Burtrum v. Wheeler

• Decision Date: 21 October 1982
• Docket Number: No. 2-981A299,2-981A299
• Citation: 440 N.E.2d 1147
• Parties: Nettie BURTRUM and Christine Burtrum, Appellants (Counter-Claimants Below), v. Cynthia WHEELER, Appellee (Counter-Defendant Below).
• Court: Indiana Appellate Court

Page 1147

440 N.E.2d 1147

Nettie BURTRUM and Christine Burtrum, Appellants (Counter-Claimants Below), v. Cynthia WHEELER, Appellee (Counter-Defendant Below).

No. 2-981A299.

Court of Appeals of Indiana,

Second District.

Oct. 21, 1982.

L. Craig Turner, Quill, Boberschmidt, Miller & Turner, Indianapolis, for appellants.

W. Brent Threlkeld, Martz & Threlkeld, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Nettie and Christine Burtrum (Burtrums) appeal from an entry of summary judgment barring their actions for personal injuries against Cynthia Wheeler (Wheeler), claiming that the doctrine of collateral estoppel was improperly applied.

We affirm in part and reverse in part.

FACTS

Because of the complexities of this litigation we consider only the facts necessary for the disposition of this appeal:

On the evening of May 29, 1976, a car driven by Prentice Burtrum (Prentice), the deceased husband of Nettie Burtrum, ¹ attempted to cross Washington Street, a major thoroughfare in Indianapolis. Nettie and Christine Burtrum, Prentice's wife and daughter respectively, were his passengers. After waiting for some time at a stop sign, Prentice started across the street and was struck by a car driven by Wheeler. Wheeler and the Burtrums all sustained injuries in the collision.

Wheeler filed suit against Prentice, who was uninsured. Prentice counter-claimed against Wheeler in a suit seeking damages for personal injuries. Nettie and Christine also were parties and filed third party complaints against Wheeler.

All of the above claims, plus others not pertinent to this case, were tried before a jury in April, 1980. The jury returned inconsistent verdicts in that action, resulting in a mistrial. Because of the confusion of the jury in April, 1980, the trial court severed the litigation of different claims into separate proceedings. ²

Consequently, in August, 1980 another trial was held which dealt only with Wheeler's suit against Prentice and his counter-claim against her. The only parties to the August, 1980 trial were Prentice, represented by Nettie, and Wheeler. The trial court appointed Nettie as Prentice's successor in interest:

THE COURT: ... You are here as the surviving spouse of Prentice.

MRS. BURTRUM: Yeah.

THE COURT: The trial rules require that we substitute a successor in interest to the estate of a person who has passed away. Since Mr. Burtrum passed away, is that correct?

MRS. BURTRUM: Yes.

THE COURT: And since no Probate estate was open for him, is that correct?

MRS. BURTRUM: No, it wasn't.

THE COURT: Okay. That this Court then, at Mr. Hughs request, your former attorney, substituted you as Mr. Burtrum's surviving spouse. So that your interest today is, you are here really not as Nettie Burtrum, but you're standing in the shoes of Prentice Burtrum as his surviving spouse. ³

R. at 571-72. In her capacity as Prentice's successor in interest, Nettie performed as a pro se advocate. Although she did not appear until the second day of trial, Nettie had notice of the proceeding. She conducted cross-examination and re-cross-examination of witnesses, testified on behalf of Prentice on his counter-claim against Wheeler, participated in the hearing regarding final jury instructions, and gave closing argument to the jury. As Prentice's successor, Nettie also had the power to appeal from the August, 1980 judgment, although she did not exercise it. Christine testified as a witness. At the conclusion of the trial, the jury found for Wheeler against Prentice and against Prentice on his counter-claim. Judgment was entered in favor of Wheeler for $19,000. No motion to correct errors was filed in that case, and the judgment is therefore final.

Subsequent thereto, in December, 1980, Wheeler moved for summary judgment against the Burtrums (Nettie and Christine) on their outstanding third party complaints. Wheeler based her motion upon collateral estoppel flowing from the res judicata effect of the August, 1980 judgment. The trial court entered summary judgment in favor of Wheeler on March 13, 1981. On June 8, 1981 the Burtrums' motion to correct errors regarding that entry was denied. This appeal followed.

The Burtrums present the following issue:

ISSUE

Does the August, 1980 judgment in favor of Wheeler and against Prentice on his counter-claim operate as a collateral estoppel to this action?

Although the record reveals that the trial judge made certain misleading representations to Nettie and Christine during the August, 1980 trial regarding their right to have their day in court, neither their motion to correct errors nor their briefs address this question. Therefore, it is waived. A.P. 8.3(A)(7). Even were we to consider the question, we could not frustrate appellate review by allowing ourselves to be bound by erroneous trial court statements. And we observe that the trial court did inform Nettie that her case could be affected by the August, 1980 trial. After describing the severance to Nettie, the court told her that her claim and Christine's claim "will be, of course, partially dependent on what happens here." (R. at 571).

DECISION

CONCLUSION--The August, 1980 judgment collaterally estops Nettie's claim, but not Christine's claim.

Our conclusion in this case is based upon well established principles of res judicata. We agree with the parties that in order to establish issue preclusion the following four elements must be established as to each individual seeking to sue:

1. A suit.

2. A final judgment.

3. Identity of subject matter.

4. Identity of the parties.

Burrell v. Jean, (1925) 196 Ind. 187, 146 N.E. 754, 759. The parties concede that the first two elements, a suit and final judgment thereon, are present. We find less harmony regarding the presence or absence of the second two elements.

The Burtrums claim that because the contributory negligence of Prentice cannot be attributed to them as passengers, there is no identity of subject matter. They also argue that because they were not named in the August, 1980 suit, there is no identity of parties. Wheeler counters that, even if it is conceded that Prentice's negligence cannot be attributed to his passengers, the jury, by finding in her favor, ipso facto found her to be utterly free of negligence, thereby resolving an essential element of the Burtrum's case adversely to them. Additionally, Wheeler contends that although not parties, Nettie and Christine were privies to the August, 1980 trial as the term privies is used in Indiana.

For clarity, we resolve the questions pertaining to each element separately.

A. Identity of the subject matter.

For there to be identity of subject matter there must be mutuality of estoppel. The estoppel is mutual if the one taking advantage of the prior adjudication would have been subsequently bound had the prior judgment gone the other way:

"Differently stated, estoppel is mutual if both litigants are concluded by the judgment, and otherwise it binds neither in subsequent litigation. See 31 A.L.R.3d 1044, 1060 (1970); Freeman, The Law of Judgments Sec. 428 (5th ed. 1925). 46 Am.Jur.2d Judgments Sec. 521 (1969).

The requirements of mutuality and identity of parties are closely related and in most factual settings are co-extensive. For the most part, one who is a party or privy to a former adjudication is subsequently bound by the judgment rendered therein.

However, to the extent that the two requirements are divergent, mutuality of estoppel is broader. Thus, when one is a party or privy to prior litigation, but would not have been bound if the judgment had been to the contrary, then a plea of collateral estoppel is precluded in the second action due to the absence of mutuality. 1B Moore's Federal Practice Sec. 0.412 at 1801 (1974); 31 A.L.R.3d at 1060 (1970); Moore and Currier, Mutuality and Conclusiveness of Judgments, 35 Tulane L.Rev. 301 (1961)."

State v. Speidel, (1979) Ind.App., 392 N.E.2d 1172, 1177 (trans. denied).

The Burtrums attempt to analogize this case to Speidel, supra. In Speidel, the children of a woman killed in an automobile accident attempted offensive use of collateral estoppel against the State based upon their deceased mother's victory in a wrongful death action in which it was alleged that a road defect caused the accident. We determined that mutuality of estoppel was lacking because, had the jury in the mother's lawsuit concluded that the State was negligent in its maintenance of the highway, but that the mother's contributory negligence barred her recovery, the Speidel children, as passengers, would not have their mother's negligence imputed to them. Therefore, they would not have been bound had judgment gone the other way, and consequently, mutuality was lacking.

Here, in contrast, if Prentice had won in the trial on his counter-claim against Wheeler, she (Wheeler) would not be able to re-litigate the issue of her negligence in any subsequent suit brought by the Burtrums (assuming, for this purpose, that both Nettie and Christine meet the identity of parties requirement, see subsection B, infra). Thus the Burtrums could use collateral estoppel offensively against Wheeler. Wheeler would have been bound had the judgment gone the other way. Mutuality of estoppel therefore did exist as to the same subject matter. Subject matter identity, the third requirement of Burrell, supra, is present in this case.

B. Identity of the parties.

Assuming that identity of subject matter is established, the Burtrums argue that because they were not parties to the August, 1980 trial, any decision reached therein is not res judicata as to them.

This argument disregards the fact that Indiana law treats "privies" in a manner similar to parties for the purpose of determining the existence of res judicata. The inquiry as to whether a given person is a privy is personal to each individual. Accordingly, we consider Nettie and Christine separately in making this determination.

Privies have been...