Glass v. Continental Assur. Co., 3-779A207

• Decision Date: 27 January 1981
• Docket Number: No. 3-779A207,3-779A207
• Citation: 415 N.E.2d 126
• Parties: Herbert W. GLASS, Appellant (Plaintiff Below) v. CONTINENTAL ASSURANCE CO. and Leland Smith Insurance Agency, Inc., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 126

415 N.E.2d 126

Herbert W. GLASS, Appellant (Plaintiff Below) v. CONTINENTAL ASSURANCE CO. and Leland Smith Insurance Agency,

Inc., Appellees (Defendants Below).

No. 3-779A207.

Court of Appeals of Indiana, Third District.

Jan. 27, 1981.

Ralph R. Blume, Blume, Wyneken & Bullman, Fort Wayne, for appellant.

Stephen W. Adair, Adair, Perry, Beers, Mallers & Larmore, Fort Wayne, for appellee Leland Smith Insurance Agency, Inc.

HOFFMAN, Presiding Judge.

This is an appeal from a judgment in favor of Continental Assurance Company. The trial court found that the issues had been decided in a prior lawsuit and were therefore res judicata. Glass raises the following issues:

(1) whether the judgment is contrary to law in that res judicata is not a theory of action presented by the pleadings;

(2) whether the trial court's findings and conclusions are nullities due to their failure to conform to the pleadings;

(3) whether the trial court erred in taking judicial notice of its own findings and conclusions in a prior lawsuit;

(4) whether the trial court erred in its application of the doctrine of res judicata; and

(5) whether the evidence is sufficient to sustain the judgment.

On May 6, 1965 Glass filed a complaint against Continental Assurance Company alleging that it had breached its contract with him by failing to pay commissions earned on insurance sold by Glass and would continue to breach the contract in the future. Pursuant to the agreement, Continental was to pay any commissions due Glass which had not been paid by its general agent, Leland Smith Insurance Agency, Inc. (Smith). Continental filed an answer asking that Leland Smith d/b/a Leland Smith Insurance Agency be made a party defendant. This request was granted by the trial court. Continental later filed an amended answer in which it brought Leland Smith Insurance Agency into the lawsuit by way of interpleader. On September 26, 1969 Glass filed an amended complaint to which Continental filed an amended answer without mention of Leland Smith Insurance Agency.

On February 7, 1979 the trial court entered a Memorandum of Decision and Judgment. The court ordered Glass to receive $4,173.65 plus interest from Smith, but nothing from Continental. Continental was ordered to pay an amount of money it was holding in escrow to Smith as reimbursement for the amount paid to Glass. In reaching this decision the trial court took judicial notice of its own findings, conclusions and judgment in a prior lawsuit between Glass and Smith. Finding the issues raised by Glass in the present case already disposed of in the prior case, the trial court ruled its prior decision was res judicata.

At the time Glass filed his motion to correct errors, Ind. Rules of Procedure, Trial Rule 59(G) provided:

"Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution." (Emphasis added.)

Errors raised for the first time on appeal are waived. Winkler, Admx. v. Royal Ins. Co. et al. (1975), 167 Ind.App. 16, 337 N.E.2d 499.

A careful examination of Glass' motion to correct errors along with the memorandum and argument reveals that Glass failed to raise the first three issues prior to this appeal. Glass cannot raise alleged errors on appeal without first giving the trial court an opportunity to correct these errors. Glass has therefore waived the first three issues.

In his brief, Glass contends that these alleged errors are fundamental errors and are not waived by failure to include them in his motion to correct errors. Initially it should be noted that fundamental errors are constitutional in nature. 4A Bagni, Giddings, & Stroud, Indiana Practice § 284, at 331 (1979). No error of this magnitude is apparent in this case. Additionally, Glass cites Public Service Co. v. Decatur Cty. Rural Elec. (1977), Ind.App., 363 N.E.2d 995 as support for his position. Glass however has apparently misread that case. Public Service Company did not deal with fundamental errors. In fact, issues raised by REMC in that case were deemed waived due to its failure to include them in a motion to correct errors. Since Glass merely makes a bald assertion of error without presentation of cogent argument or citation to applicable authority, his contention need not be reviewed by this Court. Ind. Rules of Procedure, Appellate Rule 8.3(A)(7).

Glass has however preserved the issue regarding the proper application of the doctrine of res judicata. The assertion here is that because the parties and issues in the present case differ from the prior case, the doctrine is inapplicable.

The basic elements of the doctrine of...