*1 period “for not to prospective benefits atR. exceed 500-weeks” erroneous. presents authority for this con-
K-Mart Board’s Morrison concedes that the
tention. “neglected give credit for [K-Mart]
order temporary disability 3$ total weeks” paid to We
compensation K-Mart Morrison. that we can assume
agree with Morrison and, accordingly, statute
Board will follow its will the credit to which
K-Mart receive
due. affirm.
We
CHEZEM, J., concurs.
BARTEAU, concurs result. JENNINGS, Appellant-Defendant,
Rex DAVIS, Appellee-Plaintiff.
Pamela S.
No. 35A05-9311-CV-419. Appeals of
Court of
Fifth District. Dawalt, Jr., Marion, appel-
P. Robert lant.
BARTEAU, Judge. opinion, we Jen
By published
dismissed
nings appeal
Ind.
late.
v. Davis
Jennings petitions for
App.,
24
(2) because this court prefers hearing later than ten [10] days after the issues are merits, merits,’ on the he should be allowed cases first closed the not on within ten pursue appeal given to his that days of the service of an answer.... It is to trial filing he mailed the court for triggers the of the which answer the filing envelope in the same and running day under the of the ten and rule not notice II, same cover letter the as for this 597 thereof.” Annon N.E.2d at 324. file-stamped by was case the trial court Likewise, 2(A) Appellate Ind. Rule day prior to in the provides “praecipe the that shall be filed Thus, the case must have (30) thirty days entry within after the of a filing timely reached the court for in trial a added). judgment-” (Emphasis final manner. entry judgment The of trig- trial court’s the rule, gers thirty running day the of the not 6(E) Ind. Trial Rule parties judg- service of notice to the of the Jennings asserts that the trial court’s Thus, Jennings ment. was not entitled to judgment “necessarily was mailed since the 6(E). the benefits of T.R. by open the court was not made in Assuming mailed, court.”1 that it was there Extenuating Circumstances Jennings argument is no merit to that he was day entitled to a three extension of the time Relying on cases where this court reviewed 6(E) filing pi'aecipe. provides: T.R. an appeal though appellee on the merits even party right Whenever a has is or re- appellant’s served with brief one quired pro- to do some act or take some late, Jennings urges appeal us to review this ceedings prescribed period within a after preju- on the merits one has been upon the service a or paper of notice other by day delay filing. Clearly diced the one mail, days him three [3] shall be added jurisdiction- there is a difference between the prescribed period. to the timely al requirement filing praecipe of a and II, As was stated Annon Inc. v. Rill in. requirement appellant that serve (1992), Ind.App., 597 N.E.2d 324: appellee copy with a Untimely of the brief. 6(E) day provision ap- The three of T.R. filing subjects a merely appeal of brief to plies only party right a when has a or is 8.1(A). App.R. dismissal. reviewing required pre- to do some act within a court retains discretion whether to dismiss scribed “after the service of notice” appeal depending particular on the cir- 6(E). upon party. e.g., See Meyer cumstances. v. Northern Bank Ind. 6(C) (responsive pleading Ind.Trial Rule (1986), Ind.App., and Trust Co. 490 N.E.2d required days to be served “within 20 after 400. prior pleading”); the service of the Ind.Tri- 33(C) al (responses interrogatories Rule to However, this court does have the thirty days due “not less than after power inherent to exercise of an thereof’); 56(C) (ad- service Ind.Trial Rule that has not been initiated or “thirty party verse service perfected. after Ind. any response the motion serve a and Dep’t Employment Training and Serv. affidavits”). opposing (1994), Ind., 330; 643 N.E.2d Costanzi 6(E) case, Ryan In that this court held Ind.App. that T.R. 174 368 N.E.2d apply change not motion for power a of 12. This inherent is exercised in rare 76(2) cases, pre- exceptional venue under T.R. because the and such as matters of great time for that motion com- public scribed does not interest or running Claywell, mence “after the service notice or circumstances exist. 643 at N.E.2d “Rather, paper” upon party. party a grounds preju other 331. such lack Generic as change must opposing party file motion for venue ‘not dice to the or lack of disad- 1. also asserts that clear from the date on the order is the 16th and the chrono- logical summary judgment the record whether the was entered on shows that 13, 16, August August 18. on clear entered 1993. Training Employment and Dep’t Ind. reviewing court are vantage to the (1994), Ind., 643 N.E.2d Serv. enough. at Id. here are that Jen circumstances counsel, praecipe to the mailed his nings, *3 Septem of a letter dated under cover
clerk 13,1993.
ber, praecipe for Included with the for praecipe
this case was
Jennings in. The was involved September other case was file-marked 1993, 15, praecipe for this case was while the GORDON, Appellant- Kevin Scott 16,1993. September There is file-marked Petitioner, why praecipes were explanation If the on two different dates. Septem been file-marked
this case had also Indiana, Appellee-Respondent. STATE 1993, 15, filed. have been ber would No. 82A01-9403-CR-102. peculiar indeed. circumstance This is However, an we cannot call it Appeals Court given are the trial rules circumstance First District. just protect against type designed to 5(E) provides: occurrence. motions, pleadings, and other March Rehearing Denied court ... shall be made
papers with the May Transfer Denied following methods: one of the # sft Hs # # by registered or Mailing to the clerk receipt requested; mail return
certified
[*] v [*] # [*] [*] n mail
Filing by registered or certified shall mailing. complete upon
be prae- mail
Counsel for certified by registered clerk
cipe to the so, If had would he done
mail. September filed on
have been power to use our inherent
1993. We will not
exercise entirely to counsel’s timely initiated due
been praecipe mail. properly file the
failure to fact, for counsel’s failure
In see no excuse we by registered or certi- mail the mail.
fied rehearing denied. petition for
FRIEDLANDER, J., concurs.
RUCKER, opinion. concurs with
RUCKER, Judge, concurring. disposition of original
I dissented in compelled I to con- am Supreme today Court’s
cur our
recent