CNA Insurance Companies (CNA) v. Vellucci

SHARPNACK, Judge.

Transportation - Insurance - Company ("CNA") appeals from the grant of summary judgment in favor of Frank A. Vel-lueci, Midland Engineering Company, Margaret M. Saunders and Aladean M. Derose (the latter two as administratrices of the Estate 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 Vellueei. The truck was insured under a policy issued by CNA. Saunders' estate filed a wrongful death action against Vel-lueci in St. Joseph Superior Court and, on *927February 17, 1988, Saunders' estate received a judgment against Vellucei in the amount of $1,750,000. Approximately one month before the wrongful death trial, CNA filed a declaratory judgment action against the Estate seeking a declaration that the insurance policy did not cover the accident. The Estate filed an answer, affirmative defenses, and counterclaims.

On January 29, 1990, the Estate filed a motion for summary judgment alleging that CNA was collaterally estopped by the wrongful death proceeding 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 Vellucei 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.
L 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 Trial Rules 54(B) and 56(C). The trial court granted that motion on August 24. CNA filed a motion to correct error on September 24, and the Estate responded with a motion to strike on the basis that CNA had not timely filed its motion to correct error. On November 26, following a hearing, the trial court denied both the motion to correct error and the Estate's motion to strike. CNA filed its praecipe on December 21. On March 18, 1991, the Estate filed with this court a motion to dismiss the appeal based upon a lack of jurisdiction, arguing that CNA had not timely filed its praecipe. We denied that motion by order dated July 25, 1991. The Estate again raised the issue of our jurisdiction in a cross-appeal.

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 prohibit 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 Ind. Appellate Rule 2(A) and Ind. Trial Rule 59(C) control this case. Ind. Appellate Rule 2(A) states, in relevant part:

"[The praecipe ... shall be filed within thirty (80) 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 T.R. 59 prov1des:

"(C) Time for Filing: Service on Judge. The motion to correct error, if any, shall be filed not later than thirty [80] days after the entry of a final judgment or an appealable final order."

*928CNA did not file its appeal within thirty days of the trial court's order of summary judgment, regardless of whether we look to the July 27 order or the August 24 order. However, CNA did file its praccipe within thirty days of the trial court's ruling on the motion to correct error. Therefore, we must decide whether CNA timely filed its motion to correct error, because, if it did not, the trial court's ruling on that motion was a nullity and cannot be used to extend the time for filing a praecipe. Swain v. Swain (1991), Ind.App., 565 N.E.2d 1134, 1135; Kratkoczki v. Regan (1978), 178 Ind.App. 184, 381 N.E.2d 1077, 1079.

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. Trial Rule 56(C) provides, in relevant part:

"[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 thon all the issues, claims or parties' (emphasis added)

Rule 54(B), in relevant part, provides:

"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 may 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 T.R. 54(B) or T.R. 56(C). See Lawson v. Howmet Aluminum Corp. (1983), Ind.App., 449 N.E.2d 1172, 1176-1177.

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 T.R. 56(C) and TR. 54(B) and therefore triggered the thirty day time limit to file either a praecipe or a motion to correct error.

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 extraordinary circumstances, the mandatory language of TR. 59(C) and App.R. 2(A) leaves us with no discretion to mitigate potentially harsh applications of the rules. There is a distinction between jurisdictional and non-jurisdictional requirements under the appellate rules. The court has discretion to proceed to the merits in the latter case, but no discretion in the former, except in certain extreme circumstances. Timely filing of a praecipe is a jurisdictional prerequisite, and, therefore, noncompliance with applicable time limits results in forfeiture of the appeal. Dixon v. State (1991), Ind.App., 566 N.E.2d 594; Hughes v. Morgan County (1983), Ind.App., 452 N.E.2d 447; Bailey v. Sullivan (1982), Ind. App., 432 N.E.2d 75.

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 *929appellant had orally requested preparation of the transcript and praccipe. Id. at 568. The trial court explained that its staff customarily undertook the preparation of material for appeals, including the praecipe. Id. The court of appeals, however, applied the strict language of App.R. 2(A) and found that the rule provided for no exceptions. Id. at 569. The court held that the appellant had forfeited its right to appeal and that the trial court's nune pro tune order could not reinstate that right. Id. The circumstances in this case are no more compelling than were the circumstances in Moore. Reliance on the trial court's custom in Moore did not excuse the failure to timely file a praecipe. Likewise, CNA's alleged reliance on the trial court's August 24 order does not excuse its failure to timely file a praecipe in this case.

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 followed 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 due to the failure of its attorneys to comprehend the clear import of the July 27 order under Trial Rules 54(B) and 56(C).

We are not persuaded by CNA's reliance upon Eady v. Foerder (Tth 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 FED.R.CIV.P. 59(B). Despite the mandatory language of the federal rules, which set a ten-day time limit and prohibited any extension of time, the Eady court held that the petitioner's reliance upon the trial court's order granting him additional time constituted a unique circumstance such that the trial court had jurisdiction to address the motion for new trial. Id. at 981. Here, the trial court did not purport to extend the time limitations, it merely entered a repetitive order at CNA's request. Furthermore, this court did not find improper reliance upon a trial court's customary practice to be sufficient to alleviate the operation of App.R. 2(A). Moore, supra 155 Ind.App. at 97, 291 N.E.2d at 569. To the extent Moore and Eady conflict, we follow Moore. Finally, the continued vitality of Hady has been called into question. Varhol v. National R.R. Passenger Corp. (7th Cir.1990), 909 F.2d 1557 (per curiam).

For the reasons herein contained, we dismiss CNA's appeal.

APPEAL DISMISSED.

BARTEAU, J., concurs. RUCKER, J., dissents with opinion.