Markle v. Indiana State Teachers Ass'n

SULLIVAN, Justice,

dissenting.

The majority holds that the docket notation made by the Deputy Clerk discloses that notice of both rulings were mailed to all counsel of record on or about November 28, 1985. I disagree. The notation of three proper names without something more specific, is susceptible at best to an inference that notice of something was probably sent. The notation follows the docket indication of the ruling on the Petition for Stay. It does not directly follow the reference to the ruling on the Motion to Correct Errors; nor is there an otherwise clear and unambiguous entry showing that the latter ruling was mailed to all counsel. This sequence would just as reasonably support a conclusion that only the ruling on the Stay was mailed to counsel were it not for the representation by Markle's counsel that he received notice of the ruling on the Motion to Correct Errors.

Be that as it may, I would hold that pursuant to Ind.Rules of Procedure, Trial Rule 72(D), the trial court was entitled to relieve the appellees from the failure to file a timely praecipe. See Westlake v. Benedict (1984) 2d Dist.Ind.App., 469 N.E.2d 27 at 31 (Sullivan, J., concurring).