dissenting.
I dissent. The trial court did not error in granting a new trial on its own motion. The majority Opinion has adopted a premise which is in conflict with the Indiana Supreme Court Rules. The premise adopted states:
"Therefore, unless the trial court could grant a new trial in the fashion it did, on its own motion, it was an error to grant a new trial as to claims for relief and parties not specified in the motion."
The Indiana Supreme Court Rules gives the trial court the authority to grant a new trial on its own motion even though a new trial was not requested.
Trial Rule 50(C) and (D) provide:
"(C) New Trial in Lieu of Judgment on the Evidence. When judgment on the evidence is sought before or after the jury is discharged, the court may grant a new trial as to part or all of the issues in lieu of a judgment on the evidence when entry of a judgment is impracticable or unfair to any of the parties or otherwise is improper, whether requested or not.
(D) Reasons for Judgment on the Evidence-Partial Relief. A motion or request for judgment on the evidence shall state the reasons therefore, but it need not be accompanied by a preemptory instruction or prayer for particular relief. In appropriate cases the court, in whole or in part, may grant to some or all of the parties a judgment on the evidence or new trial in lieu thereof. Unless otherwise specified a motion or request for a judgment on the evidence is general, but the court shall grant such judgment or relief only as is proper."
Furthermore, Trial Rule 59(B) provides that a motion to correct errors may be made by the trial court, or by any party. When the trial court grants relief on the motion, it 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:
"(1) Grant a new trial; or
% * * * * a
(7) In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of the 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, or if the court determines that findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence."
Under either rule, Trial Rule 50 (C), (D) or Trial Rule 59 (B), (J), the trial court had expressed authority to go beyond the specific issues and parties set forth in Davis' Trial Rule 50 motion when it fashioned its order for a new trial. The very purpose of these rules is to give the trial court broad discretion to effect justice in each particular case regardless of its procedural posture.
I would affirm the judgment of the trial court.