Carr v. Adventure Motors, Inc. ( 1983 )

HOLMES, Judge

(concurring specially).

The record surrounding the dispositive issue in the instant appeal is not a paragon of clarity. The majority opinion is, to me, bottomed on the premise that the trial court did not reopen the case because it believed that as a matter of law it could not do so. Quite frankly, I am not convinced that the state of the record is such that we can properly determine exactly why the trial court took the action that it did. However, neither party alludes to my concern. In fact, able counsel for both parties in effect “join issue.” Therefore, in view of the issues as framed in brief, I can concur in the remand of this appeal.

The trial court had, in this instance, the discretionary authority to reopen the case, etc. The learned and distinguished trial judge apparently did not exercise that discretion, but was under the mistaken belief that he was precluded as a matter of law from “reopening” the case.

I therefore concur that the case should be remanded for the trial court to properly exercise its discretion.