State Farm could have raised the issue on appeal,
however, there would have been no reversible error. Trial Rule 16(J)
states: "The court shall make an order which recites . . . the
agreements made by the parties as to any of the matters considered
which limit the issues for trial . . . ." 66 State Farm admitted that no
agreement was reached which limited the issues for trial. Hence, the
error was harmless.67

2. Discovery. —In State Highway Commission v. Jones*8 the
state requested production of documents, pursuant to Trial Rule

34,
69 which would have produced materials containing the opinions of

experts who were hired by Jones. When the materials were not forth-
coming, the state moved, under Trial Rule 37,70 to compel discovery.

The trial court denied the motion, and the state appealed from that
ruling.

The court of appeals affirmed the ruling and held that until a re-
quest is made under Trial Rule 26(B)(3)(b)71 no request under Trial

"370 N.E.2d at 951.
MId (citing Hodgson v. Humphries, 454 F.2d 1279 (10th Cir. 1972)).
95370 N.E.2d at 951.
m
Ind. R. Tr. P. 16(J).

67370 N.E.2d at 951 (citing Scott County School Dist. One v. Asher, 160 Ind. App.
299, 312 N.E.2d 131 (1974), aff'd, 263 Ind. 47, 324 N.E.2d 496 (1975); Burger Man Inc. v.
Jordan Paper Prods., Inc., 352 N.E.2d 821 (Ind. App. 1976)).

68363 N.E.2d 1018 (Ind. Ct. App. 1977).
69
Ind. R. Tr. P. 34 provides, in part, for the discovery of documents.

70
Ind. R. Tr. P. 37 provides sanctions for failure to make discovery.

71
Ind. R. Tr. P. 26(B)(3)(b) provides:

As an alternative or in addition to obtaining discovery under subdivision
(B)(3)(a) of this rule, a party by means of interrogatories may require any
other party

(i) to identify each person whom the other party expects to call as an ex-
pert witness at trial, and

(ii) to state the subject-matter upon which the expert is expected to

testify.

Thereafter, any party may discover from the expert or the other party
facts known or opinions held by the expert which are relevant to the stated
subject-matter. Discovery of the expert's opinions and the grounds therefor

is restricted to those previously given or those to be given on direct ex-

amination at trial.



1979] SURVEY- CIVIL PROCEDURE 51

Rule 34 will be considered.72 The court stated that Trial Rule
26(B)(3)(a)

73 applies to experts who will not be called as witnesses at
trial, and, in that situation, good cause must be shown.74 Trial Rule

26(B)(3)(b) refers to an expert who will be called as a witness at trial.
It does not require a showing of good cause, but it does require that

interrogatories be the only means by which the identity of expert
witnesses or the subject matter upon which they will testify can be

obtained.75

Such an interpretation of Trial Rule 26(B)(3)(b) is necessary, the

court said, because the subject matter of future discovery is narrowed,

thereby limiting future discovery "to the facts and opinions that the

expert witness will give ... at trial." 76 The court of appeals held
that, even though Jones' counsel voluntarily provided the state with

the identity of the witnesses and the subject matter upon which

they were to testify, Trial Rule 26(B)(3)(b) requires that this informa-

tion be obtained only through interrogatories.77 Thus, the state's

failure to comply with Trial Rule 26(B)(3)(b) precluded the state from

futher discovery of expert witnesses.

An extension of the problem just discussed was raised in
Costanzi v. Ryan. 18 The Indiana Court of Appeals interpreted Trial
Rule 26(B)(3)(b) to mean that, although a party can obtain the identity
of expert witnesses and the subject matter on which they are ex-

pected to testify at trial by interrogatories, the interrogatories can-

not also be used to obtain the facts and opinions of the expert

witnesses.79

In this case, the party seeking discovery argued that he was
merely combining the discovery permitted under Trial Rule

26(B)(3)(b) with that permitted under the other rules of discovery.

The court rejected this view stating that the facts and opinions may
be obtained by the other rules providing for discovery,80 but not by
interrogatories.

81

In Colman v. Heidenreich*2 the Indiana Supreme Court con-
sidered the relationship between the attorney-client privilege and

72363 N.E.2d at 1022.
73
Ind. R. Tr. P. 26(B)(3)(a) provides for discovery from experts.

74363 N.E.2d at 1022.
76Jd
76/d
77Jd
78370 N.E.2d 1333 (Ind. Ct. App. 1978).

"Id. at 1338. See 2 W. Harvey, Indiana Practice 474 (1970).
m
See, e.g., Ind. R. Tr. P. 30 (Depositions Upon Oral Examination), 31 (Deposition

of Witnesses Upon Written Questions), 34 (Production of Documents and Things and
Entry Upon Land for Inspection and Other Purposes).

81370 N.E.2d at 1338.
82No. 1978 S 221 (Ind. Oct. 13, 1978).



52 INDIANA LAW REVIEW [Vol. 12:42

Trial Rule 26(C).83 A male client told his attorney, Colman, that the
client's female friend had driven a car involved in a hit-and-run acci-

dent; the female was alleged also to be a client of Colman. The man
and woman were not married to one another, and their relationship
was not a public one. A criminal and a civil suit were pending
against Tabereaux for the injuries to Heidenreich in the accident.

This information, held to have been unrelated to the legal problem

for which the male client had sought advice,84 was related by Colman

to the Monroe County Prosecutor without identification of the
clients. Subsequently, an attorney representing Tabereaux attemp-

ted to obtain the identify of Colman's clients. Colman then moved
for a protective order under Trial Rule 26(C). The trial court's
refusal to grant that order was reversed by the court of appeals.
The trial court order would have required Colman, if asked to do so,
to reveal the name of the male client, the full conversation between
Colman and the male client, and the identity of the woman.

The supreme court found a confrontation between the attorney-
client privilege and the "need and desire to get to the truth to

render justice to those seeking it . . . ." 85 Under Indiana law, the at-
torney has a duty "[t]o maintain inviolate the confidence, and, at

every peril to himself, to preserve the secrets of his client."86 The
court ruled that the attorney had the right not to reveal the male

client's identity or the precise conversation with the male client

since such revelations would disclose the secret of the clandestine

relationship between the man and the woman.87 However, the at-
torney had no right to refuse to reveal the woman's identity because
there was no confidential relationship between her and Colman on
the Heidenreich matter since she had not consulted Colman on it nor

was the male client acting as her agent regarding it.88

3. Sanctions for Failure to Follow Discovery Rules. — The sanc-
tions for failure to comply with the discovery rules can be severe. In

Finley v. Finley89 the court of appeals upheld a trial court order that

the husband, in a dissolution of marriage action, pay for the audit of

a corporation and pay an additional $50,000 in attorney's fees to his

^Ind. R. Tr. P. 26(C) provides that, when good cause is shown, a variety of
measures can be taken by the court to protect a party from embarrassment and op-

pression.
MNo. 1978 S 221, slip op. at 12.
*5
Ia\, slip op. at 3.

m
Ind. Code § 34-1-60-4 (1976).

87No. 1078 S 221, slip op. at 11.

**Ia\, slip op. at 9. The author believes that the court should have protected the
secrecy of the names of both the male and female clients, as the court of appeals had

held. Colman v. Heidenreich, 366 N.E.2d 686 (Ind. Ct. App. 1977).
89367 N.E.2d 1126 (Ind. Ct. App. 1977). For another discussion of this case, see

Garfield, Domestic Relations, 1978 Survey of Recent Developments in Indiana Law, 12

Ind. L. Rev. 157, 187 (1978).



1979] SURVEY- CIVIL PROCEDURE 53

former wife's attorney. The additional attorney's fees were caused

by the husband's failure to adequately respond to discovery.

The appellate court said that sanctions, pursuant to Trial Rule
37(B)(2)(c),

90 were not limited to expenses for the enforcement of the

discovery order.
91 The Indiana Rules do not specifically permit the

court to make orders "as are just."92 Notwithstanding the absence of
such express language in the Indiana Rules, the intent and purpose

of the rules would best be served by permitting orders "as are

just."
93 The inherent power of the court to promote a speedy ad-

judication of the issues is another source of judicial power which

would support a finding that the trial court did not abuse its discre-

tion in ordering the sanctions.
94

Failure to comply with the discovery rules may result in
dismissal of the action. In Logal v. Cruse95 the Indiana Supreme
Court upheld a trial court ruling which dismissed the action pur-

suant to Trial Rule 37(B)(4).
96 The plaintiff, his attorney, and his

physician all failed to appear for depositions. The trial court dis-
missed the action when the plaintiff failed to pay $1,200 in costs of
depositions to the defendants as ordered by the court.

The plaintiff argued that he had no notice of the deposition, but
the supreme court stated that notice was given to the plaintiffs at-
torney as required by Trial Rule 5 and that dismissal of the action

was not an abuse of the trial court's discretion.97

D. Trial and Judgment
1. Amendment to Conform to the Evidence.—If a motion to

conform the pleadings to the evidence is improperly denied, the

court may correct the error in the entry of judgment. The court of
appeals, in Urbanational Developers, Inc. v. Shamrock Engineering,
Inc.,

98 noted that the purpose of Trial Rule 15(B)99 is to encourage

"Ind. R. Tr. P. 37(B)(2) provides in part: "The court may allow expenses, including
reasonable attorney's fees, incurred by a party, witness or person, against a party,

witness or person, responsible for unexcused conduct that is: . . . in bad faith and

abusively resisting or obstructing a deposition . . . ."

91367 N.E.2d at 1127.
92
C/. Fed. R. Civ. P. 37(b) (providing for orders "as are just").

93367 N.E.2d at 1127 (citing 2 W. Harvey, Indiana Practice 522-23 (1970)).
94367 N.E.2d at 1127.
95368 N.E.2d 235 (Ind. 1977), cert denied, 98 S.Ct. 1523 (1978). Other aspects of

this case are discussed in notes 223-26 infra and accompanying text.
m
Ia\ at 238. Ind. R. Tr. P. 37(B) provides in part:

To avoid abuse of discovery proceedings ... (4) The court may enter total or
partial judgment by default or dismissal with prejudice against a party who
is responsible under subdivision (B)(2) of this rule if the court determines

that the party's conduct has or threatens to delay or obstruct the rights of

the opposing party that any other relief would be inadequate.

"368 N.E.2d at 238.
98
372 N.E.2d 742 (Ind. Ct. App. 1978).

"Ind. R. Tr. P. 15(B) provides:



54 INDIANA LAW REVIEW [Vol. 12:42

relief to the parties based upon the evidence presented at trial, even

though the pleadings differ from the evidence presented.100 In this

case, evidence was admitted at trial without objection, but the trial
court erred in denying a motion to conform the pleadings to the

evidence pursuant to Trial Rule 15(B).101

The trial court, however, corrected the error by entering a judg-
ment which conformed to the evidence, in effect "implicitly
rescinding] the order without resulting in prejudice" to the oppos-

ing parties.102

2. Involuntary Dismissal — In Fielitz v. Allred103 the Indiana
Court of Appeals held that the standard for involuntary dismissal

under Trial Rule 4KB)104 requires the court to "consider only the

evidence most favorable to the nonmoving party in ruling upon such

a motion. The trial court may not weigh the testimony of one
witness against the conflicting testimony of another witness, nor

may it weigh conflicting portions of the testimony of the same
witness."

105 This case was incorrectly decided in this writer's opin-
ion. The standard under Trial Rule 4KB), where trial is by the court
and where the court may make findings of fact, should allow the
trial court to weigh the evidence.106 The standard which the court used
is applicable under Trial Rule 50,107 where trial is by jury. The standard

When issues not raised by the pleadings are tried by express or implied con-
sent of the parties, they shall be treated in all respects as if they had been

raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues

may be made upon motion of any party at any time, even after judgment, but
failure so to amend does not affect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within the

issues made by the pleadings, the court may allow the pleadings to be
amended and shall do so freely when the presentation of the merits of the ac-
tion will be subserved thereby and the objecting party fails to satisfy the

court that the admission of such evidence would prejudice him in maintaining

his action or defense upon the merits. The court may grant a continuance to
enable the objecting party to meet such evidence.
100372 N.E.2d at 751 (citing Ayr-Way Stores, Inc. v. Chitwood, 261 Ind. 86, 300

N.E.2d 335 (1973)).
101372 N.E.2d at 751. See also 2 W. Harvey, Indiana Practice 122 (1970).
102372 N.E.2d at 752.
103364 N.E.2d 786 (Ind. Ct. App. 1977).
104
Ind. R. Tr. P. 4KB) provides in part that a party may move for dismissal, where

trial is by court, "on the ground that considering all the evidence and reasonable in-

ferences therefrom" the allegations of the nonmoving party cannot be sustained.
106364 N.E.2d at 787 (quoting Building Syss., Inc. v. Rochester Metal Prod., Inc., 340

N.E.2d 791, 793 (Ind. Ct. App. 1976)). See also 3 W. Harvey. Indiana Practice 212
(1970) (Civil Code Study Commission Comments).

1MSee 3 W. Harvey, Indiana Practice 217 (1970) (author's comments).
107
Ind. R. Tr. P. 50 provides for judgment on the evidence.



1979] SURVEY-CIVIL PROCEDURE 55

under Trial Rule 50 should have no application to a motion

made under Trial Rule 4KB).
An interesting variation of the problem just discussed was

presented in Board of Aviation Commissioners v. Schafer.
108 The

plaintiff agreed with the trial court that the standard under Trial

Rule 4KB) for involuntary dismissal is that the court must consider
only the evidence and reasonable inferences most favorable to the

nonmoving party.109 The plaintiff, however, claimed that when
special findings of fact are requested, as provided by Trial Rule

52(A) and Trial Rule 4KB), the court must weigh the evidence. The
court of appeals rejected this argument, and stated: "[E]ven where a
motion for special findings of fact has been made, the trial court

must view the evidence in a light most favorable to the plaintiff or
party with the burden of proof." 110 This case was incorrectly decided,
in this writer's opinion, for the same reasons as Fielitz.

Trial Rule 41(A)(2) provides, in part: "[A]n action shall not be

dismissed at the plaintiffs instance save upon order of the court and

upon such terms and conditions as the court deems proper." 111 In
City of Indianapolis v. Central Railroad,

112
the court of appeals inter-

preted this language to mean that attorney's fees may not be award-
ed pursuant to Trial Rule 41(A)(2). 113 While noting that federal courts

have awarded attorney's fees under Federal Rule of Civil Procedure

4Kb), the court found no Indiana cases in which the court awarded

attorney's fees under Trial Rule 41(A)(2). 114 The only Indiana cases
which had interpreted this language in Trial Rule 4KB) were State
v. Holder115 and State v. Rentefiler, 11* in which one judge specifically

rejected the argument that "terms and conditions" could include an

award of attorney's fees.117 Consequently, the court of appeals
denied an award of attorney's fees under Trial Rule 41.118

3. Judgment on the Evidence. — In American Turners of South
Bend v. Rodefer119 the court of appeals stated that, when a party

108366 N.E.2d 195 (Ind. Ct. App. 1977).
W9Contra, 3 W. Harvey, Indiana Practice 217 (1970) (author's comments).
u0366 N.E.2d at 197. Compare Schafer with the supreme court's opinion in State

ex reL Peters v. Bedwell, 371 N.E.2d 709 (Ind. 1973), and the discussion at notes 149-52

infra and accompanying text.
u1
Ind. R. Tr. P. 41(A)(2).

112369 N.E.2d 1109 (Ind. Ct. App. 1977).
m

Ia\ at 1114.
n
*Ia\ See also Wilson v. Jolly, 7 F.R.D. 649 (D.C. Tex. 1948).

115260 Ind. 336, 295 N.E.2d 799 (1973).
n6

Ia\

ni
Ia\ at 336, 348-49, 295 N.E.2d at 799, 801-02 (Prentice, J., concurring).

118369 N.E.2d at 1114.
119372 N.E.2d 516 (Ind. Ct. App. 1978).



56 INDIANA LAW REVIEW [Vol. 12:42

moves for judgment on the evidence under Trial Rule 50(A),120 the
trial court must

consider only the evidence and reasonable inferences most
favorable to the nonmoving party. The motion may be
granted only if there is no substantial evidence or

reasonable inference to be drawn therefrom to support an
essential element of the claim. If there is any evidence or
reasonable inferences to be drawn from the evidence, or if
reasonable men might differ, then judgment on the evidence
is improper.121

In this case, Rodefer argued that, where both parties have moved
for judgment on the evidence, the case is withdrawn from the jury.
Thus, the court would be the trier of fact, and would have to weigh

the evidence. The court disagreed with Rodefer and held that Trial
Rule 50(A) was intended to supersede the law prior to Trial Rule 50
which was that a motion for a directed verdict by both parties waived
the right to jury trial.122

k. Summary Judgment. — In Randolph v. Wolff123 the plaintiff
brought an action for breach of contract for the sale of certain land.

The dispute centered around the interpretation of a document which
described the boundaries of the land to be sold. In support of his

motion for summary judgment, the defendant presented a survey
which contained his interpretation of the document and another
survey which purported to contain the plaintiffs interpretation of

the document. The defendant then claimed that the plaintiffs inter-
pretation would not be admissible due to the Statute of Frauds.

The Indiana Court of Appeals reversed the trial court's grant of
the motion for summary judgment.124 The appellate court held that
the trial court may not speculate on what evidence the plaintiff will
present at trial.125 Trial Rule 56(C) states that summary judgment is

120
Ind. R. Tr. P. 50(A) provides in part:

Where all or some of the issues in a case tried before a jury or an advisory
jury are not supported by sufficient evidence or a verdict thereon is clearly

erroneous as contrary to the evidence because the evidence is insufficient to

support it, the court shall withdraw such issues from the jury and enter

judgment thereon or shall enter judgment thereon notwithstanding a verdict.
121372 N.E.2d at 517 (citing Huff v. Travelers Indem. Co., 363 N.E.2d 985 (Ind.

1977). See Vernon Fire & Cas. Ins. Co. v. Sharp, 349 N.E.2d 173 (Ind. 1976); Lake Mort-
gage Co. v. Federal Nat'l Mortgage Ass'n, 159 Ind. App. 605, 308 N.E.2d 739 (1974),

transfer denied, 262 Ind. 601, 321 N.E.2d 556 (1975); Harvey, 1977 Survey, supra note

30, at 66.
122372 N.E.2d at 518 (citing 3 W. Harvey, Indiana Practice 365 (1970)).
123374 N.E.2d 533 (Ind. Ct. App. 1978).
m

Ia\ at 536.
m

Ia\ at 535.



1979] SURVEY-CIVIL PROCEDURE 57

proper only if "there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of

law."
126 Since boundaries of land were in question, a material fact

was in issue, making summary judgment improper. The plaintiff was
entitled to an attempt to introduce whatever evidence he might

have to support his claim.

A court may grant summary judgment in response to a defense
raised in the pleadings under Trial Rule 12(B)(6), 127 in response to a

motion under Trial Rule 12(B)(6), or in response to a motion for sum-

mary judgment under Trial Rule 56. In Middelkamp v. Hanewich, 128

the defendants, in their answer to the complaint, asserted the

defense of failure to state a claim upon which relief can be granted.

The trial court then granted summary judgment from which the
plaintiffs appealed.

In affirming the trial court ruling, the court of appeals inter-

preted Trial Rule 12(B), which provides in part: "If, on a motion,
asserting the defense number (6), to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters
outside the pleading are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment . . . ." 129

The court held that Trial Rule 12(B) does not distinguish between
defenses raised pursuant to Trial Rule 12(B)(6) which are raised by
motion, and those which are raised in a responsive pleading.130 Con-
sequently, where one asserts a defense under Trial Rule 12(B)(6) in a
responsive pleading, it will be treated as a motion to dismiss.131 If

matters outside the pleadings are presented to and not excluded by
the court, then the "motion to dismiss" will be treated as a motion

for summary judgment.132

The defense of lack of jurisdiction, pursuant to Trial Rule
12(B)(1),

133 should not be asserted by a motion for summary judg-
ment. In Department of Revenue v. Mumma Brothers Drilling Co. 1M

126
Ind. R. Tr. P. 56(C).

127
Ind. R. Tr. P. 12(B)(6) is the defense of failure to state a claim upon which relief

can be granted.
128364 N.E.2d 1024 (Ind. Ct. App. 1977).
m

IcL at 1028 (quoting Ind. R. Tr. P. 12(B)).
m

I<L Ind. R. Tr. P. 12(B) provides in part: "Every defense . . . shall be asserted in

the responsive pleading ... if one is required; except that at the option of the pleader,

the following defenses may be made by motion; ... (6) Failure to state a claim upon
which relief can be granted . . . ."

131364 N.E.2d at 1028.
m

IdL Accord, Alabama State Fed'n of Labor v. Kurn, 46 F. Supp. 385 (D. Ala.

1974).
133
Ind. R. Tr. P. 12(B) provides in part that the defense of lack of jurisdiction of

the subject matter may be made by a responsive pleading or by a motion.
134364 N.E.2d 167 (Ind. Ct. App. 1977).



58 INDIANA LAW REVIEW [Vol. 12:42

the court of appeals held that, if the defense of lack of jurisdiction is

raised by a motion for summary judgment, the court should merely
treat it as a motion to dismiss under Trial Rule 12(B)(1).135 Thus, if

one alleges lack of jurisdiction in a motion for summary judgment,
the effect will be the same as if he had made a motion to dismiss for
lack of jurisdiction.

5. Default Judgment.— The court of appeals, in Protective In-
surance Co. v. Steuber, 136 held that the notice requirement of Trial

Rule 55(B)137 does not apply to a defaulting party who has failed to
appear in the action.138 If the party against whom a default judgment
is sought has appeared, however, written notice of the application

for judgment must be given to the party at least three days before
the hearing.139

If a default judgment is entered on the issue of a party's liabili-
ty, the party may still be entitled to a jury trial on the issue of
damages. In Kirk v. Harris 1 * a default judgment was entered
against the defendant, Harris, who subsequently appeared by
counsel and demanded a jury trial on the issue of damages. Kirk ap-
pealed the trial court ruling which granted Harris' demand for a
jury trial, even though Kirk had previously requested a jury trial.

The Indiana Court of Appeals noted that Trial Rule 55(B) pro-
vides, in part: "If ... it is necessary to take an account or to deter-

mine the amount of damages . . . the court . . . shall accord a right of
trial by jury to the parties when and as required."141 Also, the defend-
ant pointed out that, since the plaintiff had previously demanded a
jury trial, Trial Rule 38(D) prevented the court from withdrawing

the right to trial by jury without the permission of all parties.142

Further, the court said that, under Trial Rule 39(A)(2), the trial court

must grant a jury trial on any issue to which a party is entitled to a
jury trial as of right, provided that the party has made a demand

135364 N.E.2d at 170 (citing Marhoefer Packing Co. v. Ind. Dep't of State Revenue,

157 Ind. App. 505, 301 N.E.2d 209 (1973)).
136370 N.E.2d 406 (Ind. Ct. App. 1977). Other aspects of this case are discussed in

notes 215-22 infra and accompanying text.
137
Ind. R. Tr. P. 55(B) provides in part: "If the party against whom judgment by

default is sought has appeared in the action, he . . . shall be served with written notice

of the application for judgment at least three [3] days prior to the hearing on such ap-

plication."
138370 N.E.2d at 410.
m

Ia\ at 409 (citing Northside Cab Co. v. Penman, 156 Ind. App. 577, 297 N.E.2d
838 (1973); Hiatt v. Yergin, 152 Ind. App. 497, 284 N.E.2d 834 (1972)).

U0364 N.E.2d 145 (Ind. Ct. App. 1977).
U1

la\ at 147 (quoting Ind. R. Tr. P. 55(B)).
U2
Ind. R. Tr. P. 38(D) provides in part: "A demand for trial by jury made as herein

provided may not be withdrawn without the consent of the other party or parties."



1979] SURVEY-CIVIL PROCEDURE 59

for a jury trial.
143 Consequently, the trial order which granted a jury

trial was affirmed.144

6. Relief from Verdict. — If a trial court vacates a prior judg-
ment pursuant to Trial Rule 59(E)(7), the court must state the
reasons for its action. In Reynolds v. Meehan1 *5 the trial court
vacated the judgment against one defendant, but ordered the judg-
ment against two other defendants to remain in full force. Trial Rule
59(E)(7) provides, in part: "If corrective relief is granted, the court

shall specify the general reasons therefor." 146 The court of appeals
wrote that Trial Rule 59(E)(7) "affords the litigants a statement of

why the court has acted and makes a record sufficient for the court
to review on appeal." 147 To ensure that the action which the trial
court took was proper, the court of appeals reversed and remanded
the case to the trial court, with instructions for the trial court to

comply with Trial Rule 59(E)(7). 148

In State ex rel Peters v. Bedwell1*9 the Indiana Supreme Court
discussed the standard for entry of judgment by the court pursuant

to Trial Rule 50(A)150 and Trial Rule 59(E)(7).151 The court noted that
the identical language in these rules, that the verdict is "clearly

erroneous as contrary to . . . the evidence,"
152

is new legal language
which must be interpreted consistently with the right to jury trial

under the Indiana Constitution.153 Thus, the jury may find against a
party who has the burden of proof, even if that party has established
a prima facie case. The court stated: "It is only where there is no
reasonable dispute as to the facts, where the evidence for the party
bearing the burden of proof is uncontradicted and unimpeached, that

the trial court may enter judgment in favor of a party having the
burden of proof." 154

143364 N.E.2d at 147. Accord, Bash v. Van Osdol, 75 Ind. 186 (1881); Briggs v.
Sneghan, 45 Ind. 14 (1873).

144364 N.E.2d at 147.
146375 N.E.2d 1119 (Ind. Ct. App. 1978).
146
Ind. R. Tr. P. 59(E)(7).

147375 N.E.2d at 1123.
148/d
149371 N.E.2d 709 (Ind. 1978).
mSee note 120 supra.
161
Ind. R. Tr. P. 59(E)(7) provides in part:

In reviewing the evidence, the court shall grant a new trial if it deter-
mines that the verdict of a non-advisory 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 ....
152371 N.E.2d at 712.
163
Ind. Const, art. 1, § 20.

154371 N.E.2d at 712 (citing Chesapeake & 0. Ry. v. Martin, 283 U.S. 209 (1930);
Federal Ins. Co. v. Summers, 403 F.2d 971 (1st Cir. 1968); Friedline v. State, 93 Ind. 366



60 INDIANA LAW REVIEW [Vol. 12:42

In Peters, a jury had found in favor of the defendants in a

medical malpractice action. The supreme court held that the trial
court could not substitute a judgment in favor of the plaintiff, for

the evidence was subject to reasonable dispute.155

7. Relief from Judgment. — In Irmiger v. Irmiger1™ the trial
court denied a motion by the defendant to correct errors. Instead of

appealing that ruling, the defendant moved under Trial Rule 60 for
relief from judgment, alleging excusable neglect and surprise. Ap-

peal was taken from the denial of the motion for relief from judg-
ment. The court of appeals dismissed the appeal, stating that Trial
Rule 59(A)(9)157 is a "catch all" provision which includes the grounds

of surprise and excusable neglect.158 Further, any error which can be

corrected under Trial Rule 60 may be asserted in a motion to cor-
rect errors.

159 Thus, since the defendant attempted to raise errors in

a motion pursuant to Trial Rule 60 that could have been raised in a

motion to correct errors, the motion for relief from judgment was
properly denied.160

In Sheraton Corp. of America v. Korte Paper Co.
m the trial

court had entered judgment against Korte and no appeal was taken
after denial of the motion to correct errors. Subsequently, in

Sheraton Corp. of America v. Kingsford Packing Co.,
162 an unrelated

case with allegedly identical facts, the Indiana Court of Appeals held

the law to be contrary to the law applied by the trial court in Korte.

Korte then sought to obtain relief from judgment pursuant to Trial
Rule 60(B)(8), 163 claiming that the decision in Kingsford demonstrated

that the trial court was in error. The court of appeals held that, in-
deed, the subsequent decision in Kingsford demonstrated that if

Korte had appealed his case, he would have been successful.164

(1884); Gaff v. Greer, 88 Ind. 122 (1882); Fowler Utils. Co. v. Chaffin Coal Co., 43 Ind.

App. 438, 87 N.E. 689 (1909); Stephens v. American Car & Foundry Co., 38 Ind. App.
414, 78 N.E. 335 (1906)).

156371 N.E.2d at 712.
166364 N.E.2d 778 (Ind. Ct. App. 1977).
157
Ind. R. Tr. P. 59(A) provides: "The Court . . . shall enter an order for the correc-

tion of errors . . ., including . . . the following: ... (9) For any reason allowed by these

rules, statute or other law."
168364 N.E.2d at 780.
159/d
mId (citing Warner v. Young America Volunteer Fire Dept., 326 N.E.2d 831 (Ind.

Ct. App. 1975)).
161363 N.E.2d 1263 (Ind. Ct. App. 1977).
162319 N.E.2d 852 (Ind. Ct. App. 1974).
183
Ind. R. Tr. P. 60(B)(8) provides in part that the court may grant relief from a

final judgment, order, default or proceeding for "any . . . reason justifying relief from

the operation of the judgment."
1M363 N.E.2d at 1265. See, e.g., Martin v. Ben Davis Conservancy Dist., 238 Ind.

502, 153 N.E.2d 125 (1958).



1979] SURVEY-CIVIL PROCEDURE 61

However, it is only where additional facts invoke "the court's equity

power to do justice that a party under the auspices of TR 60 may
seek relief on equitable grounds from a prior judgment which has

become final . . . ." 165 Accordingly, the trial court abused its discre-
tion in granting relief under Trial Rule 60.

In State v. Martinsville Development Co., m the defendant moved
under Trial Rule 60(B)(7)167 for an award of additional damages, ten
years after judgment was originally entered. The court of appeals
pointed out that under Trial Rule 60(B)(7) the judgment must have
prospective application for the rule to apply.168 Since no Indiana case

had interpreted this language, the court turned to the federal cases

which had interpreted identical language in Federal Rule 60(b)(5).

Most of the federal cases dealt with injunctions,169 but the court
stressed that relief pursuant to Trial Rule 60(B)(7) is not limited to

relief from the effect of an injunction.170 The court said that a judg-
ment has prospective application under Trial Rule 60(B)(7)

when a person's right to do or not to do some act is con-
tinuously affected by the operation of the judgment in the
future; or, the judgment is specifically directed toward some
event which is to take place in the future and does not simply

serve to remedy past wrongs. 1171

The court found that money judgments do not have prospective
application, and reversed the trial court judgment which had
granted relief pursuant to Trial Rule 60(B)(7).172

E. Appeals

1. Instructions. — The court of appeals, in State Farm Mutual
Automobile Insurance Co. v. Shuman1™ held that Trial Rule 51(C)174

166363 N.E.2d at 1265.
186366 N.E.2d 681 (Ind. Ct. App. 1977).
167
Ind. R. Tr. P. 60(B)(7) provides that the court may grant relief from a final judg-

ment, order, default, or proceeding when "the judgment has been satisfied, released,
or discharged, or a prior judgment upon which it is based has been reversed or other-

wise vacated, or it is no longer equitable that the judgment should have prospective

application . . . ."

168366 N.E.2d at 684 (citing 7 J. Moore, Federal Practice § 60.26[4] (2d ed. 1948);
11 C. Wright & A. Miller, Federal Practice and Procedure § 2863 (1973)).

lfl9
See, e.g., United States v. Swift & Co., 286 U.S. 106 (1932); Pennsylvania v.

Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855); Coca-Cola Co. v.
Standard Bottling Co., 138 F.2d 788 (10th Cir. 1943).

170366 N.E.2d at 684. See Equitable Life Assurance Soc'y of United States v.

MacGill, 551 F.2d 978 (5th Cir. 1977) (declaratory judgment awarding attorney's fees
modified pursuant to Fed. R. Civ. P. 60(b)(5)-(6)).

171366 N.E.2d at 685.
172ta
178370 N.E.2d 941 (Ind. Ct. App. 1977). Other aspects of this case are discussed in

notes 28-36; 45-48, & 61-67 supra and accompanying text.
174
Ind. R. Tr. P. 51(C) provides in part: "No party may claim as error the giving of



62 INDIANA LAW REVIEW [Vol. 12:42

requires a party to object to an instruction which was given to the
jury, but not to a requested instruction that was refused.

If a court commits a fundamental or plain error in giving an in-

struction, a party is not required to object to preserve the issue for

appeal. The rationale is that fundamental error denies the injured
party "fundamental due process." 175 In United Farm Bureau Family
Life Insurance Co. v. Fultz™ the appellate court held that fundamen-

tal error is not equivalent to prejudicial error.177 Rather, "[fun-

damental . . . error results only where a statement is made or an act
is done which results in prejudicial error that goes to the very heart

of a party's case and where that statement or act is wholly outside
of the preventive or corrective powers of that party." 178 Thus, an in-

struction which shifted the burden of proof was not fundamental er-
ror because the error could have been corrected by a timely

motion.

2. Record of Proceedings. — In Dahlberg v. Ogle 179 the judge's
certificate stated that the transcript of the proceedings had been filed,

but the transcript did not show a file stamp, the clerk's certificate
did not state that the transcript had been filed, and the order book

did not state that the transcript had been filed with the court. The
Indiana Supreme Court held that, notwithstanding the requirements
of Appellate Rule 7.2(A)(4),180 the trial judge's certificate sufficiently

evidenced the filing of the record.181

The court of appeals, in Crown Aluminum Industries v. Wabash
Co.,

182
held that it was error for the trial judge to refuse a request

pursuant to Appellate Rule 7.2(D)183 for a transcript of the record.
184

an instruction unless he objects thereto before the jury retires to consider its verdict,

stating distinctly the matter to which he objects and the grounds of his objection."
175Malo v. State, 361 N.E.2d 1201 (Ind. 1977).
m375 N.E.2d 601 (Ind. Ct. App. 1978).
™Id. at 610.
178ta at 611.
179364 N.E.2d 1174 (Ind. 1977).
180
Ind. R. App. P. 7.2(A)(4) provides:

The transcript of the proceedings at the trial, including all papers, ob-
jections and other matters referred to above shall be presented to the judge

who presided at the trial, who shall examine the same and if not true, correct
the same without delay, and as finally settled by the court, shall sign the

same, certifying to the same as being true and correct in said proceedings,

and order the same filed and made a part of the record in the clerk's office.
181364 N.E.2d at 1175.
182369 N.E.2d 945 (Ind. Ct. App. 1977).
188
Ind. R. App. P. 7.2(D) provides in part: "In all appeals from judgments determin-

ing the nomination or relation by the voters of any public officer, the original con-

troverted ballots, papers, or other documents material to the determination of the

nomination or election shall be made a part of the record on appeal . . . ."
184369 N.E.2d at 947.



1979] SURVEY-CIVIL PROCEDURE 63

Here, the appellant had failed to make a timely appeal after the
denial of his motion to correct errors. Thus, even though the trial

judge may believe that the appellant is not entitled to relief upon
appeal, the trial court may not withhold the record. 185

3. Briefs. — Attorneys must insure that their briefs meet the
requirements in Appellate Rule 8.3(A)(7). 186 In Hyatte v. Lopez181 the

court of appeals held that an appellant's brief which neither cited

authority nor argued in support of the contentions raised in the

brief was not adequate for appeal.188 Thus, the contentions raised in
the brief without support were waived.

On the other hand, substantial compliance with Appellate Rule
8.3(A)(7) may be sufficient. In Dahlberg the supreme court held that,
where the brief paraphrased the error assigned in the motion to cor-

rect errors and the opposing parties could respond without undue

hardship or extraordinary expense, substantial compliance with Ap-

pellate Rule 8.3(A)(7) would suffice.189 Hence, even though the brief

did not point out verbatim objections to the instructions which were

allegedly in error, the purpose of Appellate Rule 8.3(A)(7) had been

met.

k. Interlocutory Appeals. — In Indiana Bell Telephone Co. v.
Friedland190 the trial court had certified an action as a class action

pursuant to Trial Rule 23(A) and (B)(3). The court of appeals held
that, on review of an interlocutory order certifying a class action,

the appellate court can decide whether the trial court had subject

matter jurisdiction to hear the case.191 The court stated that lack of
jurisdiction over the subject matter can be raised at any time before

final decision, in the trial court or on appeal.192 Also, under Trial

Rule 23(B)(3), the court must determine whether the class action is
"superior to other available methods for the fair and efficient ad-
judication of the controversy." 193 If the trial court does not have sub-

mld
186
Ind. R. Tr. P. 8.3(A)(7) provides in part:

Each error assigned in the motion to correct errors that appellant intends to
raise on appeal shall be set forth specifically and followed by the argument
applicable thereto .... The argument shall contain the contentions of the ap-
pellant with respect to the issues presented, the reasons in support of the

contentions along with citations to the authorities, statutes, and parts of the

record relied upon, and a clear showing of how the issues and contentions in
support thereof related to the facts of the case under review.
187366 N.E.2d 676 (Ind. Ct. App. 1977).
mId at 679.
189364 N.E. 2d at 1175.
190373 N.E.2d 344 (Ind. Ct. App. 1978).
m

I<L at 346-47.
192ta (citing Decatur REMC v. PSC, 150 Ind. App. 193, 197, 275 N.E.2d 857, 860

(1971)).

193373 N.E.2d at 347 (quoting Ind. R. Tr. P. 23(B)(3)).



64 INDIANA LAW REVIEW [Vol. 12:42

ject matter jurisdiction, then, certainly, the class action is not a

"superior" method of adjudication of the controversy.194 Thus, the
appellate court reversed the class certification due to the lack of

subject matter jurisdiction at the trial court level. 195

The court of appeals, in U.S. Aircraft Financing, Inc. v.
Jankovich, 196 determined that the granting of a motion to intervene

is a nonappealable interlocutory order.197 It had been decided, in

Weldon v. State, 198 that an order denying intervention was ap-
pealable as a final order.

199 The court of appeals distinguished that
case, however, by reasoning that a denial of intervention determines
the outcome of a party's interest in the litigation, whereas an order
granting intervention does not.200 Thus, since an order granting in-

tervention is not a final order, it is not appealable under Appellate

Rule 4(B).201 Further, Trial Rule 24(C) provides, in part: "The court's
determination upon a motion to intervene may be challenged only
by appeal from the final judgment or order in the cause."202 Accord-
ingly, the appellate court did not decide whether the intervention
order was proper.

In In re Newman203 the Indiana Court of Appeals interpreted
Appellate Rule 4(B)(1)204 to mean that an award of attorney fees is an
appealable interlocutory order.205 Also, the court held that the

failure to take an interlocutory appeal would not preclude the

availability of appeal after final judgment unless the trial court had
entered final judgment under Trial Rule 54(B).206 Interlocutory

194373 N.E.2d at 347.
195/d at 352.
196365 N.E.2d 783 (Ind. Ct. App. 1977).
197d at 785.
198258 Ind. 143, 279 N.E.2d 554 (1972).
m

Id. at 145-46, 279 N.E.2d at 555-56.
200365 N.E.2d at 785.
™X

I<L at 785. Ind. R. App. P. 4(B) describes specific circumstances under which an

interlocutory order may be appealed. Apparently, the court of appeals determined that
the granting of a motion to intervene does not fall within any of the circumstances

described in 4(B).
202
Ind. R. Tr. P. 24(C).

™ZW N.E.2d 427 (Ind. Ct. App. 1977).
^Ind. R. App. P. 4(B) provides in part: "[A]ppeal from interlocutory orders shall

be taken to the Court of Appeals in the following cases:

(1) For the payment of money . . . ."
205369 N.E.2d at 432.
mId at 431. Ind. R. Tr. P. 54(B) provides in part:
A judgment as to one or more but fewer than all of the claims or parties is
final when the court in writing expressly determines that there is no just

reason for delay, and in writing expressly directs entry of judgment, and an

appeal may be taken upon this or other issues resolved by the judgment; but
in other cases a judgment, decision or order as to less than all the claims and

parties is not final.



1979] SURVEY-CIVIL PROCEDURE 65

orders which would no longer be in effect after final judgment, such

as preliminary injunctions, however, would not be subject to review

after final judgment. The court stated that it would be a waste of
time to consider an order which no longer had any practical effect,

such as a temporary restraining order.207

In Costanzi v. Ryan208 the appellant failed, initially, to include an
assignment of errors in the record for appeal as required by Ap-

pellate Rule 7.2(A)(1) and failed to file the record within thirty days

of the ruling as required by Appellate Rule 3. The appellant,
however, eventually placed an assignment of error and an amended
table of contents in the record when the brief was filed. On appeal
of the interlocutory order requiring the appellant to answer certain

interrogatories, the court of appeals stated that the supreme court
has inherent power to permit appeals after the time provided in the
rules,

209 and that the court of appeals, as a court created by the

Indiana Constitution,210 also has this inherent power.211 In addition,

the appeals court said that the supreme court has granted the court

of appeals a broad power to provide procedural steps for an appeal
under Appellate Rule 4(B)(5).212 Consequently, where the other party
will not be prejudiced by an appeal under Appellate Rule 4(B)(5), the

appellate court can permit the appeal, notwithstanding any pro-

cedural errors by the appellant.213 The appellee's motion to dismiss
the appeal was dismissed.214 Thus, the court distinguished the pro-
cedural requirements mandated by the Appellate Rules where an in-
terlocutory appeal is taken of right from those where the appeal is
taken pursuant to Appellate Rule 4(B)(5).

5. Default Judgment on Appeal— The Indiana Court of Ap-
peals, in Protective Insurance Co. v. Steuber, 215 modified an earlier

opinion in Yerkes v. Washington Manufacturing Co. 216 In Yerkes the
court had said that the only way to appeal a default judgment was
to file a motion under Trial Rule 60(B)217 and to then appeal from the

^S^ N.E.2d at 432.
^S N.E.2d 12 (Ind. Ct. App. 1977).
m

Id. at 16 (citing State ex reL Thomas v. Elkhart Cir. Ct., 228 Ind. 572, 94 N.E.2d
485, cert denied, 340 U.S. 922 (1950)).

210
Ind. Const, art. 7, § 5.

2U368 N.E.2d at 16.
212/d
213/d at 17.
21
*Id at 18.

216370 N.E.2d 406 (Ind. Ct. App. 1977). Other aspects of this case are discussed at

notes 136-39 supra and accompanying text.
216326 N.E.2d 629 (Ind. Ct. App. 1975), modified by Protective Ins. Co. v. Steuber,

370 N.E.2d 406, 408-09.
217
Ind. R. Tr. P. 60(B)(5) provides for relief from judgment, order, default, or pro-

ceeding.



66 INDIANA LAW REVIEW [Vol. 12:42

trial court ruling on the 60(B) motion.218 The first district court
modified Yerkes to conform with the rules in the other districts of

the court of appeals. The second219 and the third districts220 of the
court of appeals had held that appeal of a default judgment could be
taken under Trial Rule 59221 where an error of law was alleged.
Thus, Steuber modified Yerkes to the extent that Yerkes did not

permit an appeal of a default judgment under Trial Rule 59 where

an error of law was alleged.222

6. Appeal of Relief from Judgment. — In Logal v. Cruse223 the
Indiana Supreme Court adopted new procedures for disposition of a
motion for relief from judgment while the judgment is on appeal.224

The supreme court noted that the time limit for the assertion of a
Trial Rule 60(B) motion is significantly longer under the Indiana
rules than the federal rules, and, thus, sufficient grounds for a 60(B)

motion during appeal will probably be less frequent under the

218326 N.E.2d at 633.
219Kelly v. Bank of Reynolds, 358 N.E.2d 146 (Ind. Ct. App. 1976).
mIn re Marriage of Bobbins, 358 N.E.2d 153, 155 (Ind. Ct. App. 1976).
^Ind. R. Tr. P. 59 provides for a motion to correct errors.
222370 N.E.2d at 408-09.

™368 N.E.2d 235 (Ind. 1977), cert, denied, 98 S.Ct. 1523 (1978). Other aspects of
this case are discussed in notes 95-97 supra and accompanying text.

^Id. at 237. The procedures adopted were:

(1) The moving party files with the appellate court an application for
leave to file his 60(B) motion. This application should be verified and should

set forth the grounds relied upon in a specific and nonconclusory manner.

(2) The appellate court will make a preliminary determination of the
merits of the movant's 60(B) grounds. In so doing the appellate court will

determine whether, accepting appellant's specific, non-conclusory factual

allegations as true there is a substantial likelihood that the trial court would

grant the relief sought. Inasmuch as an appellate court is not an appropriate

tribunal for the resolution of factual issues, the opposing party will not be

allowed to dispute the movant's factual allegations in the appellate court.

(3) If the appellate court determines that the motion has sufficient merit,

as described in the preceding paragraph, it will remand the entire case to the
trial court for plenary consideration of the 60(B) grounds. Such remand order
will terminate the appeal and the costs in the appellate court will be ordered

taxed against the party procuring the remand. The decision to remand does
not require the trial court to grant the motion. If the trial court denies the

motion, the movant should file a motion to correct errors addressed to this
denial, and appeal the denial. In this new appeal any of the issues raised in
the original appeal may be incorporated, without being included in the
second motion to correct errors.

(4) If the trial court grants the motion, the opposing party may appeal
that ruling under the same terms as described in paragraph (3). The original
appeal shall be deemed moot.

(5) If the appellate court denies the application for remand, that ruling

may be assigned as grounds for rehearing and, where appropriate, transfer.
Id. (citations omitted).



1979] SURVEY- CIVIL PROCEDURE 67

Indiana Rules than the federal rules.225 Hence, the supreme court

adopted the procedures of a minority of the federal courts which

minimize disruption of the appellate process when a 60(B) motion is
made while the judgment is on appeal.226

7. Motion to Correct Errors. —In the important case of P-M
Gas & Wash Co. v. Smith, 221 the Indiana Supreme Court approached
a case which Justice Hunter called a "procedural nightmare."228

Because of the confusion about the proper procedure at the trial and

appellate court level, the court clarified the procedure to be followed

in perfecting an appeal. The decision, the court said, was not dictum,
but will control all future cases dealing with motion to correct er-

rors.
229

First, the court held that Trial Rule 59(D)230 applies only where a
motion to correct errors is based upon evidence outside the
record.

231
Trial Rule 59(D) is, thus, limited strictly to that situation.

The court also held that cross-appeals are governed by Trial
Rule 59(G)232 which considers a party to be a cross-appellant even
though the party has not filed a motion to correct errors.233 If a party

wishes to become a cross-appellant, he need only make that decision
within sixty days after the entry of judgment as provided in Trial
rule 59(C).

234 The ruling on the motion to correct errors would then
be his "complaint on the cross-appeals."235

In addition, the court said that under Appellate Rule 4(A)236 a
i

™Z§S N.E.2d at 236-37.

™I& at 236. See Weiss v. Hunna, 312 F.2d 711 (2d Cir. 1963), cert denied, 374
U.S. 853 (1963).

227375 N.E.2d 592 (Ind. 1978).

™Id. at 593.

™I<L at 597-98.
230
Ind. R. Tr. P. 59(D) provides in part: "When a motion to correct errors is based

upon evidence outside the record, the cause must be sustained by affidavits showing

the truth thereof served with the motion."
231375 N.E.2d at 596 (citing 4 R. Townsend & W. Harvey, Indiana Practice 131

(1971)).

^Ind. R. Tr. P. 59(G) provides in part:

In all cases in which a motion to correct errors is the appropriate procedure

preliminary to an appeal, such motion shall separately specify as grounds

therefor each error relied upon however and whenever arising up to the time

of filing such motion. Issues which could be raised upon a motion to correct

errors may be considered upon appeal only when included in the motion to
correct errors filed with the trial court.
233375 N.E.2d at 596.

^Ind. R. Tr. P. 59(C) provides: "A motion to correct errors shall be filed not later
than sixty [60] days after the entry of judgment."

236375 N.E.2d at 596.

^Ind. R. App. P. 4(A) provides in part: "Appeals may be taken by either party
from all final judgments .... A ruling or order by the trial court granting or denying
a motion to correct errors shall be deemed a final judgment, and an appeal may be
taken therefrom."



68 INDIANA LA W REVIEW [Vol. 12:42

motion to correct errors is a final order, and that 4(A) is not incon-

sistent with Appellate Rule 2(A) or 7.2(A)(1).237 Thus, either party

could appeal the ruling on a motion to correct errors. The court
pointed out that Trial Rule 59(C) and 59(G) might suggest otherwise,

but that they will be construed consistently with Appellate Rule

4(A).
238 In so ruling, the Indiana Supreme Court overruled in whole

or in part twelve opinions which held that a second motion to cor-

rect errors was required to appeal the ruling on a previous motion
to correct errors.

239

However, if a party wishes to raise an error which occurred at
trial, or subsequently in a verdict or judgment (but not an error that
was alleged in any motion to correct errors), then Trial Rule 59(C)
would require the party to make a motion to correct errors.240 In
essence, a party would be required to make no more than one mo-
tion to correct errors. If a motion to correct errors is required of a

party, it could only be when that party is asserting an error that
was not raised in a motion to correct errors.

In Unishops, Inc. v. May's Family Centers, Inc. 241 the court of ap-
peals interpreted Trial Rule 53.1(A). Trial Rule 53.1(A) provides that

a copy of the motion to correct errors shall be personally served

upon the judge. The court of appeals held that a copy of the motion
to correct errors must be served on the judge to "invoke a dis-
qualification of the judge pursuant to TR 53.1(A), [but] it is not
necessary to perfect filing of the motion to correct errors."242

^IS N.E.2d at 594 (citing Grove, The Requirements of a Second Motion to Cor-
rect Errors as a Prerequisite to Appeal 10 Ind. L. Rev. 462 (1977)).

288375 N.E.2d at 594-95.

^Id. at 594 (overruling State v. Deprez, 260 Ind. 413, 296 N.E.2d 120, 300 N.E.2d
341 (1973); Campbell v. Mattingly, 344 N.E.2d 858 (Ind. Ct. App. 1976); Lake County
Title Co. v. Root Enter., Inc., 339 N.E.2d 103 (Ind. Ct. App. 1975); Minnette v. Lloyd,
333 N.E.2d 791 (Ind. Ct. App. 1975); Miller v. Mansfield, 330 N.E.2d 113 (Ind. Ct. App.
1975); Hansbrough v. Indiana Revenue Bd., 326 N.E.2d 599 (Ind. Ct. App. 1975); Weber
v. Penn-Harris-Madison School Corp., 317 N.E.2d 811 (Ind. Ct. App. 1974); Wyss v.
Wyss, 160 Ind. App. 281, 311 N.E.2d 621 (1974); Koziol v. Lake County Planning
Comm'n, 262 Ind. App. 343, 425 N.E.2d 374 (1974); Easley v. William, 161 Ind. App. 24,
314 N.E.2d 105 (1974); State v. Kushner, 160 Ind. App. 464, 312 N.E.2d 523 (1974);
Davis v. Davis, 159 Ind. App. 290, 306 N.E.2d 377 (1974)).

™V15 N.E.2d at 596.
241375 N.E.2d 1135 (Ind. Ct. App. 1978).
™Ia\ at 1137-38.