Indiana Law Review


III. Civil Procedure and Jurisdiction

William F. Harvey*

A. Introduction

This survey is limited to a discussion of those cases and amend-

ments to rules which were distinctive in the year reviewed. The sur-
vey period saw major changes in the Trial Rules and the Appellate
Rules. For the first time, the Supreme Court of Indiana adopted an
extensive Original Action Rule, and it amended several of the Small
Claims Rules. The Supreme Court of Indiana, upon recommendation
of the court's Standing Committee on Rules of Practice and Pro-
cedure, amended the following rules effective January 1, 1981: Trial
Rules 24, 30, 53.4, 59, and 60 and Appellate Rules 8.1 and 12. Addi-

tionally, Small Claims Rules 2, 3, 5, 10, and 11 were amended. Final-
ly, the Original Action Rule, which is divided into six discrete rules,

is accompanied by four forms.

Each of the Trial Rules was supported by Committee notes
which explained the amendments. Several of those amendments and
the attendant notes as well as the Rule on Original Action are dis-

cussed in this Article and appear where the subject area is review-
ed. The Small Claims Rules are not reviewed.

B. Jurisdiction, Process, Venue, Standing, and Claims in General

1. Jurisdiction. — ^he principal decision which interpreted Indi-
ana's Trial Rule 4.4 in this reporting period was the California deci-
sion of Indiana Insurance Co. v. Pettigrew.^ In Pettigrew, an Indiana

judgment was enforced pursuant to the full faith and credit clause.
The judgment was rendered in a case brought against the defendant
because the defendant's minor son, Michael, was involved in a multi-

*Carl M. Gray Professor of Law and former Dean, Indiana University School of
Law — Indianapolis. A.B., University of Missouri, 1954; J.D., Georgetown University,
1959; LL.M., Georgetown University, 1961, The author wishes to extend his apprecia-
tion to S. Andrew Bowman for his assistance in the preparation of this Article.

114 Cal. App. 3d 732, 171 Cal. Rptr. 770 (1981). In Barker v. Barker, 94 N.M.
162, 608 P.2d 138 (1980), the Supreme Court of New Mexico enforced an Indiana judg-
ment which was obtained ex parte by a former wife in Indiana and which granted a
monetary award against her former husband. The husband argued in the New Mexico
court that the Indiana judgment was invalid and not entitled to recognition and full
faith and credit. The New Mexico court sustained the Indiana judgment and held that
because the husband lived in Indiana from March 1970 to October 1974, there was a
sufficient contact with Indiana to sustain personal jurisdiction under Trial Rule

4.4(A)(7) even when the Indiana judgment was ex parte. Adequate notice of the pro-
ceeding was given to the husband who received a copy of the complaint and summons
by registered mail, and a return receipt was signed by the husband.

69



70 INDIANA LAW REVIEW [Vol. 15:69

ple-car collision in Indiana while driving the defendant's car. The in-
surance company settled the insured's claims, and pursuant to
subrogation provisions in the insurance agreement, it instituted an

action against Michael and his father in Indiana. At all relevant
times both defendants were California residents. The Indiana com-
plaint alleged negligence by the defendant's son and asserted liabil-

ity against the father who owned the motor vehicle driven by the
son. Both defendants were served by certified mail from the Indiana
state court; they defaulted in the Indiana action, and judgment was
entered.^

In enforcing the Indiana judgment, the California court held that

Indiana had a nonresident motor statute which provides jurisdiction

over the nonresident operator or "his duly authorized agent."^

Under this provision, the California court observed that an agency
relationship was required and that there was no agency relationship
between the father and his son. However that may have been, the
California court held that under its statutory law an extension of

jurisdiction over the owner of an automobile who merely extends
permission to another driver to operate in the state of California

creates an *'agency" in California." The California court stated that
the California motor vehicle statute, which imposes a form of vicar-

ious liability, created a sufficient type of "agency" to satisfy the ex-

tension of jurisdiction over the defendant pursuant to Indiana's

nonresident motorist law.^

The California court also concluded that jurisdiction was properly
asserted over the California defendant under Indiana's long arm
statute, Trial Rule 4.4(A)(2).* The California court concluded that

nu Cal. App. 3d at 733, 171 Cal. Rptr. at 770-71.
^Id. at 733, 171 Cal. Rptr. at 771. Ind. Code § 9-3-2-1 (Supp. 1981) provides in

part:

The operation by a nonresident, or by any resident of this state who may
thereafter become a nonresident of this state, or by his duly authorized
agent, of a motor vehicle upon a public street or highway or any other place

within this state shall be deemed equivalent to an appointment by such per-
son of the secretary of state, or his successor in office, to be his true and

lawful attorney upon whom may be served all lawful processes in any action
or proceeding against him ....
*114 Cal. App. 3d at 733, 171 Cal. Rptr. at 771.

'Id.

"Id. at 734, 171 Cal. Rptr. at 772-73. Ind. R. Tr. P. 4.4(A)(2) provides that there is

a basis of jurisdiction in an Indiana state court for: "(2) causing personal injury or

property damage by an act or omission done within this state . . . ." The United States
Court of Appeals in City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d

1008 (7th Cir. 1979), was much less clear about Ind. R. Tr. P. 4.4(A)(2) than the Califor-
nia court and held that it could not "determine whether the Indiana courts will con-

clude that this phrase includes only acts physically done within the state or also in-

cludes acts physically done outside the state but causing some injury within it; either
construction is possible." 604 F.2d at 1020-21.



1982] SURVEY- CIVIL PROCEDURE 71

when the defendant gave his son permission to drive the defendant's
car in Indiana, those acts, which occurred in California, were suffi-

cient as acts "causing personal injury and property damage" within
Indiana. Accordingly, the California court enforced the Indiana judg-

ment and found that the Indiana court had jurisdiction based upon
its two statutory provisons.^

The case of State ex rel Long v. Marion County Superior Court^
was an original action for a writ of mandamus. It was filed after a
petition for the dissolution of marriage was filed in the Hamilton
County Superior Court. The other spouse filed a petition in the
Marion County Superior Court later in the same day. Service was
effected from the Marion County suit first.^

The Indiana Supreme Court held that exclusive jurisdiction over
the particular claim for relief vested when the complaint or other
equivalent pleading or document was filed pursuant to Trial Rule 3.^°

The court concluded that the Hamilton County Superior Court had
exclusive jurisdiction because that action was commenced first,
regardless of when the summons was served. ^^

2. Power and Duty to Entertain Complaint. — In Stanton v.
Godfrey,^^ an Indiana trial court awarded attorney's fees to a non-
profit legal organization. The demand for those fees arose from a
claim in the state court filed because a previous federal court deci-

sion had determined that certain AFDC benefits were improperly
withheld by the State of Indiana. Attorney's fees in this litigation

were awarded pursuant to 42 U.S.C. § 1988,^^ and on appeal the
state argued that the award was improper. ^^

The Indiana Court of Appeals held that an action under section
1983^^ for the vindication of all statutory rights within the ambit of

all federal laws could be brought in the Indiana state court and that,
of course, the federal statute was not limited to "classical" civil

'114 Cal. App. 3d at 735, 171 Cal. Rptr. at 773.
«418 N.E.2d 218 (Ind. 1981).

'Id. at 219.

'"M (citing Barber-Greene Co. v. Blaw Knox Co., 239 F.2d 774, 778 (6th Cir.
1956)).

"418 N.E.2d at 220.

'H15 N.E.2d 103 (Ind. Ct. App. 1981).
•'42 U.S.C. § 1988 (1976) provides:

In any action or proceeding to enforce a provision of §§ 1981, 1982, 1983,
1985, and 1986 of this title. Title IX of Public Law 92-318, or in any civil ac-
tion or proceeding, by or on behalf of the United States of America, to en-
force, or charging a violation of, a provision of the United States Internal
Revenue Code, or Title VI of the Civil Rights Act of 1964, the court, in its
discretion, may allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the cost.

•M15 N.E.2d at 105.
•'42 U.S.C. § 1983 (1976).



72 INDIANA LAW REVIEW [Vol. 15:69

rights claims/^ Thus, a claim of right arising under the Social Security

Act could be vindicated consistent with section 1983. The Indiana
court also held that 42 U.S.C. § 1988 applied to all types of section

1983 actions including those based solely on Social Security Act
violations or other federal statutory law.^^ The court concluded that
the Indiana department of public welfare was a "person" within the
meaning of section 1983 and that local governments and local
governmental officials are "persons" within the meaning of that pro-
vision/^ The Indiana decision is consistent with cases from the
United States Supreme Court, specifically Maine v. Thiboutot,^^
Maker v. Gagne,^^ and Martinez v. California.^^

Finally, the court of appeals appeared to hold that attorney's

fees should be awarded to a non-profit legal organization without a
reduction equal to the amount of payments acquired from sources
other than the plaintiffs in the present action.^^

3. Claims in General: Suits under Trial Rule 60 and the 1981
Amendment to Trial Rule ^(?. — The 1981 amendment to Trial Rule
60(BP struck the word "proceeding" from the rule because that
word could have been interpreted as meaning that the trial rule was
applicable to an interlocutory order. By striking the word "pro-
ceeding" and inserting the words "final order," it is now clear that
Trial Rule 60(B) does not apply to interlocutory orders.^*

In Keiling v. Mclntire,^^ a default judgment was entered against
the defendant, and the defendant moved to set the judgment aside
under Trial Rule 60(B)(1). The defendant's evidence showed that the
defendant was not served with summons or process.^*

'"415 N.E.2d at 106-07.

'Ud at 107-08.

''Id. at 107.

'H48 U.S. 1 (1980).

^"448 U.S. 122 (1980).

2^444 U.S. 277 (1980).

^415 N.E.2d at 108.

^'Ind. R. Tr. p. 60(B) now provides in part that on motion and upon such terms as
are just, the court may relieve a party or the party's legal representative from an en-
try of a default, final order, or final judgment, including a judgment by default.

^*The Supreme Court Rules Committee Note on Footnote 22 provided:
The first sentence of Sec. (B) is amended and the amendment is necessitated
in part by the possible construction of Trial Rule 60(B) in its present form
which would permit, pursuant to Trial Rule 60(C), a direct appeal from a
denial of Trial Rule 60(B) relief sought against an interlocutory order.
Pathman Const. Co. v. Drum-Co Engin. Corp., (1980) -Ind.App.- 402 N.E.2d
1. The word "proceeding" has been deleted because a party does not seek
relief from a proceeding but from an order or a judgment.
2^408 N.E.2d 565 (Ind. Ct. App. 1980).
''Id. at 566.



1982] SURVEY- CIVIL PROCEDURE 73

The court of appeals held that a Trial Rule 60(B)(1) motion is pro-
per to set aside a judgment taken against a person who has neither
been served with process nor received notice of the institution of

the action against him.^^ The court also stated that "service" in this
context means compliance with Trial Rules 4.4 -4.17.^^ When a defen-
dant has not been served pursuant to those provisions, such an omis-

sion is a jurisdictional defect, and it is unnecessary to show that
there is a meritorious defense to the action against the defendant.

Otherwise, as was shown in Sanders v. Kerwin,^^ when a defendant
has been served and has defaulted, it is necessary to show that not
only was the notice of the action inadequate (or some other basis for
relief under this motion), but also that there is a meritorious defense

to the suit before the default judgment can be set aside.
-4. Computation of Time, Service of Process, and Service on At-

torneys.— Trial Rule 6(E)^° provides that three days shall be added

to a prescribed period of time when service is made by mail. In Erd-
man v. White,^^ the court of appeals held that Trial Rule 6(E) had no
application when a party was represented in open court by counsel
and when that counsel was notified about a court decision or ruling
in open court even though out-of-state counsel is notified by mail.^^

The court held that when local counsel was present and when a trial
court's order was read, the notification was effective and that the
additional three days provided in Trial Rule 6(E) does not accrue to

the benefit of a party .^^

2«M at nn.l & 2.
^413 N.E.2d 668 (Ind. Ct. App. 1980) (there was a question here about the ade-

quacy of notice). In Brendonwood Common v. Kahlenbeck, 416 N.E.2d 1335 (Ind. Ct.
App. 1981), the parties did not receive notice of the entry of a final injunction, and the

time for filing a Trial Rule 59 motion had expired. The losing party filed a motion for

relief under Trial Rule 60(B) which the trial court denied and that denial was affirmed

on appeal. The appellate court reasoned that a duty was imposed on counsel of record

under Trial Rule 72(D) to check the records of the court for the entry of judgment, and

if counsel failed to do so, then counsel could not make a sufficient evidentiary showing

of entitlement to relief under Trial Rule 60(B). That motion is addressed to the discre-

tion of the trial court, and diligence on counsel's part is required. The opinion seems to

be contrary to Soft Water Utilities, Inc. v. LeFevre, 261 Ind. 260, 301 N.E.2d 745

(1973), and there was a strong dissent by Judge Sullivan.

'°lND. R. Tr. p. 6(E) provides that:

[w]henever a party has the right or is required to do some act or take some

proceedings within a prescribed period after the service of a notice or other

paper upon him and the notice or paper is served upon him by mail, three [3]
days shall be added to the prescribed period.
^'411 N.E.2d 653 (Ind. Ct. App. 1980).

'Ud. at 656.

''Id.



74 INDIANA LAW REVIEW [Vol. 15:69

Trial Rules 4.9^'' and 4.13^^ were interpreted in the case of Abell
V. Clark County Department of Public Welfare.^^ In Abell, the
department attempted to terminate certain parental rights to the

defendant's three children. Before this action commenced, the defen-
dant consented to make the children wards of the department; thus
the department was familiar with the defendant. Process was served,
however, by publication which was supported by an affidavit from
the director of the department stating that the current residence of

the defendant was unknown and could not be ascertained. A default
judgment was entered which the defendant attacked on direct ap-
peal.^'

The court of appeals held that process in a proceeding to ter-
minate parental rights is basically an in rem proceeding governed
by Trial Rule 4.9 which permits service by publication to be effected

pursuant to Trial Rule 4.13. The court added, however, that service
must be made in the best possible manner reasonably calculated to
inform the respondent of a pending action and consistent with the

fundamental principles of due process of law.^® The court held that
service of process was not reasonably calculated to inform this de-
fendant under the circumstances and ordered a new hearing.^^

Trial Rule 5{B)^° provides that when a party is represented by an
attorney, service shall be made upon the attorney. This rule was in-
terpreted in Solar Sources v. Air Pollution Control Board^^ In this

case the Pollution Control Board notified Solar's attorney about the

Board's final determination in a dispute with Solar Sources. A
review statute provided that if appeal was to be taken then it shall
be taken fifteen days after receipt of notice by the person or per-

sons against whom an order has been entered. An appeal by Solar
Sources was not taken in the fifteen day period after notification
given by the Board to Solar's attorney. The trial court entered a
summary judgment for the Board.*^ The Indiana Court of Appeals
held that notice to the attorney was insufficient and that Trial Rule

'*Ind. R. Tr. p. 4.9 provides the method for service of summons in actions in rem.
^^ND. R. Tr. p. 4.13 provides that summons may be served by publication and

dicates the method for the publication. This trial rule is referred to in Trial Rule 4.9.

^M07 N.E.2d 1209 (Ind. Ct. App. 1980).

^Ud. at 1210.

'*M (citing Robinson v. Hanrahan, 409 U.S. 38 (1972); Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306 (1950)).
^^07 N.E.2d at 1211.

*''Ind. R. Tr. p. 5(B) states in part that whenever a party "is represented by an
attorney of record, service shall be made upon such attorney unless service upon the
party himself is ordered by the court."

'^409 N.E.2d 1136 (Ind. Ct. App. 1980).

"/d at 1137.



1982] SURVEY-CIVIL PROCEDURE 75

5(B) was inapplicable in determining the time period of notification
to the attorney because, pursuant to Trial Rule 1, the trial rules did

not apply to the review of an administrative agency decision."^

The reasoning of the court of appeals in Solar Sources appears
to be flawed. The court reasoned that Indiana Code section 4-22-1-6"

provides that notice shall be in writing and delivered by registered

or certified mail, return receipt requested, and addressed to the per-

son or persons against whom an order or determination may be
made, either at their last known place of business or residence. The
court then reasoned that the Indiana Supreme Court decision in Ball
Stores, Inc. v. State Board of Tax Commissioners,^^ was not control-
ling because, according to the court of appeals, the Ball Stores deci-

sion represented a holding that when an administrative procedure
statute fails to specify some detail, the courts must then look to the
Indiana Rules of Trial Procedure to supply the missing rule.'** The
court of appeals seemed to either hold that the trial rules are inap-
plicable when the administrative procedure statute fails to specify
some detail or to reason that there was sufficient detail in the Ad-
ministrative Adjudication Act on service to a party to obviate the

application of Trial Rule 5(B).

In this writer's judgment, there is no conflict between the Ad-
ministrative Adjudication Act in its section 6 provision for service

upon a person and the Trial Rule 5(B) provision for service upon the

attorney of a person who is represented in a proceeding. There is no
language in either section 14 or section 6 of the Administrative Ad-

judication Act which excludes the application of Trial Rule 5(B), and
the court of appeals in the opinion did not indicate that there was
such language. The court concluded that section 6 must be literally
interpreted."^ This result means, of course, that one who is to be

''Id. at 1138.

"IND. Code § 4-22-1-6 (1976) provides in part for notice as follows:
In all cases in which the agency is the moving party it shall give at least five

(5) days' notice in writing by registered or certified mail with return receipt

requested, addressed to the person or persons against whom an order or
determination may be made at their last known place of residence, or place
of business, which notice shall set forth therein a sufficient statement of the

matters of fact or law to advise such person of the matters in issue and to be

heard or determined by said agency, together with notice of the time and

place of such hearing. Said statement may be informal and need not conform
to the requirements of a pleading in court. Whenever the hearing involves
the claim, averment or complaint of, or is made by, a private person, a copy
or the substance thereof shall be included in or exhibited with such notice.

^^262 Ind. 386, 316 N.E.2d 674 (1974).

^M09 N.E.2d at 1138.

'Ud. at 1139.



76 INDIANA LAW REVIEW [Vol. 15:69

served with notice pursuant to the Administrative Adjudication Act

cannot enjoy or receive the assistance of counsel to represent that

person insofar as effective notification is concerned. Furthermore,

the opinion in Solar Sources was not reconciled with the Indiana
Supreme Court decision in Ball Stores,

5. Service of Process and "John Doe" Complaints.— In Maclin
V. Paulson,*^ a complaint was brought against the Chief of Police of
Gary, Indiana, and several unnamed police officers. The complaint
alleged that they had either participated in or had permitted the

beating of the plaintiff while the plaintiff was held in custody in the
Gary jail. The complaint listed several police officers as "John Doe,
Defendants." Service of process was effected pursuant to Federal
Rule of Civil Procedure 4(d)(1) by serving summonses upon the Gary
Police Department.

The United States District Court dismissed the complaint on the
ground that the service of the summonses was insufficient."*®

The United States Court of Appeals for the Seventh Circuit
reversed and held that in this civil rights action filed under 42

U.S.C. § 1983, the use of fictitious names for the defendants was ap-
proved.^" The court held that when a party is ignorant of a defend-
ant's true identity, it is not necessary that the party name that
defendant or those persons until their identity can be learned

through discovery or through the aid of the trial court.^^ Moreover,

the court of appeals held that there was no statute of limitations
problem because the unidentified members of the police department
were put on notice of the action when service of the complaint and
summons were effected upon the offices of the Gary Police Depart-
ment before the statute of limitations had run.^^ Accordingly, the
Seventh Circuit sustained the use of the "John Doe" complaint and
its service by general service upon the department or place where a
prospective defendant works or is known to be employed.

6. Venue and Change of Venue.— Tridil Rule 75(B)^^ was inter-

*«627 F.2d 83 (7th Cir. 1980).

*»/d at 84-86.

""Id. at 87.

''Id. at 88 & n.6.
'''IND. R. Tr. p. 75(B) provides as follows:

(B) Claim or proceeding filed in improper court. Whenever a claim or
proceeding is filed which should properly have been filed in another court of

this state, and proper objection is made, the court in which such action or

proceeding is filed shall not dismiss the same, but shall order said cause

transferred to the court in which it should have been filed. The person filing
such claim or proceeding shall pay such costs as are chargeable upon a

change of venue and the papers and records shall be certified to the court of

transfer in like manner as upon change of venue. Such action shall be deem-
ed commenced as of the date of filing the claim in the original court.



1982] SURVEY- CIVIL PROCEDURE 77

preted in the case of Elliott v. Roach.^^ The Indiana Court of Ap-
peals held that if a trial court lacks jurisdiction over a dispute which

is brought before it, then pursuant to this trial rule a trial court can

transfer that case to a correct court for an appropriate remedy .^^

Thus, if the Indiana trial court is confronted with a choice of either

dismissal or transfer, which includes the instance in which the trial

court lacks subject matter jurisdiction, the trial court can transfer

the case pursuant to Rule 75(B) to a trial court with a proper

jurisdictional foundation.

A question was raised concerning the constitutionality of Trial
Rule 76^^ in the decision of Piwowar v. Washington Lumber & Coal
Co.^'^ In this dispute an action was brought in Lake County, Indiana,
because of an injury allegedly caused by a defective nail which

splintered and injured the plaintiffs eye. The action was venued to
the Porter County Circuit Court and tried there by a jury. The
plaintiff claimed that Trial Rule 76 was unconstitutional principally
because it deprived the plaintiff of trial by jury pursuant to the

"demographic composition of Lake County ."^^

The court of appeals found no such constitutional infirmity in
Trial Rule 76.^^ The court held that the automatic change of venue in
Trial Rule 76 is "designed to provide a fair and impartial trial to all

parties and to prevent protracted litigation" and that those

elements are "not outweighed by the inconvenience and expense to

the plaintiff which might be caused by a venue change."^" The court
also commented that there was no evidence in the record concerning
the "demographic compositon of Lake County" and therefore an in-
sufficient basis upon which to raise this type of challenge to Trial

Rule 76.«^

C. The 1981 Original Action Rule

Perhaps the most significant 1981 amendment adopted by the
Indiana Supreme Court is the Original Action Rule (Rule).^^ This
Rule provides for writs of mandamus and prohibition, and it is a

^"409 N.E.2d 661 (Ind. Ct. App. 1980).

^Ud. at 671-72.

'^Trial Rule 76 provides for an automatic change of venue upon motion without
specifying the ground therefor, and a party shall be entitled to one change from the
county and one change from the judge, according to the provisions established in the
trial rule.

"405 N.E.2d 576 (Ind. Ct. App. 1980).

^Id. at 578-79.

"'Id. at 580.

""Id. at 579-80.

"M at 580.
'^Ind. R. p. Orig. a. 1 to 6 (writs of mandamus and prohibition amended January

1, 1981).



78 INDIANA LAW REVIEW [Vol. 15:69

substantial textual change from the former Rule. However, the Rule

describes current practice, and the pattern established in the text of

the Rule reflects actual practice before the supreme court in pursu-

ing a writ of mandamus or prohibition. The Rule contains six
separate rules which describe the mechanism for obtaining the writ

of mandamus or prohibition, and it contains four forms adopted by
the supreme court to facilitate obtaining either writ.

It is clear from a reading of Rule V^ that the Rule governs only

original actions for writs of mandamus and prohibition against in-
ferior state courts and a judge or the judges of those courts.** Rule 1

expressly states that these Rules do not govern other types of

original actions such as: complaints which might be filed against an

attorney for some form of misconduct,*^ a writ which might be filed
against an administrative agency,** or a writ in aid of appellate court

jurisdiction.*^ Additionally, the Rule provides that petitions for writs

in aid of appellate court jurisdiction are not original actions and are

governed by Appellate Rule 4(A)(6). The authority for the court of
appeals to issue a writ in aid of its appellate jurisdiction is establish-

ed in Appellate Rule 4(C).*'

Rule 2(A)*^ contains a condition precedent to making an applica-
tion for a writ. The application for a writ shall be submitted to the
supreme court administrator pursuant to Rule 2(B).'° Before that
submission can be made, however, the relator must have raised the
absence of jurisdiction of the respondent court or the failure of the

respondent court to act when it is under a duty to act by a written
motion filed with the respondent court. An exception to that re-
quirement is an original action involving a change of venue from the

judge or county. If this condition precedent is met, then under Rule

2(B) the administrator shall examine the application to determine
whether it is complete and in proper form. If it is not, the ad-
ministrator shall reject the application, return it to the relator, and

"^Ind. R. p. Orig. a. 1. Rule 1 is entitled "Scope of Rules". Under subdivision (D),

the rule specifically states that writs of mandamus and prohibition against the ad-
ministrative agencies and the members thereof are not original actions which are
governed by these rules, and under subdivision (E) the rule provides that petitions for

writs in aid of appellate court jurisdiction are not original actions governed by these

rules.

'*Id. KB).

''Id. 1(C).

""Id. 1(D).

'Ud. 1(E).

''Id. 2(A).

™/d. 2(B).



1982] SURVEY- CIVIL PROCEDURE 79

inform the relator of the reason for rejecting the application. If the

application is in proper form, the administrator shall accept it,

noting appropriately the date of submission, and shall set the date

and time when the supreme court will hear an oral argument on the
application.

Rule 3^^ determines the content of the petition for writs of man-

damus or prohibition. The rule specifies that the petition shall be
verified and affirmed and shall state those facts which are detailed

in Rule 3(A).^^ Rule 3 also requires a brief to be filed,^^ a record of

proceedings to be made,^^ and a certain form of the writ to be used.^^

Rule 4'^ explains the hearing procedure and dictates that thirty

minutes will be allowed for oral argument." Filing of the application

occurs only after the hearing on the application and only if permitted

by Rule 5.^^ Thus, considerable activity such as the submission of an

application for a writ and an actual hearing on the application before

the supreme court occurs before there is any formal filing in the of-
fice of the Clerk of the Supreme Court.

Rule 6^^ addresses the submission, filing, and service of the ap-

plication papers, while Rule 5**^ speaks to the disposition of those ap-

plications which are filed for either writ. If the application for the

writ is denied*^ and if the relator requests that the application be filed

with the Clerk of the Supreme Court, then the administrator shall
deliver the filing fee to the clerk and file with the clerk all papers

submitted previously to him by the parties. Thereafter the relator

shall have a twenty-day period in which to file an additional brief

with the clerk in support of the relator's application. Rule 5(C) states

that after the twenty-day period expires the supreme court shall
dispose of the original action by written opinion without a hearing

or the filing of any further papers.82

"M 3.
-"Id. 3(A).

''Id. 3{B).

'*Id. 3(C).

''Id. 3(D).

''Id. 4.

"Id. 4(C).

''Id. 5.

"Id. 6.

''Id. 5(B), (C).

*'If the application for the writ is granted, Ind. R. P. Orig. A. 5(A) provides that

the writ will be issued and the administrator then shall deliver the filing fee to the

clerk and file with the Clerk of the Supreme Court all application papers which were
submitted to him by the parties. Those papers shall be given a cause number by the
clerk and the parties thereafter shall file all subsequent papers with the clerk. Id. 5(A).

"M 5(C).



80 INDIANA LA W REVIEW [Vol. 15:69

D. Pleadings and Pre-Trial Motions

1. Trial Rule 7fA}f5). — The court of appeals decided that
without an order from a trial court, a reply is not justified to special

defenses which are listed in Trial Rule 9. In Adams v. Luros,^^ a
medical malpractice action was brought against a doctor who argued
that the plaintiff had not raised the theory of fraudulent conceal-

ment arising from certain conduct performed by the defendant in
the plaintiffs complaint or in a reply and that, accordingly, the

plaintiff was prohibitied from doing so as a factual matter in the
case. The court of appeals noted that under Trial Rule 7(A)(5) mat-
ters which formerly were required to be pleaded by a reply or some
other subsequent pleading may now be proved even though they are
not pleaded.®^

2. Motions and Amendments to Pleadings. — In Mills v.
American Playground Device Co.,^^ the court noted that when a mo-
tion for failure to state a claim pursuant to Trial Rule 12(B)(6) is raised

subsequent to the filing of a defendant's answer, the motion is pro-

perly addressed by the trial court as a motion under Trial Rule 12(C)
for judgment on the pleadings.*® The court of appeals observed that
the standard of review in either case is the same.*^ The court also
stated that a 12(C) motion tests the sufficiency of the complaint to

ascertain whether it states a redressable claim, or that the motion is
used to test the law of the claim, and not the facts which support

it.««

Trial Rule 15(C) was interpreted in Eberbach v. McNabney.^^ In
Eberbach, a suit was brought because of a collision involving three
automobiles. An interpretation of Trial Rule 15(C) developed because
the plaintiff sued one Hanson Castor by the wrong name. Castor
was deceased when the suit was brought, but his death did not ex-
tinguish his legal existence which was, for purposes of this litiga-

tion, transferred to a special administrator of Castor's estate. In the

appellate court, the special administrator, who was not named as a
party by the plaintiff, argued that the suit brought against the dece-

dent was a nullity and therefore no amendment to the complaint,
which would relate to the time when the complaint was originally
filed, naming the special administrator could be made. Thus, if the

«^406 N.E.2d 1199 (Ind. Ct. App. 1980).

"M at 1201-02.
«^405 N.E.2d 621 (Ind. Ct. App. 1980).

««M at 626 n.2.

«M05 N.E.2d at 626 n.2 (citing Anderson v. Anderson, 399 N.E.2d 391, 406 (Ind.

Ct. App. 1979)).

''Id.

«M13 N.E.2d 958 (Ind. Ct. App. 1980).



1982] SURVEY- CIVIL PROCEDURE 81

argument were correct, the statute of limitations would have run on
the plaintiff's action.

The court of appeals held that pursuant to Trial Rule 15(C) the
argument was not acceptable. A claim of defense which was
asserted in an amended pleading and which arose from the conduct
or transaction set forth in the original pleading relates back to the

date of the original pleading when the amendment changed the party
against whom a claim was asserted providing that the new party
has received such notice of the institution of the action that he

would not be prejudiced in maintaining his defense and that the new
party knew or should have known that but for a mistake concerning
the identity of the proper party, the action would have been brought

against him.^°

A leading analysis of Trial Rule 15(C) is found in General Motors
Corp. V. Arnett,^^ a suit against GM for wrongful death. The action
was filed by the deceased's wife who was not appointed the personal
representative of the deceased's estate for the purpose of the

wrongful death action until after the two-year statutory period had

run.

The court of appeals sustained a summary judgment motion
against the plaintiff and held that the right to bring a wrongful

death action is purely statutory and that bringing the action is a

condition of suit itself, not merely a statute of limitation.^^ Thus, the

court held that Trial Rule 15(C) was inapplicable because it was not
the plaintiffs complaint which was amended; it was the plaintiff's
legal status which was changed, and Trial Rule 15(C) does not per-
mit the trial court to change the two-year period from a condition

precedent to a statute of limitation.^^ The court said that there was
no question about prejudice to GM. Nevertheless, the action was not
commenced by a personal representative within the statutory period
as a condition precedent to bringing the action. Thus, there was no
complaint on file which could be amended.

Trial Rule 15(B) was construed in Midway Ford Truck Center,
Inc. V. Gilmore.^* The Gilmore court considered whether an issue,
once stipulated to have been dismissed with prejudice, may be adju-
dicated at a later time upon the granting of a motion to amend the
pleadings to conform to the evidence. The court reasoned that when
an issue has been dismissed with prejudice as a result of the stipula-

tion, the liberal provisions found in Trial Rule 15(B) on conforming a

'"M at 962.
"^418 N.E.2d 546 (Ind. Ct. App. 1981).

'Hd. at 548.

'Hd. at 548-49.

«*415 N.E.2d 134 (Ind. Ct. App. 1981).



82 INDIANA LAW REVIEW [Vol. 15:69

pleading to the evidence are not applicable.®^ They are subordinated
to Trial Rules 41(F) and 60(B).

Trial Rule 41(F) provides that a dismissal with prejudice may be
set aside by the trial court '*for the grounds and in accordance with

the provisions of Rule 60(B)."®^ The majority opinion reasoned that
those two provisions control amendments to conform the evidence
rather than Trial Rule 15(B).®'

A dissenting opinion stated that Trial Rules 41(F) and 60(B) do
not prevent a trial court from reinstating dismissed legal theories

under Trial Rule 15(B) and that Trial Rules 41(F) and 60(B) simply

mean that a trial court has the power to act under those rules in
addition to Trial Rule 15(B).®'

3. Res Judicata^ Prior Judgments, and Comity.^^— This report-
ing period saw several cases discuss the doctrine of res judicata. In
Rees V. Heyser,^^^ the court discussed this doctrine and alluded to
State, Indiana State Highway Commission v. Speidel,^^^ which is
probably the leading recent decision in Indiana on res judicata.^"^

The court in Rees characterized the two branches of this doc-
trine as "claim preclusion," which is applicable where "there is a
final judgment on the merits in a prior case, which acts as a com-
plete bar to a subsequent action on the same claim between the
same parties or those in privity with them," and "issue preclusion,"
which is applicable "when a particular issue is adjudicated and put
into issue in a subsequent suit on a different cause of action be-

tween the same parties or those in privity with them. In this in-
stance, the former decision on the issue is binding on the parties in

this subsequent suit."^°^

»«/d. at 137.

•^IND. R. Tr. p. 41(F).

»'415 N.E.2d at 138.

''/d. at 138-39 (Young, J., dissenting). Lewis v. Davis, 410 N.E.2d 1363 (Ind. Ct.
App. 1980), is consistent with the dissent in Gilmore. See also Dominguez v.
Gallmeyer, 402 N.E.2d 1295 (Ind. Ct. App. 1980), discussed in Harvey, Civil Procedure
and Jurisdiction, 1980 Survey of Recent Developments in Indiana Law, 14 Ind. L. Rev.
129, 154 (1981) [hereinafter cited as Harvey, 1980 Survey].

^Yov a recent case dealing with comity, see Scherer v. Scherer, 405 N.E.2d 40
(Ind. Ct. App. 1980), discussed in Rhine & Weinheimer, Domestic Relations, 1981
Survey of Recent Developments in Indiana Law, 15 Ind. L. Rev. 203, 218 (1982).

^°°404 N.E.2d 1183 (Ind. Ct. App. 1980).
^"392 N.E.2d 1172 (Ind. Ct. App. 1979).
'•"^Additional cases discussing res judicata are Indiana Univ. v. Indiana Bonding &

Sur. Co., 416 N.E.2d 1275 (Ind. Ct. App. 1981), Glass v. Continental Assur. Co., 415
N.E.2d 126 (Ind. Ct. App. 1981), Martin v. Indiana Bell Tel. Co., 415 N.E.2d 759 (Ind.
Ct. App. 1981), Kirby v. Second Bible Missionary Church, 413 N.E.2d 330 (Ind. Ct.
App. 1980), State v. King, 413 N.E.2d 1016 (Ind. Ct. App. 1980), United Farm Bureau
Mut. Ins. Co. V. Wampler, 406 N.E.2d 1195 (Ind. Ct. App. 1980), and Peterson v. Culver
Educ. Foundation, 402 N.E.2d 448 (Ind. Ct. App. 1980).

"M04 N.E.2d at 1185.



1982] SURVEY- CIVIL PROCEDURE 83

E. Parties and Discovery

1. Appointment of Guardian Ad Litem. — \n Brewer v.
Brewer,^^^ the court of appeals held that Trial Rule 17(C) imbued the

trial court with the discretion to determine whether to appoint a
guardian ad litem and that, accordingly, the appointment of a guar-

dian ad litem is not mandatory.^"^ A substantial question arose
whether one of the litigants, who filed the action, should have had a
guardian ad litem appointed for her at or prior to the commence-

ment of the trial. The trial court determined, after the evidence was
closed in the case, that the plaintiff was incompetent and appointed
a guardian to manage her affairs. The court of appeals held that the
discretion vested in a trial court under Trial Rule 17(C) depends on

whether the trial court perceives that the interests of the infant or

the incompetent are adequately represented and protected during

trial. If so, no guardian ad litem is required even though the trial

court concludes after the evidence is presented that the litigant is

incompetent to manage the litigant's affairs. ^"^

2. Trial Rule 21(B): Venue and Jurisdiction over the Subject

Matter.— Tv\3\ Rule 21(B) contains two important provisions each of
which was interpreted in two separate cases. Those interpretations,
while consistent with Trial Rule 21(B), greatly expand the authority

of an Indiana trial court.

In Elliott V. Roach,^^'' the court of appeals held that Trial Rule

21(B) extends a trial court's jurisdiction to all claims and over all

parties which are required or permissively asserted if the trial court

had jurisdiction and venue over the original claim which was
asserted and if the original claim is within the subject matter juris-

diction of the court.^°* The scope of this interpretation is disclosed in
the facts in Elliott. An action was brought in a municipal court of
Marion County, Indiana. At the time the action was commenced, the
court had a jurisdictional limitation of $10,000. A suit demanding the
return of about $65.00 was initiated by the plaintiff. Three defend-
ants counterclaimed alleging defamation and demanding about
$200,000 each. The court of appeals held that the municipal court
could entertain the counterclaim which was filed under Trial Rule
13(C) because of the first sentence in Trial Rule 21(B).'°'

In Piskorowski v. Shell Oil Co.,^^^ the second paragraph in Trial

Rule 21(B) was authoritatively interpreted. In the Piskorowski deci-

^''MOa N.E.2d 352 (Ind. Ct. App. 1980).

''Ud. at 354.

''Hd. at 354-55.

'"409 N.E.2d 661 (Ind. Ct. App. 1980).

'''Id. at 667.

'""Id. at 667-68.

""403 N.E.2d 838 (Ind. Ct. App. 1980).



84 INDIANA LAW REVIEW [Vol. 15:69

sion, two suits were filed by the plaintiff in Lake County Superior

Court. In 1976, a third action was filed against Shell which moved
for summary judgment and for dismissal because the previous ac-
tions were pending in the Porter County Superior Court. The Lake
County Superior Court ordered consolidation of the 1976 action with

the previous actions pending in the Porter County Superior Court.

The transcript and pleadings in the 1976 action were never physically
transferred to the Porter County Superior Court.

The court of appeals held, however, that when the Lake County
Superior Court ordered the 1976 action to be consolidated with the

previous actions pending in the Porter County Superior Court, at

that time and at that moment the Lake County Superior Court lost
jurisdiction over the case.^" Accordingly, it did not matter that the

pleadings and transcript were not sent to the Porter County
Superior Court because the latter court acquired jurisdiction over

the dispute when the Lake County Superior Court entered its order
for transfer pursuant to Trial Rule 21(B).

3. Class Action: Trial Rule 23.—Bowen v. Sonnenburg^^^ con-
cerned a class action to secure compensation for services performed

while persons were patients in institutions for the mentally handi-
capped and the mentally retarded in the State of Indiana. The court
of appeals' opinion contains an outstanding discussion of the devel-

opment of a class action under Indiana Trial Rule 23. The opinion
points out that under Trial Rule 23(A) there are four prerequisites

to maintaining all class actions. Thereafter, Trial Rule 23(B) iden-

tifies three separate but not mutually exclusive types of class ac-

tions. Under subsection (B) a class action is appropriate if, and only if,
in addition to meeting all the requirements for subsection (A), one or

more of the additional conditions which are found to exist in subsec-
tion (B) is met. These distinct types of class actions are very impor-

tant because, as the opinion states. Trial Rules 23(C)(2) and 23(C)(3)
create substantial distinctions as to notice requirements and opting-

out requirements concerning members of a class. These distinctions
depend upon whether the class exists under Trial Rule 23(B)(1),
23(B)(2), or 23(B)(3). The court of appeals observed that it is critically
important in maintaining a class action that the subsection under

which the class exists is properly identified in the pleadings and

documents which control that aspect of the case."^
The court held that pursuant to Trial Rule 23(C)(2) for any class

action which is maintained under subsection 23(B)(3), that the trial

court shall direct to the class members the best notice practicable

"7d at 842.
"Hll N.E.2d 390 (Ind. Ct. App. 1980).
'''Id. at 396-98.



1982] SURVEY-CIVIL PROCEDURE 85

under the circumstances, including individual notice to all members
who can be identified through reasonable effort. ^^* The court referred
to and adopted the decisions found in Eisen IV, Eisen v. Carlisle &
Jacquelin.^^^ The court also held that "[ajthough there are some
federal decisions to the contrary, the general view is that these

notice requirements and opting-out rights afforded by TR 23(C)(2) do
not apply to actions maintained under TR 23(B)(1) or (2).""^ The court
stated that "[t]he plain language of TR 23(C)(2) makes the mandatory
notice provision and opting-out rights applicable only to class actions

maintained under TR 23(B)(3).""'
•4. Trial Rule 24: Intervention. — This rule was amended effec-

tive January 1, 1981,"® to state that a trial court's determination

upon a motion to intervene shall be deemed interlocutory for all pur-
poses unless the ruling by the trial court is made final pursuant to
Trial Rule 54(B). The effect of this amendment was to delete a pro-
hibition against an appeal from an order upon a motion to intervene

except on appeal from the final judgment. If a determination of final-

ity is appropriate and is made under Trial Rule 54(B), an appeal shall
become available even though the order is not the final judgment in
the case.

The Supreme Court Rules Committee Note"® states that the
amendment does not affect the decision in Indiana Bankers Associa-
tion V. First Federal S. & L. Association.^^^ Indiana Bankers held
that an interlocutory appeal was appealable pursuant to Appellate

Rule 4(B)(5) after a ruling on a motion to intervene. It is an inter-

locutory order unless, of course, it is made final by the application of
Trial Rule 54(B).

5. Trial Rule 53.4: Continuances by Agreement of
Parties. — Before January 1, 1981, Trial Rule 53.4 provided that par-
ties could agree to a continuance of a case. The rule was amended

"*M at 399.
"^415 U.S. 156 (1974).

"Mil N.E.2d at 400 (emphasis added).

'"Id.

"®Ind. R. Tr. p. 24 has been amended as follows:

(C) Procedure. A person desiring to intervene shall serve a motion to in-
tervene upon the parties as provided in Rule 5. The motion shall state the

grounds therefor and set forth or include by reference the claim, defense or

matter for which intervention is sought. Intervention after trial or after

judgment for purposes of a motion under Rules 50, 59, or 60, or an appeal

may be allowed upon motion. The court's determination upon a motion to in-
tervene shall be interlocutory for all purposes unless made final under Trial
Rule 54(B).

"^See Ind. Code Ann., Ind. R. Tr. P. 24, Supreme Court Committee Note (West

1981).

'='''387 N.E.2d 107 (Ind. Ct. App. 1979).



86 INDIANA LAW REVIEW [Vol. 15:69

effective January 1, 1981, by the Indiana Supreme Court (there was
no recommendation from the Supreme Court Rules Committee) to
remove those words which permitted continuances to be made by
agreement of parties. ^^^

6. Discovery. — Seversi\ important decisions concerning the sub-
ject of discovery were handed down by the Supreme Court of the
United States and Indiana's appellate courts during the year under

review.

a. Trial preparation materials: Trial Rule 26fB}f2j. — The case of
Upjohn Co. V. United States^^^ is perhaps the most significant

discovery decision since Hickman v. Taylor.^^^ Upjohn arose because
the company believed that some of its overseas divisions might have
made illegal payments to foreign governments or officials which
would be in violation of certain rules and regulations of the Internal

Revenue Service (IRS) and the Securities and Exchange Commission
(SEC).

In order to atempt to ascertain whether these suspected viola-

tions had in fact occurred, the general counsel of the company, after

consultation with outside counsel and the chairman of the board,

conducted an internal investigation. A letter containing a question-
naire was directed to all foreign general and area managers over the
chairman's signature. The letter was identified as an investigation
to determine the magnitude of these possible payments. The letter
instructed the managers to treat the investigation as "highly con-
fidential" and not to discuss it with any person other than Upjohn
employees who might be helpful in providing the requested informa-
tion. Responses, it instructed, were to be sent directly to the
general counsel. Additionally, the general counsel and outside coun-

sel also interviewed the recipients of the questionnaires and appro-

ximately thirty-three other Upjohn officers and employees as a part
of the investigation.

Subsequently, a summons was filed by the IRS which sought dis-
closure of all files relevant to the investigation conducted by the

general counsel of the company. The summons specifically referred
to the written questionnaire which was sent to the managers of the
company's foreign affiliates, and the summons demanded memo-
randa or notes of interviews conducted in the United States and

abroad with officers and employees of the Upjohn Company and its
subsidiaries. The company refused to produce the documents
described in the summons on the grounds that they were: (1) pro-
tected from disclosure by the attorney-client privilege, and (2) con-

'^'IND. R. Tr. p. 53.4 (amended January 1, 1981).

''nOl S.Ct. 677 (1981).
^=^^329 U.S. 495 (1947).



1982] SURVEY-CIVIL PROCEDURE 87

stituted the work product of attorneys in anticipation of litigation
and were not discoverable pursuant to Federal Rule of Civil Pro-
cedure 26(b)(3) (and Indiana Trial Rule 26(B)(2)).

The lower federal courts ordered a disclosure of information on
the ground that the attorney-client privilege did not apply to com-
munications which were made by officers and agents of a corpora-
tion to an attorney if those officers and agents were not responsible
for directing the company's actions in response to legal advice/^*

The principal reason offered by the lower federal courts was that
the communications were not the "client's". The gist of this theory
was that the attorney-client privilege is applicable only between the
attorney and the "control group" of a corporation, and that "control

group" means a president, director, the chairman of the board of
directors, and similarly situated officers and persons.^^^

The Supreme Court of the United States reversed,^^* and its
principal holdings were these:

(i) The attorney-client privilege applies to corporations. The
attorney-client privilege is fully applicable to a corporation (probably

this case is citable for the proposition that it is applicable to an

organization or an unincorporated association).^^^

(ii) The ''control group*' test was disallowed. The court rea-
soned that the "control group" test was too limited because the
attorney-client privilege protects not only the giving of professional

advice to those who can act on it, but also the giving of information
to an attorney to enable him to analyze and deliver sound and in-

formed advice. The Court said that the first step in the resolution of
any legal problem is ascertaining the factual background of the

problem and sifting through the facts in order to determine those

which are legally relevant. The Court observed that many lower-
level corporate employees can, by actions within the scope of their

employment, embroil the corporation in serious legal difficulty.

Those employees who have relevant information must be able to
communicate directly and openly to the attorney if such corporate

counsel is to adequately advise his client with respect to potential

problems. Thus, the Court reasoned that the "control group" test,

which was adopted by the lower federal courts, frustrated the very
purpose of the attorney-client privilege by discouraging the disclo-

sure of relevant information by employees of the client to attorneys

'^'United States v. Upjohn Co., 600 F.2d 1223, 1227 (6th Cir. 1979), rev'd, 101 S.

Ct. 677 (1981).

'^'Id. at 1227.

""Upjohn Co. V. United States, 101 S. Ct. 677 (1981).

"7d. at 682-83 (citing United States v. Louisville & Nashville R.R., 236 U.S. 318,
336 (1915)).



88 INDIANA LAW REVIEW [Vol. 15:69

who would attempt to render legal advice to the client
corporation/^^

fiii) Does the attorney-client privilege extend to post-
employment interviews? The Supreme Court declined to rule on
whether the attorney-client privilege still applied to seven of eighty-

six employees who were interviewed by corporate counsel after
those employees terminated their employment with Upjohn. The
Court observed that the question had not been treated in the lower

federal courts and declined to pass upon it in the opinion/^^

(iv) The privilege protects only disclosure of communications.

The Court held that the attorney-client privilege protects only dis-
closure of communications/^" It does not protect the disclosure of

underlying facts although those facts were communicated to an at-
torney by a client. The distinction which the Court drew is found in
the observation that a client cannot be compelled to answer the

question, "What did you say or write to the attorney?" But the
client may not refuse to disclose any relevant fact within his know-
ledge merely because he communicated a statement of that fact in

his communication to his attorney. ^^^

(v) Work-product protection not defeated by mere showing of
necessity and hardship. The Court concluded that communications
by Upjohn employees to corporate counsel were protected by the at-
torney-client privilege. This holding disposed of responses to the

questionnaires and any notes reflecting responses to interview ques-

tions in the dispute. In this regard, the Court held that the burden

imposed on the IRS to obtain the necessary information from other
sources did not in any respect overcome the policy served by the
attorney-client privilege.^^^

fvil The work-product doctrine protects communications by

former employees. The Court held that the work-product doctrine
applied to the seven former employees and to counsel's notes and

memoranda about those interviews if it should be determined that
the attorney-client privilege was not applicable to them.^^^

fviil Memoranda of oral statements are protected by the work-
product doctrine. The Court distinguished, as a part of an attorney's
work product, facts which might be found in an attorney's file from
an oral statement made by a witness which is presently in the form

^"nOl S. Ct. at 683-84.

''Ud. at 685 n.3.

"°M at 685.
^"/d at 685-86 (citing City of Philadelphia v. Westinghouse Elec. Corp., 205 F.

Supp. 830. 831 (E.D. Pa. 1962)).

'^'^lOl S. Ct. at 686-89.

'""Id. at 686 n.6.



1982] SURVEY- CIVIL PROCEDURE 89

of an attorney's mental impressions or memoranda. The Court
observed that as to the latter type of information, Federal Rule of

Civil Procedure 26(b)(3) provides that the trial court "shall protect

against disclosure of the mental impressions, conclusions, opinions or

legal theories of an attorney or other representative of a party con-

cerning the litigation."^^* The Court observed that it was clear that
oral statements given by witnesses to an attorney fell inside that

proscription because of the great danger that their disclosure

would also reveal the attorney's mental process/^^ The Court declin-
ed to rule whether the language in Rule 26(b)(3) means that no show-
ing of necessity can ever be made which would justify their produc-
tion, although there is language in the Hickman decision which in-
dicates precisely that conclusion.

^^^

The work product here consisted of notes and memoranda which
were based on oral statements taken by an attorney from a witness.
Because those witnesses were also employees of the company, the
Court held that their communications were protected by the
attorney-client privilege. To the extent that those notes do not
reveal privileged communications, they might reveal the attorney's

mental process in evaluating the communications.^^^ The Court held
that as to those communications it was clear that both Rule 26(b)(3)
and the Hickman decision posit that work product cannot be disclos-
ed simply on a showing of "substantial need and inability to obtain

the equivalent without undue hardship."^^® The limited reservation
which the Court made was found in the statement that it was not
prepared to say that such material is always protected by the work-

product rule but that a much more powerful showing of necessity
and unavailability by other means must be made in order to compel
disclosure.^^^ Perhaps the Court was thinking about a situation in
which it is impossible to obtain that kind of information from any

other sources. For example, a witness is now deceased or some
other truly extraordinary factual situation.

The Upjohn decision is fully applicable to Indiana and its Trial
Rule 26(B)(2) in view of the decisions which have assimilated federal

authority and federal interpretations into the Indiana Discovery

Rules.^^°

''*Id. at 687; Fed. R. Civ. P. 26(b)(3).

•^nOl S. Ct. at 688.

'^"Hickman v. Taylor, 329 U.S. 495 (1947). The Court in Hickman did "not believe

that any showing of necessity can be made under the circumstances of this case so as
to justify production." Id. at 512.

>^n01 S. Ct. at 686.

'""Id. at 688.

'''Id. at 688-89.

""See, e.g., Newton v. Yates, 353 N.E.2d 485 (Ind. Ct. App. 1976).



90 INDIANA LAW REVIEW [Vol. 15:69

The court of appeals decision in In re Snyder,^^^ contains an
important interpretation of "in anticipation of litigation" in the trial

preparation materials provision of Trial Rule 26(B)(2). An appeal was
taken by a mother from a decision which terminated her parental

rights to her children. In the trial court, the mother sought dis-

covery of a welfare caseworker's qua investigator's notes which

were compiled when the mother was interviewed by that person.
The Department resisted the discovery claiming that the notes were
"work product" and thus exempt from discovery except on a suffi-
cient showing of good cause.

The appellate court disagreed with the Department's position
and overruled the trial court on the point^*^ by holding that the

"work product" or the trial preparation materials restriction on

discovery was not applicable unless the caseworker's notes were
prepared in anticipation of litigation and that the test was:

[W]hether, in the light of the nature of the document and the

factual situation of the particular case, the document could
be fairly said to have been prepared or obtained because of

the prospect of litigation. Conversely, even though litigation

is already in prospect, there is no work product immunity
for documents prepared in the regular course of business

rather than for purposes of litigation.^"

b. Trial Rule 26fB}f3): expert witnesses. -Trisil Rules 26(B)(3)(a)

and 26(B)(3)(c) were discussed and interpreted in Evans v. Huss.^**
This decision involved an advisory expert who would testify but
whose information for which he was compensated concerned compu-
tations and drawings of a non-testimonial nature in the hands of the

party from whom discovery was sought. A party sought and obtain-
ed certain information from the opposing party's expert which was,

in essence, advice and work which the expert had given to and per-
formed for the opposing party. Discovery was conducted on an ami-
cable basis, and the opposing party sent to the discovering party a

bill for time and travel in responding to the deposition, and a bill for
certain computations and drawings which were provided to the dis-
covering party. The discovering party, however, refused to pay and
argued that it was not liable to pay for the computations and the
drawings and that Trial Rule 26(B)(3)(c) was not available to the trial
court to order payment unless there was first an order providing for
that discovery pursuant to Trial Rule 26(B)(3)(a).

^^'418 N.E.2d 1171 (Ind. Ct. App. 1981).

'*'Id. at 1177-78.

'"M at 1177 (quoting Galambus v. Consolidated Freightways Corp., 64 F.R.D. 468,
472 {N.D. Ind. 1974)).

'"415 N.E.2d 783 (Ind. Ct. App. 1981).



1982] SURVEY-CIVIL PROCEDURE 91

The court of appeals disagreed. It held that when discovery oc-
curs amicably or pursuant to informal procedures which were

agreed to by the parties without the benefit of a trial court order

under Trial Rule 26(B)(3)(a) and when a fair and equitable payment is
not made, a party may seek a court order under Trial Rule
26(B)(3)(c), and a trial court may grant the order depending upon the
merits of the claim for payment or compensation.^^^

c. Trial Rule 30(E): submission of a deposition to a

witness. — Trial Rule 30(E) was extensively amended effective
January 1, 1981. The new rule speaks to those situations which oc-
curred under the former trial rule when a witness received a deposi-
tion and failed to return it to the reporter or officer taking the

deposition or when the deposition was returned unsigned to that
person. Under the new rule, if a witness desires to change an
answer in the deposition submitted to him, then each change shall

be noted and made by the witness on a separate form provided by
the reporter, and a copy of the change shall be furnished by the

reporter to each party. ^*^ If reading and signing the deposition have

not been waived by the witness and each party to the deposition,

then the deposition shall be signed by the witness and returned to

the reporter within thirty days after being submitted to the

witness.^^^ If the deposition is not returned to the reporter or has

not been signed by the witness, then the reporter shall execute a

certificate to that fact, attach it to the original deposition, and cause

both to be filed with the trial court. In that event the deposition

may be used by any other party as if it had been signed by the
witness.^**

The new rule contains a definition of the words "submitted to
the witness." It means notification to the witness and each attorney
attending the depositon by registered or certified mail that the

deposition can be read in the office of the reporter or officer before

whom it was taken, or it means that the original copy of the deposi-
tion shall be mailed by registered or certified mail to the witness at

an address designated by that witness or his attorney. ^*^

It is suggested that Trial Rule 30(E)(1)(b), which provides for

mailing the original deposition to the witness at an address desig-

nated by the witness or his attorney if requested, must be read in
conjunction with Trial Rule 30(F)(2). The latter provision states that
'*[u]pon payment of reasonable charges therefore, the officer shall

'*^M at 786-88.

•^^IND. R. Tr. p. 30(E)(2).

"7d. 30(E)(3).

'*7d. 30(E)(4).

'"/d 30(E)(1).



92 INDIANA LAW REVIEW [Vol. 15:69

furnish a copy of the deposition to any party or the deponent." It is
plain that the Indiana Supreme Court Rules Committee did not in-
tend to create the situation in which the original copy of the deposi-

tion would be mailed by an officer or reporter without payment for
it which an isolated reading of Trial Rule 30(E)(1)(b) might suggest.

d. Use of depositions: Trial Rule 32. —In Manning v. Allgood,^^^
the court of appeals held that Trial Rule 32(A)(4) requires only that

the relevant portions of a deposition be introduced after other por-

tions of the deposition have been used during an examination at

trial. ^^^ Plaintiffs counsel presented portions of two depositions dur-
ing the plaintiffs case-in-chief which were read into evidence when
the plaintiffs counsel attempted to place the deponent's statements

in a chronological order so the jury might better understand the se-

quence of events. Defense counsel was permitted to read the entire
deposition during the presentation of defendant's case-in-chief. The
court of appeals held that the trial court correctly refused the

defendant's request to read the entire deposition during the presen-

tation of the plaintiffs case and that a reading would have been "un-

necessarily disruptive of the plaintiffs case."^^^

e. Trial Rule 33: Interrogatories. — ^ridA Rule 33 received a
significant interpretation in this reporting period. In Bowling v.

Holdeman,^^^ the court of appeals held that answers to inter-

rogatories given under oath pursuant to Trial Rule 33(B) do not

automatically become evidence in a case.^^" Before answers to inter-
rogatories can be considered by the trier of fact, they must be in-
troduced into evidence. If they are not, then the answers are not

before the trier of fact even though they are on file in a clerk's of-

fice or retained by the court pursuant to local procedures.

/. Request for admissions: Trial Rule ,?^. — Trial Rule 36 receiv-
ed two important interpretations, and the first is found in the case
of Brown v. Union Oil Co.^^^ There the plaintiff alleged an agency
relationship which would have imputed liability to Union Oil.

However that may be, the court held that the absence of the agency

^^M12 N.E.2d 811 (Ind. Ct. App. 1980).

'''Id. at 814.

>5^413 N.E.2d 1010 (Ind. Ct. App. 1980).

''*Id. at 1013.

'5^406 N.E.2d 1218 (Ind. Ct. App. 1980). The scope of discovery under Indiana Trial

Rule 36(A) is very broad and is more expansive than Fed. R. Civ. P. 36(a). Under the

Federal Rule, a request for an admission is limited to "statements or opinions of fact

or of the application of law to fact . . . ." This restriction does not appear in the In-

diana rule. The facts in Brown show the considerable sweep in Indiana's rule. One may

request an admission "of the truth of any matters within the scope of Rule 26(B) . . . ."

A case which contains a good discussion of relevancy under Fed. R. Civ. P. 26(b)(1) is
McClain v. Mack Trucks, Inc., 85 F.R.D. 53 (E.D. Pa. 1979).



1982] SURVEY-CIVIL PROCEDURE 93

relationship was established by the plaintiffs failure to respond to a
request for an admission under Trial Rule 36/^^ When the plaintiff
failed to respond to that request, the trial court granted a summary
judgment to the defendant; thus the failure to respond was fatal to
the plaintiffs case. Under Trial Rule 36, unlike Trial Rule 33, if an
admission is effected because of the failure to respond to a request,

then that admission is deemed established for all purposes in the
litigation, and it may not be contradicted by the finder of fact unless
the admission is amended away under Trial Rule 36(B).

The latter provision was interpreted in the case of Hanchar In-
dustrial Waste Management, Inc. v. Wayne Reclamation & Recycl-
ing, Inc.^^'' In Hanchar, the trial court permitted a defendant to file

answers to the plaintiffs request for admissions after the time

specified in the request had expired. After the defendant's failure to

respond to the request for the admission, the defendant filed a mo-

tion for an extension of time in which to answer the request on the
grounds of excusable neglect pursuant to Trial Rule 6(B)(2),^^* which

motion the trial court granted. The court of appeals held that the
granting of an extension of time was error and concluded that Trial
Rule 36(B) specifically establishes the standard to be utilized by a
trial court in determining whether a party should be allowed to
withdraw or amend its admissions.*^® Because that standard makes
no reference to Trial Rule 6(B)(2) or to excusable neglect, the court

held that "excusable neglect" had no bearing on whether the defend-

ant in this case should have been permitted to withdraw or amend
the admissions made by operation of law by failing to respond to the
request.*^"

g. Enforcement of discovery: Trial Rule ,?7. — Several impor-
tant holdings developed in this area during the year in review.

fi) Enforcement without preceding trial court order. In State v.
Kuespert,^^^ the State of Indiana failed to make adequate responses
to requests for discovery consisting of certain interrogatories, re-

quests for admissions, and other discovery information. The

^^M06 N.E.2d at 1219-20.
»"418 N.E.2d 268 (Ind. Ct. App. 1981).

'**Ind. R. Tr. p. 6(B)(2) provides for the enlargement of time after the expiration

of a specified period in which an act is to be performed, upon the basis of excusable

neglect. The rule also contains absolute restrictions upon a trial court's ability to ex-
tend time in which to perform an act under Trial Rules 50(A), 52(B), 59(C), and 60(B).

The opinion in Skolnick v. State, 417 N.E.2d 1103 (Ind. 1981), shows that the time for
filing a motion to correct error under Trial Rule 59(C) cannot be extended under Trial

Rule 6 even if there were a showing of excusable neglect.
'^M18 N.E.2d at 270.

'""Id. (citing Pathman Const. Co. v. Drum-Co Engin., 402 N.E.2d 1 (Ind. Ct. App.
1980) discussed in Harvey, 1980 Survey, supra note 98, at 162-63).

••''411 N.E.2d 435 (Ind. Ct. App. 1980).



94 INDIANA LAW REVIEW [Vol. 15:69

responses which were filed appeared to be incomplete and inac-
curate particularly in view of a previous hearing in the case. The
plaintiff filed a motion to compel production and response to the re-

quested discovery. The motion asked for attorney's fees and ex-
penses on the ground that the state had repeatedly given partial, in-

accurate or untrue, and misleading information in response to

discovery procedures. The trial court awarded attorney's fees in the
amount of $1,400 and ordered compliance with the discovery re-
quest.

The court of appeals sustained the trial court's orders and
pointed out that under Trial Rule 37 costs and expenses might be

assessed ''when a party must go to the trouble of obtaining a court's
intervention to compel discovery ."^^^ The court concluded that In-
diana Trial Rule 37(B)(2)(c) allows such cost assessments against a

party who has failed to comply with the discovery request when
there is no preceding order to make the discovery or to comply with
the discovery request and when it is shown that the party from
whom the discovery is sought has been obstructive or derelict in its
failure to respond to the discovery requests.^^^

Hi) Remedies for failure to follow court orders compelling
discovery. In Chrysler Corp. v. Reeves,^^^ the court of appeals ap-

peared to qualify its policy concerning dismissal pursuant to Trial

Rules 37(B)(2) and (4). In Chrysler Corp., a trial court entered a judg-
ment on the issue of liability against the corporation which, if af-
firmed, would have left the sole issue as one of damages to be
awarded to the plaintiff. The court of appeals held that even though
the two critical findings under Trial Rules 37(B)(2) and (4) had been
made, nevertheless the trial court had "abused its discretion in

ordering a partial default because other relief would have been ade-

quateJ'^^^ The court concluded that, as a matter of policy, other
available remedies should be used rather than dismissing an action

or finding against one of the parties. The court of appeals suggested
that the assessment of attorney's fees might stimulate an answer to
an interrogatory and preserve the possibility of trial on the merits

at the same time.^^^
The extensive power to visit sanctions upon an attorney was

reviewed and specifically affirmed by the United States Supreme
Court in Roadway Express, Inc. v. Piper.^^^ In Roadway, three at-
torneys brought suit against Roadway on behalf of two of its
employees claiming certain employment discrimination. The at-

"^M at 437.
'''Id.

^"404 N.E.2d 1147 (Ind. Ct. App. 1980).

''^/d. at 1152 (emphasis added).

'''Id. at 1154.

^"100 S. Ct. 2455 (1980).



1982] SURVEY-CIVIL PROCEDURE 95

torneys manifestly lacked diligence because they failed to respond

to interrogatories, to appear for argument, to attend a rescheduled

argument, to meet appointed deadlines, to appear on appointed

days, and to comply with federal district court requests for the filing

of briefs and other matters. Roadway moved to dismiss the suit
under Federal Rule of Civil Procedure 37(b)(2)(C) and requested an

award of attorney's fees and costs in excess of $17,000.
The Court interpreted Federal Rule of Civil Procedure 37(b) and

the sanctions contained therein to authorize a trial court to impose

expenses, including attorney's fees, upon parties and counsel. ^^* The
Court held, "Rule 37 sanctions must be applied diligently both 'to
penalize those whose conduct may be deemed to warrant such a
sanction, [and] to deter those who might be tempted to such conduct
in the absence of such a deterrent.'

"^^^

The Court affirmed a federal district court's authority to dismiss
the case because of the failure of the attorneys to act diligently and

expressly held that the attorneys may be charged with the resulting
costs and attorney's fees which Roadway had demanded.^^" Alter-
natively, the Supreme Court held that a federal trial court has the
inherent power, apart from Federal Rule of Civil Procedure 37, to

levy sanctions upon attorneys for abusive litigation practices. ^^^ Ad-

ditionally, the Court affirmed that a trial court has the inherent

power to dismiss sua sponte for the lack of prosecution, separate
and distinct from Federal Rule of Civil Procedure 41(b).^^^ The Court
finally held the general rule in federal courts that a litigant will not

recover his counsel fees does not apply when the opposing party or
counsel has acted in bad faith."^

F. Trial and Judgments

1. Entry of Final Judgment: Trial Rule 54(B}. — In Krueger v.
Bailey,^^* the plaintiff brought an action arising from a frisbee acci-

dent which occurred on a school playground. Suit was filed against
four defendants, three individuals and the Michigan City Area
Schools Corporation. Each defendant filed a motion for summary
judgment. Two of those motions were granted and two were not.

'''Id. at 2462-63.

**'^M at 2463 (citing National Hockey League v. Metropolitan Hockey Club, 427

U.S. 639, 643 (1976)).

'™100 S. Ct. at 2463.

"7d at 2463.
"'Id. at 2463-64.

"'Id. at 2464. The Roadway decision also interpreted 28 U.S.C. § 1927, which
relates specifically to federal trial courts, and is beyond the scope of Indiana state

court practice and development. The reader should examine Roadway, however, for
the interpretation given to § 1927 under Title 28 of the United States Code.

"M06 N.E.2d 665 (Ind. Ct. App. 1980).



96 INDIANA LAW REVIEW [Vol. 15:69

On appeal a question was raised whether a trial court's failure
to resolve all of the issues as to all the parties resulted in a "final

judgment" from which the appeal might be taken. The court of ap-
peals held that when summary judgment disposes of less than all of
the claims or parties, then the judgment is interlocutory and is not

final. ^^^ It is not appealable unless a trial court expressly determines

in writing that there was no just reason for delay and expressly
directs in writing the entry of a judgment thereon.^^®

However that may be, the court of appeals, in an unusual act,
considered the case on the merits and proceeded to dispose of the

appeal. The appellate court acted in its discretion as it is authorized
to do by Appellate Rule 4(E).

2. Default Judgments: Trial Rule 55. — There is a critical
distinction betweeen being entitled to three days notification pur-

suant to Trial Rule 55(B) and being permitted to file a pleading or

document which will avoid that party's default during those three
days.

This distinction was illustrated in the case oiErdman v. White.
^''''

The opinion is very important and reveals a split among the
districts in the court of appeals. In Erdman, the plaintiff obtained a
default judgment against the defendant because the defendant failed

to comply with a court order issued after a hearing held on March 2,
1979. The trial court order directed the defendant to answer within
ten days, which the defendant failed to do. On March 13, 1979, the
plaintiff moved for and received a default judgment against the
defendant; on that day, the defendant did file an answer by his out-
of-state attorney. The gist of the defendant's argument on appeal
was that because the defendant had appeared, he was entitled to an
additional three-day notice under Trial Rule 55(B) and could hence

file the answer when the additional time commenced to run, which,
according to the defendant, began on March 13, 1979.

The appellate court squarely held to the contrary. The court
held that it was within the trial court's discretion to grant the
default judgment or to allow the defendant to file an answer to the
complaint.^^* In short, the three-day notice in Trial Rule 55 does not

provide a delinquent party additional time in which to plead and

thereby entirely avoid the question of default. This opinion cited

Hiatt V. Yergiv}'^^ and expressly disapproved of it to the extent that

"^M at 667.
""/d (citing IND. R. Tr. P. 56(C); Stanray Corp. v. Horizon Constr., Inc., 342

N.E.2d 645 (Ind. Ct. App. 1976); and Kasten v. Sims Motor Transp., 166 Ind. App. 117,
333 N.E.2d 906 (Ind. Ct. App. 1975)).

^"411 N.E.2d 653 (Ind. Ct. App. 1980).
"«M at 657 (citing Green v. Karol, 168 Ind. App. 467, 473, 344 N.E.2d 106, 110

(1976)).

"^52 Ind. App. 497, 284 N.E.2d 834 (Ind. Ct. App. 1972).



1982] SURVEY-CIVIL PROCEDURE 97

it interpreted Trial Rule 55(B).^^° The opinion also cited the cases of
Clark County State Bank v. Bennett^^^ and Snyder v. Tell City
Clinic^^^ as cases which approved the interpretation given to Trial

Rule 55 by the Erdman court.
3. Entry of Final Judgment: Trial Rule 58. — In In re Estate of

Jackson,^^^ the court of appeals held that the entry of a judgment pur-

suant to Trial Rule 58 is made when the judgment is entered as re-
quired by Trial Rule 77(E) but that the judgment or order itself need

not be set out and may make reference to a separate order book in
which the ruling is entered verbatim.

^®^

The occasion for this holding was an appeal by the Department
of Revenue in which the appellate court held that the Department's
motion to correct error was not timely filed because it was one day
too late.^*^ A mere one-sentence entry was made by the probate
court on the estate docket book while a written order was entered
in its entirety in the probate order book to which reference was
made in the docket book. The appellate court held that the docket
book entry with reference to where the full judgment could be
found was insufficient.^*^

Another case which interpreted Trial Rule 58 was State v. Nor-
mandy Farms.^^^ There the State initiated a condemnation action for
about five acres of land. The jury returned a verdict for the defend-
ant, Normandy Farms, but a mistake appeared in the jury verdict
where it assessed the sum of "no damage dollars." Apparently, the
jury intended that the Farm would receive approximately $96,000
for the land actually taken, but no damages to the residue. The jury
was polled, and it was apparent from several statements made by
the jury that the mistake had occurred. The trial court, pursuant to
a motion to correct error filed by the Farm, ordered a new trial.

The State argued on appeal that Trial Rule 58 required the trial
court to enter judgment on the verdict. The court of appeals held
that Trial Rule 58 required a prompt entry of a judgment, but the
required judgment is not restricted to a judgment on the verdict.^^^
Therefore, if the jury verdict is clearly erroneous, as here, "T.R. 58

does not mandate the trial court to perpetuate the error by entering
judgment on the verdict."^*^ The rule requires the trial court to

''HU N.E.2d at 656-57.
'«'166 Ind. App. 471, 336 N.E.2d 663 (Ind. Ct. App. 1975).
'«^391 N.E.2d 623 (Ind. Ct. App. 1979).

'«M09 N.E.2d 1251 (Ind. Ct. App. 1980).

''*Id. at 1253.

'''Id. at 1254.

'''Id. at 1253-54.

'«M13 N.E.2d 268 (Ind. Ct. App. 1980).

'"Id. at 270.

"Ud. at 270-71.



98 INDIANA LAW REVIEW [Vol. 15:69

promptly enter a judgment which may include any form of correc-
tive relief which is available under Trial Rule 59(J) (the opinion

refers to Trial Rule 59(1), which was the alphabetizing of the rule
when the decision was reached). Thus, Trial Rule 58, the court held,
"does not excuse the trial court from entering a final judgment in
order to preserve the parties' appellate rights, it only authorizes the

refusal to enter a judgment on the verdict."^^"
-4. Preliminary Injunctions and Temporary Restraining Orders:

Trial Rule ^5. — The case of Bottoms v. B&M Coal Corp.^^^ arose
from a violent labor strike in southern Indiana. An injunction was
obtained against persons who committed violent destructive acts on
the company's property. One of the questions raised on appeal was
whether there was sufficient notice of the restraining orders which
had been issued by the trial court as a predicate for a contempt of

court citation. Appellants argued that because they were not proper-
ly served with notice of the restraining orders, they could not be

held in contempt of them.

The court of appeals disagreed and held that notice of an injunc-
tion or a restraining order must be served on a person who is to be
enjoined by the order but that an exception exists to that general

principle when it is shown that a person had actual knowledge of a
restraining order or injunction. When that showing is made that
person "may be held liable for violating the provisions of the
order."^^^ In this respect, actual knowledge must be established from
the facts presented to the trial court, but actual knowledge may be
shown by "circumstantial evidence" or may be inferred from the
facts of the case.^^^ In this case, there was ample support for the
trial court's findings that all of the appellants had actual knowledge

of the retraining order. The court of appeals also held that the proper
procedure in Indiana is that before a defendant may be held in con-
tempt for violating an injunction, the court should bring the of-

fender before the court a second time and then determine the appro-

priate penalty.
^^*

In Good V. CroweU^^^ a temporary injunction was issued as a

result of a school reorganization dispute in which Good, a newly

elected school board member, was restrained from participation in

certain school board proceedings. Good agreed to a stipulation in

^'"/d at 271.
^»i405 N.E.2d 82 (Ind. Ct. App. 1980). See Archer, Labor Law, 1981 Survey of Re-

cent Developments in Indiana Law, 15 Ind. L. Rev. 269, 287-88 (1981), for a

thorough presentation of the factual background in Bottoms.

'^'405 N.E.2d at 89 (citing Shaughnessey v. Jordan, 184 Ind. 499, 111 N.E. 622

(1916)).

'^^405 N.E.2d at 89.

'''Id. at 94-95.

^»'416 N.E.2d 899 (Ind. Ct. App. 1981).



1982] SURVEY-CIVIL PROCEDURE 99

which the temporary restraining order was dissolved. In an appeal,
Good argued that under Trial Rule 65(C) he should be allowed to col-
lect attorney's fees despite the agreement dissolving the injunction.

The court of appeals held that a "voluntary dismissal by a plain-

tiff of an action in which a bond has been given and a temporary

restraining order or an injunction has been obtained is considered to

be a breach of the bond."*^^ Under Indiana precedent such a dismis-
sal is tantamount to a judicial determination that the plaintiff was
not entitled to the equitable relief sought, and therefore the injunc-

tion was wrongfully granted.^^^ However that may be, a dismissal of
an action by both parties through an amicable and voluntary agree-

ment is quite different. The court held that the agreement "does not
operate as a confession of judgment by the plaintiff nor does it ad-
mit that the plaintiff had no right to the injunction."^^® Thus when
there is an amicable and voluntary agreement of both parties, the
defendant or the enjoined person waives his rights under the bond

and any right of action based on a breach of the bond. The court of
appeals concluded that the trial court properly dismissed Good's mo-

tion for an assessment of damages against the surety.

G. Appeals

1. Motion to Correct Error: Trial Rule 5P. — This rule was
substantially revised effective January 1, 1980.^^^ The 1981 amend-
ments restate and realign some of the sections of the rule without
change in the meaning of the 1980 amendments. Perhaps the most
significant realignment was to place the language of the 1980 ver-
sion of the rule concerning the "Statement of Opposition to a Motion

to Correct Error" in a separate paragraph. The purpose of this
change, which appears in the 1981 version as Trial Rule 59(E), is to

show that the statement of opposition to a motion to correct error is
intended to be applicable to every situation in which a motion to

correct error is made. Previously that provision was found in a para-
graph which related to the denial of a motion to correct error, and it

might have been read as being applicable only in that situation. It is

not, however, and the statement of opposition applies to all motions

to correct error if the party opposing that motion should choose to

file a statement of opposition.

The statement in opposition was authoritatively interpreted in
the decision of Ralston v. State.^^° In Ralston, the defendant filed a

^^*M at 901 (emphasis in original).

>'7d (citing St. Joseph & Elkhart Power Co. v. Graham, 165 Ind. 16, 74 N.E. 498
(1905)).

•««416 N.E.2d at 901.

"^See Harvey, 1980 Survey, supra note 98, at 171-89 for an extensive discussion of

the 1980 revisions to Trial Rule 59.
'°°412 N.E.2d 239 (Ind. Ct. App. 1980).



100 FNDTANA LAW REVIEW [Vol. 15:69

motion to correct error to which the State did not respond in the

trial court. On appeal the defendant principally argued that a motion
to correct error is viewed as a "complaint on appeal" and that

accordingly there must be an "answer" to that "complaint."
The court of appeals held that even though there is now an op-

portunity to respond to a motion to correct in the trial court pur-

suant to Trial Rule 59(E), it is not mandatory that the opponent to
the motion respond.^"^ Additionally, there is no "admission" when
there is a failure to respond or file the statement in opposition.^"^

The court of appeals also held that the motion to correct error "is
clearly not a complaint in the literal sense as the term is used" in
Indiana Trial Rule 1.'''

The opinion in Stanley v. Kelley^^^ is one of the clearest
statements in Indiana's appellate literature on the trial court's func-

tion when a motion to correct error has been made after a judgment
has been entered upon a jury verdict. In this case a judgment was
entered for the plaintiff for approximately $130,000, which was set
aside by the trial court as a jury verdict which was "clearly erron-
eous and not supported by the evidence."

The court of appeals stated that under Trial Rule 59(J)(7) (the
opinion refers to Trial Rule 59(I)(j), the lettering used before the

1981 amendments), a trial court reviewing the evidence can respond

in one of three ways:

If the trial court determines the verdict is against the

weight of the evidence, it shall grant a new trial, making
special findings upon each material issue and relating the

supporting and opposing evidence to each issue upon which a

new trial is granted. If the trial court determines the verdict
is clearly erroneous as contrary to or not supported by the

evidence, it shall enter final judgment, specifying the . . .

reasons therefor. If, however, the trial court, after finding

the verdict clearly erroneous, determines that entry of final

judgment would "be impracticable or unfair to any of the

parties or is otherwise improper . . . ," it may grant a new
trial, making special findings of fact upon each material issue
and showing why judgment was not entered upon the evi-
dence.^°^

The court then held that when a trial court is reviewing a mo-
tion for judgment on the evidence subsequent to a jury verdict and

">'Id. at 245.

'''Id.

'''Id.

'°%n N.E.2d 1145 (Ind. Ct. App. 1981), appellate opinion on the merits, 422

N.E.2d 663 (Ind. Ct. App. 1981).

^"^17 N.E.2d at 1146.



1982] SURVEY-CIVIL PROCEDURE 101

the claim is that the verdict was clearly erroneous because not sup-
ported by the evidence, "it views only the evidence favorable to the

non-moving party and the reasonable inferences to be drawn there-
from."^°^ The trial court may not weigh the evidence, and it is clear-
ly erroneous only if there is no substantial evidence or reasonable

inference to be adduced therefrom to support an essential element

of the claim. This means that the evidence must point unerringly to
a conclusion not reached by the jury. The court of appeals also
stated that the standard of appellate review of a trial court deter-

mination that the verdict is clearly erroneous is "identical to the

standard of review guiding trial judges."^°^

The court also held that "[i]n reviewing a claim that the weight
of the evidence preponderates against the jury's verdict, the trial

judge sits as a 'thirteenth juror.' . . . If . . . the trial judge believes

that a contrary result should have been reached in the minds of rea-

sonable men, it should grant a new trial."^°® The case was remanded
to the trial court for compliance with Trial Rule 59(I)(7) to show why
the judgment was entered for defendant Kelley.

2. Finality of Judgments: Appealable Final Orders. — The opin-
ion in City of Evansville v. Miller^^^ concerned a class action filed

against the City of Evansville in 1969. The action arose because of
an amendment to its municipal code which concerned a refusal to
collect trash and refuse from certain dwelling houses and apart-

ments. A similar ordinance was held by the Indiana Supreme Court
to improperly distinguish between commercial and non-commercial

enterprises.^^" After that holding, the Warwick County Circuit Court
entered a judgment on September 7, 1973, which in essence deter-
mined that the defendants were liable to the plaintiffs in the class
action from and after March, 1969, when the action was filed. The
City did not perfect an appeal from that entry because the City did

not file a praecipe for an appeal.^"

After the determination of liability was made, evidence was
taken for the next four-and-a-half years and presented to a master to

determine damages to the class. Damages were established at appro-
ximately $240,000 plus eight percent interest from 1973. On appeal
the City attempted to raise questions concerning the liability side of

the case, but the court of appeals refused to entertain that part of

the appeal.

'''Id. at 1146-47.

''Ud. at 1147.

^"^/d. (citation omitted).

^'''412 N.E.2d 281 (Ind. Ct. App. 1980).

'•"State ex rel. Miller v. McDonald, 260 Ind. 565, 297 N.E.2d 826 (1973), cert,
denied, 414 U.S. 1158 (1973).

'"Ind. R. App. P. 2(A) states that 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 pro-



102 INDIANA LA W REVIEW [Vol. 15:69

The appellate court held that the trial court's order, which
determined liability and reserved until a later date a ruling on

damages, became a final and appealable order at the time the City's
motion to correct error was denied in 1973.^^^ The City failed to
perfect an appeal from that final and appealable order, and as a

result the court of appeals declined to entertain the appeal on those

issues. The appellate court also held that the requirements of Trial
Rule 54(B) did not preclude this result because the rule deals with

multiple claims and multiple parties. The court reasoned that in this
class action there was essentially one issue, the liability of the City,
and that once that liability was determined, it was appealable not-
withstanding the future determination of damages.^^^

3. Damages for Vexatious Appeals: Appellate Rule 15fG). — The
cases of Sandock v. Taylor Construction Corp.,^^^ Indiana Depart-

ment of Public Welfare v. Rynard,^^^ and Deetz v, McGowan^^^ all
acknowledge the availability of the power of an appellate court to
assess damages for frivolous appeals which is plainly established in
Appellate Rule 15(G). In Rynard, the appellate court held that an ap-

peal by the Department of Public Welfare was vexatious and frivo-
lous and awarded damages in the amount of ten percent of the trial
court's judgment of over $250,000 against the Department.^^^

In Sandock, the court of appeals also entered a judgment of ten

percent of the judgment that was entered in the trial court.^^* San-
dock was a case in which the court of appeals concluded that a
defendant's refusal to pay upon a contract pursuant to which the

plaintiff had fully performed, thus forcing the plaintiff to file an ac-

tion to collect on the contract and allowing the defendant five years

in which to avoid payment of the defendant's debt, was in bad
faith.^^® Further, the court reasoned that there was no substance in
the defendant's appeal which the court found was taken to harrass
and to delay .^^° Upon those facts and with those findings, the court
of appeals awarded a ten percent judgment based upon the amount
of the trial court's judgment. It affirmed the trial court's judgment

but modified it by the amount of the damages made pursuant to the
finding and determination in the appellate court.

ceedings. The praecipe shall be filed within thirty days after the trial court's ruling on
the motion to correct errors or the right to appeal will be forfeited. Kelsey v. Nagy,

410 N.E.2d 1333 (Ind. Ct. App. 1980).

"M12 N.E.2d at 284.
^''Id.

'^M16 N.E.2d 882 (Ind. Ct. App. 1981).
^'^403 N.E.2d 1110 (Ind. Ct. App. 1980).
^'«403 N.E.2d 1160 (Ind. Ct. App. 1980).
^'^403 N.E.2d at 1113.
^'«416 N.E.2d at 866.

^'Id.



1982] SURVEY- CIVIL PROCEDURE 103

-4. Appellate Court Jurisdiction: Appellate Rule 3(A). —

K

strong general principle in Indiana appellate practice is that the ap-

pellate court acquires jurisdiction of a case upon the filing of the

record of proceedings and that the jurisdiction is to the exclusion of

all further activity in the trial court.^^^

The case of Donahue v. Watson^^^ is an exception to that general
principle. There the trial court found that a defendant had committed

a breach of trust and ordered the defendant removed as a trustee.

The trial court stated that the defendant was liable to the benefi-

ciaries for their attorney's fees, but no award of fees was included in

the order. An appeal was taken. After the record of proceedings was
on file in the appellate court, the trial court entered a second judg-

ment, an order directing the defendant to pay $10,000 in attorney's

fees incurred by the beneficiaries. On appeal the defendant argued
that when the record of proceedings was filed, the trial court lost
jurisdiction over the entire subject matter of the controversy pur-

suant to Appellate Rule 3(A).

The court of appeals held that generally this was correct, but
that Appellate Rule 3(A) did not prevent the trial court from enter-

ing a judgment concerning attorney's fees because the "trial court

impliedly reserved this ancillary matter until an evidentiary hearing

could be conducted and a determination made as to what a
reasonable fee would be."^^^ The appellate court stated that it believed
that this practice is contemplated in the language of Trial Rule 54(B)

and concluded that the trial court retained a limited jurisdiction

over the case to dispose of those claims left unresolved by the first

judgment.^^*

5. Additional Appellate Rule Amendments in 1981. — During
the past year, the Indiana Supreme Court amended Appellate Rule
8.1 to state that the failure of an appellant to timely file the ap-

pellant's brief, which shall be filed thirty days after the record of
proceedings is filed, shall subject the appeal to summary dismissal.

Additionally, part (A) of the Appellate Rule 12 was amended as
follows (the amendment is self-explanatory): "Papers required or per-
mitted to be filed in a court of appeal shall be filed with the clerk in

the manner prescribed in subdivision (C) below or by personally
presenting the papers to the clerk or a person designated by the
clerk."^^^

^^'The principle of exclusive appellate court jurisdiction is a derivation of Ind. R.

App. p. 3(A) which states that every appeal should be deemed submitted and the ap-
pellate court shall acquire jurisdiction on the date that the record of proceedings is fil-

ed with the clerk of the appellate court.
=====^413 N.E.2d 974 (Ind. Ct. App. 1980).

'''Id. at 975-76.

''*Id.

'^'IND. R. App. P. 12.



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