Ostric v. St. Mary's College

Indiana Court of Appeals

Ostric v. St. Mary's College

288 N.E.2d 565, 153 Ind. App. 616, 1972 Ind. App. LEXIS 792

CourtIndiana Court of Appeals

DecidedNovember 2, 1972

DocketNo. 172A18

StatusPublished

Cited by11 cases

This text of 288 N.E.2d 565 (Ostric v. St. Mary's College) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ostric v. St. Mary's College, 288 N.E.2d 565, 153 Ind. App. 616, 1972 Ind. App. LEXIS 792 (Ind. Ct. App. 1972).

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Opinions

Hoffman, C.J.

This appeal arises from the dismissal by the trial court of plaintiff-appellant’s complaint pursuant to Rule TR. 12(B) (6), Indiana Rules of Procedure.

On June 8, 1971, the trial court sustained the motion of defendants-appellees to dismiss as to Counts I and II of the complaint. On July 27, 1971, with no amended complaint having been filed in the interim, the trial court dismissed the cause and entered judgment for the defendants.

On September 2, 1971, the plaintiff filed his “Notice for Motion to Correct Errors and Request to Summon St. Mary’s College Et Al to Provide Its File Related to the Plaintiff and to Summon Witnesses for Plaintiff to Provide Their Testimonies or Depositions” which, in substance, purports to serve [617]*617as a motion to correct errors. Such motion fails in that it does not comply in the slightest with Rule TR. 59 (B) and (G), Indiana Rules of Procedure.

Rule TR. 59(B), supra, provides:

“(B) Form of motion. A motion to correct error shall state the issues upon which error is claimed, but the issues are not required to be stated under or in the language of the reasons allowed by these rules, by statute or by other law. The statement of claimed errors shall be specific rather than general, and shall be accompanied by a statement of the facts and grounds upon which the errors are based.”

Rule TR. 59(G), supra, provides:

“(G) Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefore each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution.”

In the instant case the “Notice for Motion to Correct Errors * * *” did not specify any error related to the dismissal of plaintiff’s complaint under Rule TR. 12(B)(6), supra. The “Notice for Motion to Correct Errors * * *” alleged generally, inter alia, that plaintiff is “not satisfied” with the decision and order of the trial court; that he “considers himself as having many reasons for his complaint”; and “[i]t is this Plaintiff’s humble opinion that the Honorable Court did not serve either Justice or Equity by its proceeding * * *”; and the “Plaintiff * * * is very anxious * * * to present more adequately his complaint with new and substantial evidences * * No specific error was claimed nor were reasons given as to why the plaintiff believed the dismissal pursuant to Rule TR. 12(B) (6), supra, was improper. Therefore, nothing has been preserved for this court’s review.

[618]*618Furthermore, the argument section of appellant’s brief sets forth arguments concerning why he believes he has a cause of action in general, but furnishes neither argument nor supporting authorities as to why the complaint was legally sufficient or why the judgment should be set aside. Plaintiff has, therefore, presented no argument regarding the issue for review.

For the foregoing reasons the motion to dismiss or affirm filed by appellees herein must be sustained.

Appellees’ motion to dismiss is sustained and this cause is dismissed.

Staton, J., concurs; Sharp, J., dissents with opinion.

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Hoffman, C.J.

This appeal arises from the dismissal by the trial court of plaintiff-appellant’s complaint pursuant to Rule TR. 12(B) (6), Indiana Rules of Procedure.

On June 8, 1971, the trial court sustained the motion of defendants-appellees to dismiss as to Counts I and II of the complaint. On July 27, 1971, with no amended complaint having been filed in the interim, the trial court dismissed the cause and entered judgment for the defendants.

On September 2, 1971, the plaintiff filed his “Notice for Motion to Correct Errors and Request to Summon St. Mary’s College Et Al to Provide Its File Related to the Plaintiff and to Summon Witnesses for Plaintiff to Provide Their Testimonies or Depositions” which, in substance, purports to serve [617]*617as a motion to correct errors. Such motion fails in that it does not comply in the slightest with Rule TR. 59 (B) and (G), Indiana Rules of Procedure.

Rule TR. 59(B), supra, provides:

“(B) Form of motion. A motion to correct error shall state the issues upon which error is claimed, but the issues are not required to be stated under or in the language of the reasons allowed by these rules, by statute or by other law. The statement of claimed errors shall be specific rather than general, and shall be accompanied by a statement of the facts and grounds upon which the errors are based.”

Rule TR. 59(G), supra, provides:

“(G) Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefore each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution.”

In the instant case the “Notice for Motion to Correct Errors * * *” did not specify any error related to the dismissal of plaintiff’s complaint under Rule TR. 12(B)(6), supra. The “Notice for Motion to Correct Errors * * *” alleged generally, inter alia, that plaintiff is “not satisfied” with the decision and order of the trial court; that he “considers himself as having many reasons for his complaint”; and “[i]t is this Plaintiff’s humble opinion that the Honorable Court did not serve either Justice or Equity by its proceeding * * *”; and the “Plaintiff * * * is very anxious * * * to present more adequately his complaint with new and substantial evidences * * No specific error was claimed nor were reasons given as to why the plaintiff believed the dismissal pursuant to Rule TR. 12(B) (6), supra, was improper. Therefore, nothing has been preserved for this court’s review.

[618]*618Furthermore, the argument section of appellant’s brief sets forth arguments concerning why he believes he has a cause of action in general, but furnishes neither argument nor supporting authorities as to why the complaint was legally sufficient or why the judgment should be set aside. Plaintiff has, therefore, presented no argument regarding the issue for review.

For the foregoing reasons the motion to dismiss or affirm filed by appellees herein must be sustained.

Appellees’ motion to dismiss is sustained and this cause is dismissed.

Staton, J., concurs; Sharp, J., dissents with opinion.

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288 N.E.2d 565, 153 Ind. App. 616, 1972 Ind. App. LEXIS 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostric-v-st-marys-college-indctapp-1972.