CNA INSURANCE COMPANIES (CNA) Aрpellant-Plaintiff, v. Frank A. VELLUCCI, Midland Engineering Company, Margaret M. Saunders and Aladean M. Derose, Co-Administratrices of the Estate of Richard Saunders Appellees-Defendants.
No. 57A05-9103-CV-85
Court of Appeals of Indiana, Fifth District
July 21, 1992
Rehearing Denied Aug. 27, 1992
596 N.E.2d 926
Robert J. Palmer, May, Oberfell & Lorber, South Bend, Thomas D. Blackburn, Sweeney, Pfeifer & Blackburn, Ft. Wayne, for appellees-defendants.
SHARPNACK, Judge.
Transportation Insurance Company (“CNA“) appeals from the grant of summary judgment in favor of Frank A. Vellucci, Midland Engineering Company, Margaret M. Saunders and Aladean M. Derose (the latter two as administratrices of the Estаte of Richard Saunders) (collectively “the Estate“) in a declaratory judgment action filed by CNA. We dismiss the appeal for want of jurisdiction.
The following is a brief procedural history. On January 17, 1986, Richard Saunders was killed while riding as a passenger in a truck owned by Midland and driven by Vellucci. The truck was insured under a policy issued by CNA. Saunders’ estate filed a wrongful death action against Vellucci in St. Joseph Superior Court and, on
On January 29, 1990, the Estate filed a motion for summary judgment alleging that CNA was collaterally estopped by the wrongful death prоceeding from asserting that the accident fell within the policy‘s “fellow-servant” exclusion. The trial court granted the Estate‘s motion for summary judgment on July 27 with an order accompanied by findings of fact. The findings of fact included the following relevant statement:
“The Court further concludes that there is no just reason for delay and concludes that a judgment should be entered at this time as to the Complaint for Declaratory Judgment, but reserves as an issue for trial the Counterclaims filed by the Defendant Estate and Defendant Vellucci against CNA.”
(Record, p. 1268.) In addition, the “Judgment” portion of the order included the following language:
“IT IS FURTHER ORDERED AND ADJUDGED BY THE COURT that there is no just reason for delay and a Declaratory Judgment should be entered at this time.
IT IS FURTHER ORDERED AND ADJUDGED BY THE COURT that Declaratory judgment be, and hereby is, entered for the Defendant Estate....”
(Record, p. 1269.)
On August 20, CNA filed a motion requesting the trial court to enter a final judgment pursuant to
Upon reconsideration, we hold that we do not have jurisdiction to entertain CNA‘s appeal. CNA disputes our ability to reconsider the question of our jurisdiction, contending that we are bound by our July 25, 1991, order under the doctrine of the law of the case. However, that doctrine does not prоhibit an appellate court from reconsidering its ruling on a motion when raised again in the same appeal. Even the cases cited by CNA, Matter of Guardianship of Posey (1986), Ind.App., 513 N.E.2d 674 cert. denied, (1988), 485 U.S. 988, 108 S.Ct. 1292, 99 L.Ed.2d 502 and Galloway v. State (1985), Ind.App., 485 N.E.2d 637, describe the doctrine in terms of matters once decided on appeal being binding on the appellate court in a subsequent appeal. Furthermore, because we could change our decision pursuant to a petition for rehearing, it would make no sense to refuse to do so at an earlier stage before we have expended further resources.
Turning to the substance of the jurisdictional question, the timing requirements contained in
“[T]he praecipe ... shall be filed within thirty (30) days after the entry of a final judgment or an appealable final order or, if a motion to correct error is filed, within thirty days after the court‘s ruling on such motion.... Unless the praecipe is filed within such time period, the right to appeal will be forfeited.”
The relevant portion of
“(C) Time for Filing: Service on Judge. The motion to correct error, if any, shall be filed not later than thirty [30] days after the entry of a final judgment or an appealable final order.”
We conclude that, because the trial court entered an appealable order on July 27, 1990, CNA‘s motion to correct error was not timely filed. Such a conclusion is mandated by the clear language of our trial rules.
“[A] summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is not just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties.” (emphasis added)
“When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.... A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal mаy be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.” (emphasis added)
The time for filing either a motion to correct error or a praecipe begins with the entry of an appealable order under
Here, both the “Findings of Fact” and “Judgment” sections of the July 27 order find no just reason for delay and order entry of judgment upon less than all of the issues. The order unambiguously complied with
CNA contends that, even if its motion to correct error was not timely filed under the rules, we have discretion to consider the merits of its appeal due to its reliance on the trial court‘s August 24 order. However, the relevant law indicates that, except in a narrow range of extraоrdinary circumstances, the mandatory language of
We find the case of In re Estate of Moore (1973), 155 Ind.App. 92, 291 N.E.2d 566 (per curiam) to be particularly germane to the situation before us. In Moore, the appellant did not file its praecipe until more than thirty days after the trial court overruled the motion to correct error. The trial court entered a nunc pro tunc order directing the record to be corrected to show the praecipe filed on an earlier date, the date
As noted above, there are certain narrowly defined exceptions to the strict application of our jurisdictional timing requirements. A doctrine exists which holds that the supreme court and the court of appeals have the inherent power to entertain an appeal after the time allowed for appeal has expired. Lugar v. State ex. rel. Lee (1978), 270 Ind. 45, 46, 383 N.E.2d 287, 289. White v. Livengood (1979), 181 Ind.App. 56, 60, 390 N.E.2d 696, 699. However, we will only exercise such power “in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist.” Lugar, 383 N.E.2d at 289. The circumstances in this case do not approach the extremes which have invoked the doctrine in prior cases. See Lugar, 383 N.E.2d at 289 (case involving millions of public dollars and the police pension fund as well as counsel who was serving as legislator while preparing appellant‘s brief); Frum v. Little Calumet River Basin Development Commission (1987), Ind.App., 506 N.E.2d 492, 494 (appeal from order overruling objections in an eminent domain proceeding where court found that, although landowners followеd improper procedure resulting in failure to timely file their praecipe, prior case law had obfuscated procedure to be followed in such cases).
In addition, the court in White v. Livengood (1979), 181 Ind.App. 56, 390 N.E.2d 696 stated that the court of appeals will not exercise its inherent power to entertain untimely appeals in order to relieve a party of its own negligence, such as the failure to properly calculate time limits. 181 Ind.App., at 59, 390 N.E.2d at 699. Similarly, CNA‘s praecipe was untimely duе to the failure of its attorneys to comprehend the clear import of the July 27 order under
We are not persuaded by CNA‘s reliance upon Eady v. Foerder (7th Cir.1967), 381 F.2d 980. In that case, the appellate court affirmed a district court‘s grant of a motion for new trial which the petitioner filed 18 days after the time allowed by
For the reasons herein contained, we dismiss CNA‘s appeal.
APPEAL DISMISSED.
BARTEAU, J., concurs.
RUCKER, J., dissents with opinion.
RUCKER, Judge, dissenting.
I respectfully dissent. In my view, two significant procedural events occurred after the trial court‘s judgment of July 27, 1990, which require us to hear the merits
The court having examined said Motion and being duly advised now finds that there is no just reason to delay in making the summary judgment of date of July 27, 1990 final and does now direct the entry of final judgment upon the summary judgment in favor of Margaret M. Saunders and Aladean M. DeRose, Co-Administratrices of the Estate of Richard Saunders, deceased, and against CNA Insurance Companies of date of July 27, 1990. So Ordered, Adjudged and Decreed this 24th day of August, 1990. Judgment.
Record at 1,280 (emphasis added). CNA filed its Motion To Correct Error thirty days thereafter on September 24, 1990. CNA then filed its praecipe within thirty days after the trial court denied CNA‘s Motion To Correct Error.
The majority essentially disregards the trial court‘s order of August 24, finding instead that pursuant to
Although the July 27 order appears to comply with the provisions of
Apparently the trial court concluded that its order of July 27 was not final and therefore upon motion by CNA, the trial court entered an unambiguous final judgment on August 24. In my opinion, CNA‘s Motion To Correct Error was timely filed and this appeal should not be dismissed for want of jurisdiction.
II.
Even if the August 24 order is a nullity and thus CNA‘s Motion to Correct Error and praecipe were untimely filed, this court should nonethelеss exercise its discretionary authority and proceed to the merits of this appeal.
The majority contends that In re Estate of Moore (1973), 155 Ind.App. 92, 291 N.E.2d 566, is “particularly germane to the situation before us.” Op. at 928. However, a closer look at Moore reveals it is easily distinguishable from the facts in the case before us. Moore addressed a situation where the appellant had filed a written praecipe after the thirty-day time limit had run under
Here, CNA‘s Motion For Final Judgment was filed seven days before the 30-day time limit had run under
Further, in Moore the trial court, through a nunc pro tunc entry, changed the record in order to rectify a procedural error. The effect of the trial court‘s action was to enlarge the appellant‘s time for filing a timely praecipe. In the case before us, the trial court did not change the record in an attempt to rectify a procedural error. Rather, in response to CNA‘s Motion for Final Judgment, the trial court entered an order expressly declaring final judgment be entered. The record before us does not suggest the trial court was attempting tо enlarge CNA‘s time to file an appeal.
In essence, Moore does not control the outcome of the case before us. Rather, as the majority acknowledges, Indiana courts have consistently recognized equitable restraints to the strict adherence of jurisdictional time requirements. See Lugar v. State (1978), 270 Ind. 45, 383 N.E.2d 287 (reviewing court granted appellant‘s procedurally deficient motion for extension of time to file brief); Soft Water Utilities, Inc. v. Le Fevre (1973), 261 Ind. 260, 301 N.E.2d 745 (reviewing court treated appeal on the merits despite appellant‘s failure to file praecipe within 30 days as mandated by
The majority concludes that this appeal does not constitute one of the “rare and exceptional cases” which would permit us to proceed on the mеrits despite an untimely filing. Op. at 929, I disagree.
In Soft Water, supra, our supreme court indicated:
Certainly, the orderly procedure of our judicial system calls for adherence to the rules designed to achieve that goal. But we should never ignore the plain fact that the consequence of strict adherence to the rules may occasionally defeat rather than promote the ends of justice.... Such is not the desired effect of our flexible rules of procedure.
Soft Water, 261 Ind. at 269, 301 N.E.2d at 750. In my opinion, the case before us presents more compelling reasons to address the merits of this appeal than many of the cases which have traditionally prompted our courts to deviate from strict adherence to the rules.
For example, in Lugar, supra, our supreme court held that because the matter before it was of great public importance, involved millions of public dollars and pension benefits, and because the appellants’ аttorney was serving on the legislature at the same time he was writing the brief, provided reason enough to “not so strictly adhere to procedural rules....” Lugar, 383 N.E.2d at 289. Notwithstanding an untimely filing, our supreme court proceeded to the merits of the appeal.
The case before us involves substantial issues of law concerning the propriety of a declaratory judgment order which binds CNA to a judgment in an amount of at least $500,000.00. The record of proceedings consists of seven volumes and is over one thousand seven hundred pages in length. This court heard persuasive oral arguments on the merits of this appeal and
Soft Water, supra, represents another example of this court‘s exercise of its discretionary authority to hear an appeal on its merits despite the appellant‘s failure to comply with jurisdictional time constraints. In Soft Water, the trial court clerk advised an appellant‘s counsel that his motion to correct errors had not been received by the court when, in faсt, the trial judge had already ruled on the motion. By the time counsel had discovered that the motion had been overruled, the applicable time for prosecuting an appeal had expired. The trial court in Soft Water changed his ruling on the appellant‘s motion to correct errors from July 10, 1972 to August 14, 1972, thus enlarging appellant‘s time to file its praecipe. Our supreme court treated the appeal on its merits.
Here, CNA‘s reliance on thе trial court‘s order of August 24 is analogous to the appellant in Soft Water relying on the misinformation from the court clerk. Moreover, in this case CNA‘s reliance was based on the trial court‘s entry of a final judgment rather than erroneous information from the court‘s administrative staff. Like the appellant in Soft Water, CNA should not be penalized for its good faith reliance on the trial court.
In Frum, supra, this court held that the “understandable confusion” resulting from different procedural requisites found under the statute addressing eminent domain proceedings and the rules of appellate procedure justified discretionary enforcement of the procedural rules. This court entertained the merits of the appeal notwithstanding appellant‘s failure to timely file an assignment of errors in an appeal from an appropriation order in eminent domain proceedings. In the case before us therе was also understandable confusion, namely: the trial court‘s entry of judgment on July 27, which is arguably a final judgment, and the entry of judgment on August 24, which is clearly a final judgment.
I am mindful of the majority‘s concern that flexibility in trial rules should not be invoked to relieve a party of its attorney‘s negligence. White v. Livengood (1979), 181 Ind.App. 56, 390 N.E.2d 696. However, nothing in the case before us persuades me that CNA‘s counsel was negligent. We are not presented here with a situation involving a party missing a filing deadline and then attеmpting to reinitiate an appeal or seeking additional time to file an appeal. To the contrary, CNA approached the trial court with a Motion For Final Judgment a full seven days before a motion to correct errors would be due under
The majority‘s dismissal of CNA‘s appeal unduly narrows the scope of this court‘s power to exercise its discretionary authority. To disregard the substantive legal arguments before this court defeats rather than promotes the ends of justice.
For the above reasons, I dissent.