May, J.
Roger D. Levy appeals the trial court’s order granting a new trial.
We reverse and remand for the court to reinstate the jury verdict.
….
Levy asserts the trial court’s grant of a new trial must be reversed because the court did not comply with the Trial Rule 59(J) requirement to set forth all the evidence in the order for a new trial.[Footnote omitted.]
….
Our Indiana Supreme Court held the “substantive and procedural requirements” needed to grant a new trial under Trial Rule 59(J) are “paramount.” Weida v. Kegarise, 849 N.E.2d 1147, 1151 (Ind. 2006). When correcting errors, a trial court is required to “specify the general reasons therefor.” Ind. Trial Rule 59(J). However, when granting a new trial against the jury verdict, a court is required to make “additional special findings.” Weida, 849 N.E.2d at 1151. …
….
That order sets out evidence in favor of a verdict for Jackson but does not mention any of the evidence in favor of a verdict for Levy. Our review of the record confirmed, as Levy’s brief alleged, the existence of significant evidence in the record supporting the jury’s verdict in favor of Levy. [Footnote omitted.] Therefore, as the court’s order only states the evidence in favor of Jackson, and no evidence in favor of the jury verdict, the court’s order failed to comply with Trial Rule 59(J). See Weida, 849 N.E.2d at 1155.
When a court fails to comply with Trial Rule 59(J)’s requirements, we have no choice but to reinstate the jury’s verdict because “[e]xplanations crafted after appellate remand – six months or a year after the trial court heard the evidence (or in this instance, two years) – represent an inadequate exercise of [the court’s] obligation.” Id. at 1153. Accordingly, we reinstate the jury verdict.
We reverse and remand for the court to reinstate jury verdict.
Mathias, J., concurs. Robb, J., dissents with separate opinion.
….
Robb, Judge, dissenting
….
I acknowledge our supreme court precedent in Weida and the concerns it addresses as set forth by the majority. See slip op. at ¶ 8. However, I believe it is antithetical to the principles of due process to penalize a party for a trial court’s failure to follow protocol without at least offering the opportunity for the trial court to correct its failings. White acknowledged that “[i]t may be regarded as harsh treatment to deny the appellee the benefit of a ruling won at the trial court level when a remand might preserve it.” 474 N.E.2d at 1000; see also American Family Home Ins. Co. v. Bonta, 948 N.E.2d 361, 366 (Ind. Ct. App. 2011) (“[W]e understand that this result may seem harsh as a litigant may be disadvantaged not through his own fault but because a trial court failed to follow all the [procedural] requirements . . . .”). However, Weida, Walker, and White all addressed orders in which a trial court completely failed to even attempt to make special findings to support its decision. I would limit application of the rule announced therein to cases with those facts and would not extend it to cases such as this one, where the trial court at least tried to make the required findings.[Footnote omitted.]
In addition, Weida hearkens back to White, which in turn hearkens back to Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 265 Ind. 457, 358 N.E.2d 974 (1976). In Nissen, the court noted that when a trial court has failed to comply with Rule 59, courts have responded in differing ways: some have made a rough judgment as to whether the trial court was correct based upon its own review of the evidence in the record; some have remanded to the trial court for additional findings; and some have reversed and ordered reinstatement of the judgment. Id. at 976, 358 N.E.2d at 460. “No single relief has been deemed appropriate in such cases.” Id. The court in Nissen ultimately reversed the order granting a new trial, but due to a motion to correct error pointing out that the trial court’s original order did not set forth the supporting and opposing evidence as required by the rule, the trial court had been afforded an opportunity prior to appeal to reconsider its findings and order in light of the rule’s requirements and was still unable to supplement the findings or set forth the supporting and opposing evidence. Id. at 977-78, 358 N.E.2d at 463-64. Because in Nissen, the parties were afforded the opportunity to point out the deficiencies of the trial court’s order and the trial court was afforded the opportunity to correct the omissions in light of the requirements of the rule, Nissen does not necessarily lay the groundwork for the later, harsher rule, but supports the notion that the trial court can and should be allowed to reconsider its order when it comes up short.
Here, the trial court gave the reasons why it believed the ends of justice required a new trial, describing in some detail the evidence supporting such a judgment but failing to specifically weigh it against the opposing evidence. If the trial court considered the opposing evidence in reaching its conclusion, then an amended order on remand would be a simple matter. And if the trial court did not consider the opposing evidence, then it has the chance on remand to fix the problem on its own accord and vacate the order for a new trial. I do not mean to imply that a trial court should not endeavor in every instance to fully comply with the requirements placed upon it by our rules and statutes. As White noted, “if the court overrides the jury in its special domain and substitutes its verdict for theirs without a clear showing that the ends of justice required it, it is likely that they did not.” 474 N.E.2d at 1000. When a trial court does not even attempt to make that showing, perhaps it is because it would be unable to do so. But when it appears that a trial court has endeavored to do so but has simply fallen short in some particular, I would allow the trial court an opportunity to supplement its order.