*1 Corporation, Gulf Oil Company, Atlantic Richfield Company Corporation Shell Oil and Exxon Mc Frank purchasers Manus, Behalf Himself of and all petroleum products Indiana, of within State of Company. Company, Amoco Oil (Indiana), Standard Oil Corporation. Texaco, Inc. and Mobil Oil May 23, 1977.] 3-874A140. [No. Filed Joseph Roper, Roper, Chaplean, Mclnerny, A. Minczeski & Bend, Farabaugh, Oil; appellant of South for J. Gulf Glen Tabor, Tabor, Blachly, Bozik, Hartman, & for of Valparaisp, Richfield; appellant Douglas, Douglas, Atlantic Herbert K. Douglas Douglas, Valparaiso, Oil; appellant of & for Shell Jones, Obenchain, Pankow, Ford, Johnson, James H. Pankow Bend, Link, appellant Corp. of Exxon & South Conover, Philip Valparaiso, Cagen, of G. M. William appellee McManus; Valparaiso, Bailey, counsel, John E. Bend; Mclnerny, Otis Texas; F. South of Houston William Hughes, Philip Curtis, Donovan, Pearsall, Pratt John A. York; counsel, York, Reed, Donald New New Hubbard & Angeles, Gary Caylor, counsel, Cali- Bright, Los A. M. *2 fornia; O’Brien, Howrey, Simon, Simon, R. William William Washington, Murchison, counsel, D.C., of Baker of John & Texas; May, Crum- Chiles, counsel, Arthur A. of of Houston May, Levy Searer, Bend, appellee packer, for & of South Indiana; Clifford, Clifford, of Charles T. Oil Chester Standard Hoeppner Houran, Valparaiso, Syle, New & William R. of Texaco, York, York, appellee Inc.; Donadío, for James New V. Hawes, Jr., Ryan, Indianap- Ice Miller James Donadío & F; Rice, olis, York, York, Charles of New New Patrick J. appellee Dougherty, Valparaiso, Corp. for Mobil Oil operation case concerns the of our J. This Garrard, relating change Appellee com- venue. McManus rules against purported class action the oil com- suit as a menced 1974, pursuant May 14, Indiana panies. Rules On 23(C) (1), Procedure, the court set a class action Trial Rule being 13.1 for June On June after continuance, change McManus moved for of venue. denied a granted change four The court the named the forthwith required striking. adjoining counties McManus then county. name of one On June the defendants struck the granting change the order the to- vacate and asked moved stayed transferring from the until that the clerk be case its granted stay heard. The court could be the motion to vacate presented by reserving quetsion vacate, and, the motion to then struck the name of one of defendants the three remaining completed June McManus counties. On companies striking oil process. June an On addi- filed asserting that McManus was not motion entitled to tional complete change striking he failed to of venue because responsive pleadings. had filed defendants None of the order filings until after for such determination of the time extended action class question. process permitted by July 31, within the time On appel- court denied the motion to vacate. Thereafter companies perfected interlocutory lant oil appeal pur- this (B) (5). suant to AP. 4 provides although party may gen-
Rule TR. erally change seek a of venue at time before expiration (10) days of ten after the issues are first merits, closed party “. . . shall be deemed to have waived a re- [A] quest judge county for a if a cause is set for expiration, trial before the of the date within which a party may change, ask for a evidenced an order book entry as such objection and no party is made thereto soon party setting learns of the Such ob- trial.
jection, however,
promptly
must be made
and entered
record, accompanied
with a motion for a
from the
judge
court.”
county (as
may be)
the case
and filed
applicable
When found
strictly
this subdivision has been
*3
Hepler
Sup.
enforced. State ex rel.
v.
Ct. Marion Co.
(1975),
196,
218;
263 Ind.
328 N.E.2d
State
rel. Krochta
Sup.
Ct.
Lake Co.
In undisputed case it is that McManus knew setting May permitted 14 made on than more three elapse making objection. weeks to without Furthermore, suggestion grounds there has been no for the See, were later. Thus, pivotal discovered TR. question application 76(7) is whether the to which was set determine the class action status of the case should be deemed a “trial” sufficient to invoke the waiver (7). provision of TR. 76 general adjudication
The connotation of “trial” is an upon See, factual merits of a claim. Ft. v. Hoagland (1976), ex rel. App.
State 168 Ind. However, transposing N.E.2d that con- inquiry cept into our : it must be borne in mind that adjudication necessarily dispuse need not a final of all issues “a distinct disposes of if it sufficient parties. It is all
as to
Blakely
litigation.
Guthrie
of the
definite branch”
437;
State
Bozovichar v.
(1955), 234 Ind.
358,
The interpretive (B) com- 1-12 without Rule prior Court appear Study It not Commission. does by Civil Code ment respecting prior amendments of issued *4 recognize operation, hand, we in utiliza- On the right must have limitations or it can the become a tion of originally adopted in the 1964 2. The amendment which substantially the rule and first the format revised utilized of the sub- sections. justice. secure, weapon delay, rather than to to frustrate imposes time limits rule meet To these considerations requested. These change properly be within which a by the preclude occasioned to the burdens limitations are change. They apply case delay required once the perfect to policy that the proceeded point be said to the where it has outweighs favoring longer policy of forum no choice require- favoring judicial efficiency. very of a absence change justifies any “grounds” procure ment of needed to time interpretation an within both strict abbreviated may made. which the choice be
Thus, considering policy in considerations reflected both subsection, dealing in rule another while Sup. Yockey Court stated in State rel. Ct. Marion Co. 71-2, competing policy “An examination of TR. 76 reveals First, guarantee a the rule is to intended considerations. impartial by making fair trial automatic Second, designed venue available. rule avoid litigation by imposing protracted a time limit after which weighing In of venue motion shall be denied. ... considerations, competing in- shall not endorse an terpretation dilatory of TR. which sanctions tactics.” (emphasis added) apply How do considerations when a case is set these hearing on the class determination made under action to be 23(C) (1) ? such is not a While general judicial of a facts sense recovery, had claim for it is the “trial” to ultimate be of this issue. pro-
The determination to has than be made more mere many consequence. cost, difficulty, In instances the cedural complicated litigation, compared nature of when recovery any potential individual, available for man- ageable group plaintiffs, proportion of individual is so out of effectively preclude reaching vindication of as to wrong pursued unless the can redress of action *5 152 recognized by
TR. 23. This has been the United States Supreme in held Court the Eisen There the Court cases. that, under the “collateral order doctrine” at least where there plaintiffs, are no viable individual the determination represent question “merely a collateral step which is not a disposition appealable final on merits” toward judgment.3 See, Jacquelin Eisen (1974), v. Carlisle & final 2140, 156, 94 40 U.S. S.Ct. L.Ed.2d 732. concept This same of a collateral determination which dis- poses litigation of a distinct branch of the has been utilized Supreme applying our in Court contained in TR. proceedings appointment Indiana to secure of a re- independent ceiver They do not constitute an action. are merely collateral to the main action.4 inYet State ex rel. Vic- tory Lanes, (1967), Inc. 178, v. Cir. Ct. 249 Ind. Blackford 140, 231 N.E.2d hearing Court held that a on appointment meaning of a receiver was a trial within the of the of venue rule. holding City
This
in
court’s
Ft.
v. State ex rel.
Hoagland, supra,
distinguished.
hearings
should be
rep-
Such
merely step
disposition
resent
final
toward
on the merits.5
appealability,
As
policy
3.
to the
this
reflect a more liberal
regarding
judgments
system.
finality of
in the federal
requirement
finality
“. . .
Court has held that
[T]his
* * *
given
‘practical
rather
than a technical construction.’
[I]n
deciding
finality
question
important
the most
competing con-
piecemeal
siderations
‘the
are
inconvenience and costs of
review on
”
danger
denying justice by delay
the one hand
on the other.’
(emphasis
(2nd
original)
1966),
119, 120,
in
Eisen I
Cir.
370 F.2d
1035,
1487, quoting
cert. den. 386 U.S.
87 S.Ct.
Justice Black in
Gillespie
Corp. (1964),
148, 152,
308,
v. U.S. Steel
379 U.S.
85 S.Ct.
Compare, Anthrop
Tippecanoe
Corp. (1972),
v.
Sch.
257 Ind.
Hoffman, Staton, P.J., separate dissents and files opinion.
Dissenting Opinion judgment I dissent. The trial court’s should Staton, P.J. affirmed, by be since a determination the trial court under Procedure, 23(C) Rules of (1) Ind. Trial Rule does not touch upon any contemplated by 76(7). merits issue TR. TR. 23(C) (1) provides: practicable “As soon as after the commencement an ac- brought action, court,
tion as a class upon hearing, by waiver of shall determine it order whether is to be so maintained. An order under this subdivision be conditional, before altered amended decision on the merits.” by This determination the trial court is final in nature neither nor a determination of merits on the claim as contem- by preliminary contemplated plated action 23(C) (1) pre- trial is- court less than the contemplated by liminary action court under Hoagland (1976), Fort rel. v. State not injunction held preliminary 865 where denies Rule, 23(C) (1), its own terms
to be a trial. The finality on the merits. court. judgment the trial I would affirm the Reported at N.E.2d Note. — Spencer Seaman, Bailey, Bailey, Irene L. Delors v. Robert Beekman. Muriel Seaman May 24, 1977.] Filed 3-776A162. [No. *7 Phyllis Wayne, Poff, of Au- Hawk, Fort Gratz
David K. Wayne, Parrish, Eggers, Burt, Fort burn, Larson & appellants. appellee. Angola, Shoup,
Wilson Notes that Court attempted define “trial.”2 to rule entirety, are rule, in its considered purposes of The guarantee purpose to fairness primary is further twofold. by in the administration of law afford- impartiality right to have their case heard ing parties the absolute all county judge a different than that one secured or in different requirements upon primary through operation of the venue approach commencing While this has been some- an action. step times, out of with the the same criticized times thing process much democratic said for of the can be They “efficiency.” They impede often balances. checks and against principal bulwark the evils which are nevertheless permitted justify, dictate, are the ends then occur when provided believe that the check We and balance means. may promote party it and the confidence in a the rule system of our litigant fairness of law are in the worthwhile. requiring Recognizing practical which difficulties inhere in allege litigant prejudice, and establish actual bias provision dispensing our rule’s further favor such litigation Making time the requirement at the initiated. merely a matter of choice does much to exercise of genuine public It effectiveness. does even more for its insure disguised prejudice. it counters the fear of since confidence