Armstrong v. Lake
| Citation | 447 N.E.2d 1153 |
| Decision Date | 21 April 1983 |
| Docket Number | No. 2-781A253,2-781A253 |
| Parties | Ronald ARMSTRONG, Appellant (Plaintiff Below), v. Jeanette LAKE, Appellee (Defendant Below). |
| Court | Court of Appeals of Indiana |
Louis Buddy Yosha, Mark C. Ladendorf, Mitchell, Yosha & Hurst, Indianapolis, for appellant.
Rick D. Meils, Carol A. Glass, Meils, Zink, Thompson, Glass & Page, Indianapolis, for appellee.
The Appellant, Ronald Armstrong, plaintiff below, (Armstrong) appeals a negative judgment in his suit for damages resulting from a collision between his pickup truck and an automobile driven by Appellee, Jeanette Lake, defendant below (Lake).
We reverse.
Armstrong presents several issues for review. In view of our disposition, however, the sole issue addressed is whether the trial court committed reversible error in mandating a six-person jury pursuant to Local Rule 14(A) of the Marion County Rules of Procedure of the Circuit and Superior Courts. 1
This case was tried before a six-person jury over the objections of both parties. Armstrong contends that he was entitled to a twelve-person jury pursuant to Ind.Rules of Procedure, Trial Rule 48. This rule provides in relevant part: "The parties may stipulate that the jury shall consist of any number less than twelve." Armstrong argues that Local Rule 14(A) is inconsistent with T.R. 48, and therefore invalid under T.R. 81. 2
The rules of procedure promulgated by the Supreme Court are binding on all Indiana courts. No inferior court "can circumvent the rules and thereby avoid their application." In re Estate of Moore (2d Dist.1973) 155 Ind.App. 92, 291 N.E.2d 566, 568. If a local rule is inconsistent with a trial rule, the trial rule takes precedence, and the local rule will be deemed without force and effect. See Rumfelt v. Himes (1982) Ind., 438 N.E.2d 980; Otte v. Tessman (1981) Ind., 426 N.E.2d 660.
In State v. Bridenhager (1972) 257 Ind. 699, 279 N.E.2d 794, 796, our Supreme Court stated:
Although Bridenhager dealt with a procedural rule enacted by statute, its test would appear to apply equally to an inconsistent local rule.
Similarly, in Lies v. Ortho Pharmaceutical Corp. (1972) 259 Ind. 192, 286 N.E.2d 170, a local rule required counsel to remind a trial court that the time within which to rule on a motion under T.R. 53.1 was about to expire. Our Supreme Court struck down the rule, stating:
Id. at 195, 286 N.E.2d at 173.
Appellee Lake argues that Local Rule 14(A) is not inconsistent with T.R. 48. She impresses upon us the logic of Colgrove v. Battin (1973) 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522, in which the United States Supreme Court by a five to four vote held that a local federal court rule which mandated a jury of six persons in civil cases was not inconsistent with Federal Rules of Civil Procedure, Rule 48. Federal Rule 48 is substantially similar to our T.R. 48. In Colgrove the Court stressed that the federal rule dealt only with a stipulation by the parties and did not "purport to prevent court rules which provide for civil juries of reduced size." Id. at 164, 93 S.Ct. at 2457, 37 L.Ed.2d 522 (emphasis in original).
Nevertheless, we are not bound by the determination of the federal courts in this area. Under the test declared by the Indiana Supreme Court, a local rule need not be in direct opposition to a trial rule in order to be in conflict with it. It need only be incompatible to the extent that both could not apply in a given situation. Under this test, Local Rule 14(A) cannot be upheld. The number eleven, for instance, falls within the ambit of "any number less than twelve" such that T.R. 48 requires that the parties be permitted to stipulate to a jury of eleven. Yet the local rule, which requires that "[a]ll cases ... shall be tried by a six (6) person jury" clearly would not permit a jury of eleven, even if the parties so stipulated.
T.R. 48 was drafted at a time when the twelve-person jury was sacrosanct. Our Supreme Court has since recognized that a jury of twelve is not constitutionally mandated. See Matter of Public Law No. 305 & Public Law No. 309 (1975) 263 Ind. 506, 334 N.E.2d 659 (). However, a rule which permits stipulations of any number less than twelve makes little or no sense unless one assumes that, in the absence of a stipulation, the jury would consist of twelve. The only authority which might permit otherwise is the authority which created T.R. 48, i.e., the Indiana Supreme Court. As an intermediate court, we may merely observe that the local rule is incompatible with the trial rule.
During oral argument, Appellee Lake alluded to legislation then pending before our General Assembly. On April 5, 1983, the Governor signed into law, effective September 1, 1983, House Enrolled Act 1843 which as I.C. 34-1-20.5 mandates a jury of six members in all civil cases.
Our reversal and remand for retrial might appear an exercise in futility if, after September 1, pursuant to I.C. 34-1-20.5 the retrial will be before another six-person jury. However, the efficacy of the new statute, whether dealing with a matter of substance or procedure or as arguably inconsistent with T.R. 48 are questions not before us. But see State v. Bridenhager, supra, 279 N.E.2d 794; State v. Buckley (2d Dist.1978) 175 Ind.App. 586, 372 N.E.2d 1241. Rather, we hold only that Local Rule 14(A) is contrary to T.R. 48 and that therefore the trial court erred in compelling Armstrong to submit to a trial of a jury of six when Armstrong had expressly requested a jury of twelve members and had not...
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