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 *930of this appeal. First, on August 20, 1990, seven days before the thirty-day time limit to file a praecipe or motion to correct errors had run, CNA filed with the trial court a Motion for Final Judgment. Second, on August 24, 1990, the trial court entered an order dictating in pertinent part:
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-Administratices 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 Correet 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 Ind.Trial Rule 54(B) and 56(C), the trial court's Special Findings of Fact and Conclusions of Law and Judgment entered on July 27, 1990, was a final order and as such, the order from which the time limits in this case should be calculated. The majority reasons that because the July 27 order expressly determined there was no just reason for delay and directed entry of judgment, CNA's Motion to Correct Error was untimely filed and that this court has no jurisdiction over this appeal. I cannot agree.
Although the July 27 order appears to comply with the provisions of TR. 54(B) and 56(C), the August 24 order is much more explicit as to finality and removes any doubt the entry is one of final judgment. The trial court's August 24 order determined there was "no just reason for delay" and expressly directed entry of "final judgment." Record at 1280. In contrast, the July 27 order does not include the terms "final" or "final judgment" in the portions of the order entering judgment. Record at 1268-69.
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.
IL.
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 nonetheless 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 App.R. 2(A). Because the untimely praecipe forfeited appellant's right to appeal, the trial court changed the record to reflect that the appellant had filed a praecipe twenty-seven days earlier than actually filed. The practical effect of the trial court's rune pro tune entry was to reinstate the appellant's right to appeal notwithstanding appellant's untimely filing of the praecipe. The Second District of this court dismissed the appeal for failure to timely file a praecipe. Moore, 291 N.E.2d at 569 (Sullivan, J., dissenting).
Here, CNA's Motion For Final Judgment was filed seven days before the 30-day time limit had run under App.R. 2(A) or 56(C). Thus, the trial court in this case, unlike the trial court in Moore was not reinstating appellant's right to appeal. To the contrary, CNA had not forfeited its right to appeal when it presented its motion to the trial court. Nor, had CNA forfeited its right to appeal when the trial court *931entered its order of August 24. If, on August 24, the trial court had simply denied CNA's request for final judgment, then CNA would have had until August 27 to file its praecipe or motion to correct errors. In addition, I think it important to note that CNA's praecipe consists of one short paragraph requesting the pleadings and transcript. Record at 1-2. Absent the trial court's August 24 ruling it would not be unreasonable to assume CNA would have filed the praecipe in a timely manner with respect to the July 27 order.
Further, in Moore the trial court, through a nunc pro tune 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 to 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 Ind.App. Rule 2(B)); Frum v. Little Calumet River Basin Dev. Comm'n (1987), Ind.App., 506 N.E.2d 492, reh. denied, (reviewing court invoked its discretionary power to entertain appeal on the merits in view of understandable confusion as to appropriate appellate procedure and landowners' attempt to comply with proper procedure); First Nat. Bank v. Coling (1981), Ind.App., 419 N.E.2d 1326 (no error when trial court, after overruling plaintiff's motion to correct error, granted plaintiff's T.R. 60(B)(1) motion for relief from judgment, thus enlarging plaintiff's time to file appeal); Costanzi v. Ryan (1977), 174 Ind. App. 454, 368 N.E.2d 12 (reviewing court invoked its inherent power to grant time to perfect an appeal and denied motion to dismiss despite appellant's failure to timely file record).
The majority concludes that this appeal does not constitute one of the "rare and exceptional cases" which would permit us to proceed on the merits 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' attorney 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 *932the parties to this action have filed extensive briefs which also address the merits of this action. These facts, combined with CNA's reliance on the trial court's August 24 order of final judgment, qualify as extraordinary circumstances which justify this court exercising its inherent power to entertain this appeal even after the time for appeal has expired. See Lugar, supra.
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 fact, 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 prae-cipe. Our supreme court treated the appeal on its merits.
Here, CNA's reliance on the 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 there 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.
1 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 attempting 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 T.R. 59(C) or the praecipe would be due under App.R. 2(A). CNA could just as easily have filed its one paragraph prac-cipe. Even after the trial court's entry of final judgment on August 24, CNA had three days to file a praecipe or a motion to correct error. Instead, CNA acted reasonably and understandably when it filed its Motion to Correct Error within 80 days of the August 24 order of judgment. In my opinion the case before is a proper one for this court to invoke the flexibility of the rules.
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.