LAYDEN v. NEW ERA CORP., 571 N.E.2d 547 (Ind. App. 1990)

571 N.E.2d 547

No. 37A03-8812-CV-385.Court of Appeals of Indiana, Third District.
November 1, 1990.

Nathaniel Ruff, Lesniak Ruff, East Chicago, for defendants-appellants.

Michael C. Adley, Abrahamson, Reed, Adley Enslen, Hammond, Robert Nesbitt, Blaney, Nesbitt Casey, Rensselaer, for plaintiff-appellee.

GARRARD, Judge.

The Laydens have petitioned for rehearing and moved for publication of decision handed down as a memorandum decision.

In the petition for rehearing they assert, inter alia, that we announced an incorrect standard of review to be applied to the trial court’s special findings.

Because special findings were not mandated by Trial Rule 52(A)[1] and were not requested by any party in writing prior to the admission of evidence, we stated that the judgment would be treated as entered upon a general finding and affirmed upon any ground sustained by the evidence except that in applying that standard we may not expressly or necessarily contradict any of the special findings entered by the trial court.

The reason for the standard is that in such instances our courts have applied TR 52(D) to volunteered findings. The rule has had uniform application in Indiana since Hunter v. Milhous
(1974), 159 Ind. App. 105, 305 N.E.2d 448. See, e.g., Drake v. City of Fort Wayne (1989), Ind. App., 543 N.E.2d 1145, transfer denied; Erie-Haven, Inc. v. Tippmann Refrig. Const. (1985), Ind. App., 486 N.E.2d 646; McClamrock v. McClamrock (1985), Ind. App., 476 N.E.2d 514; Mishawaka Brass Mfg. Co. v. Milwaukee Valve Co. (1983), Ind. App., 444 N.E.2d 855.

The motion to publish the opinion herein is granted and the designation “MEMORANDUM DECISION” is deleted. The petition for rehearing is denied.

HOFFMAN, P.J., and STATON, J., concur.

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