Boushehry v. Ishak , 1990 Ind. App. LEXIS 1293 ( 1990 )

560 N.E.2d 116 (1990)

Fred BOUSHEHRY, Appellant (Defendant),
v.
Jerry ISHAK, Appellee (Plaintiff).

No. 49A02-8808-CV-301.

Court of Appeals of Indiana, Second District.

October 1, 1990.

Richard J. Dick, Mitchell Hurst Jacobs & Dick, Indianapolis, for appellant.

Frank E. Spencer, F. Robert Lively, Lively & Bogard, Indianapolis, for appellee.

ON REHEARING

BUCHANAN, Judge.

In our original opinion appearing as Boushehry v. Ishak (1990), Ind. App., 550 N.E.2d 784, we reversed the trial court's quantum meruit award and decided that the trial court had erred when it failed to consider whether Boushehry had breached his fiduciary duty to Ishak and the partnership when determining whether to impose a constructive trust on certain property. We concluded the trial court's factual findings and legal conclusions were insufficient to establish whether Boushehry had breached his fiduciary duty, and we remanded for further proceedings consistent therewith. On rehearing, Ishak contends our disposition would allow the trial court to simply issue new findings of facts and conclusions of law, and asks that we remand for a new trial.

Because our opinion explored new areas of Indiana law, we believe it would be unfair to Ishak for the trial court to merely issue new findings and conclusions. The trial court failed to properly consider whether Boushehry had breached his fiduciary duty after Ishak had raised the issue at trial. Because the trial court did not view the evidence in the proper light, we conclude that fairness requires a new trial. Therefore, in accordance with Ind.Rules of Procedure, Appellate Rule 15(N), we modify our original opinion by remanding this cause for a new trial rather than for "further proceedings," but affirm that opinion in all other respects.

SHIELDS, P.J., concurs.

GARRARD, J., concurs.