P-M Gas & Wash Co., Inc. v. Smith, P-M

• Docket Nº: P-M
• Citation: 268 Ind. 297, 375 N.E.2d 592
• Case Date: April 27, 1978
• Court: Supreme Court of Indiana

Page 592

375 N.E.2d 592 268 Ind. 297 P-M GAS & WASH COMPANY, INC., an Indiana Corporation,
Appellant (Defendant below),
v.
Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees
(Plaintiffs below). No. 478S71. Supreme Court of Indiana. April 27, 1978.

[268 Ind. 298] James J. Stewart, Richard S. Ewing, Stewart, Irwin, Gillion, Fuller & Meyer, Indianapolis, for appellant.

Daniel F. Cummings, Cummings & Emery, Indianapolis, for appellees.

Page 593

ON PETITION TO TRANSFER

HUNTER, Justice.

This case is here on transfer from the Court of Appeals. The petition to transfer challenges the decision in P-M Gas & Wash Co., Inc. v. Smith (1976), Ind.App., 352 N.E.2d 91, in which the Court of Appeals dismissed cross-errors assigned by petitioner, Smith. It presents a procedural nightmare.

[268 Ind. 299] The facts which give rise to this petition to transfer are as follows.

A suit was filed by Smith against P-M Gas for personal injuries allegedly suffered as a result of the negligence of P-M Gas. Trial was to the jury in 1975, and after the evidence was submitted and instructions given, the jury returned a verdict for the defendant. The procedural problems for the parties were about to begin.

On July 18, 1975, Smith filed a motion to correct error. The trial court overruled specifications 1-6 of the motion to correct error, but sustained specification 7 and ordered a new trial. That occurred on September 15, 1975, and as of that point, counsel for defendant could not determine what procedure to follow. However, one cannot fault counsel; decisions in this Court and the Court of Appeals make it difficult for any attorney to know what should have been done. However, the defendant did file its own motion to correct error along with supporting memorandum, and that motion was denied. The plaintiff filed no response to that motion, and the case was set to leave the trial court as of October 14, 1975.

In the Court of Appeals, the defendant-appellant raised as a principal issue the correctness of the trial court's instruction, and it said, in essence, that the trial court fairly and correctly instructed the jury under the law and the evidence applicable to the case and the facts.

Smith assigned cross-errors in his brief. Those questions were found in the original motion to correct error filed by Smith and overruled by the trial court.

In the Court of Appeals, P-M Gas, defendant-appellant, moved to strike the cross-errors raised in Smith's brief due to failure to comply with Ind.R.Tr.P. 59(D). The gist of the motion was that it was necessary for Smith to file cross-errors within fifteen days after the defendant had filed its motion to correct error, and the failure to do so meant that the cross-errors could not be raised on appeal. The Court of [268 Ind. 300] Appeals sustained defendant's motion and struck those portions of the Smith brief dealing with the cross-errors.

Smith presents two arguments in support of his position that the Court of Appeals erred in dismissing the cross-errors raised in the appellee's brief.

Smith first argues it was not necessary for the defendant to have filed its motion to correct error and because it was not necessary, it was not then necessary for plaintiff to file cross-errors under Ind.R.Tr.P. 59(D). In other words, the motion to correct error filed by defendant was an act of charity which, however, noble, need not and should not harm plaintiff; and the failure to file cross-errors pursuant to Ind.R.Tr.P. 59(D) should not be regarded as jurisdictional to entering the Court of Appeals with the cross-assignment.

Because of its uncertainty, P-M Gas filed both a motion to correct error and also prepared to take an appeal from the order granting a new trial. It says now, however, in papers on transfer to this Court, that the most current authority in Indiana required a subsequent motion to correct error by the aggrieved party when the trial court grants an earlier motion to correct error in part, overrules it in part and orders a new trial.

It is easy to understand the dilemma that defense counsel faced. Two recent decisions by the Court of Appeals contribute to the procedural quagmire through which defense counsel attempted to wade. Smith directs this Court's attention to Easley v. Williams (1974), 161 Ind.App. 24, 314 N.E.2d 105. In that instance plaintiff filed a motion to correct error alleging eight specifications of error and seeking a new trial. The trial court agreed that it had erred in

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giving a particular instruction and granted a new trial. One of the defendants filed a subsequent motion to correct error while two others did not. The plaintiff moved to dismiss the appeal by the two defendants who had not filed motions to correct error. The Court of Appeals declined to dismiss the appeals holding that no new judgment resulted from the granting of [268 Ind. 301] a new trial and, therefore, no new motion to correct error was needed.

In the more recent decision relied upon by P-M Gas, the Third District ruled that granting a new trial vacated the previous judgment and required another motion to correct error directed to the new judgment as a prerequisite to appeal. Miller v. Mansfield (1975), Ind.App., 330 N.E.2d 113.

The motion to correct error serves three purposes: (1) to present to the trial court an opportunity to correct error which occurs prior to the filing of the motion; (2) to develop those points which will be raised on appeal by counsel; and (3) to inform the opposing party concerning the points which will be raised on appeal so as to provide that party an opportunity to respond in the trial court and on appeal.

To understand the procedural dilemma which the parties faced, one must begin with State v. Deprez (1973), 260 Ind. 413, 296 N.E.2d 120, 300 N.E.2d 341, and its progeny. ¹ See, Campbell v. Mattingly (1976), Ind.App., 344 N.E.2d 858; Lake County Title Co. v. Root Enter., Inc. (1975), Ind.App., 339 N.E.2d 103; Minnette v. Lloyd (1975), Ind.App., 333 N.E.2d 791; Miller v. Mansfield (1975), Ind.App., 330 N.E.2d 113; Hansbrough v. Indiana Revenue Bd. (1975), Ind.App., 326 N.E.2d 599; Weber v. Penn-Harris-Madison School Corporation (1974), Ind.App., 317 N.E.2d 811; Wyss v. Wyss (1974), 160 Ind.App. 281, 311 N.E.2d 621; Koziol v. Lake County Planning Commission (1974), 161 Ind.App. 232, 315 N.E.2d 374; Easley v. Williams (1974), 161 Ind.App. 24, 314 N.E.2d 105; State v. Kushner (1974), 160 Ind.App. 464, 312 N.E.2d 523; Davis v. Davis (1974) 159 Ind.App. 290, 306 N.E.2d 377. All of the cases cited above have created a plethora of procedural problems for the bench and bar of Indiana.

[268 Ind. 302] In Deprez, the trial court in a long standing condemnation action entered a judgment against the state, dismissing with prejudice. The state filed a motion to correct error, after which the trial court set forth, for the first time, findings of fact and conclusions of law and entered a judgment of dismissal which is a final judgment. The state then directly appealed without a second motion to correct error addressed to the "new judgment" and this Court agreed with the appellee in that case that the appeal should be dismissed because the state had not filed a second motion to correct error. The designation of the second judgment of dismissal with prejudice as "new" did not make it more final than the original judgment of dismissal with prejudice.

That conclusion was incorrect, and it and the Deprez cases are overruled herewith.

It was incorrect because it was not consistent with Ind.R.Ap.P. 4(A), which states that a trial court's ruling on a motion to correct error shall be deemed the "final judgment" from which appeal is to be taken. That Appellate Rule is consistent with Ind.R.Ap.P. 2(A) and Ind.R.Ap.P. 7.2(A)(1). ² On the other hand, Ind.R.Tr.P. 59(C) and (G) suggest that an error occurring prior to the time when a motion to correct error is made, or when the motion is addressed to a new judgment or entry in the trial court, must be specified in another motion to correct error, even though the alleged trial court error occurred in response to a first motion to correct error.

That has been the decision in many cases in the Court of Appeals, some of which are specified above, and the meaning of those decisions and interpretations is that a trial

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court could keep a case forever in the trial court by making, always, one change in response to the last-filed motion to correct error.

[268 Ind. 303] That kind of attitude is not shown in any respect in this case. It is referred to here simply to show that an absurd conclusion is possible given...