State ex rel. Indiana-Kentucky Elec. Corp. v. Knox Circuit Court

• Decision Date: 14 July 1981
• Docket Number: INDIANA-KENTUCKY,No. 1280S437,1280S437
• Citation: 422 N.E.2d 1247
• Parties: STATE of Indiana, ex rel.ELECTRIC CORPORATION, Relator, v. KNOX CIRCUIT COURT, and Addison M. Beavers, as Special Judge of the Knox Circuit Court, Respondents.
• Court: Indiana Supreme Court

Page 1247

422 N.E.2d 1247

STATE of Indiana, ex rel. INDIANA-KENTUCKY ELECTRIC CORPORATION, Relator, v. KNOX CIRCUIT COURT, and Addison M. Beavers, as Special Judge of the Knox Circuit Court, Respondents.

No. 1280S437.

Supreme Court of Indiana.

July 14, 1981.

Rabb Emison, Robert P. Doolittle, Jr. (Emison, Emison, Doolittle & Kolb), Vincennes, Karl J. Stipher, Lewis D. Beckwith, Ralph F. Hall (Baker & Daniels), Indianapolis, for relator.

L. Edward Cummings (Kimmell, Funk & Cummings), Vincennes, for respondents.

ORIGINAL ACTION

GIVAN, Chief Justice.

On December 2, 1980, this Court denied relator's petition for permanent writ of mandate and writ of prohibition. This opinion ratifies the denial of the writ.

The facts giving rise to this petition involve a suit, filed in 1975, based on alleged violations of an earlier settlement agreement between Indiana-Kentucky Electric Corporation (IKEC) and Robert E. Green and Green Construction of Indiana, Inc. Pursuant to Trial Rule 42(B), the parties agreed to a bifurcated trial on the issues of liability and damages. Judge Ernest Tilly, Jr., presided over the first trial and determined the issue of liability against Green. Sometime later, Judge Tilly heard evidence on the issue of damages. However, before entering judgment on the damages, Judge Tilly died. In accordance with Trial Rule 63(A), Judge Murphey C. Land was appointed successor judge. Green moved for a jury trial, for a new trial on damages, as well as liability. The motion for jury trial was denied. The parties agreed a new trial for damages was appropriate. Upon his own motion, Judge Land ordered a new trial on the issue of liability over IKEC's objection. Upon IKEC's motion for a change of judge, Judge Addison M. Beavers was selected. Judge Beavers denied IKEC's motion to reconsider and correct the alleged error in ordering a new trial on the issue of liability.

IKEC then petitioned this Court for the writ of mandate and writ of prohibition now in question.

The question before this Court is whether Trial Rule 63(A) authorizes or empowers the successor judge to order a new trial of the issue decided in the first trial of a bifurcated proceeding after the original judge had entered findings of fact and conclusions of law. We conclude Trial Rule 63(A) does so authorize.

Trial Rule 63(A) reads:

"(A) Disability and unavailability after the trial or hearing. The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is concluded. If the judge before whom the trial or hearing was held is not available by reason of death, sickness, absence or unwillingness to act, then any other judge regularly sitting in the judicial circuit or assigned to the cause may perform any of the duties to be performed by the court after the verdict is returned or the findings or decision of the court is filed; but if he is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part."

Thus, a successor judge, sitting for an unavailable judge, may perform duties usually required after a verdict is returned or findings or decision of the court made at his discretion.

IKEC argues that the decision reached at the conclusion of the first trial on the issue of liability is a binding, final decision to be the "law of the case" in all proceedings thereafter held. The doctrine of law of the case is most frequently a policy statement expressing that a Judge should not in the same case overrule or reconsider the decision of another judge of coordinate jurisdiction. Blance v. Alley, (1979) Me., 404 A.2d 587. At p. 589, the court in Blance stated:

"As Mr. Justice Holmes stated for the United States Supreme Court, the phrase 'law of the case' merely expresses 'the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.' Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)."

T.R. 63(A) authorizes and empowers a successor judge to grant a new trial "if he is satisfied that he cannot perform those duties (to be performed by the court after the verdict is returned or the findings or decision of the court is filed) because he did not preside at the trial or for any other reason." Therefore, T.R. 63(A) becomes an exception to the doctrine of "law of the case."

IKEC further argues T.R. 63(A) does not give the successor judge jurisdiction to order a new trial on the issue decided at the first trial. Relator cites State, ex rel. Harp v. Vanderburgh Circuit Court, (1949) 227 Ind. 353, 85 N.E.2d 254 for the proposition that the making of findings is analogous to a judgment and a successor judge has no jurisdiction or discretion to alter those findings or to order a new trial. In that case, this Court stated at 85 N.E.2d 258:

"To permit a succeeding judge to vacate and annul a findings made by the trial judge would be a judicial act not contemplated either by the authorities of this state or by Rule 1-9, for it would permit him, in effect to grant a new trial..."

Relator states that Rule 1-9 is now 63(A). However, Rule 1-9 simply states, "The judge who presides at the trial of a cause shall, if available, rule on the motion for a new trial, if one is filed, and shall sign all bills of exceptions, if such are requested. The unavailability of any such trial judge shall be determined and shown by a court order made by the judge then presiding in such court." Trial Rule 63(A) obviously is more detailed in its direction to the trial judge. The old rule did not emcompass the power or...