American Turners of South Bend v. Rodefer

• Decision Date: 16 February 1978
• Docket Number: No. 3-276A35,3-276A35
• Citation: 372 N.E.2d 516,175 Ind.App. 487
• Parties: AMERICAN TURNERS OF SOUTH BEND, Indiana, and Associated Realty Corporation, Defendants-Appellants, v. Frederic N. RODEFER, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 516

372 N.E.2d 516

175 Ind.App. 487

AMERICAN TURNERS OF SOUTH BEND, Indiana, and Associated Realty Corporation, Defendants-Appellants, v. Frederic N. RODEFER, Plaintiff-Appellee.

No. 3-276A35.

Court of Appeals of Indiana, Third District.

Feb. 16, 1978.

William J. Reinke and Jack C. Dunfee, Jr. of Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for defendants-appellants.

George F. Patton, South Bend, for plaintiff-appellee.

HOFFMAN, Judge.

Plaintiff-appellee Frederic N. Rodefer filed an action against defendants-appellants American Turners of South Bend, Indiana, and Associated Realty Corporation for recovery of $10,000 earnest money which he had deposited with appellants pursuant to a real estate sales contract whereby he agreed to purchase certain real estate owned by American Turners for the sum of $160,000. Such agreement was expressly conditioned upon Rodefer's ability to secure a firm commitment for a mortgage loan. Associated Realty Corporation was the listing agent for the sale of the foregoing real estate, received payment of the earnest money deposit, and is holding the earnest money deposit in a separate trust account.

Rodefer's complaint alleged that he was unable to secure mortgage financing and is therefore entitled to a refund of the earnest money.

Appellants filed a counterclaim for damages incurred as a result of Rodefer's failure to consummate the real estate sale.

Trial to the jury commenced November 6, 1975. Rodefer filed a motion for judgment on the evidence at the close of all the evidence, asserting that the evidence "conclusively established that plaintiff did not obtain mortgage financing." A hearing was held on Rodefer's motion. The appellants then moved for judgment on the counterclaim and a hearing was held. The trial court denied appellants' motion but granted plaintiff's motion, treating the motion as one for plaintiff and against the counterclaimants so that all issues in the case were resolved. Accordingly, the trial court entered judgment for Rodefer in the sum of $10,000, ordered Associated Realty to return the $10,000 earnest money deposit to plaintiff, and stated that the return of the deposit should be taken to be satisfaction of the judgment entered against American Turners.

Subsequently American Turners and Associated Realty filed their respective motions to correct errors which were denied by the trial court.

The issues presented for our resolution concern the propriety of the trial court's action in entering judgment on the evidence.

Indiana Rules of Procedure, Trial Rule 50(A), provides, in pertinent part, as follows:

"Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict. . . . "

The generally stated standard to be applied by the trial court when considering a motion for judgment on the evidence made at the conclusion of the evidence requires the trial court to consider only the evidence and reasonable inferences most favorable to the nonmoving party. The motion may be granted only if there is no substantial evidence or reasonable inference to be drawn therefrom to support an essential element of the claim. If there is any evidence or reasonable inferences to be drawn from the evidence, or if reasonable men might differ, then judgment on the evidence is improper.

Huff v. Travelers Indem. Co. (1977), Ind., 363 N.E.2d 985;

Vernon Fire & Casualty Insurance Co. v. Sharp (1976), Ind., 349 N.E.2d 173;

Lake Mortgage et al. v. Federal Nat'l Mortg. (1974), 159 Ind.App. 605, 308 N.E.2d 739 (transfer denied, 262 Ind. 601, 321 N.E.2d 556).

Rodefer contends, however, that the aforementioned standard becomes inapplicable when both parties seek judgment on the evidence. Relying on Estes v. Hancock Co. Bank (1972), 259 Ind. 542, 289 N.E.2d 728, Rodefer asserts that the effect of both parties moving for judgment on the evidence in a jury trial is to withdraw the case from the jury and to submit the case to the court for its determination. The result is that the case would then be considered as if it had been tried without a jury.

The Estes decision drew its support from 2 Wiltrout, Indiana Practice, § 1552(4), at 431 (1967), an authority predating Trial Rule 50. The rule under prior Indiana law provided that "where both parties request a peremptory instruction and do nothing more, they thereby assume the facts to be undisputed and in effect submit to the trial judge the determination of the facts and all inferences proper to be drawn therefrom."

Michigan Cent. R. R. Co. v. Spindler, Admr. (1937), 211 Ind. 94, 105, 5 N.E.2d 632, 108 A.L.R. 1307.

See also, State Security Life Ins. Co. v. Kintner (1962), 243 Ind. 331, 185 N.E.2d 527;

Wilson, Admx. v. Rollings (1938), 214 Ind. 155, 14 N.E.2d 905.

However, the party whose motion for a directed verdict was denied could insist by appropriate request upon proceeding with the trial or submitting the questions of fact to the jury. Michigan Cent. R. R. Co. v. Spindler, Admr., supra. Thus, it was not the filing of the concurrent motions for directed verdict which resulted in waiver of trial by jury, but rather the failure to object to the withdrawal of the case from the jury. State Security Life Ins. Co. v. Kintner, supra; Michigan Cent. R. R. Co. v. Spindler, Admr., supra.

Indiana Rules of Trial Procedure, Trial Rule 50(A)(6), changed the prior rule by providing that,

"A motion for a judgment on the evidence which is not granted or which is granted only as to a part of the issues is not a waiver of trial by jury even though all parties to the action have moved for judgment on the evidence."

The Civil Code Study Commission Comments reveal that this provision was intended to abrogate the prior Indiana rule of waiver of the right to jury trial when both parties move for a directed verdict at the conclusion of the evidence. 3 Harvey, Ind.Pract. Rules of Civ.Proc., Civil Code Study Commission Comments Rule 50(a), at 365 (1970). Consequently, when appellants' motion for judgment on the evidence was denied by the trial court, appellants did not waive their right to a jury trial. Accordingly, the trial court could not itself weigh the evidence and determine for whom it preponderated, but rather was required to apply the standard of review delineated in Huff v. Travelers Indem. Co., supra; Vernon Fire & Casualty Co. v. Sharp, supra; and Lake Mortgage et al. v. Federal Nat'l Mortg., supra.

In applying that standard, the evidence discloses that on December 15, 1971, American Turners of South Bend, Indiana, entered into a "Commercial Property Listing Contract" with Associated Realty...