James H. HOGAN, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF EMPLOYMENT AND TRAINING SERVICES, Mable Martin-Scott, Chairperson, George H. Baker, Member, and Mark T. Robbins, Member, and Q-1 Motor Express, Inc. Appellees.
No. 93A02-9305-EX-00231
Court of Appeals of Indiana, Second District.
May 31, 1994.
Appellant claims the trial court‘s decision to deny him access to the welfare reports violates his right to appeal. Notwithstanding the trial court‘s decision, appellant has the right to appeal the issue of disclosure of the reports. While he is precluded from viewing the welfare reports, appellant‘s interests are protected by this Court‘s review of the trial judge‘s exercise of discretion in the matter. This Court has the authority to reverse the trial court‘s decision if it was made in clear error and resulted in prejudice. Wagner v. State (1985), Ind., 474 N.E.2d 476. However, based on this Court‘s own in camera inspection of the records, we find no abuse of discretion by the trial court.
Appellant claims the evidence was insufficient to support the conviction. On review of a question of sufficiency of the evidence, we will not reweigh the evidence nor judge the credibility of the witnesses. Miller v. State (1990), Ind., 563 N.E.2d 578. We will consider only that evidence which supports the verdicts and all reasonable inferences to be drawn therefrom. Id. The findings made by the trier of fact will not be disturbed where there is substantial evidence of probative value to support the conviction. Id.
The State offered a statement given by appellant in which he admitted striking the victim in the face five or six times. The State‘s pathologist, Dr. Richard Harruff, testified that the death of the victim was caused by blunt force injuries to the head, inflicted by at least two blows. Further, it was determined that a lift from appellant‘s right palm was consistent with his and the victim‘s blood. Moreover, his blue jeans contained human blood consistent with his body fluids and that of the victim. This evidence is sufficient to support the conviction.
Appellant, however, argues that the State failed to provide sufficient evidence to establish his intent to commit the crime, citing Nunn, supra. In Nunn, this Court held that the intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime. Id. We additionally said that, where blows of magnitude are repeated, a jury could conclude that the defendant had an intent to kill. Id. In light of the numerous times appellant struck the one-year-old victim in the face, the jury was permitted to make an inference of appellant‘s intent to kill.
The trial court is affirmed.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
DeBRULER, J., concurs in result without separate opinion.
Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellees.
SULLIVAN, Presiding Judge.
In two cases decided this date, two appellate panels have decided that failure to file an assignment of errors deprives the appellate court of review jurisdiction. Claywell v. Review Bd. of the Indiana Dept. of Employment and Training Serv., (1994) 5th Dist. Ind.App., 635 N.E.2d 181;1 St. Amand-Zion v. Review Bd. of the Indiana Dept. of Employment and Training Serv., (1994) 4th Dist. Ind.App., 635 N.E.2d 184.2 This district disagrees. The jurisdictional predicate relied upon by the other panels is a relic of the past. The requirement has been abolished.3
REVIEW JURISDICTION
I. History of the Jurisdictional Rule
An appeal must be initiated within a specific number of days from an appealable judgment, determination, or award.4 Historically, our Supreme Court has held that perfecting a timely appeal is jurisdictional. Vail v. Page (1911) 175 Ind. 126, 93 N.E. 705. As there are many components in the appellate process, there were numerous ways in which a litigant could fail to timely perfect an appeal. Accordingly, the case books are filled with precedent holding that timely filing a praecipe, an assignment of errors, or a transcript is not merely a procedural rule, but a jurisdictional requirement. Vail, supra at 131, 93 N.E. 705; Davis v. Pelley (1952) 230 Ind. 248, 102 N.E.2d 910.5 The filing of a praecipe or an assignment of errors was held to “confer[ ]” or “vest[ ]” jurisdiction with the reviewing court. 230 Ind. at 254, 102 N.E.2d at 912; Higginson v. State (1957) 237 Ind. 256, 258, 142 N.E.2d 435, 436. Failure to file a praecipe or assignment of errors
The jurisdictional theory was bolstered by our court‘s promulgation of
II. Abolition of the Jurisdictional Rule
Perhaps realizing the dangerous course upon which it had embarked, our Supreme Court all but reversed Sears, Roebuck and Co. just three months after it was decided. Soft Water Utilities v. Le Fevre (1973) 261 Ind. 260, 301 N.E.2d 745. In Soft Water Utilities, the appellant filed a late praecipe due to misinformation supplied by the court clerk. Upon appeal, the appellee argued to the Appellate Court that the mandatory language of
Although not expressly stated, the court seemingly relied upon the principle that the Indiana Constitution grants appellate tribunals “inherent power to do everything that is necessary to carry out the purpose of their creation.” Knox County Council v. State ex rel McCormick (1940) 217 Ind. 493, 498, 29 N.E.2d 405, 407. Cases stating that jurisdiction is conferred by the filing of a praecipe, or some other document, impermissibly restrict the powers granted appellate courts by the Indiana Constitution as those powers have been interpreted by our Supreme Court.
Despite Soft Water Utilities, the appellate courts continued to hold that filing a praecipe or assignment of errors was a jurisdictional requirement.8 Therefore, in 1978, our Supreme Court handed down its decision in Lugar v. State “to settle confusion created by three separate opinions of [the appellate] court demonstrating differences of opinion as to the application of procedural rules....” (1978) 270 Ind. 45, 46, 383 N.E.2d 287, 288-89.9 In Lugar, appellant‘s Motion to Correct Errors, then considered a condition prece-
To hold that a praecipe or assignment of errors confers jurisdiction upon the reviewing court is to relinquish our inherent power to entertain a belated appeal. This district, for one, declines to do so. While the jurisdictional language, perhaps because it is so simple, is a tempting way to dispose of untimely appeals, it is inaccurate and unconstitutional. Where an appeal has not been perfected, a court may and should state that it is under no obligation to entertain the cause upon the merits. However, the court may not divest itself of the inherent jurisdiction vested in it by the Indiana Constitution.
Nevertheless, like a persistent weed, the theory that the appellate court has no jurisdiction over a late appeal refuses to be eradicated. Cases decided this year retain the same old language. “Timely filing ... a praecipe is a jurisdictional matter and is an absolute precondition to an appeal.” Bd. of Comm‘rs of Lake County v. Foster (1993) 3d Dist.Ind.App, 614 N.E.2d 949, 950.10 The language in Lugar is clear: the foregoing interpretation of
III. Assignment of Errors
The jurisdictional theory has also been applied to a party‘s failure to file a timely assignment of errors or motion to correct errors. Davis v. Pelley, supra, 102 N.E.2d 910. Although a praecipe and an assignment of errors serve different purposes upon appeal, our court‘s decisions in Soft Water Utilities and Lugar are applicable to these documents as well. Both the praecipe and the assignment of errors were deemed jurisdictional for the same reason: they were the instruments by which a party “perfect[ed] the appeal within the time required....” Meier, supra, 237 Ind. at 421, 146 N.E.2d at 240. Where the reasoning for holding that a praecipe confers jurisdiction has been found faulty, the reasoning for holding that an assignment of errors confers jurisdiction must also fall. In fact, in Lugar, our court did address the merits of the case despite a faulty motion to correct errors.11
In Lugar, supra, the opposing party argued that the Appellate Court could not con-
Failure to file an assignment of errors or motion to correct errors cannot deprive an appellate tribunal of its inherent constitutional power of discretionary review any more than the failure to file a praecipe. Jurisdiction is conferred by the Indiana Constitution or by statute, State ex rel. Wilson v. Howard Circuit Court (1957) 237 Ind. 263, 145 N.E.2d 4; jurisdiction cannot be conferred by a piece of paper. See n. 5, supra.
IV. Use of Inherent Power
Our Supreme Court has enunciated some guidelines for the use of a reviewing court‘s inherent power. In Lugar, the court stated that reviewing courts should exercise discretion “only in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist.” 383 N.E.2d at 289 (appeal from order requiring the trustees of the Police Pension Fund to include clothing allowance in computation of benefits, which order involved millions of public dollars).
However, other circumstances have been recognized where the use of the appellate courts’ inherent power is appropriate. In 1968, the Second District held that failure to specify error in the assignment of errors was fatal. Indiana State Personnel Bd. v. Parkman (1968) 142 Ind.App. 255, 233 N.E.2d 798, rev‘d on other grounds, 252 Ind. 44, 245 N.E.2d 153. In Lugar, the appellant‘s motion to correct errors challenged the judgment upon several grounds, but not upon the basis that the trial court had erred as a matter of law. Faced with almost identical circumstances as the Second District, the court held that the omission was not fatal because the omitted issue was argued extensively in the accompanying memorandum. 270 Ind. at 47, 383 N.E.2d at 289. The court stated, “The purposes of the motion to correct errors have been served. No party, nor any court, has been misled. The Court of Appeals was therefore correct in determining the question on appeal.” Id.13
In Costanzi, supra, 368 N.E.2d 12, the appellant sought interlocutory review of the trial court‘s discovery order. Costanzi followed all procedures except the filing of an assignment of errors. Realizing her omission, Costanzi filed a petition for leave to amend the record to include an assignment of errors as tendered with the petition before the time began running for the opposing party to file its brief. The First District held that this was an appropriate case for exercise of its equitable discretion. The court based its decision upon the fact that at the time the record was filed, “the issues had been defined with certainty and precision” by Costanzi‘s answers and objections to the discovery, by her brief, by the trial court‘s certified issues, and by her petition for leave to appeal. 174 Ind.App. at 462, 368 N.E.2d at 17. The court concluded that the procedural errors had not affected the opposing party‘s ability to argue the case on the merits or the appellate court‘s ability to review. In reaching its decision, the court relied upon our Supreme Court‘s long-standing policy that cases should be decided upon the merits and
“We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means. This is especially true in a case such as the one at bar where we prejudice no one by allowing the record to be corrected at this point.” 174 Ind. App. at 463, 368 N.E.2d at 17, quoting American States Ins. Co. v. State (1972) 258 Ind. 637, 283 N.E.2d 529.
We hold that where the failure to file a motion to correct errors or assignment of errors does not prevent the opposing party or the reviewing court from determining the issues upon review, the court is justified in exercising its inherent power to reach the merits of a case.
V. Hogan‘s Case
By failing to file a timely assignment of errors, Hogan may have lost his absolute right to appeal. That does not prevent this court from exercising its inherent discretionary power to hear the merits of the case.
On July 29, 1993, the praecipe, the record of proceedings, and Hogan‘s brief were filed with the clerk of this court, well within the extended time limit granted by this court. On August 25, 1993, the Board moved to dismiss the appeal for failure to include an assignment of errors, which motion we denied. We granted the Board thirty-five days, following our ruling within which to file its brief. At that time, the Board had access to the record and Hogan‘s brief. All of these materials apprised the Board and this court of the issues to be addressed upon appeal. Failure to file an assignment of errors did not prevent the Board from preparing for, or this court from reviewing this cause.
This district has long been of the view that “[n]o useful purpose is served by requiring an assignment of errors in an appeal from an award of [an administrative agency]. The statute provides, in effect, that an assignment that the award is contrary to law is sufficient to present any error. Such an all encompassing assignment is as helpful as a blank sheet of paper would be.” Means v. Seif Material Handling Co. (1973) 2d Dist., 157 Ind.App. 492, 494, 300 N.E.2d 895, 896 (footnote omitted). (Sullivan, J. concurring).
In Means, the author of this opinion stated that the court should only exercise its inherent power to grant appellate review where good cause is shown. That remains the view, as expressed herein. However, to the extent that the separate concurrence in Means would indicate that good cause exists only if the appellant has been completely diligent and wholly without negligence, it is hereby disavowed.
As hereinbefore stated, where no party is prejudiced and where the reviewing court is not disadvantaged by the omitted procedural element, and where no purpose is furthered by placing form over substance, in the sense of requiring completion of the procedural step, this court has inherent power to consider the case upon its merits, and should do so.
That the “forfeiture” language remains in
The assignment of errors in appeals from the Review Board is not even helpful, much less essential, to appellate review. It is a meaningless appendage to the appellate process. That the motion to correct errors has been all but abolished in the civil and criminal process provides guidance to us in this case.14 The law does not require useless acts.
MERITS OF THE CASE
The record reveals that James Hogan was employed with Q-1 Motor Express, Inc. as an over-the-road truck driver. More than a year after Hogan began working for Q-1, the employer announced that it was switching from a single driver to a team driver operation. Shortly thereafter, Hogan tendered his written resignation to Q-1‘s dispatcher. Hogan applied for unemployment, and a claims deputy determined that Hogan was entitled to benefits because he had left Q-1 for good cause. An Administrative Law Judge reversed, concluding that Hogan had not left employment for good cause. Hogan then appealed to the Review Board of the Indiana Department of Employment and Training Services. The Board adopted the ALJ‘s findings and conclusions and affirmed her decision.
Hogan claims the Board erred by finding that he voluntarily left his position and, in the alternative, that he voluntarily left without good cause.
I. Voluntary Departure
Hogan argues that he did not voluntarily leave his employment but was discharged by Q-1.15 Hogan points to portions of the record which would support a finding that his employment was terminated. However, we consider only that evidence favorable to the Review Board‘s findings. Jones v. Review Bd. of the Indiana Dept. of Employment and Training Services (1991) 2d Dist. Ind.App., 583 N.E.2d 196, 198. Hogan operated his truck out of Clarksville, Indiana. Hogan argues that evidence that Q-1 moved its headquarters to Lafayette, Indiana and did not ask him to work out of Lafayette proves that his job was terminated by Q-1. However, James E. Schroering, president of Q-1, testified that Hogan was not asked to work out of Lafayette because Hogan was to continue boarding his truck in southern Indiana as usual. In addition, Hogan testified, “I gave the job up” and “I gave notice by signing the statement that I quit.” Record at 33, 34. Hogan specifically waived any objection to the admission of his resignation letter which stated, “Do [sic] to change in company policy I feel that I would be better off quiting [sic] effective Jan 4th.” Record at 59. Given the evidence most favorable to the Review Board, a reasonable person would not be bound to conclude that Hogan‘s employment was terminated by Q-1.
II. Good Cause
Hogan argues that the Review Board erred in finding that he did not leave his employment for good cause. As reasons for leaving, Hogan points to the fact that Q-1 was moving its operations 278 miles further away from his house and that Q-1 had changed from single driving to team driving.
Hogan contends that his pay was cut in half when Q-1 switched from single driving to team driving. The record reveals that in both single and team driving, a driver is paid per mile. In team driving, a driver is paid for the miles covered while he is at the wheel, and is not paid for miles covered while in the passenger seat or the sleeping area of the truck. Hogan argues that team driving requires him to split his pay with his teammate. However, a single driver is required by law to take an eight hour break at certain intervals. Therefore, team-driving allows the truck to travel longer distances without stopping, while still allowing each driver the required resting time. Instead of pulling over to rest, as a single driver must, the driver takes his break in the truck while his teammate drives.
This arrangement does not require drivers to split their pay as Hogan suggests. The difference between the two operations is in the miles available to each driver. A single driver logs all of the miles for the trip taken; however, due to required lay-overs, a single driver takes longer to drive the same distance covered by a team. In team-driving, while each driver is only paid for the miles he actually drives, the team covers the same distance in less time. Presumably, then, a team driver would be able to take on another job while the single driver is still on the road.
Schroering did testify that the switch from single to team driving would require Hogan to be gone for five 24-hour periods instead of three. Hogan testified that team-driving was uncomfortable because two drivers could not sleep comfortably in the truck as would be necessary should the truck have a layover. Although team driving did change Hogan‘s employment, we cannot say that a reasonable person would be compelled to conclude that the change rose to the level of good cause to quit.
Finally, Hogan argues that the change from single to team driving was a unilateral change in working conditions which he was entitled to reject. An employer is only deemed to have made a unilateral change in working conditions where the prior conditions were specifically agreed upon between the employer and the employee. Jones v. Review Bd. of Indiana Employment Sec. Div. (1980) 3d Dist. Ind.App., 399 N.E.2d 844. Where no such agreement exists, the fact that the employer has changed conditions under which an employee began employment does not constitute a unilateral change which the employee is entitled to reject.
Hogan submits his written job description as a specific agreement that he would only drive as a single driver, not a team driver. Specifically, Hogan points to the fact that the description uses the word “driver” in the singular. The agreement contains such phrases as, “Driver must turn in legal log sheets....” Record at 58. The fact that the agreement uses the singular of the word “driver” bears no relation to whether Hogan and Q-1 agreed to a single or a team driving arrangement. Even if Q-1 were to hire drivers under a team-arrangement, each driver (singular) would still be individually responsible for turning in the hours he or she logged. The job description simply does not refer to a single or team driving arrangement and cannot be interpreted as an agreement between Hogan and Q-1 on the subject. Because there is no evidence of a specific agreement that Hogan was only to work as a single driver, a reasonable person would not be bound to find that Q-1 unilaterally changed employment conditions.
The negative award is affirmed.
FRIEDLANDER, J., concurs.
SHARPNACK, C.J., dissents with opinion.
I respectfully dissent as to the issue of jurisdiction on the basis of the reasoning of the majority opinion in Claywell v. Review Board, (1994) Ind.App., 635 N.E.2d 181, in which I concurred.
Notes
In the following case, the Supreme Court held that failure to file a timely assignment of errors, a certificate of the trial judge or court clerk authenticating the record, a bill of exceptions, and a certified copy of the record required dismissal for lack of jurisdiction: McCrary v. State (1961) 241 Ind. 518, 173 N.E.2d 300.
In the following cases, the Supreme Court held that failure to file a timely assignment of errors required dismissal for lack of jurisdiction: Davis, supra; Harr v. State (1957) 237 Ind. 320, 144 N.E.2d 529.
In the following case, the Supreme Court held that failure to file a proper assignment of errors or bill of exceptions required dismissal for lack of jurisdiction. Bolden v. State (1956) 235 Ind. 695, 131 N.E.2d 301.
The foregoing, however, is not an exhaustive list of authorities dealing with this topic.It appears that after Soft Water Utilities, the appellate courts did get the message and understood that they had inherent discretion to hear a defectively perfected appeal. However, sometime after 1980, the jurisdictional language crept back into the cases with frequency. See n. 8 infra.
However, some cases have recognized inherent discretionary powers. See, Kentucky-Indiana Municipal Power Ass‘n v. Public Serv. Co. of Ind. (1979) 3d Dist., 181 Ind.App. 639, 393 N.E.2d 776; Tancos v. A.W., Inc. (1986) 4th Dist. Ind. App., 502 N.E.2d 109, trans. denied.
In the argument section of his brief, Hogan contends that the Board erred in concluding that he voluntarily left employment. It is this contention which we address in full.