Weida v. Kegarise

• Decision Date: 05 July 2006
• Docket Number: No. 66S03-0508-CV-00377.,66S03-0508-CV-00377.
• Citation: 849 N.E.2d 1147
• Parties: Thomas M. WEIDA, Appellant (Defendant below), v. Donald KEGARISE and Kathy Kegarise, Appellees (Plaintiffs below).
• Court: Indiana Supreme Court

849 N.E.2d 1147

Thomas M. WEIDA, Appellant (Defendant below), v. Donald KEGARISE and Kathy Kegarise, Appellees (Plaintiffs below).

No. 66S03-0508-CV-00377.

Supreme Court of Indiana.

July 5, 2006.

Garrett V. Conover, Crown Point, IN, David Wilson, Valparaiso, IN, Attorneys for Appellant.

Frank E. Tolbert, Logansport, IN, Alan F. Hizer, Winamac, IN, Attorneys for Appellees.

On Petition to Transfer from the Indiana Court of Appeals, No. 66A03-0406-CV-00247

SHEPARD, Chief Justice.

Setting aside a verdict because the trial court concludes that it is against the weight of the evidence is a weighty but well-recognized power of common law judges. Our rules require a judge who exercises this power to describe the reasons in some detail. When the trial court acts without giving reasons, the verdict should be reinstated on appeal.

Facts and Procedural History

On February 25, 2002, Weida and Donald Kegarise were involved in an automobile accident in which Weida rear-ended Donald Kegarise's vehicle. Kegarise sued, alleging that Weida's negligence caused the accident, that he suffered injuries to the head, neck, back, hip, and knee, and that his business had suffered losses as a result of his inability to work. Kegarise's wife sued for loss of consortium. During a pre-trial conference, Weida stipulated to negligence in causing the accident, but challenged (as he did at trial) the "nature and extent" of Kegarise's injuries and his damage claims.

During closing arguments, however, Weida's counsel said to the jury, "we've admitted liability for this accident . . . . I'm going to make part of your job even easier. Pay his medical bills. We'll start with that. That's not — don't — hear me through. Because he wouldn't have gone to see those doctors but for the accident. Okay?" (Tr. at 649.) Final instructions to the jury included appropriate statements about the burden of proof and proximate cause. A standard preliminary instruction stated that "final arguments are not evidence." (Tr. at 40.)

After deliberating about two hours, the jury returned a verdict in Weida's favor. The Kegarises filed a motion to correct error seeking a new trial, and the court held a hearing. The court's subsequent order granting a new trial said, in totality:

ORDER

The Court holds a telephonic case management conference with Frank E. Tolbert, counsel for the Plaintiffs, and David A. Wilson, counsel for the Defendant.

The Court, having taken the Plaintiff's Motion to Correct Error under advisement, hereby orders as follows:

1. That the Plaintiff's Motion to Correct Error as filed on March 31, 2004, is hereby granted, and the request for a new trial is granted subject to an additur in the amount of Twenty-Three Thousand Eight Hundred Forty-Nine Dollars and forty cents ($23,849.40).

2. Counsel for the parties are given thirty (30) days to file an appeal, pay the additur, or schedule a new trial date.

SO ORDERED this 3rd day of May, 2004

(Appellant's App. at 7.)

Weida appealed, arguing that the court's order did not comply with Indiana Trial Rule 59 because it did not include special findings and that the jury verdict should therefore be reinstated under the holding in State v. White, 474 N.E.2d 995, 999-1000 (Ind.1985). (Br. Appellant at 6-8.)¹

The Court of Appeals acknowledged the holding in White, but noted that "[i]n other cases, however, courts have not gone so far." Weida v. Kegarise, 826 N.E.2d 691, 695 (Ind.Ct.App.2005) vacated. It cited several of its own opinions in which it remanded defective orders for new trials with instructions to include the findings specified in Trial Rule 59(J). Id. (citing Chafin v. Grayson, 761 N.E.2d 474, 476 (Ind.Ct.App.2002) trans. denied; Malacina v. Malacina, 616 N.E.2d 1061, 1063 (Ind.Ct.App.1993) trans. not sought). The Court of Appeals chose to follow the latter course and remanded with instructions to make the findings specified by rule. Weida, 826 N.E.2d at 695. We granted transfer.

I. "Motion for a New Trial" Evolved to Trial Rule 59(J)

Historically, new trials could be granted in Indiana for numerous reasons. Indeed, as the principal remedy available to trial courts to correct errors it was long held that, "[a] new trial should be granted unless it clearly appears that substantial justice has been done by the verdict." Glover v. Stevenson, 126 Ind. 532, 26 N.E. 486 (1891). For nearly ninety years, Indiana statute provided a list of errors for which a new trial could be granted. In addition to the error occurring when "the verdict or decision is not sustained by sufficient evidence, or is contrary to law," that list included: irregularities in the court proceedings, jury misconduct, accident or surprise, excessive or inadequate damages, error of law, and discovery of new evidence. See 1881 Ind. Acts 319-20 (Spec.Session); Ind. Statutes §§ 2-2401, 2-2404, 2-2406 (Bobbs-Merrill 1968).

Indiana courts recognized that the power to grant new trials extended to situations beyond those enumerated in statute. Indianapolis Life Ins. Co. v. Lundquist, 222 Ind. 359, 53 N.E.2d 338 (1944) (collecting cases). Subsequent adoption of the Indiana Rules of Civil Procedure did not alter this understanding, as Rule 59(A) incorporated both the then existing statutory provisions and language indicating that the list of potential errors was non-exhaustive. Ind. Civil Code Study Commission, Indiana Rules of Civil Procedure: Proposed Final Draft, 219 (1968); Edwin H. Greenebaum, Comment, Post Trial Motions Under the New Indiana Rules, 45 IND. L.J. 377, 381 (1970) ("A correct and reasonable reading of Trial Rule 59(E)(7) carries forward the traditional distinctions regarding when new trials are appropriate."). This list, replicating the statutory basis for new trials, disappeared from the Trial Rules through some 1989 amendments.

Of course, adoption of Rule 59 under the heading "Motion to Correct Error" rather than "New Trial" reflected a significant expansion of the remedies available to correct errors before final judgment is entered. Most notably, the rule radically altered the long-standing practice in which the only such remedy was a new trial, by "mak[ing] it patently clear that the court not only may, but must, consider various kinds of other relief." Ind. Civil Code Study Commission at 220. The language of Trial Rule 59(E) — now 59(J) — certainly indicated an express preference for the use of other remedies before the grant of a new trial in that it provides "the court shall direct final judgment to be entered or shall correct the error without a new trial." Ind. Trial Rule 59(E) (1970); Ind. Trial Rule 56(J) (2006) (emphasis added).

Nevertheless, the rule also provided, and still provides, that when such remedies are "shown to be impracticable or unfair to any of the parties or is otherwise improper" the trial court was still empowered to grant a new trial. Id. The inclusion of other remedies was not an effort to restrict the power to grant a new trial to any particular enumerated situation, but rather to limit the practice of granting new trials for any error by conditioning the exercise of that authority to those situations where a conclusion was reached that other relief could not effectively or fairly remedy the error.

Consistent with this history and these objectives, the present version sets out a non-exhaustive list of possible relief to be granted on a motion to correct error and outlines certain steps required for granting relief. It says in relevant part:

The court, if it determines that prejudicial or harmful error has been committed, shall take such action as will cure the error, including without limitation the following with respect to all or some of the parties and all or some of the errors: ...

(5) In the case of excessive or inadequate damages, enter final judgment on the evidence for the amount of the proper damages, grant a new trial, or grant a new trial subject to additur or remittitur; ...

(7) In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence....

In its order correcting error the court shall direct final judgment to be entered or shall correct the error without a new trial unless such relief is shown to be impracticable or unfair to any of the parties or is otherwise improper; and if a new trial is required it shall be limited only to those parties and issues affected by the error unless such relief is shown to be impracticable or unfair. If corrective relief is granted, the court shall specify the general reasons therefor. When a new trial is granted because the verdict, findings or judgment do not accord with the evidence, the court shall make special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted. Such finding shall indicate whether the decision is against the weight of evidence or whether it is clearly erroneous as contrary to or not supported by the evidence; if the decision is found to be against the weight of the evidence, the findings shall relate the supporting and opposing evidence to each issue upon which a new trial is granted; if the decision is found to be clearly erroneous as contrary to or not supported by the evidence, the findings shall show why judgment was not entered upon the evidence.

Ind. Trial Rule 59(J). We once called adherence to the substantive and procedural requirements granting a new trial under Rule 59(J) "paramount." Nissen Trampoline Co. v. Terre Haute First Nat'l Bank, 265 Ind. 457, 464, 358 N.E.2d 974, 978 (1976). A brief examination of the rule should reveal why.

Rule 59(J) requires that a trial court must be satisfied that some "prejudicial or harmful" error has occurred before...