Breeze v. Breeze, 681S163

• Decision Date: 18 June 1981
• Docket Number: No. 681S163,681S163
• Citation: 421 N.E.2d 647
• Parties: George Robert BREEZE, Trustee of Paul E. Breeze Living Trust, Jennifer Lynn Holder, Bruce Breeze, Carolyn Breeze, Paul Edward Breeze and John Carey Breeze, Appellants (Defendants below), v. Imogene BREEZE (Lofton), Appellee (Plaintiff below). CONTINENTAL CASUALTY COMPANY, Appellant (Defendant below), v. Charles A. NOVY, M.D., Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 647

421 N.E.2d 647

George Robert BREEZE, Trustee of Paul E. Breeze Living

Trust, Jennifer Lynn Holder, Bruce Breeze, Carolyn

Breeze, Paul Edward Breeze and John

Carey Breeze, Appellants (Defendants below), v. Imogene BREEZE (Lofton), Appellee (Plaintiff below).

CONTINENTAL CASUALTY COMPANY, Appellant (Defendant below), v. Charles A. NOVY, M.D., Appellee (Plaintiff below).

No. 681S163.

Supreme Court of Indiana.

June 18, 1981.

David O. Givens, Allyn & Givens, Mount Vernon, William E. Borror, Hunt, Suedhoff, Borror, Eilbacher & Lee, Fort Wayne, for appellants.

Ronald Warrum, Bates, Warrum & Noffsinger, Evansville, S. Anthony Long, Phillips & Long, Boonville, Thomas S. Locke, James A. Federoff, Raver & Federoff, Fort Wayne, for appellees.

Hunter, Justice.

This cause is before us upon the petition to transfer of defendants-appellants, George Robert Breeze, trustee of Paul E. Breeze living trust, et al., and plaintiff-appellee, Charles A. Novy. In each case, the Court of Appeals ruled upon a particular application of Ind.R.Tr.P. 59. The Court of Appeals, First District, ordered a dismissal in the case of defendants-appellants, Breeze, et al., but the Court of Appeals, Third District denied a petition for dismissal in the case of plaintiff-appellee, Novy. Continental Casualty Co. v. Novy, (1979) Ind.App., 397 N.E.2d 294.

We now grant transfer under Ind.R.Ap.P. 11(B)(2)(c), in that there is a conflict between the actions of the two courts. We are in accord with the Court of Appeals, Third District, in its holding that Ind.R.Tr.P. 59 and our case of P-M Gas & Wash Co., Inc. v. Smith, (1978) 268 Ind. 297, 375 N.E.2d 592, do not preclude the filing of a second motion to correct error addressed to a change in the trial court's finding or judgment. Accordingly, the order of the Court of Appeals, First District, granting plaintiff-appellee's motion to dismiss in the Breeze case is hereby vacated.

We also wish to give more detailed consideration to the procedural issues raised by these two cases. Accordingly, the decision and opinion of the Court of Appeals, Third District, are hereby vacated and both petitions to transfer are granted. Both cases involve the filing of second motions to correct error after the trial courts had considered the original motions and entered changed findings and judgments.

In the first case, appellee Imogene Breeze brought an action following her husband's death against the trustee of a trust and its beneficiaries. A judgment entry was made on September 7, 1978, awarding certain real estate, which was the subject of the action, to the estate of Paul E. Breeze, deceased. The estate was not one of the parties to the action. Defendants-appellants filed a motion to correct error on November 2, 1978. The relevant chronology follows:

11/2/78 Defendants-appellants' motion to correct error filed.

1/12/79 Motion to correct error sustained in part and overruled in part.

1/12/79 Judgment entry (amended).

1/22/79 Defendants-appellants' motion for clarification of (amended) judgment entry, pursuant to TR. 60.

1/29/79 Amended judgment entry (pursuant to TR. 60 motion).

2/16/79 Defendants-appellants file motion to correct error directed to amended judgment entry for 1/29/79.

2/26/79 Second motion to correct error overruled.

3/16/79 Praecipe filed.

5/25/79 Record of proceedings filed with Court of Appeals.

The final amended judgment entry awarded the property to Imogene Breeze in her individual capacity. After defendants-appellants had perfected their appeal from the January 29 amended judgment entry, appellee Breeze filed a motion to dismiss the appeal on the theory that defendants-appellants had not timely perfected their appeal from the January 12 ruling on their first motion to correct error. The motion to dismiss was granted by written order of the Court of Appeals, First District.

The relevant facts in the second case in the Third District were succinctly stated by Judge Garrard in Continental Casualty Co. v. Novy, supra :

"On November 15, 1978, the trial court entered its special findings and judgment. Both Continental and Novy filed motions to correct errors.

"After having argument and taking the case under advisement the trial court, on February 22, 1979, overruled the motions but entered 'Amended Special Findings of Fact and Conclusions of Law and Judgment.' On March 6th Continental filed a new motion to correct errors addressed to the amended findings and judgment. Novy followed suit with his own motion on March 27th.

"On April 2, 1979 the court denied both motions. Continental filed a praecipe on April 16th and Novy filed the praecipe for its cross appeal on April 17th. Thus, the issue is clearly presented. If Continental was required to file its praecipe within thirty (30) days of the original ruling on the motions to correct errors (February 22, 1979) it failed to do so and pursuant to AP 2(A) its appeal should be dismissed. On the other hand, if it was permissible for it to file and await ruling on the subsequent motions, the praecipe was timely." 397 N.E.2d at 294 (footnotes omitted).

The issue which is before us then involves the application of TR. 59 in those situations where the trial court has altered, amended, or supplemented its findings and/or judgment after the filing of one motion to correct error. The question is whether a party is permitted to file a second motion to correct error addressed to a change in the court's finding or judgment.

A review of our position in P-M Gas & Wash Co., Inc. v. Smith, supra, leads us to the conclusion that there is a certain flexibility inherent in TR. 59 which results in a liberal but efficient system of raising errors on appeal. This flexibility does permit the filing of a second motion to correct error. First, it is absolutely clear that one motion to correct error is all that is required as a condition to appeal:

"One motion for each party or each appellant, if there is more than one, shall be sufficient. That will give the trial court its opportunity to remedy error, and it will serve the other purposes, too. Once it is made and acted upon, whatever action the trial court takes, then the items specified in that motion, and the trial court's disposition constitute the basis for the appellant's appeal." P-M Gas & Wash Co., Inc. v. Smith, supra, 268 Ind. at 303, 375 N.E.2d at 595.

The spirit behind this requirement of a motion to correct error is the sound principle that the trial court should be accorded the first opportunity to correct a mistake. This principle underlies TR. 59 as it existed at the time of P-M Gas & Wash Co., Inc. v. Smith, supra, and as it has been amended as of January 1, 1980, and exists today.

Second, we find that in a broader context, our rules and their amendments and our case law are responsive to the demand of the public and the bar for a better system of dispute resolution at all levels. See Harvey 4 Indiana Practice § 59.3 (1980 Supp.). As we said:

"Far too many litigants have been denied their right of appeal by withholding from them a review and decision at the appellate level of all or part of their justiciable issues properly preserved under TR. 59." P-M Gas & Wash Co., Inc. v. Smith, supra, 268 Ind. at 308, 375 N.E.2d at 597.

These considerations lead us to agree with Judge Garrard's well-reasoned conclusion that there are three reasons for finding that a second motion to correct error is permitted. As he stated in Continental Casualty Co. v. Novy, supra :

"First we observe that the language of TR 59 does not appear to preclude a party's opportunity to move for correction of error which it perceives as occurring in the court's actions amending, etc....