*1 the psychologist and court-appointed the Porter v. Porter factors. an supported children for the advocates Here, Rhonda bases 219, 222. Rhonda re- David. custody to award distrib- the assets allegation that her reweighed. be evidence the quests rough calculation upon a unequally uted review. precludes such The standard the real- attributed values the employing a calcu- Such subtracting the debt. ty and er- finding reversible being no There purpose where no valid serves lation court is af- of the trial ror, as evidence present failed firmed. Even the assets. most of valuation Affirmed. some- appears assets though the division values evidence unequal, absent what its discretion JJ., MILLER, must exercise court concur. GARRARD As noted assets. marital
disposing con- decision
above, trial Also, by item. whole, item not aas
sidered presume must Court this
on review complied with court's distribution trial being no evidence There
the statute. as to order trial court's contrary, the marital
the division
correct. trial alleges that also
Rhonda plan 401K excluding David's
court erred as to only evidence asset.
as a marital through David's presented plan was HUDSON, Mary Hudson M.R. exist acknowledged the testimony. David Hudson, Vandegrift, and A.B. not state David did plan. ence of Appellants-Defendants, vested plan asked whether When present value. it had a or whether out "cash that he could asked whether McCLASKEY, Marvin "No, way I stated, only now," David Appellee-Plaintiff. from is if I'm terminated that out can cash does not The evidence work believe." No. 82A01-9106-CV-179. vesting or a unequivocally establish Indiana, Appeals of Court Accordingly, the plan. value present District. First plan excluding the not err court did Grammer asset. See a marital as 16, 1992. Jan. (1991), Ind.App., 566 Grammer plan as pension (inclusion of 1080, 1083 where reversed must be
marital vesting of clearly establish did not
record dissolution). at time
pension avers
Finally, Rhonda custody of awarding David erred Custody decisions two sons.
their discretion, abuse of for an
viewed He reweigh the evidence. may not Court (1990), Ind.App., 555 Hegerfeld
gerfeld v. Here, testimony of
1230
*2
easement was
claiming the State's
Hustace,
objected
Bow-
Bowers, Cedric
Wesley
F.
cross-complaint
filed
and also
invalid
Evansville,
Miller,
Harrison,
ers,
Kent &
asserting breach
appellants-defendants.
rescission,
title,
warranty of
*3
Stone,
& Associ-
VanStone
Van
Jack N.
title, if the
defending the
in
expenses
Evansville,
appellee-plaintiff.
ates,
The court
easement.
a valid
did have
State
a
ease
had valid
the State
determined
THE CASE
OF
STATEMENT
summary
entered
trial court
The
ment.
on
of the Hudsons
in favor
judgment
Judge.
RATLIFF, Chief
summary
appeal,1
On
cross-complaint.
Vandegrift,
Hudson, Mary Hudson
MR.
McClas-
in favor of
reversed
judgment was
in
appeal the
A.B. Hudson
court found the
appellate
key because
McClaskey order-
of Marvin
warranty
favor
of ti
had breached
Hudsons
real
certain
rem
to
remand,
issue of
of a deed
only the
ing rescission
During
tle.
reverse.
damages. We
estate
trial.
to a bench
edy proceeded
McClaskey
court concluded
The
ISSUES
ten-
rescission and
timely claim for
amade
The
the Hudsons.
back to
the deed
dered
appeal
on
issue
McClaskey raises one
the Hudsons
held that
court further
first:
address
which we
McClaskey
owners of
allowing the
err
the court
1. Did
$98,945.71.
ap-
The Hudsons
awarded
allege
their answer
to amend
peal.
summary
after
defenses
affirmative
more
entered?
judgment was
AND DECISION
DISCUSSION
ap-
on
issues
raise several
The Hudsons
whether
Initially, we address
restate as:
we
peal which
the trial
bars
the case" doctrine
"law of
significant alteration
a
there
Was
The doctrine
entry of rescission.
to the
a return
precluding
has been
question
a
that once
provides
by rescission?
quo
binding on the
appeal, it is
on
decided
court on
appellate
remand and the
court on
re-
McClaskey's
election
8. Did
facts and
appeal
if the
subsequent
a
pursuit
remedy preclude
as the
scission
Horine v. Green
essentially
the same.
damages
of warran-
for breach
an award
Association
Credit
Production
castle
ty?
(1987), Ind.App., appellate decisions
Prior
denied.
trans.
FACTS
actually con
questions
all
on
are conclusive
(On
1983,
21,
Hudsons con-
December
appeal.
first
determined
sidered and
McClaskey
of real estate
veyed parcel
ap
not foreclose
does
The doctrine
Id.
convey-
Prior
warranty deed.
decided.
previously
peals of
issues
acquired a
Indiana had
ance,
the State
(1981), Ind.App.,
Kuespert
State
real
over this
highway easement
125-foot
233,
229,
denied.
trans.
McClaskey re-
warranty deed
The
estate.
existence
did not reveal
ceived
trial court
August
On
easement.
in favor of
summary judgment
entered
cross-complaint.
McClaskey's
Hudsons on
18, 1986, seeking to make
November
On
asserting
the trial
appealed
McClaskey
highway,
the State
limited access
41 a
U.S.
concluding
the Hudsons
proceedings
erred
court
condemnation
initiated
title.
he had
their
estate
regarding the real
did not
warranty,
finding a breach
McClaskey Upon
Hudsons.
from the
purchased
trans. denied.
Farms,
Inc.
& Mueller
v. Bumb
appellate court reversed and remanded to
Despite
claim,
McClaskey's
the trial court. The trial court then en- Trial Rule 15
preclude
does not
the trial
summary judgment
tered
in favor of
court from allowing amendment of the an
McClaskey and
set the issue of
swer
15(A)
here.
permits
T.R.
for trial. We have reviewed the initial
seek leave of court to amend his pleading,
appeal and find that the decision considered and such leave will
given
be
justice
when
the liability
only.
issue
appellate
requires.
so
We review the court's deci
remanded for
proceed
the trial court
sion to allow amendment for an abuse of
further
on the
appel-
issue. As the
discretion. Lilge v. Russell's Trailer Re
late
only
court determined
that there was a pair,
Inc.
Ind.App., 565 N.E.2d
*4
breach, the trial court was left to decide
1146, 1151. The trial
considers
appropriate
remedy. We do not find whether
delay,
faith,
undue
bad
or dilatory
appellate
precluded
decision
the motive exists
part
on the
movant,
ordering
court from
rescission as a
and whether the nonmovant will be unduly
remedy.
prejudiced by the amendment.
Id.
McClaskey's argument ignores that
Issue One
the amendments are relevant to
remedy
appel-
contends in his
issue, not the liability issue. Since McClas-
lee's brief that
the trial court erred in key did not make an unequivocal tender for
allowing the Hudsons to amend their an
rescission until after summary judgment
swer to include other affirmative defenses.
just before
issue,
trial on the remedy
He contends that we may not consider their
failure of the Hudsons to assert the new
arguments
affirmative defense
which were
affirmative defenses earlier cannot be
made
summary
after
judgment had been deemed as
delay
undue
or bad faith. Fur
granted. McClaskey
upon
relies
Jackson
thermore,
the amendment
requested
v.
App.,
Russell
Levy Organization Development (7th rescission Co. is an improper remedy parties because the Cir.1986), 601, 611, 789 F.2d applica to be Johnson, ble. In could not be restored summary judgment was quo. to the status The findings trial court's entered do not plaintiff mention who then at tempted restoration of quo. the status complaint. amend his How The ever, court refused judgment because the perusal our record fails by been vacated uncover a by means of written motion Ind. Trial either of the 60(B); therefore, Rule parties requesting specific after the entry findings of of fact summary judgment, nothing and pending pursuant conclusions of law to Ind. for the court to amend. The situation here 52(A). Trial Therefore, Rule we are not is different summary judg where after bound findings and conclu ment, the remedy issue still remained to sions and review the general decision as a which pertained. the amendment judgment. City See Drake Fort
1232 (1980), 267 v. Robinson other); Herrick Wayne (reme 637, 644 S.W.2d Ark. gen affirm willWe denied. trans. appellant where not consistent dies evi uncontradicted unless eral seek to than rather to rescind elected See conclusion. opposite to an leads dence rescission warranty; for breach cover App., 569 (1991),Ind. v. Lamb Lamb the contract upon disaffirmance based 992, 994. affirm requires its recovery for breach and ance). contem rescission remedy of The pre- to their returning the plates rescission; he ten- sought Horine, quo. on October position, contract the deed dered record reveals at at for rescission solely argued and filling oper in his land McClaskey used as rescission his He elected trial. dumped concrete he claim ations abandoned acres warranty. the twelve acre on one dirt twenty feet. height of aat land arable Reversed. action such find that We at Record alteration a substantial constitutes *5 ROBERTSON, J., concurs. the to a return precludes property which evidence This uncontradicted quo. concurs part and BAKER, J., in dissents the of conclusion opposite the leads us opinion. separate part in with not entitled McClaskey was court; rescission.2 concurring dissent- and BAKER, Judge,
ing. Three Issue of resolution majority's the I concur with however, dissent, I two. and one issues claim Lastly, the disagree three. to issue respect with for dam any claim McClaskey abandoned that McClas conclusion majority's the with rem as his rescission he elected ages when damages for of claim key "abandoned Indiana, may a In agree. edy. We at 1232. Ante warranty." of and a transaction under accept not benefits obligations. its repudiate simultaneously rescission preferred McClaskey It is true Palamara Estate Matter he of See remedy for the breach of as a 1223, In 1228. for (1987), prayer limit his not He did suffered. 5 alone, Manufacturing Co. however. remedy Tioga this Reed relief fol- trans reads as property relief 24, buyer of 21, McClaskey's prayer he when sued warranty deed lows: ferred represen false made the selier
discovered Defendant, WHEREFORE, Marvin unen good and the title tations prays for McClaskey buyer that the stated The court cumbered. Hudson, Defendants, M.R. could sue He remedies. an election Vande- Hudson, Mary Hudson and A.B. fraud, or dam fully and rescission, damages for will in an amount grift, Id. at of covenants. on the warrant ages expenses for the him compensate fairly defending Ind. involved attorneys fees v. Banta and Banta See (reme 597, Plain- 597-98 in the event 77 N.E.2d and herein App. his title establishing its ease- of the affirmance theory tiff is successful on dy based recigion remedy way for right [sic] a with ment of inconsistent is transaction and for the Deeds on based facts and same arising of the out all and for price purchase that the return so its disaffirmance theory of relief. proper other further repudiation is a either election McClaskey's was untime- tender contention improper on rescission we find 2. Because ly. the Hudsons' address ground, we do this (Cross Record at 19 Com Supplemental of Defendant Marvin Randall
plaint Mary PLOHG, Sue As Guardian of McClaskey sought McClaskey). both Plohg, Adult, Ap John W. An proper scission and "all other further pellant/Counterclaimant, remand, court, too, the trial Upon relief." sought McClaskey damages: "Let
believed time the the record reflect that this NN LIFE INVESTORS INSURANCE for trial on the issue of Court has set COMPANY, INC., Corpora An Iowa damages...." damages and the nature of tion, Appellee/Counterdefendant. offered, McClaskey and the Record at 34. No. 45A03-9001-CV-4. evidence, acceptedinto trial court extensive tax, regarding purchase, documentation Indiana, Appeals Court of filling, expenses title defense he in Third District. at 79-81. curred. See Record tendered evidence concern also Jan. ing before and value discovery after the of the State's easement. did not elect one other, abandoning
sense of as the ma prosecuted
jority claims. He both reme to him.
dies available my opinion
In it is unconscionable McClaskey remedy
deny for the loss he *6 question is no
incurred. There the Hud-
sons breached the title. testified, and his cross-com- averred,
plaint proper- that the encumbered
ty purchased was of no value to him. He venture, as commercial purpose purchase utterly of his
defeated the Hudsons' breach of war-
ranty. The denial of remedies of re- both damages, light
scission and of the undis-
puted warranty, miscarriage breach of is a A} justice should we not condone.
though agree the trial court erred in rescission,
ordering I would remand the
cause determine incident to the warranty, including
Hudsons' breach of
considerations such as diminution in the property, defending
value of the the cost of
title, payments, filling expenses, tax
crop revenue.