Indiana Law Review Commeiit Revised Trial Rule 59 and P-M Gas The Honorable Jonathan J. Robertson* Bridging the gap between trial and appeal has been, at times, a frustrating and difficult task for the prospective appellant. Once again, the methodology of the step is undergoing review by the In- diana Supreme Court Advisory Committee on Revision of Rules of Practice and Procedure to make Trial Rule 59 comport with P-M Gas & Wash Co. v. Smith} An examination of past rules reveal that the procedure has broken down periodically from either overuse or overly strict application, thereby requiring the drafting of a new rule to correct defects discovered in the day-to-day application of the procedure. I. A Historical Labyrinth At early common law, Indiana followed the English method of appellate practice whereby a judgment at law could only be attacked by a writ of error.^ In such a case, the appellant filed the writ with a court of chancery. The ensuing order, if granted, would man- date the trial court to prepare and deliver the record to the court of appeals and would grant a commission to the appellate court to act on the matter.^ The appellate court only examined questions of law in reviewing writs of error issued by the chancery court.^ In con- trast, the appellate court could review judgments of equity courts by appeal only.^ The appellate court could examine issues of fact as well as law on appeal.* Before and after the writ of error procedure was abolished in favor of an appellate system, appellate counsel had the difficult task of Judge, Indiana Court of Appeals. A.B., Indiana University, 1954; J.D., Vander- bilt University, 1961. The author extends his appreciation to Fred Miller and Bob Beasley for their assistance in preparing this Comment. '375 N.E.2d 582 (Ind. 1978), discussed in Harvey, Civil Procedure and Jurisdic- tion, 1979 Survey of Recent Developments in Indiana Law, 13 Ind. L. Rev. 57, 81-85 (1980) [hereinafter cited as Harvey, 1979 Survey]; Harvey, Civil Procedure and Jurisdiction, 1978 Survey of Recent Developments in Indiana Law, 12 Ind. L. Rev. 42, 67-68 (1979). ^A. Iglehart, Pleadings and Practice 419-20 (1879). Hd. See, e.g., Deputy v. Tobias, 1 Blackf. 311 (Ind. 1824). *A. Iglehart, supra note 2, at 419-20. 'Id. 'Id. 541 542 INDIANA LA WREVIEW [Vol. 13:541 deciding which matters were properly a part of the record without filing a bill of exceptions. Generally, all written documents such as pleadings and motions were a part of the record, whereas written evidentiary documents or oral testimony were not included.^ The supreme court's policy of excluding certain questionable matters from review by omitting them from the record did not escape criticism: There has been no little confusion in the practice in the supreme court in determining what is properly in the record in a given cause. . . . [T]he court seems to have favored that rule which would exclude from the record everything doubt- ful. Whether this is wise, it would hardly be profitable to in- quire, but rulings of this class have frequently resulted in a failure of justice to the client for want of legal discrimination not possessed by the average attorney.® The supreme court also required that documents properly of record had to be copied in the transcript; accordingly, originals in the record were disregarded.^ The bill of exceptions was another area of bewildering complexi- ty. The bill of exceptions was designed to bring matters into the record which were not included as a matter of course.*" Unless cer- tain matters were made part of the record by filing a bill of excep- tions in a timely manner, an objection based on such matters would not be reviewed, although the matters had been accurately copied into the record by the clerk. The supreme court strictly enforced the technical requirements for a bill of exceptions. For example, a document which lacked a for- mal caption denoting the document as a bill of exceptions was insuf- ficient to preserve error, even when the document had been cer- tified by the trial court and judge." Moreover, matters in the bill would not be considered without a showing in the record that a par- ty had filed the bill with the clerk after it had been signed by the judge. *^ The supreme court additionally held that a bill of exceptions which correctly referred to the pages in the transcript where the evidence was located was inadequate to present error; instead, such Ud. at 422-24. 'Id. at 424. 'L. EwBANK, A Manual of Practice in the Supreme and Appellate Courts of Indiana § 116, at 240 (2d ed. 1915). '"See generally 3 F. WiLTROUT, Indiana Practice §§ 2271-2272, 2275 (1967); 4 Works' Indiana Practice §§ 62.6.8 (4th ed. C. Lowe 1952) [hereinafter cited as Works' 4th ed.]. "Knickerbocker Ice Co. v. Lewis, 160 Ind. 494, 497, 67 N.E. 188, 189 (1903). •^enezini v. Morrissey, 161 Ind. 391, 392, 68 N.E. 682, 682 (1903). 1980] TRIAL RULE 59 543 evidence had to be physically embraced within the bill of excep- tions/^ Furthermore, although a motion for a new trial was properly of record without a bill of exceptions, factual averments contained in the motion did not become part of the record unless they were in- corporated in a proper bill of exceptions.** Also, a bill of exceptions which concluded that it contained all of the "testimony" in a given cause saved nothing for review because such a conclusion was not the equivalent of a statement that the bill contained all of the "evidence."*^ Conversely, matters which were properly part of the record without a bill of exceptions could not be brought into the record by a bill of exceptions.** In large measure, however, the confusion concerning documen- tary matters was eliminated by the following statute: Matters that are part of the record without a bill of excep- tions.— Every pleading, motion in writing, report, deposition or other paper filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record from the time of such filing or offer to file. Any order or action of the court in respect to any such pleading, motion in writing, report, deposition or other paper, and every exception thereto taken by any party, shall be entered by the clerk on the minutes or record of the court, and the same, when so entered, shall be a part of the record without any bill of exceptions. Every oral motion, and the ruling of the court thereon and the ex- ceptions taken thereto, shall be entered upon the record or minutes of the court and shall be a part of the record with- out any bill of exceptions: Provided, That nothing herein shall be construed to prevent the bringing into or putting in- to the record by proper bill or bills of exceptions any matter which, under the common laws, would not be a part of the record without a bill of exceptions.*^ The current rules of procedure also obviate the need for bringing the evidence into the record by a bill of exceptions.** The stringent requirements for attacking a judgment demon- strate that the task of merely presenting the events of a trial could ^'Blessing v. Blair, 45 Ind. 546 (1874). "Hopkins v. Greensburg, Knightstown, & Clarksburg Turnpike Co., 46 Ind. 187, 195 (1874). ^'Gazette Printing Co. v. Morss, 60 Ind. 153, 157 (1877). '"Wilson V. State, 156 Ind. 631, 635:36, 59 N.E. 380, 392 (1901). "Ind. Code Ann. § 2-3104 (Burns repl. 1968) (repealed effective 1970). '*Ind. R. App. p. 7.2. See also Registration & Management Corp. v. City of Ham- mond, 151 Ind. App. 471, 280 N.E.2d 327 (1972). 544 INDIANA LA WREVIEW [Vol. 13:541 not be taken lightly. In addition, appellate counsel had to grope through an absurd procedural maze in seeking post-judgment relief. At early common law, the jury's verdict was deemed conclusive and could only be challenged by a proceeding to attaint. ^^ To mitigate the harshness of a proceeding to attaint, the common law began to recognize both a motion for a new trial, whenever ''injustice had been done,"^° and a writ of venire de novo, which was a writ re- questing a reexamination of the facts for some error in the trial pro- ceedings.^^ Although both the writ and the motion requested the same remedy — a new trial, the two proceedings differed mechanically. A venire de novo was the proper method of attack when a defect ap- peared on the face of the record, whereas a motion for a new trial addressed matters which were not part of the record.^^ Thus, if a jury returned a general verdict without determining an issue for or against either party, a venire de novo would be proper because the defect was present on the face of the record.^^ If, however, the jury or court made special findings of facts, the presumption that facts which had not been found were not proven could be controverted only by matters outside the record, such as the transcript of the evi- dence. Hence, the facts could be attacked only by a motion for a new trial.'' The frustration resulting from post-judgment practice prior to the adoption of the modern rules generally involved the interplay of the motion for a new trial and the assignment of errors. Upon a writ of error in the early common law, all errors would be reviewed even though such errors were also grounds for a new trial.'^ Never- theless, the supreme court held that if the asserted error was a proper cause for a new trial, the error must be asserted as such to "'A proceeding to attaint was a product of English common law: This inquiry was made by a grand assise or jury of twenty-four persons, usually knights, and, if they found the verdict a false one, the judgment was that the jurors should become infamous, should forfeit their goods and the profits of their lands, should Ihemselves be imprisoned, and their wives and children thrust out of doors, should have their houses razed, their trees ex- tirpated, and their meadows plowed up, and that the plaintiff should be restored to all that he lost by reason of the unjust verdict. Blacks Law Dictionary 116 (5th ed. 1979) (citing W. Blackstone, 3 Commentaries on THE Laws of England 402-04 (1768)). ^"Lowry v. Indianapolis Traction & Terminal Co., 77 Ind. App. 138, 144, 126 N.E. 223, 225 (1920). "Bosseker v. Cramer, 18 Ind. 44, 46 (1862). ^Id. at 46-47; Lowry v. Indianapolis Traction & Terminal Co., 77 Ind. App. at 150, 126 N.E. at 227. '''Maxwell v. Wright, 160 Ind. 515, 518-20, 67 N.E. 267, 268-69 (1903). ^*See Graham v. State ex rel. Board of Comm'rs, 66 Ind. 386 (1897). ''''A. Iglehart, supra note 2, at 428-29. 1980] TRIAL RULE 59 545 be properly before the court on appeal.^^ Under this requirement, the overruling of the motion for a new trial served as the assigned error.^^ In State ex rel. Foster v. Swarts,^^ the supreme court stated the now familiar purpose of this requirement: It does not appear that the plaintiff moved the Court for a new trial. This was essential to enable the Court to review its own action. ... It is due to the lower Court that its er- rors, if any, should be pointed out there, so that it may retrace its steps while the record is yet under its control. Without a motion for a new trial, the attention of that Court is not called to its own errors. It is not apprised of what they are. That motion was essential to bring any of the ques- tions arising in the trial, before us . . . .^^ Another recurring problem for appellate counsel was the necessity of determining which errors fell within the parameters of the eight statutory causes for a new trial.^° The early notion that on- ly errors which could be remedied by a new trial — those errors oc- curring during the course of the trial — was incorrect.^^ With respect ''See, e.g., Todd v. State, 25 Ind. 212 (1865); Stump v. Fraley, 7 Ind. 679 (1856). "See, e.g., Ferrenburg v. Studabaker Turnpike Co., 37 Ind. 251 (1871); Caldwell v. Asbury, 29 Ind. 451 (1868). '"9 Ind. 221 (1857). ^Id. at 222 (citation omitted). ^°The statutory causes for a new trial were: First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial. Second. Misconduct of the jury or prevailing party. Third. Accident or surprise, which ordinary prudence could not have guarded against. Fourth. Excessive damages. Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. Sixth. That the verdict or decision is not sustained by sufficient evidence, or is contrary to law. Seventh. Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Eighth. Error of law occurring at the trial and excepted to by the party making the application; and the court, in granting new trials, may allow the same at the costs of the party applying therefor, or on the costs abiding the event of the suit, or a portion of the costs, as the justice and equity of the case may require, taking into consideration the causes which may make such new trial necessary. Ind. Code Ann. § 2-2401 (Burns repl. 1968) (repealed effective 1970). '*L. EwBANK, supra note 9, § 39, at 84-85. 546 INDIANA LAWREVIEW [Vol. 13:541 to an irregularity in the proceedings, a motion for a new trial would include erroneous rulings on proceedings for a continuance and rul- ings on motions to suppress depositions.^^ The overruling of a motion alleging that a special judge was selected in an erroneous manner also required assignment as a cause for a new trial.'^ When a default judgment was entered, however, error with respect to a change of judge had to be independently assigned as error because a new trial was impossible.^^ Matters relating to a change of venue had to be alleged in a mo- tion for a new trial.^^ Because a petition for removal resembles a mo- tion for a change of venue in that both matters are collateral to the merits, Indiana courts required that any error relating to the peti- tion be asserted in a motion for a new trial.^® On the other hand, if the court permitted an amendment to the pleadings, even during the course of trial, the error relating to the petition had to be assigned independently.^^ The courts zealously enforced this rigid system of classifying er- rors according to the statutory causes for a new trial. With respect to tort damages, only the fourth statutory cause, excessive damages,'® was available to raise an error ,'^ even when an error was based on incorrect instructions.^" The fifth statutory cause, involving errors in damage amounts,*^ embraced tort actions only when the alleged error was inadequate damages.'*^ Cases based on breach of contract or detention of property could also qualify under the fifth statutory clause, provided the recovery was allegedly too large or too small." The sixth ground, which provided "[t]hat the verdict or decision is not sustained by sufficient evidence, or is contrary to law,"" re- quired an allegation that the verdict or decision was contrary to law ''Id., § 41, at 85-86. See also 4 Works' 4th ed., supra note 10, §§ 61.27-.28, at 29-30. ^'Walb V. Eshelman, 176 Ind. 253, 260, 94 N.E. 566, 569 (1911). ^Goodrich v. Stangland, 155 Ind. 279, 284-85, 58 N.E. 148, 150 (1900). '^Horton v. Wilson, 25 Ind. 316, 317-18 (1865). '"Southern Ry. Co. v. Sittasen, 166 Ind. 257, 260, 76 N.E. 973, 974 (1906). "Reed v. Light, 170 Ind. 550, 567, 85 N.E. 9, 16 (1908). '«IND. Code Ann. § 2-2401 (Burns repl. 1968). 'M Works' 4th ed., supra note 10, § 61.69, at 59-60. See, e.g. Finster v. Wray, 131 Ind. App. 303, 313-14, 164 N.E.2d 660, 665 (1960) (allegation that recovery of tort damages was "too large" insufficient to present error). "4 Works' 4th ed., supra note 10, § 61.72, at 61. "Ind. Code Ann. § 2-2401 (Burns repl. 1968). "4 Works' 4th ed., supra note 10, § 61.77, at 64. "M, § 61.78, at 65 (allegation that damages were "excessive" improper). "Ind. Code Ann. § 2-2401 (Burns repl. 1968) (repealed effective 1970). 1980] TRIAL RULE 59 547 or not sustained by sufficient evidence. An allegation that the ver- dict or decision was contrary to the evidence, however, did not satisfy the sixth ground/^ Moreover, "decision" was not synonymous with ''judgment" under this statutory ground/* Consequently, the use of the word "judgment" in alleging the same to be contrary to law or not sustained by sufficient evidence was not a cognizable er- ror under the statute/^ Not to be outdone by the procedures of moving for a new trial, the process of assigning errors became a procedural morass without logical support. Consider the following statements by Ewbank: It is only rulings of a final character that can properly be assigned as error on appeal. Any ruling which the trial court retains authority to correct must be presented to that court for review in a proper manner before the appeal is taken, or it will not be reviewed on appeal. Therefore, er- roneous rulings which are causes for a new trial can not be assigned as error." The sufficiency of a paragraph of pleading must be tested by a demurrer, the rulings of the court at the trial must be presented for review by a motion for a new trial, the sufficiency of the verdict must be tested by a motion for a venire de novo, and the judgment must be attacked by a motion to set it aside or to modify it, before the errors which might be reached in that manner will be considered by an appellate tribunal; and the assignment of errors must refer, not to the original error, but to the ruling of the court when it was presented in an appropriate manner for its con- sideration.'*^ Thus, erroneous conclusions of law were reviewable only if a proper exception were made, and an error was independently assigned because a motion to modify the judgment or a motion for a new trial would not reach the issue.^** In contrast, a judgment which did not conform to the conclusions of law could only be attacked by a motion to modify the judgment.^^ Moreover, if the answers to special inter- "4 Works' 4th ed., supra note 10, § 61.84, at 71-72. *'Id., § 61.82, at 68. "Id., § 61.84, at 70-71. See, e.g., Adkins v. State, 234 Ind. 81, 123 N.E.2d 891 (1955). "L. Ewbank, supra note 9, § 134, at 285 (footnote omitted). *'Id., § 136, at 289. •^Nelson v. Cottingham, 152 Ind. 134, 137, 52 N.E. 702, 702-03 (1899). ''Id. at 136, 52 N.E. at 702. 548 INDIANA LA WREVIEW [Vol. 13:541 rogatories were inconsistent with the general verdict, a motion for a new trial was improper, and the question could only be preserved by an independent assignment of error on the overruling of a motion for a judgment notwithstanding the general verdict.^^ These are only a few of the examples illustrating the ludicrous requirements for assigning error.^^ By revising Indiana Supreme Court Rule 2-6^^ in 1949, the supreme court eliminated the confusion by permitting all errors aris- ing up to the filing of a motion for a new trial to be asserted in such a motion. This practice was optional; errors which previously could have been assigned independently could still be assigned as such.^^ In 1960, the rule was revised to mandate the raising of errors in the motion for a new trial.^^ If the error were properly assignable in a motion for a new trial, the error would not be reviewed if assigned independently" or if not first presented in the motion for new trial.^^ Thus, when the appellant assigned as error the identical grounds presented in the motion for a new trial, no issue was before the court because the errors could only be presented by assigning error in the overruling of the motion for a new trial.^® When a motion for a new trial was filed, the asserted errors in the motion could be preserved only by assigning as error the overruling of the motion: It has been a cause of regret to us that so many cases which are brought to this court, on which, frequently, much labor has been bestowed in their preparation, and in some of which error plainly appears, must be disposed of without our ^^Inland Steel Co. v. Harris, 49 Ind. App. 157, 160, 95 N.E. 271, 272 (1911). ^Tor matters properly assigned independently, see L. Ewbank, supra note 9, §§ 39, 133, 136; 3 F. Wiltrout, supra note 10, § 2388, at 207-10; 4 Works' 4th ed., supra note 10, § 61.120, at 106 n.2. As to errors which had to be assigned as grounds for a new trial under former practice, see 4 Works' 4th ed., supra note 10, §§ 40-49a; 5 Works' Indiana Practice § 90.16, at 134-35 (5th ed. A. Bobbitt 1979). "Ind. Sup. Ct. R. 2-6 (Burns Supp. 1959) (1949 revision). ^^he 1949 revision was discussed in 4 Works' 4th ed., supra note 10, § 70.73, at 651: [T]his affords a safe and sure method of saving all questions presented in the trial court on appeal. All that is required is to specify each ruling of the trial court from the commencement of the action to the filing of the motion for a new trial as one of the grounds for a new trial. When the motion for a new trial is overruled, an assignment of error that the court erred in overruling such motion will present all of the questions on appeal. ^Ind. Sup. Ct. R. 2-6 (Burns repl. 1967) (1960 revision). "Wilson V. State, 247 Ind. 454, 456, 217 N.E.2d 147, 149 (1966); Brown v. Harding, 136 Ind. App. 678, 682, 204 N.E.2d 680, 682 (1965). "Denton v. State, 246 Ind. 155, 158, 203 N.E.2d 539, 540 (1965); Parker v. State, 243 Ind. 482, 483, 185 N.E.2d 727, 727 (1962). "•Payne v. State, 243 Ind. 400, 186 N.E.2d 9 (1962). 1980] TRIAL RULE 59 549 being able to reach the merits of the controversy. ... In order to bring before us all the questions presented in the motion for a new trial, it was simply necessary for the ap- pellants to say, in the assignment of errors, that the court erred in overruling the motion for a new trial. Instead, however, of doing that, the appellants have, in the assign- ment, set forth certain reasons for which, if well founded, the court might have granted a new trial, but which present to this court no question whatever.^" In sum, the task of appealing a case in Indiana has been fraught historically with pitfalls precluding even the most worthy appeals.®^ II. Trial Rule 59: One Step Out of the Maze? Although Supreme Court Rule 2-6 represented an effort to streamline the procedure of seeking different types of relief from a trial court judgment, the illogic of filing a new motion for a new trial when a party was seeking relief other than a new trial influenced the adoption of Trial Rule 59.®^ Trial Rule 59 provides that a party seeking post-judgment relief must file a motion to correct errors.*^ By filing a motion to correct errors, a party can seek many types of relief in addition to a new trial.^* Logically, a motion to correct "Ferrenburg v. Studabaker Turnpike Co., 37 Ind. 251, 252 (1871) (citations omit- ted). "Other early procedural quirks included the right to a new trial as a matter of right in disputes concerning land. See, e.g., Studabaker v. Alexander, 179 Ind. 189, 100 N.E. 10 (1912). The Studabaker court stated that the statute was anomalous, that it should be strictly construed, and that it was derived from the English policy of the sanctity of real estate. Id. at 192-93, 100 N.E. at 11. Another procedural pitfall con- cerned the impropriety of a motion for a new trial after a motion in arrest of judg- ment. See, e.g., McKinney v. Springer, 6 Ind. 453 (1855); Howard v. State, 6 Ind. 444 (1855). '^4 W. Harvey, Indiana Practice 113 (Civil Code Study Commission Comments). See Indiana & Mich. Elec. Co. v. Louck, 243 Ind. 17, 20-21, 181 N.E-2d 855, 856 (1962) (prior to adoption of new trial rules in 1970). •'Ind. R. Tr. P. 59. •"iND. R. Tr. p. 59(1) provides in part: The court, if it determines that prejudicial or harmful error has been commit- ted, shall take such action as will cure the error, including without limitation the following with respect to all or some of the parties and all or some of the issues: (1) Grant a new trial; (2) Enter final judgment; (3) Alter, amend, modify or correct judgment; (4) Amend or correct the findings or judgment as provided in Rule 52(B); (5) In the case of excessive or inadequate damages, enter final judgment 550 INDIANA LAWREVIEW [Vol. 13:541 errors, instead of a motion for a new trial, is a prerequisite for appealing a trial court judgment under the trial rules.^^ Despite the logical appeal of Trial Rule 59, new procedural prob- lems have impeded a party's entry into the appellate court system. Until recently amended. Trial Rule 59(C) provided that "a motion to correct errors shall be filed not later than sixty [60] days after the entry of judgment."®* This rule arguably required a motion to cor- rect errors after the entry of every judgment. Professor Grove recently identified the absurdity of this requirement: Following the trial court's entry of judgment, one of the par- ties files a timely motion to correct errors; in the course of its ruling on the motion, the trial court enters a new judg- ment. Should a second motion to correct errors addressed to the judgment be required as a prerequisite to appeal? Accord- ing to Appellate Rules 4(A) and 2(A) the answer would seem to be *'no": the ruling on the motion is "deemed" to be the *'final judgment" from which a timely appeal may be per- fected. Trial Rule 59(C), however, suggests the necessity of a motion to correct errors directed to the new "entry of judg- ment." . . . [I]t is plausible to conclude that any error occur- ring prior to the time when a motion addressed to the new judgment could be filed must be specified in such motion, in- cluding error already set forth in the motion to correct er- rors directed to the original judgment.®' 68Nevertheless, the Indiana Supreme Court in Deprez v. State on the evidence for the amount of the proper damages, grant a new trial, or grant a new trial subject to additur or remittitur; (6) Grant any other appropriate relief, or make relief subject to condi- tion; or (7) In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a nonadvisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a nonadvisory jury is clearly er- roneous as contrary to or not supported by the evidence, or if the court determines that the findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence. This provision was formerly Trial Rule 59(E). "^Bradburn v. County Dep't of Pub. Welfare. 148 Ind. App. 387, 390, 266 N.E.2d 805, 806 (1971); Ind. R. Tr. P. 59(G) (altered in amended version of trial rule). **Ind. R. Tr. P. 59(C). The amended version of Trial Rule 59(C) replaces old Trial Rules 59(C) and 59(G). See Ind. R. Tr. P. 59(C). "Grove, The Requirement of a Second Motion to Correct Errors as a Prere- quisite to Appeal, 10 Ind. L. Rev. 462, 463 (1977). *'«260 Ind. 413, 296 N.E.2d 120 (1973), overruled, P-M Gas & Wash Co. v. Smith, 375 N.E.2d 592 (Ind. 1978). For a further discussion of DePrez, see notes 74-75 and ac^ companying text. 1980] TRIAL RULE 59 551 adopted the requirement of a second motion to correct errors after the trial court enters a new judgment.®^ The supreme court overruled Deprez in P-M Gas & Wash Co. v. Smith''^ by adopting several procedural rule changes eliminating the second motion requirement. The P-M Gas court made critical changes in the process of filing "motions to correct errors, cross- errors, and the various rights of appeal on assignment of error."^^ The following essential facts are crucial for understanding the substantive changes made in P-M Gas: (1) Smith filed a personal in- jury suit against P-M Gas. The jury returned a verdict for P-M Gas; (2) Smith filed a motion to correct errors. Although the trial court overruled certain specifications, it sustained one ground and ordered a new trial; (3) P-M Gas filed a motion to correct errors which was denied; (4) At the appellate level, Smith, the appellee, assigned cross-errors in his brief concerning questions raised in his original motion to correct errors, which the trial court had overruled; and (5) P-M Gas, the appellant, moved to strike Smith's cross-errors for failure to comply with Trial Rule 59(D) which, according to P-M Gas, required Smith to file cross-errors within fifteen days after P-M Gas's motion to correct errors. On transfer, the supreme court considered a two-pronged argu- ment that the court of appeals had erred in striking the cross-errors in Smith's appellee brief: (1) P-M Gas unnecessarily filed a motion to correct errors. Because the motion was unnecessary, Smith was not required to file cross-errors under Trial Rule 59(D); and (2) Trial Rule 59(D) applies only to a motion filed on evidence outside the record. P-M Gas essentially argued for the necessity of filing a subse- quent motion to correct errors by an aggrieved party when a prior motion is granted in part and a new trial is ordered. The supreme court observed that P-M Gas was caught in a "procedural quagmire"^^ created by the court's own "initial judicial error"^^ in DeprezJ* Admitting that the Deprez ruling was erroneous, the court explained: In Deprez, the trial court in a long standing condemna- tion action entered a judgment against the state, dismissing with prejudice. The state filed a motion to correct error. ''See 260 Ind. at 420, 296 N.E.2d at 124. ^"375 N.E.2d 592 (Ind. 1978). ''Id. at 597. ''Id. at 593. ''Id. at 597. ^Tor a discussion of many of these appellate court cases, see Grove, supra note 67. 552 INDIANA LA WREVIEW [Vol. 13:541 after which the trial court set forth, for the first time, find- ings of fact and conclusions of law and entered a judgment of dismissal which is a final judgment. The state then directly- appealed without a second motion to correct error addressed to the "new judgment" and this Court agreed with the ap- pellee in that case that the appeal should be dismissed because the state had not filed a second motion to correct er- ror. The designation of the second judgment of dismissal with prejudice as "new" did not make it more final than the original judgment of dismissal with prejudice. That conclusion was incorrect, and it and the Deprez cases are overruled herewith.^^ The supreme court held that the requirement of a second motion to correct errors was error because Appellate Rule 4{AP "states that a trial court's ruling on a motion to correct error shall be deemed the 'final judgment' from which appeal is to be taken."^^ The court observed that Appellate Rule 4(A) accords with Appellate Rule 2(Ar® involving the initiation of an appeal and Appellate Rule 7.2(A)(1P concerning the inclusion of documents in the record.*" Moreover, ac- cording to the court, Trial Rule 59(G)®^ did not require a second mo- '^375 N.E.2d at 594. ^®Ind. R. App. p. 4(A) provides in part: Appeals may be taken by either party from all final judgments of Circuit, Superior, Probate, Criminal, Juvenile, County, and where provided by statute for Municipal Courts. 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. "375 N.E.2d at 594. '«lND. R. App. P. 2(A) states: An appeal is initiated by filing with the clerk of the trial court a praecipe designating what is to be included in the record of the proceedings, and that said praecipe shall be filed within thirty (30) days after the court's ruling on the Motion to Correct Errors or the right to appeal will be forfeited. A copy of such praecipe shall be served promptly on the opposing parties. ^«IND. R. App. P. 7.2(A)(1) states: The record of the proceedings shall consist of the following documents: (1) A certified copy of the motion to correct errors or an assignment of errors. (a) In all appeals from a final judgment, a certified copy of the motion to correct errors filed with the trial court shall constitute for all purposes the assignment of errors. No assignment of error other than the motion to cor- rect errors shall be included in the record. (b) In all appeals from interlocutory orders, there shall be included in- stead of the certified copy of the motion to correct errors a specific assign- ment of the errors alleged. «''375 N.E.2d at 594. «'Ind. R. Tr. P. 59(G) provided: 1980] TRIAL RULE 59 553 tion, notwithstanding suggestive language otherwise.®^ The court flatly declared in P-M Gas: "One motion for each party or each ap- pellant, if there is more than one, shall be sufficient. . . . Once it is made and acted upon, whatever action the trial court takes, then the items specified in that motion, and the trial court's disposition con- stitute the basis for the appellant's appeal."®^ In short, the court ruled 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. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appoint- ing or refusing to appoint a receiver, and from orders in proceedings sup- plemental to execution. «^375 N.E.2d at 595. ^Ud. The P-M Gas court elaborated on these points as follows: IV. [Ind. R. App. p.] 4(A) should be read as allowing either party to ap- peal a ruling on a motion to correct error, and the principles of law on 'finali- ty' are well stated in [3 W. Harvey, Indiana Practice § 54.2 (Supp. 1978)]. V. If a party seeks to raise error which occurred at trial, or afterward in a verdict or judgment, then [Ind. R. Tr. P.] 59(G), second sentence, re- quires that party to make a motion to correct error. Once made, no second motion should ever be required from that party. (A) If a party wants to complain about the relief granted to another par- ty, when that other party made a motion to correct error which was granted in whole or in part, then that party can appeal that order, and commence the process under [Ind. R. App. P.] 2(A). (B) This would not require that party to make a motion to correct error in his own right. In that way, that party then becomes an appellant, and the regular appeal process obtains. (C) It is often the case that an appellee will not raise trial error in the appellate court, and will only answer the appellant's positions and brief. If so, then it is not necessary for the appellee to file a motion to correct error in the trial court. VI. If the appellant, on the other hand, is a party who seeks to reinstate a jury verdict, for example, after it was received by the appellant but changes as a result of a motion to correct error by the appellee, who now defends the final judgment entered, it is not necessary for that appellant to file a motion to correct error, if appellant does not raise error himself. If ap- pellant seeks reinstatement of that jury verdict because it was incorrect for the trial court to have granted the appellee's motion to correct error, then it is not necessary for the appellant to do more than request relief on brief in the appellate court. The "complaint on appeal" will be measured, in such an example, by the original verdict and judgment and the motion to correct er- ror filed by the appellee and the favorable relief given to that motion by the trial court. VII. If the appellant maintains that there was error, he can say that on brief and explain why, after he has initiated the appeal under the Indiana Rules of Appellate Procedure. VIII. Of course, if trial was to the court, and the trial court first 554 INDIANA LA WREVIEW [Vol. 13:541 that an appellant does not have to file a second motion to correct er- rors if he has raised the error in a previous motion.®^ With this foundation established, the court held that the cross- errors raised in Smith's brief should not have been dismissed for failure to comply with Trial Rule 59(D) because he raised the cross- errors in his original Trial Rule 59 motion.^^ Disagreeing with the lower appellate court's interpretation,*^ the supreme court simply stated that Trial Rule 59(D) "only covers matters dehors the record."®^ Nothwithstanding the Trial Rule 59(D) situation, the court acknowledged that cross-appeals are not addressed in Indiana's rules of procedure. The court took the initiative to develop a set of rules for cross-appeals.®* According to the court, the second sentence of Trial Rule 59(G),*^ which eliminated the need to file a second motion to correct errors after the motion is made, applied to a cross- appellant.^^ In addition, the court ruled that [i]f an appellee desires to become a cross-appellant, then he must make that decision within sixty days after the entry of the judgment in his favor, pursuant to [Trial Rule] 59(C). When that has been done, then the ruling which is made on that motion to correct error becomes the "complaint on the cross-appeal." Thereafter, the rules of appellate procedure apply, and in that regard ... it might not be necessary to file a praecipe if, as therein, the original praecipe filed covered the entire record.^^ entered a judgment for the appellant and then changed it on appellee's mo- tion to correct error, the same process would result as in the example when the trial was to the jury. IX. 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 ap- peal as cross-errors, respectively. X. 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. 375 N.E.2d at 596-97. ^^375 N.E.2d at 595. ''Id. «''352 N.E.2d at 92, quoted in 375 N.E.2d at 595. «'375 N.E.2d at 596. **Chief Justice Givan and Justice Pivarnik disagreed with the majority's rule- making-by-opinion approach. Id. at 598 (Givan, C.J., Pivarnik, J., concurring). *®The second sentence of Ind. R. Tr. P. 59(G) stated: "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." '•'375 N.E.2d at 596. ''Id. The court relied on Seco Chemicals, Inc. v. Stewart, 349 N.E.2d 733 (Ind. Ct. App. 1976). In Seco, the Indiana Court of Appeals held that once an appellant filed its 1980] TRIAL RULE 59 555 The court also held that when both parties move to correct errors, each party "can raise the ruling on that motion and the ruling on the other party's motion on appeal as cross-errors respectively."^^ Since P-M Gas, the Indiana Supreme Court and Courts of Ap- peals have construed and applied several aspects of the new pro- cedural rules enunciated by P-M Gas. The supreme court found cer- tain P-M Gas principles controlling in two recent cases, Bridge v. Board of Zoning Appeals^^ and Indiana Revenue Board v. State ex rel. Board of Commissioners .^^ In Bridge y the supreme court observed that the detailed findings of fact made by the trial court in granting the appellant's request for these findings in his motion to correct errors "expanded upon, but did not alter, the substance of the original decision."^^ "The er- rors to be presented on appeal," the court wrote, "were stated in the original motion to correct errors and the basis for them was not affected by the subsequent entry of findings of fact."^^ The court of appeals had dismissed the appeal because no second motion to cor- rect errors was filed. Because the court of appeals relied on Deprez, which was overruled by P-M Gas, the supreme court granted transfer and remanded Bridge for a decision on the merits.^^ Similarly, the supreme court granted transfer in Indiana Revenue Board, which had been dismissed by the court of appeals due to the revenue board's failure to file a second motion to correct errors after the trial court amended the amount of its judgment awarded to a number of Indiana counties in a class action suit. The supreme court held pursuant to P-M Gas that a second motion was not needed "as the same justiciable issues were completely ex- pressed within the original motion."^* In both cases, the original judgment was neither altered nor amended by the motion to correct errors, at least not to such an ex- tent that the errors to be presented on appeal were affected. The supreme court's language, however, suggests that a different result might obtain when the substance of an original decision is altered upon the trial court's ruling on a motion to correct errors. Indeed, praecipe, thereby invoking appellate jurisdiction, Appellate Rule 2(A) was satisfied, and a cross-appellant was not required to made a separate filing of a praecipe to preserve the appellate issue. The appellant in Seco included the entire record in the praecipe. Id. at 739. "'375 N.E.2d at 597. »'381 N.E.2d 1060 (Ind. 1978), referred to in Harvey, 1979 Survey, supra note 1, at 82. «*385 N.E.2d 1131 (Ind. 1979). »^381 N.E.2d at 1060. »7rf. "Yd. at 1060-61. ««385 N.E.2d at 1132. 556 INDIANA LA WREVIEW [Vol. 13:541 the question remains whether the supreme court in subsequent P-M Gas cases has created an exception to the one-motion rule of P-M Gas which will require a second motion in an appropriate case. The short answer would seem to be "no" inasmuch as the reviewing court would have to overrule explicit P-M Gas language mandating only one motion;^^ three justices apparently adhere to this rule/"" The view is not without dissent, however. Chief Justice Givan, con- curring in the P-M Gas result, expressed his preference for a rule requiring "that any time a judgment is substantially modified no ap- peal may be taken from that judgment unless a motion to correct er- rors is filed."^"^ Chief Justice Givan concluded that he would not have overruled the Deprez line of cases. ^"^ Subsequent decisions of the Indiana Court of Appeals have also strictly applied the P-M Gas rules. Recently, in DeHart v. Anderson,^^^ the court delineated the parameters of the issues to be considered on appeal in view of P-M Gas. The plaintiff-appellee Anderson filed a motion to correct errors questioning the trial court's entry of a judgment upon the defendant-appellant DeHart's motion to dismiss, which had been granted. The trial court granted the appellee's motion to correct errors and ordered the case to be set for trial. DeHart then appealed from the ruling without filing his own motion to correct errors. The court of appeals implicitly held that an appellant can appeal the determination in favor of an ap- pellee's motion to correct errors without filing his own motion and can seek reinstatement of the trial court judgment.^"^ Citing P-M Gas, the court held that the issues raised by DeHart were "deter- mined by the judgment dismissing the cause, the motion to correct errors, and the trial court's ruling on the motion [to correct errors]."^"^ In Schmal v. Emst,^^^ the defendant Ernst's petition for release of escrow money held by the trial court clerk was denied. Ernst then filed a motion to correct errors alleging as error the court's failure to release the money. Schmal did not contest the release but requested that it be credited against a $12,500 judgment. The trial ^^See note 83 supra and accompanying text. '""Justices DeBruler and Prentice concurred in Hunter's majority opinion. 375 N.E.2d at 598. '"'/d. (Givan, C.J., concurring). •"^/d. (Givan, C.J., concurring). "'383 N.E.2d 431 (Ind. Ct. App. 1978), cited in Harvey, 1979 Survey, supra note 1, at 83. '°*See 383 N.E.2d at 434. '°'Id. •""387 N.E.2d 96 (Ind. Ct. App. 1979), discussed in Harvey, 1979 Survey, supra note 1, at 83. 1980] TRIAL RULE 59 557 court granted the motion to correct errors and ordered that the money be released to Ernst; however, the money was not to be credited against the judgment. Schmal appealed from the order by filing a praecipe and an appellate brief with the belief that he was appealing from an interlocutory order. ^°^ On appeal, Ernst contended that the order sustaining the motion to correct errors was a final judgment requiring Schmal to file a motion to correct errors to preserve error. Without reaching the question whether the order was in- terlocutory or final, the court of appeals held that, in any event, Schmal followed the proper procedure to preserve error in view of this P-M Gas language: '*(A) If a party wants to complain about the relief granted to another party, when that other party made a mo- tion to correct error which was granted in whole or in part, then that party can appeal that order, and commence the process under [Appellate Rule] 2(A). (B) This would not require that party to make a motion to correct error in his own right. In that way, that party then becomes an appellant, and the regular appeal process obtains."^"* The court of appeals also relied on other P-M Gas language: "It is not necessary for that appellant to file a motion to cor- rect error if appellant does not raise error himself. If ap- pellant seeks [only to appeal the favorable relief given to ap- pellee] because it was incorrect . . . then it is not necessary for the appellant to do more than request relief on brief in the appellate court."^"® The court of appeals decided that Schmal was not required to file a motion to correct errors because the only error alleged was the failure to apply the escrow money against the judgment. ^^^ Two appellate decisions have avoided the harshness of retroac- tive application of P-M Gas by determining that under the law ex- isting prior to P-M Gas, the proper procedure was to file an addi- tional motion to correct errors. In Estate of Holderbaum v. Gibson,^^^ the court of appeals held: '"^Ind. R. Tr. P. 59(G) did not require a motion to correct errors for interlocutory orders. This exception is preserved under the amended rules in Trial Rule 59(C). '"^aST N.E.2d at 98 (quoting 375 N.E.2d at 597). ^''«387 N.E.2d at 98 (quoting 375 N.E.2d at 597). ""387 N.E.2d at 98. •"376 N.E.2d 1189 (Ind. Ct. App. 1978). 558 INDIANA LA WREVIEW [Vol. 13:541 When the trial judge, in the case before us, granted the estate's motion to correct errors, he altered the prior judg- ment in the most drastic manner possible. He not only vacated the judgment previously entered for Gibson, but also entered a judgment for the estate. The law as it existed at the time the estate's motion was granted very clearly re- quired Gibson to file an additional motion to correct errors in order to preserve her right to appeal. ^^^ More recently, in Nehring v. Raikos,^^^ the trial court amended its judgment on the appellant's first motion to correct errors. The ap- pellant filed his second motion to correct errors when Deprez and its progeny were the law. Observing that Deprez required the sec- ond motion to be directed at the amended judgment, the court of ap- peals denied the appellee's motion seeking to vacate the trial court orders and dismiss the appeal upon jurisdictional (timing) grounds."^ The most significant application of the P-M Gas procedure on the court of appeals level was in State ex rel. Sacks Brothers Loan Co. V. DeBard}^^ In DeBard, the appellee DeBard filed a motion to dismiss, citing Sacks' failure to comply with the statute^^^ requiring a transcript to be filed within fifteen days of the administrative decision pursuant to the Indiana Administrative Adjudication Act."^ The trial court overruled the motion. On appeal, DeBard's motion to correct errors did not cite the trial court's overruling of the motion to dismiss as error. The court of appeals initially raised the question of lack of jurisdiction sua sponte in a memorandum opinion and remanded the case for the trial court to dismiss Sacks' appeal from the administrative decision denying a license; Sacks, however, in his petition for rehearing sought reexamination in light of P-M Gas. Upon reconsideration, the court of appeals held that the failure to comply with the Act was a jurisdictional defect which may be waived by a party because the defect did not involve lack of jurisdiction over the subject matter but rather lack of jurisdiction over the particular case."® The question of the trial court's jurisdic- tion in the particular case, therefore, was not preserved on appeal because the appellee failed to file a motion to correct errors as re- quired by P-M Gas. In reaching this conclusion, the second district court of appeals relied on the following P-M Gas language: "7rf. at 1192. "'390 N.E.2d 1092 (Ind. Ct. App. 1979). "7rf. at 1094-95. "^381 N.E.2d 119 (Ind. Ct. App. 1978). '•«IND. Code § 4-22-1-14 (1976). "7rf. §§ 4-22-1-1 to -30 (1976). lis 381 N.E.2d at 120. 1980] TRIAL RULE 59 559 "If an appellee desires to become a cross-appellant, then he must make that decision within sixty days after the entry of the judgment in his favor, pursuant to [Trial Rule] 59(C). When that has been done, then the ruling which is made on that motion to correct error becomes the 'complaint on the cross-appeal.' ""* The DeBard court explained that "[t]his means, then, that a party (appellee) for whom a judgment ostensibly is rendered must express dissatisfaction with that judgment by filing a motion to correct er- rors pursuant to Trial Rule 59(C) in order to preserve cross-error on appeal.*'^^" III. Through the Looking-Glass P-M Gas' policy of eliminating the need for multiple motions to correct error has recently prompted the Indiana Supreme Court Ad- visory Committee on Revision of Rules of Practice and Procedure to propose several trial rule changes to the supreme court, which has rulemaking powers.^" The committee reported: The proposed amendments [to Trial Rule 59] are in- tended to conform the Rule to P-M Gas & Wa>sh Co. v. Smith, . . . which overruled State v. Deprez . . . and its prog- eny, subject, however, to the following qualifications. First, the proposed amendments allow a party to appeal the grant- ing of a motion to correct errors without himself filing a subsequent motion to correct errors, and to raise for the first time in his appellate brief errors that occurred at trial and which the party claims were prejudicial to him. Sec- ondly, the proposed amendments allow a party who is preju- diced by any action taken by the trial court on its own mo- tion during the time for filing a motion to correct errors to appeal that action without the party himself filing a motion to correct errors.^^^ "•/d. (quoting 375 N.E.2d at 596). ^'"'381 N.E.2d at 120. The court of appeals in Continental Gas. Co. v. Novy, 397 N.E.2d 294 (Ind. Ct. App. 1979), recently treated another case dealing with the P-M Gas doctrine. The court decided that the parties have the "discretion to appeal im- mediately or file a motion to correct errors in those cases where the court has altered, amended or supplemented its findings and/or judgment after the filing of one motion to correct errors." Id. at 296. "'State ex rel Bicanic v. Lake Circuit Court, 260 Ind. 73, 76, 292 N.E.2d 596, 598 (1973); Ind. Code § 34-5-2-1 (1976) (statute conferring rulemaking powers). *^^DiANA Supreme Court Advisory Committee on Revision of Rules of Practice AND Procedure, Synopsis of Proposed Amendments to Trial Rule 59 Motion to Cor- rect Errors 3 (July 1, 1979) (citations omitted). 560 INDIANA LA WREVIEW [Vol. 13:541 On November 13, 1979, the Indiana Supreme Court promulgated the new version of Trial Rule 59^^^ which among other things, incor- porated the two qualifications suggested by the advisory committee. The updated version of Trial Rule 59(E) states: *'A party who is prejudiced by any modification or setting aside of a final judgment or an appealable final order following the filing of a motion to cor- rect error may appeal that ruling without filing a motion to correct error."^^* In sum, Trial Rule 59(E) not only conforms to the rules an- ""IND. R. Tr. p. 59 (effective January 1, 1980). "*Ind. R. Tr. p. 59(E) (as amended). The committee offered the following com- ments: This section is new, and it speaks to several situations. A party under P-M Gas can appeal an adverse determination made on another party's mo- tion to correct errors, without making a motion himself. . . . That remains correct under this section. In addition, any party is allowed to appeal a ruling on a motion to cor- rect errors without making another motion, or a "second" motion to correct errors, see Bridge v. Board of Zoning Appeals of Ft. Wayne, 381 N.E.2d 1060 (Ind. 1978). This provision is consistent with that holding, and rule. (1) Under this provision, if the appellant received a judgment and the appellee made a motion to correct errors against that judgment which the trial court granted, and entered judgment against the appellant (or a lesser form of relief), then the appellant can appeal the g^ranting of the motion to correct errors without making a motion himself and the appellant can ask for the reinstatement of the judgment which was set aside in the trial court as a result of the motion to correct errors. That was the factual setting in DeHart V. Anderson, 383 N.E.2d 431, 433-434 (Ind. App. 1978), in which the Court of Appeals pointed out that the issues on appeal were determined by: (1) the judgment dismissing the cause (which occurred in the case), (2) the motion to correct errors, and (3) the trial court's ruling on the motion. The provision is also consistent with the procedural facts and law in Schmal v. Ernst, 387 N.E.2d 96 (Ind. App. 1979). (2) It is the intention of the Committee to change one of the holdings in P-M Gas, in this section. In P-M Gas the Court stated "[that] it is not necessary for that appellant to file a motion to correct error if appellant does not raise error himself. If appellant seeks [only to appeal the favorable relief given to appellee] because it was incorrect . . . then it is not necessary for the appellant to do more than request relief on brief in the appellate court." 375 N.E.2d at 597. It is the Committee's judgment that P-M Gas has altered the traditional rule that a party must first specifically present error to the trial court for an opportunity for correction and only then can that party raise the error on ap- peal. That rule has been altered to the extent that an appealing party can raise error in the appellate court by appealing the trial court's ruling on a motion to correct error without making a motion to correct error too. The Committee recommends that this principle be extended to the situa- tion identified in the examples set out below. The Committee recommends that this provision be interpreted to allow an appellant in this situation to appeal not only the granting of the motion to correct error, which would be raised on brief as set out in P-M Ga^, but the 1980] TRIAL RULE 59 561 nounced in P-M Gas and its progeny but also extends the liberal principles advocated by the supreme court. The trial rule possesses the novel feature of allowing an appellant to raise errors occurring at trial on brief which have not been raised on a motion to correct errors/^^ appellant should be allowed to raise those errors which occurred at trial on brief in the appellate court too. For example: X received a judgment as the plaintiff in an action against Y, but two rulings were made against X on the admissibility of evidence which caused X's evidence to be excluded. X properly preserved the ques- tions at trial, by an offer to prove. Y made a motion to correct error against X's judgment, and had a judgment entered for Y, the defendant, and now ap- pellee, on that motion. It is the Committee's recommendation that X be allowed to appeal the entry of the motion to correct error, and raise, in addition, the two claimed errors which adversely affected X at trial, without making a motion to cor- rect errors to that effect. In this way, that part of P-M Gas would be changed, and the limitation on issues on appeal found in DeHart v. Anderson, 383 N.E.2d 431, 433-434 (Ind. App. 1979) would be changed too. In such a situation as the one confronting X in this appeal, it might be the case that the appellate court, and X too, believes that X's original judg- ment cannot be reinstated. Nevertheless, X might be entitled to a new trial because of the alleged trial court error, and can show the appellate court that error and ask for that relief, in the alternative, in X's appeal to the ap- pellate court. The Committee believes that X should be able to make that ap- pellate claim without filing a motion to correct error as a predicate for mak- ing it. Of course, under this provision it will be necessary for the appellant to have objected to the ruling at trial which was adverse to the appellant. In that way the trial court has had an opportunity to examine the issue and rule; the Committee believes that is sufficient and that it need not recur in the trial court, and can be raised on brief by the appellant herein described. To further demonstrate the intention of the Committee, the Committee considered but rejected the following language: "If a party seeks relief on appeal from error which is claimed to have oc- curred prior to or in the trial court's entry of a judgment, or an ap- pealable final order, that party must have filed a motion to correct error directed to the error which is claimed." The Committee preferred a more liberal system of raising errors on appeal, if it is the appellant who raises that error, and hence rejected the provision set out. Indiana Supreme Court Advisory Committee on Revision of Rules of Practices and Procedure, Committee Notes on Trial Rule 59 [hereinafter cited as Committee Notes]. "'Committee Notes, supra note 124. This result will arise in situations where the appellant receives a judgment against the appellee at the trial court level and the ap- pellee files a motion to correct errors. If the trial court grants the appellee's motion overturning the appellant's judgment, the appellant not only may challenge the un- favorable determination in favor of appellee's motion but also may raise errors that oc- curred during trial on brief without filing any motion to correct errors. See id. 562 INDIANA LAWREVIEW [Vol. 13:541 Although the elimination of the need for multiple motions to cor- rect errors is a significant step, perhaps the most telling aspect of the new rule is its intent to provide "a more liberal system of rais- ing errors on appeal."^^* Although not as readily documented, the same motivation could have prompted the progression of changes over the years in smoothing the gap between trial and appeal. Even though the new rule retains the traditional requirement of "making a record" at the trial level, a concern must exist on the appellate level for the consequences of a rule that purportedly eases entry in- to the appeals system and the subsequent result, if any, on an already constantly increasing caseload. Additionally, when a change in the trial rules occurs, the ultimate result of the change is not ful- ly realized until judicial interpretation has occurred. The course of pervasive liberality in raising errors on appeal in this instance is, as yet, uncharted and will undoubtedly be subject to numerous perils before the outcome will be fully realized. Thus, the practitioner contemplating an appeal should exercise restraint in issue selection. One may reasonably predict a judicial backlash if the bar seizes upon the opportunity to use the newly won liberality concept as a dumping ground for appeals comprised of less than meritorious questions. Although the court of appeals may not openly refuse to apply the new trial rule, the court may rely on other procedural devises to eliminate frivolous appeals that threaten to clog the overtaxed intermediate appellate system. Considering the possibility of a judicial backlash, an attorney should file a motion to correct errors to preserve errors on appeals rather than rely on his ability to raise these matters on brief. An overburdened court of. appeals is likely to undercut the liberal spirit of new Trial Rule 59, if attorneys abuse the right to raise matters on brief. Given the col- lective ingenuity of the bench and the bar and the past history of this procedural area, one can only wonder how long the new rule will serve its intended purpose. Indeed, the adoption of this trial rule may mark the beginning of a new adventure "through the look- ing glass." The tortured history of the procedure for perfecting an appeal continues to unfold. *ld.