Redmond v. United Airlines, Inc.
Decision Date | 18 August 1975 |
Docket Number | No. 2--774A159,2--774A159 |
Citation | 332 N.E.2d 804,165 Ind.App. 395 |
Parties | Thomas H. REDMOND, Appellant, v. UNITED AIRLINES, INC., Appellee. |
Court | Indiana Appellate Court |
Max Howard, Vincent Kelley, Kelley, Arnold, Howard & Lockwood, Anderson, for appellant.
Joan Bashaw Gregg, Sharon Carroll Clark, Gregg & Clark, Anderson, for appellee.
Plaintiff-appellee United Airlines, Inc. (United) filed a complaint on August 6, 1971, seeking to collect on an alleged contract of guaranty executed by United and defendant-appellant Thomas H. Redmond (Redmond). Trial to the court was commenced on October 16, 1973. On January 9, 1974, judgment was entered in favor of United for $13,849.00 together with attorney fees and costs. Redmond appeals.
Since we conclude that a substantial and prejudicial procedural defect requires reversal of this case for further consideration on the merits, we choose not to unnecessarily lengthen this opinion by detailed recitation of the facts, or by enumerating the numerous errors Redmond assigns with respect to the trial court's findings. However, we are compelled to set out certain portions of the proceedings at length in order that the procedural posture be understood.
On the day of trial, October 16, 1973, prior to the swearing in of any witnesses, the following motion, and dialogue directed thereto, was received:
'MR. KELLEY (Remond's counsel): At the outset if it please the court I would like to make an oral motion after the conclusion of the plaintiff's evidence that the defendant is granted a continuance to present its case by reason of the illness of the defendant and we submit herewith a statement of Dr. Aaron L. Arnold concerning the physical condition of the defendant as of October 15, 1973. 1
JUDGE HALL:
All right. The motion will be taken under advisement at this time. We'll see what the evidence presents. We don't want to deprive the defendant of making his defense. But considering this case has been a long time getting to trial so we want to proceed to produce any witnesses.
All right. Then we'll take the motion under advisement at this time. You may proceed.
MRS. GREGG (United's counsel): Before the court rules on the motion I would like to present the plaintiff's objection to the continuance for the reason that it would create a hardship on the plaintiff whose witnesses have come from as far away as San Francisco, California prepared to go ahead immediately with the trial with hopes of proceeding with it today.
JUDGE HALL:
Well the plaintiff's case can be completed today. It's for the purpose of the defendant as I understand it. The only witness as I understand it who needs a continuance is Mr. Redmond.
Any other witnesses would be available to you as far as the defendant's concerned.
Now the only thing is if we continue this witness, you will have an opportunity to cross examine.
Well that's true. We'll have to play it by ear. (inaudible).
Make an opening statement.
Allright then I think that we can swear your witnesses in Mrs. Gregg.'
United then proceeded to present its evidence. Immediately after United rested its case, Redmond's counsel made an oral 'motion for finding for the defendant'. 2 Oral argument was heard on the motion. Near the end of her argument against the motion, counsel for United stated: 'I submit there should be a finding for the plaintiff.' 3 The following discourse then occurred:
However, in view at this time I will have to read Mr. Massey's deposition. However, I think I would like to have the parties file briefs in this matter. The questions you have raised as to the worth _ _ I'm going to order beiefs to be filed on or before November 16th. The points that have been raised should be answered to _ _ to advise me and be submitted on or before December 1st.
The parties filed briefs on November 26, 1973. However, on January 9, 1974 prior to the filing of reply briefs (which were filed on February 19, 1974), the trial court entered the following judgment:
On appeal Redmond asserts error by the trial court in not permitting him to present his evidence before entry of judgment. 5 However, this assertion must be viewed in conjunction with the alleged error in the failure of the trial court to rule on the motion for continuance. In his motion to correct error, Redmond does not contest the court's ruling on the TR. 41(B) motion for dismissal except insofar as the court's ruling on the motion and the omission to rule on the motion for continuance thwarted the presentment of defendant's case.
Considering that the record does not disclose whether any physician's statement attesting to Redmond's illness was in fact submitted to the trial court, we must conclude that Redmond's request for a continuance on the day of trial did not comply with the mandate of TR. 53.4 that:
(Emphasis supplied)
Had the trial judge denied Redmond's motion for continuance, no abuse of discretion would be evident. Flick v. Simpson (1969), 145 Ind.App. 698, 252 N.E.2d 508, 255 N.E.2d 118; Schuty v. State (1972), Ind.App., 289 N.E.2d 295. Neither evidence nor an affidavit in support of the motion for continuance was introduced by Redmond. In the instant case, however, Redmond's motion for continuance was taken 'under advisement' by the court, and, as per Redmond's request, the plaintiff was permitted to present its case.
Both parties agree that a ruling on a motion can be implicit according to the doctrine stated in Lutz v. Goldblatt, Inc. (1967), 140 Ind.App. 678, 225 N.E.2d 843. Although it is debatable whether Redmond's motion for a continuance was implicitly granted or denied, we need not resolve such debate because the ultimate effect of either ruling, when viewed in conjunction with the trial court's entry of judgment for United at the same time that Redmond's TR. 41(B) motion was denied, was a denial of Redmond's right to present his case. 6
Redmond's motion at the close of United's case was for involuntary dismissal pursuant to TR. 41(B). That rule provides:
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