Indiana Law Review


III. Civil Procedure and Jurisdiction

William F. Harvey*

A. Jurisdiction, Process, Venue, and Standing

1. Jurisdiction. — In Hexter v. Hexter,^ the Indiana Court of Ap-
peals interpreted the United States Supreme Court decision in Shaf-
fer V. Heitner.^ Suit was brought to enforce three judgments

rendered by an Ohio court of general jurisdiction for arrearages in

child support payments and attorney fees. In the Indiana suit, the

plaintiff obtained in rem authority over the defendant's property.
The court of appeals sustained the jurisdiction of the Indiana trial

court against motions to dismiss which had been filed in the trial

court under Trial Rule 12(B)^ and Trial Rule 4.4(A)/ denied, and raised

on appeal. The defendant argued that under Shaffer the exercise of

*CarI M. Gray Professor of Law and former Dean, Indiana University School of
Law — Indianapolis. A.B., University of Missouri, 1954; J.D., Georgetown University,
196L

'386 N.E.2d 1006 (Ind. Ct. App. 1979). For discussion of another aspect of this

case, see text accompanying notes 64-66 infra.
^433 U.S. 186 (1977), discussed in Harvey, Civil Procedure and Jurisdiction, 1977

Survey of Recent Developments in Indiana Law, 11 Ind. L. Rev. 51, 51-52 (1978)

[hereinafter cited as Harvey, 1977 Survey].

'Ind. R. Tr. P. 12(B) provides in part:

Every defense, in law or fact, to a claim for relief in any pleading, . . . shall

be asserted in the responsive pleading thereto if one is required; except that

at the option of the pleader, the following defenses may be made by motion:

(1) Lack of jurisdiction over the subject-matter,

(2) Lack of jurisdiction over the person,

(6) Failure to state a claim upon which relief can be granted which shall

include failure to name the real party in interest under Rule 17.
"Ind. R. Tr. P. 4.4 (A) sets out seven separate bases for the assertion of jurisdic-

tion over a person or organization that is a nonresident of the state, or a resident of

the state who has left the state, or a person whose residence is unknown, as to any ac-
tion arising from the listed acts which were committed by that person or organization,
or his agent. Among those listed acts are: "(1) doing any business in this state; (2) caus-
ing personal injury or property damage by an act or omission done within this state; ... (5)
owning, using, or possessing any real property or an interest in real property within
this state . . . ."

In addition, Ind. R. Tr. P. 64(B)(2) provides for the attachment and garnishment,
at the onset of an action, of any interest in tangible or intangible property owned by
the defendant, if it is subject to execution, proceedings supplemental to execution, or

any creditor process allowed by law, except wages or salaries.
The defendant's motion to dismiss maintained, of course, that the action against

him did not fall among the jurisdictional bases under Indiana law.

57



58 INDIANA LA W REVIEW [Vol. 13:57

in rem jurisdiction over this property was improper because he had
had no contact with the State of Indiana which would support in

personam jurisdiction.
The appellate court held that while the argument "might have

had merit [if the Indiana trial court were] adjudicating some under-
lying controversy between the parties, it is of no moment where, as
here, the suit is one to enforce an existing judgment."^ The court
observed that this precise situation had been addressed in Shaffer

by Justice Marshall^ who noted that there "would seem to be no un-
fairness in allowing an action to realize on [a judgment debt from

the debtor to the plaintiff] in a State where the defendant has prop-

erty, whether or not that State would have jurisdiction to determine

the existence of the debt as an original matter."^

Another United States Supreme Court case, Kulko v. Superior
Courty^ addressed the in personam jurisdiction requirements enun-

ciated in Shaffer. In Kulko, a husband and wife had established their

marital domicile in New York, but the wife had obtained a divorce in
Haiti which included a separation agreement giving each parent cer-

tain rights of visitation concerning the children. The wife brought
suit in California to establish the divorce and to modify the custody

agreement and increase the child support obligations of the father.

The father had no earlier relationship to California other than send-
ing one of the children there to live with the mother.

The Supreme Court held that California could not assert juris-
diction over the father because the appellant had derived "no per-

sonal or commercial benefit from his child's presence in California."^

The court held further that California could not find as a basis for
personal jurisdiction under the "minimum contacts" rule that the
father had allowed one of the children to spend more time with the
mother than was required by the separation agreement. ^°

The Kulko holding, among others, was reviewed in Oddi v.
Mariner-Denver, Inc.^^ In Oddi, the plaintiff sued for injuries, claim-

ing that she had been bitten by bed bugs while staying in the defen-

dant's hotel in Denver, Colorado. Suit was brought in Indiana
against Holiday Inn of America and the Holiday Inn (Mariner-
Denver) in Denver.

The federal district court held, on a motion to dismiss, that
jurisdiction was not available under any of the provisions of Trial

^386 N.E.2d at 1007.

'Id.

M33 U.S. at 210-11 n.36.
M36 U.S. 84 (1978).
'Id. at 100.

'"Id. at 94.

"461 F. Supp. 306 (S.D. Ind. 1978).



1980] SURVEY-CIVIL PROCEDURE 59

Rule 4.4.^' The court had no jurisdiction under Trial Rule 4.4(A)(3)/'

because the out-of-state harm did not cause a tortious injury in the

State of Indiana, or under Trial Rule 4.4(A)(1), because the defendant

was not doing any business in this state. ^'' Citing both Shaffer and

Kulko, the court concluded that Mariner-Denver's contacts with In-

diana did not form the basis for the cause of action, and that there

were, at best, only the barest minimal contacts with Indiana.
^^

The court also held that there was no jurisdiction over Holiday

Inn of America, a Tennessee corporation with its principal place of

business in Tennessee:

The mere fact that it may have subsidiaries, franchisees or
licensees in this state does not subject it to the jurisdiction

of this state. The general rule is that a foreign parent cor-
poration will not be subjected to a state's jurisdiction merely

because of its ownership of a subsidiary corporation doing

business within the state. '^

The pleading of subject matter jurisdiction was also discussed
during the survey period in Campbell v. Campbell,^'' wherein the In-

diana court held that in a suit brought under a special statutory pro-

ceeding, the plaintiff must plead sufficient jurisdictional facts and
set out the statutory provision under which the plaintiff is pro-

ceeding.^*

2. Standing ("Ripeness''} in the Form of Access to Courts when
Subject Matter and Personal Jurisdiction is Established or Alleged. —
In Hines v. Elkhart General Hospital,^^ the plaintiff challenged the

constitutionality of the Indiana Medical Malpractice Act of 1975,^°

claiming, inter alia, that the statute violated article 1, section 12 of

the Indiana Constitution, which guarantees the right of access to the

''Id. at 308-10.

^^Ind. R. Tr. p. 4.4(A)(3) provides for jurisdiction over nonresidents

causing personal injury or property damage in this state by an occur-

rence, act, or omission done outside this state if he regularly does or solicits

business or engages in any other persistent course of conduct, or derives

substantial revenue or benefit from goods, materials, or services used, con-

sumed, or rendered in this state ....

'^See note 4 supra.

'H61 F. Supp. at 308-09.

''Id. ^t 310.

•'388 N.E.2d 607 (Ind. Ct. App. 1979) (child custody dispute). See notes 75-79 infra
and accompanying text.

'*/d at 609 n.3. Compare this requirement with the required plea of jurisdiction
in Fed. R. Civ. P. 8(a).

'M65 F. Supp. 421 (N.D. Ind. 1979). For a discussion of another aspect of this case,
see text accompanying notes 159-62 infra.

'"Ind. Code §§ 16-9.5-1-1 to -10-5 (1976 & Supp. 1979).



60 INDIANA LAWREVIEW [Vol. 13:57

courts of Indiana and remedy for injury to person, property, or
reputation. The plaintiff claimed that the "costs and delays resulting
from the medical review panel procedure established by the Act,

and the Act's limitation upon damages recoverable against health
care providers for medical malpractice clearly violate [the constitu-

tional] proscriptions."^^ The federal district court rejected this claim,
stating that the claimant's right to pursue his claim is not a fun-

damental right, and that the administrative remedy required in
medical malpractice statutes and the added expenses that result do

not constitute a violation of due process.^^
The Indiana Supreme Court held, in Wilson v. Review Board of

Indiana Employment Security Division,^^ that under certain cir-
cumstances a trial court could entertain an action even though the

plaintiff had failed to exhaust her administrative remedies.^'' The
plaintiff challenged the procedures employed by the defendant on

constitutional grounds, contending that under the Indiana Employ-

ment Security Act,^^ the court of appeals has the exclusive right to
review decisions by the board, and that the trial court was without
jurisdiction in this case.^*^

The court observed that the rule requiring exhaustion of ad-
ministrative remedies "should not be applied mechanistically."^^ In-

stead, the court should consider the following pertinent factors:

"[T]he character of the question presented, i.e., whether the question
is one of law or fact; the adequacy or competence of the available ad-

ministrative channels to answer the question presented; the extent
or imminence of harm to the plaintiff if required to pursue ad-
ministrative remedies, and; the potential disruptive effect which

judicial intervention might have on the administrative process."^^

The supreme court concluded that in the present case the ques-
tion presented was of a "constitutional character, [involving] a purely
legal issue . . . beyond the expertise of the Division's administrative

channels and . . . thus a subject more appropriate for judicial con-
sideration."^^

3. Standing in the Form of Determining Whether a Party Can
Invoke the Court's Jurisdiction. —In Board of Trustees v. City of

^^465 F. Supp. at 431-32.

^^Id. at 433. The court also observed that if suit is filed and the case goes to trial,

"the judge or jury remain the final arbiter of factual questions concerning the liability

and quantum." Id. (quoting Everett v. Goldman, 359 So. 2d. 1256, 1269 (La. 1978)).

^^385 N.E.2d 438 (Ind. 1979).

''Id. at 441.

^^IND. Code §§ 22-4-1-1 to -8-3 (1976 & Supp. 1979).
''See id. § 22-4-32-13 (1976).

"385 N.E.2d at 441.

''Id.

''Id.



1980] SURVEY-CIVIL PROCEDURE 61

Fort Wayne,^^ the Indiana Supreme Court held that, because stand-
ing determines whether the complaining party is a proper party to

invoke a trial court's jurisdiction, lack of standing is a restraint

upon the court's exercise of jurisdiction. If there is no demonstrable

injury to the complaining party or person, the trial court cannot pro-

ceed.^^ Thus, standing is used here to define a jurisdictional element

of a case or controversy, without which the court has no authority

or power to render a decision on a dispute before it.^^

A similar case^^ developed when the Indiana Medical Licensing
Board adopted certain resolutions which defined the practice of

chiropractic in such a way that chiropractic analysis did not include
the performance and interpretation of cardiograms, blood tests,

urinalysis, or other analyses.^'' The Indiana State Chiropractic
Association and the Indiana Society of Chiropractic Physicians filed

suit for declaratory and injunctive relief, alleging that the proposed

rules would emasculate the practice of chiropractic in Indiana.

The court of appeals held that in the absence of a showing of in-
jury to the associations, they did not have standing to bring the ac-

tion.^^ Because the individual chiropractors, and not the associations,

would be subject to malpractice claims, there was no showing of in-
fringement of the associations' legal interest.^^ Citing City of In-

dianapolis V. Indiana State Board of Tax Commissioners,^'' which
held that the absence of standing was a restraint upon the trial
court's jurisdiction, the court concluded that the trial court could

not proceed.^^

•4. Service of Process. —In Green v. Carlson,^^ the plaintiff was
the administratrix of the estate of a deceased prisoner who had
been in a federal prison in Terre Haute, Indiana. Suit was brought
against certain prison administration officials and other employees,

alleging, generally, that the defendants were responsible for the
death of the deceased. Process was effected upon the Assistant
Surgeon General of the United States, Mr. Brutshe, and upon the

^°375 N.E.2d 1112 (Ind. 1978).

''Id. at 1117.

'^Id. The case was remanded to the trial court for a determination of the issue of

standing of the City of Fort Wayne. This litigation, brought to decide questions of an-

nexation of territory in Allen County, has proceeded for 27 years. Id. at 1114.

^^Medical Licensing Bd. v. Indiana State Chiropractic Ass'n, 373 N.E.2d 1114 (Ind.

Ct. App. r978).

''Id. at 1114-15.

'Ud. at 1116.

''Id.

'^261 Ind. 635, 308 N.E.2d 868 (1974).
^«373 N.E.2d at 1116.

''581 F.2d 669 (7th Cir. 1978), cert, granted, 47 U.S.L.W. 3813 (U.S. June 18, 1979)
(No. 78-1261).



62 INDIANA LA WREVIEW [Vol. 13:57

Director of the Federal Bureau of Prisons, Mr. Carlson, by certified

mail pursuant to Federal Rule of Civil Procedure 4(e),''° which allows

the use of Indiana's service of process rules, and Indiana's bases of

jurisdiction under Trial Rule 4.4/^ The district court dismissed the
nonresident defendants, and the federal court of appeals reversed,

holding that "Indiana Trial Rule 4.4 .. . provides for service by cer-

tified mail. Both defendants had contacts with Indiana sufficient to

permit use of this provision and to meet the requirements of due
process.

'^

The court's reasoning in Green on the jurisdictional and process
questions was very general. Apparently the court considered that
the out-of-state defendants, the named federal officials, had control
over the federal prison at Terre Haute, Indiana, or that the officials

there were subject to their control. Thus, the allegations made by
the plaintiff's administratrix would bring those federal officials

under Trial Rule 4.4(A)(2), or perhaps (A)(3). If that is so, then Trial

Rule 4.4 does allow service of process as provided elsewhere in Trial

Rule 4. Trial Rule 4.1(A)(1), which provides for certified mail, was ap-
parently used in this case.*^

In Grecco v. Camphell,^^ the defendant attempted to obtain relief

from a default judgment entered because he did not respond to service
of process which was served on him at his "place of abode." The court
held that service was proper and that the definition of "a party's
'dwelling house' or usual place of abode within the context of [Trial

"Ted. R. Civ. P. 4(e) provides in part that "whenever a statute or rule of court of

the state in which the district court is held provides (1) for service of a summons . . .
upon a party not . . . found within the state," the federal district court may effect ser-
vice according to that state statute or rule of court.

"'Ind. R. Tr. p. 4.4(B) provides in part: "A person subject to the jurisdiction of the
courts of this state under this rule may be served with summons: (1) as provided by
Rules 4.1 (service on individuals) . . . ."

"^581 F.2d at 676.

"^IND. R. Tr. p. 4.1(A) provides:

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 cer-

tified mail or other public means by which a written acknowledgement 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; or

(2) delivering a copy of the summons and complaint to him personally;

or

(3) leaving a copy of the summons and complaint at his dwelling house

or usual place of abode with some person of suitable age and discretion

residing therein; or

(4) serving his agent as provided by rule, statute or valid agreement.

"386 N.E.2d 960 (Ind. Ct. App. 1979).



1980] SURVEY-CIVIL PROCEDURE 63

Rule] 4.1 is a question that must turn on the particular facts of each

case.
*^

The significance of service and failure to appear is great, not
only because a default judgment may be entered, but also because
the three-day notice rule under Trial Rule SSiB),"*^ to which a party is

entitled who is to be defaulted, is not applicable when the defaulted
party has not made an appearance.*^ Additionally, insufficient or
defective service of process is remedied when a party makes an en-
try of appearance to defend the action,*® and a defendant who enters
the court and seeks some form of relief or disposition from the trial
court, such as a change of venue, has voluntarily submitted to the

trial court's jurisdiction, and the absence of personal jurisdiction is

waived.*^

An unusual interpretation of the service of process provisions
appeared in Eicher v. Walter A. Doerflein Insurance Agency.^° Ser-

vice was attempted by certified mail with return receipt requested

pursuant to Small Claims Rule 3.^^ The notice of the claim was
returned by the United States Postal Service bearing the notation

'^unclaimed." The plaintiff attempted no other method of service. It
would appear here that "unclaimed" meant that the notice of claim

was refused by the defendants. The court of appeals held that this

process did not "establish a reasonable probability that defendant

received such notice."^^ As a result, a default judgment which had
been entered against the defendants was ordered vacated.

*'Id. at 962.

^®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."

'^386 N.E.2d at 962.

*'Hexter v. Hexter, 386 N.E.2d 1006, 1009 (Ind. Ct. App. 1979).
^'Killearn Properties, Inc. v. Lambright, 377 N.E.2d 417, 419 (Ind. Ct. App. 1978).

For a discussion of the court's holding on sufficient minimum contacts for establishing
personal jurisdiction, see In re Marriage of Rinderknecht, 367 N.E.2d 1128, 1136 n.ll
(Ind. Ct. App. 1977); Harvey, 1977 Survey, supra note 2, at 52 n.5. Rinderknecht con-
tains an excellent discussion of the law on raising the issue of lack of personal jurisdic-

tion. If the claim is not raised at the first opportunity, that is, one's first pleading or

motion, it is lost or waived. It is important that the question be properly raised in the

trial court, in order that the jurisdictional question will be preserved on appeal.

^''384.N.E.2d 1126 (Ind. Ct. App. 1979).
^'Ind. R. Sm. Cl. 3 provides in part: "For the purpose of service the notice of claim

shall also be considered to be the summons. A copy of the notice of claim shall be served
upon each defendant by registered or certified mail with return receipt requested."

''384 N.E.2d at 1126 (quoting Ind. R. Sm. Cl. 10(B)). Ind. R. Sm. Cl. 10(B) provides

in part:

Before default judgment is entered, the court shall examine the notice of

claim and return thereof and make inquiry, under oath, of those present so



64 INDIANA LA WREVIEW [Vol. 13:57

It is suggested that if the return was refused by the defendants,
service of process was more than adequate, and the default judg-
ment should have been sustained. The opinion should be limited to
the specific facts of the case and should not be used as precedent

elsewhere.

In a major case, the Supreme Court in Memphis Light, Gas <&
Water Division v. Craft^^ held that the due process clause^"* is ap-
plicable to a termination of service by a municipal utility .^^ The
plaintiffs had received notification of the termination of utility ser-

vices to their newly purchased home because of nonpayment of month-
ly bills. The plaintiffs had been receiving "double billing" due to an
error on the part of the utility.

The Supreme Court considered the adequacy of notice and the
adequacy of a hearing before an identifiable property right or in-

terest can be disturbed by a municipal utility. The Court held that
although the notification procedure which the utility used was ade-
quate to inform the plaintiffs of the threat of termination of service,

it was not reasonably calculated to inform them of the availability of
an opportunity to present their objections to their bills or an oppor-

tunity for a hearing of the question. Accordingly, notice in this case

did not comply with constitutional requirements.^*^

It now seems clear that if an administrative remedy or pro-
ceeding is available to the user of a municipal utility, notification of

that remedy is constitutionally required, along with the usual notifi-
cation of termination of the utility's service. The property interest
of the user cannot be disturbed without that type of "extra"

notification.^^

5. Forum Non Conveniens and Comity.— In Killearn Proper-
ties, Inc. V. Lamhright,^^ a suit arose from an alleged conspiracy to

sell Florida real estate in violation of both state and federal law.

Suit was brought in Indiana. The defendants' motion to have the

as to assure the court that:

(a) Service of notice of claim was had under such circumstances as to
establish a reasonable probability that the defendant received such notice.
^'436 U.S. 1 (1978).

^"U.S. Const, amend. XIV, § 1.
^^436 U.S. at 22.

^Hd. at 14-15.

"The Court said: "Many of the Court's decisions in this area have required addi-
tional procedures to further due process, notwithstanding the apparent availability of
[other forms of relief]." Id. at 20 n.26 (citing North Ga. Finishing, Inc. v. Di-Chem, Inc.,
419 U.S. 601 (1975); Goss v. Lopez, 419 U.S. 565 (1975); Fuentes v. Shevin, 407 U.S. 67
(1972); Bell v. Burson, 402 U.S. 535 (1972); Sniadach v. Family Fin. Corp., 395 U.S. 337
(1969)).

^«377 N.E.2d 417 (Ind. Ct. App. 1978).



1980] SUR VEY- CIVIL PROCEDURE 65

case transferred to Florida pursuant to Trial Rule 4.4(CP was
denied by the trial court.^"

The defendants argued that Florida was the more convenient
forum because the land was located there, the contract of sale was
executed there, and all of the defendants were either residents of
Florida, or corporations whose principal place of business was in
Florida. The Indiana appellate court sustained the trial court's rul-
ing.^^ Because several defendants who were not parties to the ap-
peal, along with the plaintiffs and several prospective witnesses,

were residents of Indiana, there was no abuse of the trial court's
discretion in refusing to transfer the case to a Florida court.^^ The
court of appeals stated that the review standard under Trial Rule

4.4(C) was whether the trial court had abused its discretion in ruling
on a motion made pursuant to that provision.^^

The provisions of Trial Rule 4.4(C) were also explored in Hex-
ter V. Hexter.^^ The appellant argued that, because the same action
had been brought in Virginia in 1975, the principle of "comity"

should require dismissal of the action by the Indiana court. The
court rejected this argument on the ground that comity was not a
mandatory law, but a rule "of practice, convenience, and courtesy."'^^

Because the Virginia suit had not proceeded further since 1975,

there was little danger that the defendant would be subjected to in-
consistent judgments.^^

6. Change of Venue. — It is a general rule that a timely motion
for change of venue divests the court of jurisdiction to take any ac-

tion except to grant the motion.^^ The policies of Trial Rule 76 are

''IND. R. Tr. p. 4.4(C) provides:

Jurisdiction under this rule is subject to the power of the court to

order the litigation to be held elsewhere under such reasonable conditions as

the court in its discretion may determine to be just.
In the exercise of that discretion the court may appropriately consider

such factors as:

(2) Convenience to the parties and witnesses of the trial in this state in

any alternative forum;

(3) Differences in conflict of law rules applicable in this state and in the

alternative forum; or

(4) Any other factors having substantial bearing upon the selection of a
convenient, reasonable and fair place of trial.
'"377 N.E.2d at 418.

'Ud. at 419.

''Id

'"386 N.E.2d 1006 (Ind. Ct. App. 1979). For discussion of another aspect of this

case, see text accompanying notes 1-7 supra.

''Id. at 1008.

''Id.

«'City of Fort Wayne v. State ex rel Hoagland, 342 N.E.2d 865 (Ind. Ct. App.
1976).



66 INDIANA LA W REVIEW [Vol. 13:57

"to guarantee a fair and impartial trial by making the automatic
change of venue available, . . . [and] to avoid protracted litigation by

imposing a time limit after which a change of venue motion shall be

denied."^^ Trial Rule 76(3) provides that "in those cases where no
pleading or answer may be required to be filed by the defending
party to close issues . . . each party shall have thirty (30) days after

the filing of such case within which to request a change from the

judge or the county
."^^

In re Marriage of Brown'^ was a case involving an action for the
dissolution of a marriage. The petition was filed on May 25, 1977,
and the counter-petition and answer on June 3, 1977. A motion for
change of venue from the county was filed on June 14, 1977. The
trial court denied the motion because it was filed later than ten days
after the close of issues, and the case proceeded to trial.

On appeal the court held that denial of the motion was error
because the thirty-day time limit for a request for change of venue

under Trial Rule 76(3) applies to every case in which no pleading or

answer is required to be filed, even if the defending party actually
files a pleading or answer.^^ In this case, the defendant filed an

answer, although none is required for the dissolution of a marriage.^^

If the suit is a proceeding supplemental, however, or in the

nature of a proceeding supplemental, then no change of venue is

allowed. The supreme court so held in a case^^ interpreting the
Uniform Reciprocal Enforcement of Support Act of 1961.^'' The court
reasoned that the enforcement of a foreign support decree, in which

the parties were the same as in the original proceeding, was in the
nature of a continuing proceeding. Although it was necessary for the
judgment or foreign order to first be confirmed in Indiana, the

nature of the suit, enforcement of a prior support order, remained

the same. Thus no change of venue was permitted.^75

B. Pleadings and Pre-Trial Motions

1. Pleadings to Conform to the Evidence Under Trial Rule
15(B). —Trial Rule 7(A)^^ requires, of course, an answer to a com-

««State ex rel Yockey v. Superior Court, 261 Ind. 504, 506, 307 N.E.2d 70, 71-72

(1974), discussed in Harvey, Civil Procedure & Jurisdiction, 1976 Survey of Recent
Developments in Indiana Law, 10 Ind. L. Rev. 88, 98 (1976).

«'IND. R. Tr. p. 76(3).

'"387 N.E.2d 72 (Ind. Ct. App. 1979). The pleadings aspect of this case is discussed in

text accompanying notes 82-84 infra.

''Id. at 73-74.

^'IND. Code § 31-l-11.5-4(c) (1976).
'^State ex rel Greebel v. Endsley, 379 N.E.2d 440. (Ind. 1978).

'"Ind. Code §§ 31-2-1-1 to -39 (1976) (amended 1979).
'^379 N.E.2d at 441.

'^Ind. R. Tr. p. 7(A) provides in part that "[t]he pleadings shall consist of (1) a

complaint and an answer . . . ." See also Ind. R. Tr. P. 8(B), 8(D).



1980] SURVEY-CIVIL PROCEDURE 67

plaint. Some cases arise, however, in which none is required.
In In re Estate of Swanky'^ the trial court's dismissal of a peti-

tion for the removal of a representative and the appointment of a

special administrator was sustained on appeal.^^ The appellant
argued that the trial court should not have considered the motion to

dismiss because it was filed pursuant to Trial Rule 12(B)(6) after the
twenty-day time limit imposed by Trial Rule 6(C).^^ The appellate
court held that a responsive pleading to the petition for removal

was not required because the controlling statute and provisions for
removal do not demand adherence to the formal rules of pleading.**'
The petition was regarded as merely ancillary to the probate of a
will, and thus neither Trial Rule 7 nor Trial Rule 6(C) controlled the

question of the time when a motion to dismiss could have been con-
sidered.*^

A similar observation was made in In re Marriage of Brown,^^ a
suit for the dissolution of marriage. The court pointed out that the
statute*^ required no responsive pleading.*"* Such a statute is a

qualification, obviously, of Trial Rule 7(A).

An important qualification of Trial Rule 8(A)*^ is found in Camp-
bell V. Campbell,^^ although the case does not actually discuss the

rule. Campbell was a statutory proceeding under the Uniform Child
Custody Jurisdiction Act*^ for a change of child custody. There was
no allegation in the complaint concerning the jurisdiction of the trial

court. Generally, no such allegation is required in a state court when
the court is one of general jurisdiction. In this case, however, the

court held that a plea of jurisdiction was required:

"375 N.E.2d 238 (Ind. Ct. App. 1978).

''Id. at 241.

^^Ind. R. Tr. p. 6(C) determines the time for filing a responsive pleading when one

is required and the time for filing a responsive pleading if a motion under Trial Rule

12(B) has been filed. But Trial Rule 6(C) does not control the time when a Trial Rule

12(B) motion must be filed; it speaks to the effect of filing such a motion on a respon-

sive pleading, or the effect such a motion has after the trial court has ruled on it.

Thus, the attorney's argument in this case was considerably wide of the mark, but it

shows the confusion which may be present in the bench and bar. DeHart v. Anderson,

383 N.E.2d 431 (Ind. Ct. App. 1978), makes this very important distinction. See note

104 infra and accompanying text.
«°375 N.E.2d at 240.

*7d See generally Ind. R. Tr. P. 1.

«2387^N.E.2d 72 (Ind. Ct. App. 1979).

«^Ind"Code § 31-l-11.5-4(c) (1976).

**387 N.E.2d at 73. A responsive pleading was in fact filed.
*^Ind. R. Tr. p. 8(A) states in part that "a pleading must contain (1) a short and

plain statement of the claim showing that the pleader is entitled to relief . . . ." There

is no provision for the allegation of jurisdiction under Trial Rule 8(A).

««388 N.E.2d 607 (Ind. Ct. App. 1979).

"Ind. Code §§ 31-1-11.6-1 to -24 (Supp. 1979).



68 INDIANA LAWREVIEW [Vol. 13:57

While it is generally not necessary to plead jurisdictional

facts, such averments must be made in a special statutory
proceeding. Such averments go to the subject matter

jurisdiction of the court. In this respect, the Act is analogous

because subject matter jurisdiction cannot be established

without the ascertainment of jurisdictional facts.^^

The court also held that a clause in the complaint factually showing
the jurisdiction of the court under the Act must be pleaded and
proved when jurisdiction is denied.®^

Under Campbell, a plea to establish the subject matter jurisdic-
tion must be set out, and the parties do not establish the prerequi-
site jurisdiction by a failure to raise the issue, even if such failure is

by positive consent. In short, parties cannot create subject matter

jurisdiction by their consent.

An affirmative defense will be waived if not asserted, even if
the affirmative defense is not listed among those defenses set out in
Trial Rule 8(C).®° Thus, in United Farm Bureau Mutual Insurance
Co. V. Wolfe,^^ the insurance company failed to raise the affirmative
defense of performance of a condition precedent in its responsive

pleading, and the court held that under Trial Rules 8(C) and 9{CP
the defense was waived.^^

««388 N.E.2d at 609 n.3 (citations omitted).

''Id. at 608-10.

^"Ind. R. Tr. p. 8(C) lists the following affirmative defenses:

Accord and satisfaction, arbitration and award, discharge in bankruptcy,

duress, estoppel, failure of consideration, fraud, illegality, injury by fellow

servant, laches, license, payment, release, res judicata, statute of frauds,

statute of limitations, waiver, lack of jurisdiction over the subject-matter,

lack of jurisdiction over the person, improper venue, insufficiency of process

or service of process, the same action pending in another state court of this

state, and any other matter constituting an avoidance, matter of abatement,

or affirmative defense,

^'382 N.E.2d 1018 (Ind. Ct. App. 1978).

''IND. R. Tr. p. 9(C) states:

In pleading the performance or occurrence of promissory or non-promissory

conditions precedent, it is sufficient to aver generally that all conditions

precedent have been performed, have occurred, or have been excused. A
denial of performance or occurrence shall be made specifically and with par-
ticularity, and a denial of excuse generally.
^^382 N.E.2d at 1020. The defense in question was lack of written consent to

bring an uninsured motorist's suit, a condition precedent to the suit.

In Delaware County v. Powell, 382 N.E.2d 958 (Ind. Ct. App. 1978), the plaintiff

sued the county in a complaint filed very near the expiration of the statute of limita-

tions, and did not give the county notice within 180 days of the loss or injury, as re-

quired by the applicable statute, Ind. Code §§ 34-4-16.5-7 to -12 (1976). The plaintiff was
injured by a county highway truck. After the injury the county paid for the plaintiffs

medical expenses and loss of wages. The question whether the county was estopped
from asserting lack of notice was thus factually raised. The court of appeals held that



1980] SURVEY-CIVIL PROCEDURE 69

If an affirmative defense is properly in evidence before the

court, even though not affirmatively pleaded, and the party oppos-

ing the defense fails to object to the evidence which supports it, the

defense is not waived. In Homemakers Finance Service, Inc. v.
EUsworthy^^ the affirmative defense of accord and satisfaction was
raised in that way, and the court in accordance with Trial Rule

15(BP allowed the question to be litigated.^^

A similar case is Puckett v. McKinney,^'^ a suit for defamation
and interference with a contractual expectancy brought by a school

teacher against the principal of the school. The defendant school
principal did not plead the defense under Trial Rule 8(C) of a

qualified privilege to make certain statements. The court of appeals
held that the defense had been raised in the case by evidence not

objected to by the plaintiff.^^ Thus, under Trial Rule 15(B), the issue

was tried by the implied consent of the parties and treated as if it
had been raised by the pleadings.'99

the notice provision in the tort claim statute was a procedural precedent which could

be tolled by incompetency or waived under Trial Rule 8(C) by the defendant's failure

to assert the plaintiff's noncompliance in the responsive pleading. Id. at 962. The court

held that the notice provision is different from other affirmative defenses under Trial

Rule 8(C), and that once the issue of notice has been raised by the defendant the plain-

tiff must show either actual or substantial compliance with the notice provision, or the

action is barred. Id. The court observed that the notice provision is akin to a true
statutory condition precedent: once it is properly placed in issue, it is not subject to

either estoppel or waiver as a result of any prior action by the defendant or the defen-

dant's agent. Id. The court affirmed a summary judgment against the plaintiff, holding
that neither knowledge of the occurrence nor investigation of the accident by the

defendant is sufficient to meet the purposes of the statute and that timely written

notice to the county is imperative. Id. See Harvey, 1977 Survey, supra note 2, at 54-55.

^"380 N.E.2d 1285 (Ind. Ct. App. 1978).

^^Ind. R. Tr. p. 15(B) states that "[wjhen issues not raised by the pleadings are

tried by express or implied consent of the parties, they shall be treated ... as if they

had been raised in the pleadings." Accordingly, the pleadings may be amended upon a
motion made at any time to show that the issues were tried.

^•^380 N.E.2d at 1288.
«^373 N.E.2d 909 (Ind. Ct. App. 1978).

''Id. at 911.

''See State v. Gradison, 381 N.E.2d 1259 (Ind. Ct. App. 1978), a condemnation ac-

tion for highway construction in which a deed conveying a certain parcel to the land-

owner was admitted without objection from the state. The court of appeals held that

admission of the evidence created an issue in the litigation, and that the trial court

may properly amend the pleadings under Trial Rule 15(B) to conform to the evidence
in the case. Id. at 1263. The nature of the request to amend a pleading under Trial
Rule 15(B) is discussed in 2625 Bldg. Corp. v. Deutsch, 385 N.E.2d 1189, 1194 (Ind. Ct.

App. 1979), in which the plaintiff's counsel in his opening statement indicated that he

was proceeding on two theories of recovery, and at the close of the evidence informed

the court that he was proceeding on only one theory. The court of appeals held that
the plaintiff had, in effect, requested the trial court to amend the pleading to conform
to the evidence. Id.



70 INDIANA LAW REVIEW [Vol. 13:57

2. Amended Pleadings and Failure to Respond. — Trial Rule
8(D) provides that "[ajverments in a pleading to which a responsive

pleading is required, except those pertaining to amount of damages,
are admitted when not denied . . . .^°° The question then arises, may
the pleading be amended under Trial Rule 15(A)?^°' If there is no op-
portunity to amend as of right under the first sentence of Trial Rule
15(A), an amendment may be made only at the discretion of the trial
court. The court in B & D Corp. v. Anderson, Clayton & Co.,^°^ a ma-
jor class action, held that exercise of the trial court's sound discre-

tion would be reviewed on appeal only for an abuse of that discre-

tion, and that this privilege allowed the trial judge to decide, within

the confines of justice, what was equitable. ^"^

If that discretion is exercised, and a pleading is amended under
Trial Rule 15(A), then certain rules concerning the time for filing

pre-pleading motions are affected. In DeHart v. Anderson,^^'^ the
court apparently held that an amended pleading under Trial Rule
15(A) will replace the original pleading for all purposes, and that

when permission is given to amend a pleading, it will effect an ex-
tension of time for answers to the pleading, including preliminary

motions. ^°^ Accordingly, the time for making a motion under Trial
Rule 12(B) is governed by Trial Rule 12(B), and not Trial Rule 6(C),
which speaks to the effect of a motion under Trial Rule 12(B) once it

is made.^°^ Thus, when the trial court allowed the defendant to file
an amended answer, and thereby granted an extension of time in
which to answer, the effect was to extend the time for preliminary
motions as well. The complaint was filed on July 29, 1975, for
recovery for personal injuries. The trial court allowed an amended
answer to be filed on November 20, 1975. On the same date the
defendant also filed a motion to dismiss, which raised the statute of

limitations. The motion was timely filed because it was filed with

the amended complaint. ^"^

^""Construed in Inter-City Contractors Serv., Inc. v. Consumer Bldg. Indus., Inc.,

373 N.E.2d 903 (Ind. Ct. App. 1978).

'"'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. Otherwise a party may amend his pleading only by leave of

court or by written consent of the adverse party ....
•"^387 N.E.2d 476 (Ind. Ct. App. 1979).

'''Id. at 482.

""'383 N.E.2d 431 (Ind. Ct. App. 1978).

'°'Id. at 436.

'°Hd.

''Ud. at 436-37.



1980] SURVEY-CIVIL PROCEDURE 71

3. Pre-Trial Motions.—A motion to dismiss under Trial Rule
12(B)(6) attacks the adequacy of the complaint by stating that it fails

to allege a claim for relief. Such a motion must meet the test in
State V. Rankin:^^^ A complaint is not subject to dismissal "unless it
appears to a certainty that the plaintiff would not be entitled to

relief under any set of facts
^^^^

In 1970 a blight epidemic infested the 1970 corn crop yielded

from T hybrid seed corn and reduced the crop nationwide by no less
than 500 million bushels. That epidemic became the subject of an In-
diana class action m B & D Corp. v. Anderson, Clayton & Co.,^^^
which came before the court of appeals after the trial court granted
a motion to dismiss an amended complaint, apparently on the
ground that the complaint did not adequately allege that the defen-

dants were jointly and severally liable to the plaintiffs for damages
arising from the same occurrence or series of occurrences.

The court of appeals treated the question as one in which "at
the very least a description of the tortious conduct forming the

basis of the plaintiff's claim" must be alleged."^ The court found that
"the amended pleading in the present case reveals no fact allega-
tions describing any such joint action as complained of by Corn

Farmers [plaintiffs] in the second amended complaint."^^^
It is suggested that the appellate court was in error in the deci-

sion. It applied a test to determine the adequacy of a complaint

which was expressly rejected by the Indiana Supreme Court in
Rankin.

In Rankin the supreme court stated: "We might note that cer-
tain cases from the Court of Appeals apparently state that the plain-

tiff is required to state in his complaint the theory upon which his

claim is based. Although a statement of the theory may be highly
desirable, it is not required."^^^ The court in B <& D Corp. quoted
from the Rankin opinion but omitted the first sentence quoted above
which gave meaning to the Rankin test.^^'' The Rankin court expressly
rejected Cheathem v. City of Evansville,^^^ which embraced the
theory-of-relief-in-the-complaint test instead of the standard that a

complaint is inadequate only if it appears that the plaintiff would

not been entitled to relief under any set of facts.

^''«260 Ind. 228, 294 N.E.2d 604 (1973).

'""Id. at 230-31, 294 N.E.2d at 606.

"°387>J.E.2d 476 (Ind. Ct. App. 1979).

^"M at 481 (quoting Kiyose v. Trustees of Indiana Univ., 116 Ind. App. 34, 44-45,
333 N.E.2d 886, 891 (1975)).

•'^387 N.E.2d at 481.
"'260 Ind. at 231, 294 N.E.2d at 606 (citations omitted).
"'387 N.E.2d at 481.

"^51 Ind. App. 181, 278 N.E.2d 602 (1972).



72 INDIANA LAWREVIEW [Vol. 13:57

The facts in the B & D Corp. complaint were extensively pleaded
in any event; it is suggested that this opinion attempts a revival of

the test for determining the adequacy of a complaint which the In-

diana Supreme Court has specifically rejected. ^^^

If a motion to dismiss is granted under Trial Rule 12(B)(1), the

dismissal will be a final and appealable order because the trial court

has held that there is no subject matter jurisdiction.^^^ A motion for
summary judgment in a pre-trial motion resting solely on the mov-
ant's answer with no further information provided shall be treated

as one for judgment on the pleadings under Trial Rule 12(C).^^^

C. Parties and Discovery

1. Joinder of Parties. —In Gumz v. Starke County Farm Bureau
Cooperative,^^^ the plaintiff grain elevator operators brought suit

against four persons who farmed in excess of four thousand acres.
The suit concerned twenty-five contracts for the production of grain

to be sold to the grain elevators. The defendants were charged with
conspiracy to defraud the plaintiffs by contracting to sell more grain
than they could produce. The defendants argued that under Trial

Rule 20(A)'^° joinder of parties was improper because there was no
right to relief from the same transaction, although the defendants
did not dispute that similar questions of fact applied to all parties.

The court of appeals held that there was no error in the joinder and
that Trial Rule 20(A) did not require a "precise congruence of all fac-

tual and legal issues."^^^ The court stated further that "[a] charge of
conspiracy alleges a series of transactions related by a common pur-
pose or intent and is usually sufficient to meet the requirements of
Trial Rule 20(A)."^2^

"®The court of appeals correctly followed the Rankin test in Mobile Enterprise,

Inc. V. Conrad, 380 N.E.2d 100 (Ind. Ct. App. 1978), and Elmore v. City of Sullivan, 380

N.E.2d 108 (Ind. Ct. App. 1978). The court found the complaint adequate in Conrad, 380

N.E.2d at 102, but affirmed a dismissal in Elmore because of the failure to set out an

ordinance in the complaint. 380 N.E.2d at 110.

'•'Huffman v. Eastern Bartholomew Water Corp., 376 N.E.2d 1171, 1172 (Ind. Ct.
App. 1978).

"'Estate of Tanasijevich v. City of Hammond, 383 N.E.2d 1081, 1083 (Ind. Ct. App.
1978).

"^383 N.E.2d 1061 (Ind. Ct. App. 1978).

'^°Ind. R. Tr. p. 20(A) allows, generally, parties to be permissively joined in one

action if they assert a right, or if there is asserted against them a claim, which arises

out of the same transaction, occurrence, or series of transactions or occurrences, and if

there is a question of law or fact common to all plaintiffs or defendants in the action.
'^'383 N.E.2d at 1064.

'''Id. Cf. United Farm Bureau Family Life Ins. Co. v. Fultz, 375 N.E.2d 601 (Ind.
Ct. App. 1978) (appellate rule correctly used to interplead multiple claimants to in-

surance proceeds).



1980] SURVEY-CIVIL PROCEDURE 73

2. Intervention.—In Indiana Bankers Association v. First

Federal Savings & Loan Association,^^^ certain bankers petitioned to
intervene pursuant to Trial Rule 24(AV^'' and alternatively under

Trial Rule 24(B).^^^ The petition was denied, and an appeal was ef-
fected.

The court of appeals concentrated on the question whether the
order was sufficiently final, especially in light of Trial Rule 24(C), '^^

to be appealed and concluded that it was not/^^ The court said,
however, that Trial Rule 24(C) should be read with Appellate Rule

4(B)(5),^^** and that an appeal should be encouraged under the latter
rule, thus concluding that Appellate Rule 4(B)(5) should take

precedence and provide a procedural avenue for appellate review of
a ruling on a motion to intervene. '^^

3. Discovery. —In Augustine v. First Federal Savings & Loan
Association,^^^ the supreme court held that before a trial court can
consider the testimony found in depositions in ruling on motions

before or during trial, the deposition must be published. '^^ The court
considered the ruling to be consistent with Trial Rule 32(B)^^^ and In-

diana Code section 34-1-16-2,'^^ and held that it was error for the
court of appeals to consider the depositions in reviewing a trial

court's summary judgment order. ^^* The third sentence of Trial Rule

•^^387 N.E.2d 107 (Ind. Ct. App. 1979).

'^^Ind. R. Tr. p. 24(A) permits intervention of right.

'^^Ind. R. Tr. p. 24(B) allows permissive intervention.

'^"Ind. R. Tr. p. 24(C) states in part: "The [trial] court's determination upon a mo-

tion to intervene may be challenged only by appeal from the final judgment or order in
the cause."

'"383 N.E.2d at 107.

'^*Ind. R. App. P. 4(B)(5) allows for the appeal of an interlocutory order which is

otherwise not appealable as a matter of right under Ind. R. App. P. 4(B)(1) to (4), if the

order is interlocutory and if both the trial court and the appellate court certify that

the order is appealable. See Costanzi v. Ryan, 368 N.E.2d 12 (Ind. Ct. App. 1977), the

leading case on this appellate rule of procedure, discussed in Harvey, Civil Procedure

and Jurisdiction, 1978 Survey of Recent Developments in Indiana Law, 12 Ind. L. Rev.

42, 65 (1979).
'^'387 N.E.2d at 109. See also Hinds v. McNair, 153 Ind. App. 473, 481, 287 N.E.2d

767, 770-71 (1972), cited in Indiana Banker's Ass'n, 387 N.E.2d at 108.
•^"384 N.E.2d 1018 (Ind. 1979).

•^'/rf. at 1020. Publication is "the breaking of the sealed envelope containing the

conditional examination and making it available for use by the parties or the court."

Id.

'^'IND.^R. Tr. p. 32(B) states: "Subject to the provisions of Rules 28(B) and subdivi-

sion (D)(3) of this rule, objection may be made at the trial or hearing to receiving in
evidence any depositions or part thereof for any reason which would require the exclu-

sion of the evidence if the witness were then present and testifying."

'^^Ind. Code § 34-1-16-2 (1976) provides: "The record of any deposition recorded

under the provisions of the last section, and copies of such record, duly certified, may
be used as evidence, whenever and wherever the original deposition might be used."

'^"384 N.E.2d at 1022.



74 INDIANA LAWREVIEW [Vol. 13:57

56(C)^^^ requires only that the deposition be on file, not that it be

published, and it is suggested that this decision was incorrect. In ad-
dition, if the Augustine decision is read as reviving a pre-1970

statute on depositions, ^^^ it would appear to be inconsistent with a

number of decisions which have held that the Trial Rules govern if
they are in conflict with prior statutory or decisional law.^^^

In J.Y. V. D.A.,^^^ the court held that, in the absence of a

dispositive rule on the subject, it was within the discretion of the
trial court to remove sanctions for failure to make discovery impos-
ed under Trial Rule 37(B).'^^ The trial court had entered a sanction
against a party in a paternity action, enjoining him from introducing
evidence upon certain matters contained in interrogatories. The trial
court's grant of the plaintiffs oral motion to remove the sanction
was sustained by the appellate court. ^"^ In Motor Dispatch, Inc. v.
Buggie,^^^ the court of appeals sustained a similar order from the
trial court rejecting admission of certain check registers because the

defendant in the action failed to comply with discovery orders
issued by the trial court. ^''^

In the criminal case of Crocker v. State,^^^ the appellate court

sustained a trial court order which refused to permit three persons

to testify for the defense.^*" Defense counsel had failed to comply

with a court order to disclose the names of witnesses no later than
fourteen days before trial. ^"^ The opposite situation developed in
Richardson v. State.^^^ The defendant had moved for a protective

'^^Ind. R. Tr. p. 56(C), in its third sentence, states: "The judgment sought shall be

rendered forthwith if the pleadings, depositions, answer to interrogatories, and admis-

sions on file, together with the affidavits and testimony, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judg-

ment as a matter of law." For a correct interpretation of Ind. R. Tr. P. 56(C), which

has little if any impact on Ind. R. Tr. P. 32(B), see Smith v. P. & B. Corp., 386 N.E.2d
1232 (Ind. Ct. App. 1979).

'^'IND. Code Ann. § 2-1520 (Burns 1968) (repealed 1969).

'''E.g., City of Mishawaka v. Stewart, 261 Ind. 670, 310 N.E.2d 65 (1974).
'^«381 N.E.2d 1270 (Ind. Ct. App. 1978).

'^Vd. at 1271. Ind. R. Tr. P. 37(B) provides for such sanctions as contempt,

damages, or default, for the failure to comply with orders which compel discovery.
^""381 N.E.2d at 1274.

'"379 N.E.2d 543 (Ind. Ct. App. 1978).

'''Id. at 545.

"•^387 N.E.2d 645 (Ind. Ct. App. 1978).

'''Id. at 647.

•''The Indiana court held that Washington v. Texas, 388 U.S. 14 (1967), was

distinguishable because here no arbitrary decision or rule or statute had been invoked

to totally deny the defendant the right to call any one of a class of witnesses to testify.

378 N.E.2d at 647. In Ottinger v. State, 370 N.E.2d 912 (Ind. Ct. App. 1977), the court

held that an accused forfeits his right to call a witness by his own failure to comply

with discovery orders. Id. at 916.

'"^388 N.E.2d 488 (Ind. 1979).



1980] SURVEY- CIVIL PROCEDURE 75

order excluding the testimony of a witness because the witness had

twice failed to appear for a scheduled deposition. The trial court

granted, instead, a one-day continuance so that defense counsel

could examine the witness. The supreme court held that issuance of
such an order was discretionary and could properly be denied when
the party who seeks the discovery does not ask the court's
assistance until trial has begun.

^'^^

In another criminal case, the defense counsel moved to take
depositions in Florida at the state's expense. The appellate court
sustained the trial court's denial of the motion and observed that in

view of the alternative forms of discovery, such as those provided

by Trial Rule 31, ^"^^ and in light of the expense to be imposed on the

state by the defendant's motion, the trial court's discretion was cor-
rectly exercised.

^''^

4. Dismissal. — In Noble v. Moistner,^^^ the trial court had
entered an order of dismissal because the plaintiff failed to answer

certain questions on an interrogatory, in violation of the trial court's

previous order to respond and answer. The court of appeals, in an
interpretation of Trial Rules 37(B)(2) and (4), required that the trial

court make two determinations before granting dismissal. First, the
trial court must find responsibility on the part of the party and
deponent under Trial Rule 37(B)(2)(c).^^^ Such a finding generally

means that the party acted in bad faith, but that determination is
not needed where, as here, the trial court's order is violated. Sec-

ond, the trial court must find that the conduct in question violates
the rights of the opposing party in such a way that no other relief
would be adequate. ^^^ The court of appeals reversed the order
dismissing the plaintiff's action and remanded the case for a specific
finding on the burden of proof so that the issue of prejudice could be

determined.^^^

D. Trial and Judgment

1. Trial by Jury. —The courts discussed the right to trial by
jury in two decisions, Owens v. State ex rel. Van Natta,^^^ and
Hines v. Elkhart General HospitaV^^

''Ud. at 490.

'"^Ind. R. Tr. p. 31 provides for depositions to be taken upon written questions,

cross-questions, and redirect questions.

^"'Haskett v. State, 386 N.E.2d 1012, 1014 (Ind. Ct. App. 1979).
^^"388 N.E.2d 620 (Ind. Ct. App. 1979).

'''Id. at 621. Ind. R. Tr. P. 37(B)(2)(c) speaks of conduct which is "in bad faith and

abusively resisting or obstructing a deposition . . ." or other forms of discovery.
'^'388 N.E.2d at 621. See Ind. R. Tr. P. 37(B)(4).
'"Ud. at 621-22.

>^''382 N.E.2d 1312 (Ind. Ct. App. 1978).
^^^465 F. Supp. 421 (N.D. Ind. 1979). For discussion of another aspect of this case,



76 INDIANA LAWREVIEW [Vol. 13:57

In Owens, the Indiana Court of Appeals held that the proceeding

by which Owens' driver's license had been suspended for several

years did not violate a right to trial by jury under either the United

States or Indiana Constitutions. ^^^ The court relied upon Hiatt v.
Yergiv}^'^ in holding that the process wherein a habitual traffic of-

fender's driver's license is revoked is an administrative hearing,

which is neither a civil nor a criminal trial to which the right of trial

by jury attaches. ^^*^

In Nines, the federal district court concluded that the Indiana

Medical Malpractice Act^^^ did not foreclose or pre-empt a right to

trial by jury, in that a jury trial may eventually result after com-
pliance with the medical malpractice statute. ^^'^ The court pointed
out that, unlike some statutes and decisions in other jurisdictions,
the medical panel's decision was not a final determination of the
medical malpractice controversy. ^^^ Thus, there was no total aboli-
tion of trial by jury that had caused statutes in other states to be

held unconstitutional.^^^

2. Impeachment of Jury Verdict —In Henry v. State,'^^ the ap-
pellants were convicted of offenses arising from the use or sale of
heroin. On appeal, the appellants argued that the jury improperly
arrived at the sentences which were imposed. In support, the ap-
pellants attached to their joint motion to correct error an affidavit

in which their counsel related that he had been approached after the

trial by two jurors who described the manner in which the jury ar-
rived at the sentences.

The supreme court stated that "even assuming that the trial
court was bound to accept the hearsay averments of the affidavit,
the use of juror's testimony ... to demonstrate improprieties in the

method by which the jury reached its verdict constitutes impeach-
ment of that verdict by the jurors, which is not permitted."^^^

3. Involuntary Dismissal— In Puckett v. Miller,^^^ the plaintiff
sued the defendant for shooting and killing two of the plaintiff's

dogs which were loose and roaming in the defendant's property, and

appeared to be attacking certain fowl belonging to the defendant.

As a part of the plaintiff's case, the plaintiff called the defendant to

see text accompanying notes 19-22 supra.
'^«382 N.E.2d at 1315.

'"152 Ind. App. 497, 284 N.E.2d 834 (1972).
'5»382 N.E.2d at 1315.

•^^iND. Code §§ 16-9.5-1-1 to -9-10 (1976 & Supp. 1979).
''M65 F. Supp. at 426.

'''Id. at 429.

'''Id. at 428-29.

''^379 N.E.2d 132 (Ind. 1978).

"'Id. at 139.

'«^381 N.E.2d 1087 (Ind. Ct. App. 1978).



1980] SURVEY-CIVIL PROCEDURE 77

the witness stand. At the conclusion of the plaintiffs case, the defen-

dant moved for an involuntary dismissal under Trial Rule 41(B),

which the trial court granted.

Each member of the three-judge panel submitted a separate opin-
ion. The majority opinion by Judge Staton held that it was proper

for the trial court to weigh evidence upon a motion made under

Trial Rule 41(B) when, as in this case, both parties had testified, and

"both Versions' of the story were before the court."^^^

Judge Chipman concurred in the result and dissented in part

and, after reviewing the history of Trial Rule 41(B), concluded that

only a change in the rule would allow an Indiana trial court to weigh

evidence under a Trial Rule 41(B) motion. ^^^ Judge Hoffman dis-

'''Id. at 1091.

^^Ud. at 1092 (Chipman, J., concurring and dissenting). Judge Chipman made

specific reference to a continuing debate which has been conducted between the author

and certain members of the court about the standard to be used in Trial Rule 41(B).
The judge stated:

The Court of Appeals has had this similar issue before it on several
previous occasions. The most recent case was Fielitz v. Allfred, [364 N.E.2d
786 (Ind. Ct. App. 1977)] and was commented upon by Dean William F.
Harvey in his works [W. Harvey. 3 Indiana Practice 13 (Supp. 1979)] in
which he stated, "it is submitted that the Court of Appeals erred in Fielitz,

and in the line of cases it represents." Obviously Dean Harvey is urging that
Indiana follow the various Circuit Courts of Appeal that have interpreted the

comparable Federal Rule as giving the trial court the right to weigh the

evidence in a trial to the court in deciding a TR 41(B) motion.
381 N.E.2d at 1092 (Chipman, J., concurring and dissenting) (footnotes omitted).

Judge Chipman reviewed the original advisory committee notes in 1968, as
reported in R. Townsend, Indiana Rules of Civil Procedure 166-69 (1968), and observ-
ed that the proposed draft of Trial Rule 41(B) was "identical to the Federal Rule and

not the rule finally adopted by the Indiana Supreme Court on July 29, 1969 after
enactment by the 1969 General Assembly." 381 N.E.2d at 1092. The judge then observed

that even before the change by the supreme court and the legislature, the advisory

committee notes stated that no change would develop in former Indiana practice by

adopting the original or federal rule under Trial Rule 41(B). Id. at 1093. The notes

cited Garrett v. Estate of Hoctel, 128 Ind. App. 23, 142 N.E.2d 449 (1957), to support

the proposition that a trial court cannot weigh the evidence when a motion is made
under Trial Rule 41(B). R. Townsend, Indiana Rules of Civil Procedure 169 (1968).

Judge Chipman concluded his opinion by stating, "I do not feel that it is the function of

the Indiana Court of Appeals to either legislate or attempt to amend the existing Trial
Rules." 381 N.E.2d at 1093.

Judge Chipman is entirely correct, of course, in his view of the judicial function.

Nevertheless, the Indiana Supreme Court in P-M Gas & Wash Co. v. Smith, 375
N.E.2d 592 (Ind. 1978), discussed in Harvey, Civil Procedure and Jurisdiction, 1978

Survey of Recent Developments in Indiana Law, 12 Ind. L. Rev. 42, 67-68 (1979),

demonstrated that it is always within the competency of the appellate court to correct

mistakes or misinterpretations of the Trial Rules, however set in precedent they might

have become. In P-M Gas the court expressly overturned at least twelve decisions
which had incorrectly interpreted Trial Rule 59. Id. at 597-98. That decision might be

instructive here.

The Garrett decision was a claim in probate for services rendered to a deceased



78 INDIANA LAWREVIEW [Vol. 13:57

sented, but concurred with Judge Chipman's concurring opinion.^^*
-4. Motion for Judgment on the Evidence.— Trial Rule 50(A)

allows a motion for judgment on the evidence to be made at the
close of the plaintiffs case, and after the presentation of all of the
evidence. In Ortho Pharmaceutical Corp. v. Chapman,^^^ the plaintiff
Chapman sued the defendant for personal injury suffered as a result
of taking an oral contraceptive manufactured by the defendant. The
defendant offered evidence on its own behalf after the close of the
plaintiffs case. As a result, any error which occurred in overruling
the defendant's motion for judgment on the evidence made at the
close of the plaintiffs case was waived.^^°

The defendant renewed the motion at the close of all of the
evidence. The appellate court stated that such a motion may be
granted only if there is a complete failure of proof, that is, no

substantial evidence or reasonable inference which is derived there-
from, supporting an essential element of the plaintiffs or non-
moving party's claim. ^^^

before death. After the conclusion of the plaintiffs case, the defendant "moved for

judgment" and the probate court granted the motion. The Indiana Court of Appeals

treated the motion as if it were one for a directed verdict in a jury case and discussed

the standard for that motion against a presumption that the plaintiffs services to the

deceased were a gratuity. 128 Ind. App. at 32-33, 142 N.E.2d at 453.

The conclusion is clear that either the advisory committee note could not have
been correctly addressed to the committee's proposal to adopt Federal Rule 41(b), or

the federal rule was plainly misunderstood by the advisory committee.

The legislature added the following words to Trial Rule 41(B): "considering all the
evidence and reasonable inferences therefrom in favor of the party to whom the mo-
tion is directed, to be true, there is no substantial evidence of probative value to sus-

tain the material allegations of the party against whom the motion is directed." That
sentence merely directs the trial court's attention to the body of evidence, which

under this trial rule must be considered. It did not deny to the trial court the com-

petency to find the facts, after considering that evidence. That is the meaning of the

very next sentence in Trial Rule 41(B): "The court as trier of the facts may then deter-
mine them and render judgment against the plaintiff or may decline to render any
judgment until the close of all the evidence."

In short, an Indiana trial court under Trial Rule 41(B) still has the power to weigh

the evidence and find the facts either at the end of the plaintiffs case, or at the conclu-

sion of the entire case, and the standards that have developed under Trial Rule 50,

which are applicable to a jury trial and are a correlative diminution of a trial court's

power, are not applicable to Trial Rule 41(B).

The appellate court decisions in this area, Fieltiz v. Allred, 364 N.E.2d 786 (Ind.

Ct. App. 1976); Building Systems, Inc. v. Rochester Metal Prods., Inc., 340 N.E.2d 791

(Ind. Ct. App. 1976), and several of the cases cited therein, are in error.

I would be the first to agree that the so-called legislative history on Trial Rule

41(B) is in confusion, but it cannot be understood to support the decisions which have

superimposed Trial Rule 50 standards upon Trial Rule 41(B).
''«381 N.E.2d at 1093 (Hoffman, J., dissenting).
•«^388 N.E.2d 541 (Ind. Ct. App. 1979).

"'Id. at 544 (citing Meadowlark Farms, Inc. v. Warken, 376 N.E.2d 122 (Ind. Ct.

App. 1978); Lamb v. York, 252 Ind. 252, 247 N.E.2d 197 (1969)).
"'388 N.E.2d at 544, 558.



1980] SURVEY-CIVIL PROCEDURE 79

The court held that the trial court must consider only the
evidence and reasonable inferences which are favorable to the non-

moving party, and that the motion must be denied "where there is
any evidence or legitimate inference therefrom tending to support

at least one of the allegations. Where the evidence is such that the
minds of reasonable men might differ, a directed verdict is improper
and the resolution of conflicting evidence is for the jury."^^^

5. Burden of Proof in Civil Commitment Proceedings. —\n In re
Commitment of Binkley,^''^ the court of appeals held that the stan-
dard of proof required in civil cases, proof by a preponderance of the

evidence, was applicable to commitment proceedings pursuant to In-
diana Code section 16-14-9.1-7.^^" That decision was overturned suh
silentio by the United States Supreme Court in Addington v.
Texas.^'^^ The Court held that an involuntary commitment proceeding
in a state court pursuant to state mental health commitment law
must at least meet the evidentiary standard of clear and convincing

proof, and that proof by a preponderance of the evidence would not

meet the requirements of the due process clause of the fourteenth

amendment.^^^

6. Judgment in Favor of Governmental Entity.— In Delaware
County V. Powell^'''^ the court of appeals held that a judgment or set-

tlement in favor of a governmental entity "bars an action by the

claimant against an employee [of the governmental entity] whose

conduct gave rise to the claim resulting in the judgment or settle-

ment."^^«

"^Id. at 544 (quoting Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 606-07,
349 N.E.2d 173, 179 (1976)). The leading Indiana case, cited by the court, 388 N.E.2d at
544, is Huff V. Travelers Indem. Co., 266 Ind. 414, 363 N.E.2d 985 (1977). Huff cites, in
turn, to Vernon. Id. at 421, 363 N.E.2d at 990. There is a difference in the two opinions
which has caused some confusion. The court in Huff stated that a trial court may enter
judgment only if there is no substantial evidence, or reasonable inference to be adduced
therefrom, to support an essential element of the plaintiffs claim. Id. The court in Ver-
non indicated that if any evidence tends to support at least one of the plaintiffs allega-
tions, a motion for judgment on the evidence directed against the plaintiffs case must
be denied. 264 Ind. at 606, 349 N.E.2d at 179.

The language in Huff would allow a trial court to determine that evidence was
not available which would allow a reasonable inference in support of a plaintiffs allega-
tion, but under Vernon a trial court is not permitted to make even that determination.
The language in Vernon will lead, logically, to the scintilla rule, of which the court in
Huff specifically disapproved. 266 Ind. at 422, 363 N.E.2d at 990.

"^382 N.E.2d 952 (Ind. Ct. App. 1978).
''"382 N.E.2d at 955. But cf State ex rel. Kiritsis v. Marion County Probate

Court, 381 N.E.2d 1245 (Ind. 1978) (privilege against self-incrimination not applicable to

civil commitment proceedings).
"^99 S.Ct 1804 (1979).

'''Id. at 1810.

'"382 N.E.2d 958 (Ind. Ct. App. 1978).

'''Id. at 963 (quoting Ind. Code § 34-4-16.5-5(a) (1976)).



80 INDIANA LAWREVIEW [Vol. 13:57

7. Reinstatement of Dismissed Claim. —State ex rel Jansville
Auto V. Superior Court,^''^ concerned a motion under Trial Rule
60(B)(8)^*° to reinstate an action which had been dismissed under

Trial Rule 41(E)^®^ for failure to prosecute or proceed with it. The ac-
tion, filed originally in April 1972, had been dismissed by the trial

court in January 1975 because it had not proceeded. In September
1977 the plaintiff was granted reinstatement by the trial court. The
Indiana Supreme Court held that the trial court had the discretion
to determine what constituted a reasonable time within the meaning
of Trial Rule 60(B) and that it would review only for an abuse of that

discretion. ^^^ Here it appeared that the plaintiff did not receive
notice of the dismissal of the cause, and the trial court correctly

reinstated the action.

8. Clerical Mistakes. —In Drost v. Professional Building Ser-
vice Corp.,^^^ the court of appeals held that a clerical mistake in a

judgment, which arose from an oversight or omission, could be cor-

rected even though the mistake was observed after an appeal and
''could have been raised in the appeal had proper diligence been ex-

ercised."^®* If the mistake were one of substance, however, then the
principle of finality would prevent its correction after the appeal

had been taken and concluded. ^^^

9. Preliminary Injunctions. —In Rees v. Panhandle Eastern
Pipe Line Co.,^^^ the plaintiff had an easement through property

owned by the defendant Rees. Rees interfered with the plaintiff's ef-
forts to clear trees and brush from the easement, and the plaintiff

obtained a preliminary injunction against Rees' interference.

On appeal, the court stated that a preliminary injunction can be
supported by affidavits, without oral evidence, and that it can be

granted on the plaintiff's affidavit alone. ^^^ Regarding the showing

necessary to make a prima facie case for the issuance of a pre-
liminary injunction, the court adopted the language of Indiana An-

nual Conference Corp. v. Lemon,^^^ which established that a party

•^^387 N.E.2d 1330 (Ind. 1979).

^^''In addition to the specific grounds for relief from judgment enumerated in Ind.
R. Tr. p. 60(B)(1) to (7), 60(B)(8) provides for relief from judgment for "any other reason
justifying relief."

**'Ind. R. Tr. p. 41(E) provides for dismissal of a civil action for failure to take any

action for a period of 60 days.

'''Id. at 1331-32.

'«^375 N.E.2d 241 (Ind. Ct. App. 1978).

•**/d at 244. Ind. R. Tr. P. 60(A) provides for the correction by the court on its

own initiative of clerical errors in judgments and orders.
'''S15 N.E.2d at 244.
•««377 N.E.2d 640 (Ind. Ct. App. 1978).

'«7d at 645.

'««235 Ind. 163. 167, 131 N.E.2d 780, 782, (1956).



1980] SURVEY-CIVIL PROCEDURE 81

must show a necessity for maintaining the status quo^^^ prior to
trial, yet need not produce evidence sufficient for a favorable deci-
sion on the merits. ^^°

E. Appeals

1. Motion to Correct Errors: P-M Gas and Its Progeny. —In
P-M Gas & Wash Co. v. Smith,^^^ the supreme court effected major
changes in trial and appellate practice, in relation to Trial Rule 59

and the procedure for perfecting an appeal. Because P-M Gas has
become critical to Indiana appellate practice, the opinion and its
subsequent interpretations require an extensive analysis here.

The case was in the supreme court on transfer from the court of
appeals, which had dismissed a cross-appeal by the plaintiff Smith. ^^^

The court of appeals had ruled that Smith had not complied with
Trial Rule 59(D) on assigning cross-errors and thus dismissed

Smith's cross-appeal.'^^

After the jury verdict. Smith had filed a motion to correct error

which was granted in the trial court and a new trial was ordered. At
that point, the defendant-appellant filed a motion to correct error

and perfected its appeal. In his appellate brief. Smith cross-assigned

error and raised those questions found in his original motion to cor-

rect error which had been overruled by the trial court.

The supreme court in P-M Gas overruled twelve decisions which
had required the filing of a second motion to correct error if, as a

result of the first motion to correct errors, a trial court had effected

a change other than granting a new trial in a final order or judg-
ment.'^*

The court held that Appellate Rule 4(A)'^^ should be understood
to allow either, or any, party to appeal a ruling on a motion to cor-

rect error. '^^ Trial Rule 59(G) requires a party to make a motion to
correct error if that party seeks to raise error which occurred at

^*®Status quo means that the parties should be placed in their "non-contested"

position, that is, the "last actual, peaceable, and non-contested status which preceded

the pending controversy." 377 N.E.2d at 646 (quoting Professional Beauty Prod., Inc. v.

Schmid, 497 S.W.2d 597, 599 (Tex. Ct. App. 1973)).

'''Sn N.E.2d at 646.
'^'375 N.E.2d 592 (Ind. 1978), discussed in Harvey, Civil Procedure and Jurisdic-

tion, 1978 Survey of Recent Developments in Indiana Law, 12 Ind. L. Rev. 42, 67-68

(1979).

"

'^^352 N.E.2d 91 (Ind. Ct. App. 1976).

>^^M at 93.

''"375 N.E.2d at 594.

'^^Ind. R. App. P. 4(A) states in part: "A ruling or order by the trial court granting

or denying a motion to correct errors shall be deemed a final judgment, and an ap-

peal may be taken therefrom."
''«375 N.E.2d at 595.



82 INDIANA LAWREVIEW [Vol. 13:57

trial or later in a verdict or judgment. But once a motion to correct

error is made, a second motion should never be required from that

party /^^

The court also ruled that Trial Rule 59(D) is applicable only
when matters dehors the record are raised. ^^^ The parties in this
case agreed that no matter dehors the record was presented in the
appeal.

^^^

The court explained that

a motion to correct error served three purposes: (1) to pre-

sent to the trial court an opportunity to correct error which

occurs prior to the filing of the motion; (2) to develop those

points which will be raised on appeal by counsel; and (3) to
inform the opposing party concerning the points which will

be raised on appeal so as to provide that party an opportunity

to respond in the trial court and on appeal.^200

Thus the court held that "[o]ne motion for each party or each ap-
pellant, if there is more than one, shall be sufficient,' '^^^ and that a
"second motion to correct error is not needed, and it is not required

by the second sentence found in [Trial Rule] 59(G)."^°^
The court, recognizing that it had substantially changed past ap-

pellate practice even though it had not altered the language of Trial

Rule 59, made a number of rulings, anticipating probable questions
which might arise in view of the principal decision. A summary of
those rulings follows:

(1) Party Y received relief on a motion to correct error; party X
will complain about it on appeal, and can commence an appeal under
Appellate Rule 2(AP^ without making a motion to correct error. X

'''Id. at 596.

•''The decision in In re Marriage of Myers, 387 N.E.2d 1360 (Ind. Ct. App. 1979), is

instructive on Trial Rule 59(D). There, an affidavit executed by an attorney concerning

a conversation he had with the trial judge suggested that the trial judge had incorrect-

ly interpreted a statute which speaks to the best interest of a child in a custody

dispute. The appellate court held that because the affidavit, made under Trial Rule

59(D) and raising matters outside the record, was not contradicted by the opposing at-

torney or the trial judge, it would be accepted as true and the appeal would be deter-

mined on that basis. Id. at 1362.
^""375 N.E.2d at 594, See the discusion of the purpose of a motion to correct error

in Libunao v. Libunao, 388 N.E.2d 574, 578 (Ind. Ct. App. 1979).
^"•375 N.E.2d at 595.

''Ud. In Bridge v. Board of Zoning Appeals 381 N.E.2d 1060 (Ind. 1978), the ap-

pellant filed a motion to correct error in the trial court, which was granted in part. An
appeal to the court of appeals was dismissed because a second motion to correct error

had not been made. On transfer, the supreme court reversed and remanded the case to
the court of appeals for an opinion on the merits. Id. at 1061.

^"^Ind. R. App. P. 2(A) states in part: "An appeal is initiated by filing with the



1980] SURVEY- CIVIL PROCEDURE 83

would then become the appellant, who would appeal the disposition
made on Fs motion to correct error. The court stated: "If appellant
seeks [only to appeal the favorable relief given to the appellee]

because it was incorrect . . . , then it is not necessary for the ap-
pellant to do more than request relief on brief in the appellate
court."2°^

These facts were present in Schmal v. Ernst}^^ There, Schmal
appealed because escrow money of $1,200 was given to Ernst, but
was not credited against a judgment of $12,500. This fact was stated
in Ernst's motion to correct error. The appellate court observed that
*'Schmal was not required to file a motion to correct errors on his
own behalf since the only error alleged is the failure of the court to
apply the $1,200 against the judgment."^°^

(2) If an appellee in the appellate court does no more than
answer the appellant's positions and brief, then it is not necessary

for the appellee to file a motion to correct error in the trial court.

Here an appeal would be perfected from a trial error. Normally, of
course, it would be the appellant who would perfect that appeal. The
critical distinction which the court made in this situation was be-
tween that party who suffered some kind of adverse ruling or dispo-
sition before the verdict or judgment, which can be raised only by

first making a motion to correct that claimed error, and the party
who is now responding, on appeal, to a disposition made in the trial
court on another party's motion to correct error.

(3) If the appellant is a party who, for example, seeks to
reinstate a jury verdict in his favor which was changed on the ap-
pellee's motion to correct error, it is not necessary for the appellant

to file a motion to correct error if the appellant does not himself
raise error adverse to the appellant which occurred before the ap-
pellee's motion to correct error. Thus, it is not necessary for the ap-
pellant to do more than request relief on brief in the appellate court,
after initiating the appeal under the Appellate Rules.

In the foregoing situation, "the complaint on appeal will be

measured ... by the original verdict and judgment and the motion
to correct error filed by the appellee and the favorable relief given
to that motion by the trial court."^"^

(4) If a party was harmed by error which occurred prior to a ver-
dict or judgment, that party must file a motion to correct error in

clerk of the trial court a praecipe designating what is to be included in the record of
proceedings . . . ."

'""STS N.E.2d at 597.
2°^387 N.E.2d 96, 98 (Ind. Ct. App. 1979).

'''Id. at 98.

2°'395 N.E.2d at 597. See DeHart v. Anderson, 383 N.E.2d 431, 434 (Ind. Ct. App.
1978).



84 INDIANA LAW REVIEW [Vol. 13:57

order to raise that claimed error on appeal. The errors claimed in
the motion to correct error form the basis for his "complaint on ap-
peal."^°«

An appellee who wants to raise error adverse to him in the
course of a trial must also make a motion to correct error. Such a
situation could occur when the appellee believes that a judgment
which he received might be overturned by the appellate court.
Rather than having the appellate court reverse and enter judgment
for the appellant, the appellee might be entitled to a new trial. This
situation, it is suggested, prompted the supreme court to state the
following:

If each party makes a motion to correct error, then each
can raise the ruling on that motion and the ruling on the

other party's motion on appeal as cross-errors, respectively.

... If a party does not make a motion to correct error, he

has nothing belonging to him which can be appealed, unless,

of course, he is harmed if the other party moves to correct
error and the motion is granted in some aspect.^"^

A major problem remaining after the P-M Gas decision concerns
the time for making the motion. If an appellant waits until the fifty-
ninth day to make a motion to correct error, the appellee may not
have sufficient time to make a motion if he wants to raise error on
appeal. In this situation, absent a change in the rule, the appellee
should be entitled to relief under Trial Rule 60, which provides for

relief from judgment, and a trial court should entertain his motion

as if it were made under Trial Rule\59.
Another major problem relates to the finality of the order or

judgment which the trial court enters. For example, suppose a mo-
tion to correct error is made, and the trial court enters an order

which is not, in fact, responsive to the motion and does not alter the

judgment to which the motion was directed. Perhaps a second mo-
tion to correct error is filed by the appellant several days later, and

the trial court then enters an order correcting the preceding order

and amending the judgment. Question: When does time begin to run
for filing the praecipe under Appellate Rule 2(A), which is jurisdic-

tional?

It is suggested that time should begin to run from the order or

entry which the trial court regards as its final entry or order and

one which finally concludes all matters or questions in the trial

court, even if the last entry came as a result of an unnecessary, but

'"^STS N.E.2d at 597.

'"'Id.



1980] SURVEY- CIVIL PROCEDURE 85

permitted, second or third motion to correct error. If it is necessary

to make more than one motion to obtain a clear and final entry by
the trial court, the praecipe should be filed and time should run

from that last or final entry, and not from the first response to the

initial motion to correct error.

2. New Trial Limited to Damages Only.— In State v. Tabler,^^^
substantial evidence was offered which showed that one plaintiff
sustained a loss of $12,000 in wages, $31,000 in medical bills, and

eighty-five percent disability because of injuries which were described

as "horrible." Even so, the jury awarded only $7,500 for that plain-
tiff. Awards to other plaintiffs were also well below that warranted
by the evidence. The trial court granted the plaintiffs' motions to
correct errors and awarded a new trial solely on the issue of
damages, unless the State would agree to additur in an amount in
excess of $800,000.

On appeal, the court reiterated the principle that a new trial
could be limited solely to the issue of damages or, alternatively, ad-
ditur, although that limitation was not proper in this case.^^^ The
court cautioned that a new trial limited to damages was proper only
when it was clear that the verdict was not a product of compromise,
and that when liability was close and other evidence indicated that
the jury might have been compromised, a new trial on damages
alone would be improper.^^^

3. Raising Different Questions on Appeal —A party who has
made a motion to correct error cannot raise an error or question on
appeal different from that which was addressed in his motion, nor
can he raise for the first time a question in a motion to correct error

which was not preserved during trial by objection or an offer to prove.
These statements of law appear often in the appellate court deci-

sions in Indiana, and they raise the inference that trial court prac-

tice is not as carefully done as it should be.^^^

4. Newly Discovered Evidence. —The civil case of Legon
Specialized Hauler, Inc. v. Hott,'^^^ and the criminal case of Bryant v.
State,^^^ support the proposition that a new trial on the basis of newly
discovered evidence will be granted if the petitioner can show:

(1) that the evidence has been discovered since the trial;

(2) that it is material and relevant; (3) that it is not

^'"381 N.E.2d 502 (Ind. Ct. App. 1978).

'''Id. at 504-06.

'''Id. at 506.

"'E.g., Contech Architects & Eng'rs, Inc. v. Courshon, 387 N.E.2d 464, 467-68 (Ind.
Ct. App. 1979).

"'384 N.E.2d 1071 (Ind. Ct. App. 1979).
^'^385 N.E.2d 415 (Ind. 1979).



86 INDIANA LAWREVIEW [Vol. 13:57

cumulative; (4) that it is not merely impeaching; (5) that it is

not privileged or incompetent; (6) that due diligence was used
to discover it in time for trial; (7) that the evidence is worthy
of credit; (8) that it can be produced upon a retrial of the

case; and (9) that it will probably produce a different

result.^^^

5. Small Claims. —In Reynolds v. Meehan,^^'^ the court of ap-
peals held that the motion to correct error was the correct and pro-
per method by which an appeal is to be effected from a county
court, and that the motion must be filed in compliance with Trial
Rule 59.^^«

6. Entry of Appealable Final Judgment of Order. —Final
orders and judgments are defined, generally, in Indiana by case law

as well as by trial rules. A final order or judgment is one which
finally determines the rights of the parties involved. If a final judg-

ment or order does not dispose of all of the issues, it will be ap-
pealable if it disposes of some distinct and definite branch of the
proceeding and leaves no further determination to be made by the
trial court on that particular issue.^^^

Trial Rule MiW^' and Trial Rule 56(CP^ each define "finality
."^^^

An order under Trial Rule 23(C)(1), which allows an action to exist as
a class action, is a final determination and appealable as such.^^^

However, a discovery order or an order effecting discovery, without

'''Id. at 421 (quoting Tungate v. State, 238 Ind. 48, 54-55, 147 N.E.2d 232, 235-36

(1958).

2^375 N.E.2d 1119 (Ind. Ct. App. 1978).

^'Hd. at 1122. In Strube v. Sumner, 385 N.E.2d 948 (Ind. Ct. App. 1978), the court

of appeals sustained Marion County R. Sm. Cl. 16(B), which requires the appellant to

post an appeal bond in appealing from the Marion County Small Claims Court to the

Marion County Superior Court, against a constitutional attack made under the equal

protection clause of the Indiana Constitution, art. 1, § 12, and the fourteenth amend-

ment to the United States Constitution. 375 N.E.2d at 952. The small claims court had

set Strube's appeal bond at $1,215.04. Compare Ind. Code § 33-11.6-4-5 (1976), under

which Marion County R. Sm. Cl. 16(B) was adopted, with Ind. Code § 33-11.6-6-10

(1976 & Supp. 1979) (effective Jan. 1, 1979).

'•'Hansbrough v. Indiana Revenue Bd., 164 Ind. App. 56, 61, 326 N.E.2d 599, 602

(1975).

^^"Ind. R. Tr. p. 54(B) states in part that a trial court may direct the entry of a
final judgment on fewer than all of the claims of the parties "upon an express deter-

mination that there is no just reason for delay and upon an express direction for the

entry of judgment."

^^'Ind. R. Tr. p. 56(C) allows the entry of a final judgment on an order for sum-

mary judgment which is directed to less than all of the issues involved.

^'^^Stanray Corp. v. Horizon Constr., Inc., 342 N.E.2d 645 (Ind. Ct. App. 1976), is a

leading Indiana case on the subject. See also Geyer v. City of Logansport, 317 N.E.2d

893 (1974).

==^^Gulf Oil Corp. V. McManus, 363 N.E.2d 223 (Ind. Ct. App. 1977).



1980] SURVEY-CIVIL PROCEDURE 87

a special certification under Appellate Rule 4(B)(5), is not appealable

as an interlocutory order.^^^

In Hudson v. Tyson,'^^^ the court of appeals held that a trial court
order which directs a defendant to make payment to the plaintiff is
a final judgment and not an interlocutory order appealable under
Appellate Rule 4(B).^^^ No motion to correct error need be filed in
order to perfect an appeal from an interlocutory order.^^^ If a motion

to correct error is filed, however, then the time sequence which is

built into that motion will control the time sequence in the appeal.

Nevertheless, the court appeared to hold that the final judgment in
these circumstances might be appealed as if it were an interlocutory
order or judgment.^^^ If so, the time sequence established for an in-

terlocutory order appeal would control the appeal. The court's opin-
ion appears to be squarely opposite to the same court's opinion in
Protective Insurance Co. v. Steuher}^^

In Pounds v. Pharr,^^^ the court of appeals held that a default en-
try not reduced to judgment is a final and therefore appealable
order.^^^

7. Appeals: Interlocutory Orders. —The circuit court in In re
Estate of Garwood^^^ had entered an order which directed a special

administrator of an estate to effect the sale of certain real property

in the estate to a buyer. The order was entitled a "judgment," but
the court of appeals did not accept it as a final judgment or ap-
pealable as such.

The majority held that the order to sell real estate was in-
terlocutory under Appellate Rule 4(B)(2).^^^ Because the appeal was
effected pursuant to a motion to correct error, and not pursuant to

the filing of the record of proceedings within thirty days under Ap-

pellate Rule 3(B),^^'' the appeal was dismissed sua sponte.^^^
A concurring opinion said that the appellate court had the

authority to remand the case to the trial court for determination of

^^^Greyhound Lines, Inc. v. Vanover, ]60 Ind. App. 289, 311 N.E.2d 632 (1974).

^^^383 N.E.2d 66 (Ind. Ct. App. 1978).

'''Id. at 69-71.

^'iND. R. Tr. P 59(G).
"«383 N.E.2d at 72.
'^'370 N.E.2d 406 (Ind. Ct. App. 1977).
''"376 N.E.2d 1193 (Ind. Ct. App. 1978).

'''Id^at 1194-95.

2^^382 N.E.2d 1020 (Ind. Ct. App. 1978).

'^Hd. at 1021. Ind. R. App. P. 4(B)(2) provides for the appeal of an interlocutory

order, as of right, which is "[f]or the delivery of the possession of real property or the

sale thereof . . . ."

^^^Under Ind. R. App. P. 3(B), appeals of interlocutory orders shall have the record

of proceedings filed within 30 days of the interlocutory ruling being appealed.

2^^382 N.E.2d at 1022.



88 INDIANA LAWREVIEW [Vol. 13:57

whether the order was appealable as a final order under Trial Rule

54(B), but that remand was not proper here.^^^
8. Remittitur. —In sl condemnation action against certain

church property for the purpose of highway construction, the court

of appeals had concluded that the award was nearly $17,000 over

and above any proper evidence of the highest damages assessable,
and ordered a remittitur of that amount.^^^ The supreme court held
that the authority of an appellate court to modify judgments was

not only inherent but also specifically provided in Appellate Rule

15(NP^ and Indiana Code section 34-5-1-2.^^^ That authority includes,

in a proper case, the power "to direct a remittitur or to affirm, con-
ditioned upon a remittitur."^*" The supreme court believed, however,

that the court of appeals might have speculated on certain evidence

in the case, and concluded that additional determinations were needed

in the courts below.^'''

^^^Id. at 1023 (Lybrook, J., concurring).

'''State V. Church of the Nazarene, 354 N.E.2d 320, 324 (Ind. Ct. App. 1976).

''*Ind. R„ App. P. 15(N) provides in part: "An order or judgment upon appeal may

be reversed as to some or all of the parties and in whole or in part."
'^^377 N.E.2d 607, 610 (Ind. 1978). See Ind. Code § 34-5-1-2 (1976).

'''Id. at 610.

'''Id. at 611.