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Docket Number

No. 30,596.

Attorney(S)

Hilbert L. Bradley, of Gary, for appellant. Fox, Franceschini, Transki Martin, of Michigan City, for appellee.

Judges

PER CURIAM.

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Smart Summary

Summary of Opinion: Fair Share Organization v. Mitnick (Supreme Court of Indiana, May 26, 1964)

Factual and Procedural Background

Morris Mitnick (appellee), doing business as Central Fourth Street Drugs, filed suit seeking temporary and permanent injunctive relief (and damages) to enjoin picketing of his place of business by Fair Share Organization, Inc. (appellant). The trial court granted a temporary injunction following a hearing on the merits. Appellant appealed the interlocutory order, and the Appellate Court affirmed (cited as 134 Ind. App. 675, 188 N.E.2d 840). Transfer to the Supreme Court was initially denied (244 Ind. 117, 191 N.E.2d 100). Subsequently, after a final trial on the merits, the trial court granted a permanent injunction. No new evidence was introduced at the final hearing; the parties resubmitted the same evidence presented at the temporary injunction hearing. The Appellate Court transferred this cause to the Supreme Court on the ground that a constitutional question was involved. The Supreme Court considered whether the same issues were being relitigated and whether the law of the case applied, then remanded the cause to the Appellate Court with directions to affirm the trial court's judgment.

Legal Issues Presented

Whether the appellant's asserted constitutional right to free speech and to picket (under the Fourteenth Amendment and provisions of the Indiana Constitution) was infringed by the injunction (i.e., whether a constitutional question was presented).
Whether the doctrine known as the "law of the case" applies when the final trial is conducted upon the same evidence as the earlier interlocutory hearing, thereby binding the trial court and subsequent appellate review to the prior decision.
Whether the quantum of proof differs between a temporary injunction (prima facie showing to preserve the status quo) and a permanent injunction (preponderance of the evidence), and, relatedly, whether an appellate court may weigh the evidence or determine its preponderance on appeal.

Arguments of the Parties

Appellant's Arguments

The appellant's brief advanced issues in identical language on both appeals, asserting that the picketing was peaceful dissemination of information regarding a labor dispute without fraud, violence, or other unlawful acts, and that such conduct was protected by the Fourteenth Amendment and provisions of the Indiana Constitution and that relief sought was prohibited by Indiana's Anti-Injunction Act.
On the permanent injunction hearing, the appellant contended that the quantum of evidence required for granting a permanent injunction is greater (preponderance of the evidence) than that required to obtain a temporary injunction (a prima facie showing to maintain the status quo), implying that the final hearing presented a different standard and thus was not controlled by the prior interlocutory decision.

Appellee's Arguments

The appellee argued that the appellant attempted to raise the same identical questions on this appeal that were raised in the earlier appeal from the interlocutory order granting the temporary injunction, including the asserted constitutional free-speech/picketing issue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Egbert v. Egbert, et al. (1956), 235 Ind. 405, 132 N.E.2d 910	Support for the "law of the case" principle.	The Court invoked Egbert as authority that a decision rendered upon a given state of facts becomes the law of the case applicable to that state of facts, binding the trial court and later appellate courts when the same facts are presented on retrial.
Phillips v. 2. Thorne (1885), 103 Ind. 275, 2 N.E. 747	Principle that an appellate court will not weigh evidence or determine its preponderance.	Used as authority (along with others) to state that weighing the evidence and determining its preponderance is the duty of the trial court, not an appellate court.
Cooper, Administrator v. Williams (1887), 109 Ind. 270, 9 N.E. 917	Principle that appellate courts do not weigh evidence or determine preponderance.	Cited as supporting authority for the proposition that the appellate court will not re-weigh evidence but leaves that function to the trial court.
Schrenker, Executor, etc. v. Grimshaw, et al. (1954), 124 Ind. App. 493, 119 N.E.2d 432	Principle that appellate courts do not weigh evidence or determine its preponderance.	Relied upon to reinforce the rule that determinations of factual preponderance are for the trial court.
134 Ind. App. 675, 188 N.E.2d 840	Prior appellate decision affirming the interlocutory order granting the temporary injunction in this case.	The Court referenced this prior Appellate Court decision as the earlier adjudication on essentially the same facts and issues, which invoked the law-of-the-case doctrine when those same facts were presented at the final hearing.
244 Ind. 117, 191 N.E.2d 100	Record of denial of transfer following the prior Appellate Court decision.	Noted as part of the procedural history: the Supreme Court had previously denied transfer from the Appellate Court's decision on the interlocutory appeal.

Court's Reasoning and Analysis

The Court's analysis focused on application of the "law of the case" doctrine. The Court observed that the evidence submitted at the final hearing for permanent injunction was the same evidence previously presented at the temporary injunction hearing; no additional or new evidence was introduced. Because the facts were the same, the Court held that the prior Appellate Court decision (affirming the temporary injunction) became the law of the case applicable to that state of facts and thus bound the trial court and any subsequent appellate review.

The Court acknowledged the appellant's contention that a different quantum of proof is required for a permanent injunction (preponderance of the evidence) than for a temporary injunction (prima facie showing to preserve the status quo). However, the Court emphasized that determination of the weight or preponderance of evidence is the duty of the trial court and not the appellate court. The Court cited authorities to that effect (including Phillips v. Thorne, Cooper v. Williams, and Schrenker v. Grimshaw), and concluded that on the record before it—where no new evidence had been introduced and the same facts remained—the law of the case governed.

Because the Court found that the matters before it involved only application of the law of the case rather than a new constitutional question, it concluded there was no substantive constitutional issue to decide anew.

Holding and Implications

Holding: The Supreme Court determined that the prior appellate decision and the law-of-the-case doctrine controlled because the final trial was conducted upon the same facts and evidence as the earlier interlocutory hearing. The Court therefore remanded the cause to the Appellate Court with directions that it affirm the judgment of the trial court (i.e., affirm the permanent injunction).

Implications:

The Court held that no new constitutional question was involved; the matter presented was the application of the law-of-the-case principle.
The decision directs the Appellate Court to affirm the trial court's judgment granting the permanent injunction.
The Court reiterated the principle that appellate courts will not weigh evidence or decide factual preponderance; that role belongs to the trial court.
The opinion does not purport to set a new constitutional precedent; it enforces application of the existing law-of-the-case rule to these facts.

Note: Justice Jackson concurred in the result.

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FAIR SHARE ORGANIZATION v. MITNICK D/B/A CENTRAL 4TH STREET DRUGS.

1. NEW TRIAL — New Evidence — Retrial Upon Same Facts — Law of the Case. — Upon a new trial after an appeal, if new evidence is introduced and a new state of facts presented, the trial court is not bound by the previous decision, but if the cause is submitted for a retrial upon the same facts upon which the decision was originally rendered, such decision remains the law of the case and the trial court is bound thereby, as well as an appellate court on a subsequent appeal. p. 327.

2. APPEAL — Weighing Evidence — Preponderance of Evidence — Trial Court. — On appeal the court will not weigh the evidence or determine its preponderance, such duty is that of the trial court. p. 327.

PER CURIAM.

This appeal comes to us by transfer from the Appellate Court under Cause Number 20,153 on the ground that a constitutional question is involved.

It appears from the record that the appellee-Mitnick brought an action against the appellant to enjoin the appellant temporarily and permanently from picketing appellee's place of business. After a hearing on the merits for the temporary injunction, the trial court granted the same. From this interlocutory decree appellant appealed. The appeal was affirmed in an opinion by the Appellate Court on March 19, 1963, 134 Ind. App. 675, 188 N.E.2d 840. We denied transfer on June 18, 1963, 244 Ind. 117, 191 N.E.2d 100.

The present appeal arises from the granting of a permanent injunction by the trial court upon a final trial. The appellee argues in this appeal that the appellant seeks to raise the same identical questions raised in the previous appeal from the interlocutory order granting the temporary injunction. In the briefs filed in both appeals, appellant states "What the issues were" in identical language, namely:

"Appellee, MORRIS MITNICK, doing business as CENTRAL FOURTH STREET DRUGS, filed its verified complaint for injunctive relief and $25,000.00 damages, which verified complaint was amended, charging that appellant was unlawfully picketing a certain store belonging to appellee. Appellant filed a verified answer containing denials and averring that the relief sought by appellee was prohibited by Indiana's Anti-Injunction Act; that appellant was engaged only in the peaceful dissemination of information regarding the labor dispute without fraud, violence or other unlawful acts; that appellant's acts were within the protection of the 14th Amendment to the Constitution of the United States of America, Article I, and Sections 9 and 31 of the Constitution of the State of Indiana."

The condensed recital of the evidence in each case is the same. On the hearing for a permanent injunction, each of the parties herein resubmitted the evidence heard by the trial court on the temporary injunction. No additional or new evidence was heard.

The constitutional question sought to be determined here was whether there was an infringement of the constitutional right to free speech and picketing. This same question was raised and considered in the previous appeal.

Under the circumstances, the principle known as the "law of the case" is applicable here. The decision of a court of appeals rendered upon a given state of facts 1. becomes the law of the case applicable to such state of facts. Of course, upon a new trial, if new evidence is introduced and a new state of facts presented, we have a different case, and the trial court is not conclusively bound by the previous decision; but if the cause is submitted for a retrial upon the same facts upon which the decision was originally rendered, such decisions remains the law of the case and the trial court is bound thereby, as well as an appellate court on a subsequent appeal. Egbert v. Egbert, et al. (1956), 235 Ind. 405, 132 N.E.2d 910; 2 I.L.E., Appeals, § 478.

Appellant, however, contends that upon the hearing of the permanent injunction, as distinguished from the temporary injunction, there is a difference in the quantum of evidence requisite for the granting of the permanent injunction, namely, a preponderance of evidence in the final case, as distinguished from the making out of a prima facie case for holding the parties in status quo pending the hearing on the permanent injunction. 16 I.L.E., Injunctions, § 96.

However, we on appeal will not weigh the evidence or determine its preponderance. Such duty is that of the trial court — not an appellate court. 2 I.L.E., Appeals, § 571; Phillips v. 2. Thorne (1885), 103 Ind. 275, 2 N.E. 747; Cooper, Administrator v. Williams (1887), 109 Ind. 270, 9 N.E. 917; Schrenker, Executor, etc. v. Grimshaw, et al. (1954), 124 Ind. App. 493, 119 N.E.2d 432.

We find that no constitutional question is involved in this case, but merely the application of the principle of the "law of the case".

This cause is therefore remanded to the Appellate Court, with directions that it affirm the judgment of the trial court under the authority of this opinion.

Jackson, J., concurs in result.

NOTE. — Reported in 198 N.E.2d 765.

FAIR SHARE ORGANIZATION v. MITNICK