ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
W. Brent Threlkeld Thomas E. Hastings
Robert A. Durham Brown Hastings & Clutter
Rocap Witchger & Threlkeld Indianapolis, Indiana
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
CAVINDER ELEVATORS, INC., )
Defendant-Appellant, )
)
v. ) 55S01-0004-CV-233
)
WILLIAM L. HALL, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MORGAN CIRCUIT COURT
The Honorable James E. Harris, Judge
Cause No. 55C01-9109-CP-290
________________________________________________
On Petition To Transfer
April 4, 2000
DICKSON, Justice
Indiana Trial Rule 53.3(A) declares that a motion to correct error
shall be deemed denied if the trial court fails to rule within certain time
limits. On rare occasion, however, a trial court may initially fail to
rule timely on a motion to correct error but later, after the moving party
timely files a praecipe to initiate an appeal from the deemed denial, the
court may belatedly grant the motion. We grant transfer to address and
clarify resulting appellate procedural issues.
In this personal injury case, after the trial court granted the
motion for summary judgment filed by the defendant-appellant, Cavinder
Elevators, Inc., the plaintiff-appellee, William L. Hall, filed a motion to
correct errors challenging the grant of summary judgment and claiming newly
discovered evidence. When the trial court failed to rule within thirty
days after its hearing on the motion to correct errors, the plaintiff
timely filed a praecipe, thus initiating an appeal. Ind. Appellate Rule
2(A). Shortly thereafter, however, the trial court granted the plaintiff's
motion, finding that the newly discovered evidence was material, relevant,
credible, and not merely cumulative or impeaching, and that the plaintiff's
failure to discover the evidence was excusable in light of the
circumstances and the plaintiff's reasonable diligence. The court
expressly set aside the prior ruling granting summary judgment. Having
obtained the relief sought, the plaintiff did not further pursue his
appeal. Instead, the defendant initiated this appeal. In response to the
defendant-appellant's brief, the plaintiff sought review on the merits of
the issues presented in his motion to correct error, including the grant of
summary judgment and the claim of newly discovered evidence.
The Court of Appeals held that, because the trial court failed to
rule on the motion to correct error within thirty days pursuant to Indiana
Trial Rule 53.3(A), the motion was deemed denied and the trial court's
ruling granting the motion and setting aside the summary judgment was a
nullity. Cavinder Elevators, Inc. v. Hall, 670 N.E.2d 61, 63 (Ind. Ct.
App. 1996). Noting that the plaintiff asserted cross-error in his
appellate brief, pursuant to Indiana Trial Rule 59(G), the court addressed
the merits of the plaintiff's claim of newly discovered evidence but
concluded that "no error occurred when [the plaintiff's] motion to correct
error based on newly discovered evidence was deemed denied." Id. at 64.
The Court of Appeals did not, however, address the merits of the
plaintiff's challenge to the grant of summary judgment, which was presented
in the plaintiff's motion to correct error and reasserted as cross-error on
appeal.
In his petition for transfer and supporting brief, the plaintiff does
not take issue with the Court of Appeals determination that the trial
court's belated granting of the plaintiff's motion to correct error was
invalid pursuant to Trial Rule 53.3(A). He asserts, rather, that the Court
of Appeals failed to address his claim that the trial court erred in
granting the defendant's motion for summary judgment and, further, that the
Court of Appeals erred in rejecting his claim of newly discovered evidence.
The "Deemed Denied" Problem
Indiana Trial Rule 53.3(A) states in relevant part:
In the event a court fails for forty-five (45) days to set a Motion to
Correct Error for hearing, or fails to rule on a Motion to Correct
Error within thirty (30) days after it was heard or forty-five (45)
days after it was filed, if no hearing is required, the pending Motion
to Correct Error shall be deemed denied.[1]
Various issues may arise when a trial court grants a motion to correct
error after the expiration of the prescribed time limits and after the
party filing the motion has commenced an appeal from the deemed denial.
The defendant argues that its appeal is authorized under Trial Rule
59(F), which makes appealable any order "modif[ying] or setting aside" a
final judgment. Furthermore, Indiana Appellate Rule 4(A) provides that a
ruling or order by the trial court granting or denying relief on a motion
to correct error is an appealable final order. We observe that if a trial
court belatedly grants a motion to correct error and thereby purports to
vacate a prior grant of summary judgment, the trial court will presumably
proceed with the case to conclusion. To construe our rules to preclude the
party opposing the motion to correct error from the opportunity to
immediately appeal a belatedly granted, but "deemed denied," motion to
correct error would disserve the efficient administration of justice. We
reject the notion that the "deemed denied" language in Trial Rule 53.3(A)
precludes a timely appeal under Trial Rule 59(F) and Appellate Rule
4(A).[2]
Accordingly, we hold that the belated grant of the motion to correct
error in this case is not necessarily a nullity but rather is voidable and
subject to enforcement of the "deemed denied" provision of Trial Rule
53.3(A) in the event the party opposing the motion to correct error
promptly appeals. Had the defendant failed to promptly appeal this belated
grant, such failure would constitute waiver and would have precluded a
subsequent appellate claim that the motion to correct error was deemed
denied under Trial Rule 53.3(A).
In addition to recognizing that the party opposing the motion to
correct error may promptly appeal to assert that the motion was deemed
denied under the rule, we further hold that the party filing the motion to
correct error may seek appellate review of the merits of the "deemed
denied" motion. When a party, like the plaintiff in this case, properly
files a well-founded motion to correct error and timely files a praecipe
when no action is taken within the Rule 53.3(A) period, but thereafter
receives an order from the court granting the relief requested, such party
should not be found to have abandoned the appeal. In his brief as
appellee, the plaintiff reasserted the issues raised in the "deemed denied"
motion to correct error. While concluding that the trial court had no
power to grant the plaintiff's motion after the thirty-day period expired,
the Court of Appeals found that Trial Rule 59(G) allowed the plaintiff to
"raise any cross-error in his appellate brief, including the denial of his
motion to correct error by operation of law." Cavinder Elevators, 670
N.E.2d at 63. We agree.
Having "won" the relief sought when the trial court ultimately, but
belatedly, granted the motion to correct error, it is reasonable that the
party filing the motion to correct error would assume that the case will
proceed to trial and thus would have no reason to continue the appeal. But
if the party opposing the motion to correct error promptly appeals from the
belated grant of the motion to correct errors, arguing that the trial court
had no power to grant the motion after the period specified under the rule,
the time period for the party who filed the motion to correct error to
perfect his timely-commenced appeal may have expired. This party should
not be required to perfect and pursue an apparently unnecessary appeal of a
claim already determined to be meritorious by the trial court.
When a trial court considers and grants a motion to correct error,
even if done belatedly, we perceive that such a decision will typically be
correct on the merits and will result in expeditious further proceedings,
without an intervening appeal. Sound judicial administration thus counsels
against requiring a party whose motion to correct error is belatedly
granted nevertheless to perfect an appeal from the superseded but "deemed
denied" motion. These same concerns also counsel against permitting a
belated grant of a motion to correct error long after its deemed denial has
concluded the case as a final judgment from which an appeal was taken.
Although we conclude that the plaintiff's abandonment of his timely-
commenced appeal should not preclude him from asserting by cross-error
under Trial Rule 59(G) the issues presented in his motion to correct error,
we hold that the rule does not authorize resort to cross-error as a device
to raise claims abandoned by the failure to initiate a timely appeal upon
the deemed denial of a motion pursuant to Rule 53.3(A).
Contrary to concerns expressed in the dissenting opinion, this
application of Rule 53.3(A) does not create an open-ended time in which the
trial court may rule. It applies only if, within thirty days after the
motion is deemed denied,[3] the party filing the motion timely initiates an
appeal,[4] and if the trial court belatedly grants the motion to correct
error before the record of proceedings is filed, transferring jurisdiction
to the appellate tribunal.[5] If a belated grant occurs, the opposing
party may accept the ruling or may appeal to invalidate it as deemed denied
pursuant to Rule 53.3(A).[6] The party filing the motion may not
thereafter assert as cross-error the issues presented in the "deemed
denied" motion to correct error if the time for filing a praecipe has
expired and the party failed to commence an appeal.
Summarizing our conclusions regarding the "deemed denied" problem, we
reiterate that the belated grant of the plaintiff's motion to correct error
in this case was not a nullity but rather was voidable subject to the
defendant's timely appeal under Trial Rule 59(F) and Appellate Rule 4(A).
If the defendant had failed to promptly appeal the belated grant of such a
motion, however, this failure would have waived and thus precluded
subsequent appellate review of whether the trial court's ruling violated
Trial Rule 53.3(A). Because the defendant promptly appealed from the
belated grant of the motion to correct error, and because the plaintiff
timely commenced his appeal from the Rule 53.3(A) deemed denial of his
motion to correct error, the defendant's appeal should be considered, as
should the plaintiff's issues raised as cross-errors under Trial Rule
59(G). However, if the plaintiff, as the party filing the motion to
correct error, had failed to commence a timely appeal following the deemed
denial pursuant to Trial Rule 53.3(A), such failure would have waived the
claims and precluded the plaintiff from raising them as cross-errors on
appeal.
We believe that our interpretation and application of the rule in
this case will substantially enhance both judicial efficiency and fairness
to litigants by eliminating unnecessary, impractical, harsh, and unfair
consequences.
Summary Judgment
The plaintiff, asserting cross-error, argues that the trial court
erroneously granted the defendant's motion for summary judgment.[7]
As a reviewing court, we are bound by the same standards for summary
judgment as the trial court. Trotter v. Nelson, 684 N.E.2d 1150, 1152
(Ind. 1997). Motions for summary judgment are properly granted only when
the pleadings and other matters of record reveal that there is no genuine
issue or dispute as to material facts and that the moving party is entitled
to judgment as a matter of law. T.R. 56(C); National City Bank, Indiana v.
Shortridge, 689 N.E.2d 1248, 1250 (Ind. 1997). To determine whether such
issues of fact exist, the court must accept as true those facts alleged by
the non-moving party and resolve all doubts against the moving party.
National City Bank, 689 N.E.2d at 1250-51. Because the party seeking
summary judgment has the burden of demonstrating that no question of fact
exists as to any material issue and that it is entitled to judgment as a
matter of law, the non-movant is not required to come forth with contrary
evidence unless and until the movant has met this burden. USA Life One
Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 541 (Ind. 1997); Jarboe v.
Landmark Community Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.
1994).
The plaintiff in this case is seeking damages for injuries to his arm
and hand allegedly sustained when a freight elevator maintained by the
defendant malfunctioned. The defendant's motion for summary judgment is
based upon two claims: (1) that the defendant owed no duty to the
plaintiff with regard to the elevator; and (2) that the plaintiff failed to
present evidence of the breach of that duty.[8] As to the first issue, the
defendant contends that the scope of its duty is established by the terms
of a written service contract between the defendant and the State of
Indiana, which owned the elevator and employed the plaintiff at the time of
the injury. The defendant contends that this contract did not require it
to maintain the parts of the elevator at issue in this case. In response,
the plaintiff identifies terms in the contract providing that the defendant
would "employ all reasonable care to maintain the elevator in a proper and
safe condition," record at 164, and contends that these terms established
the scope of the duty. Although the defendant cites to language in the
contract that requires it only to perform certain types of repair and
maintenance, other portions of the agreement state: "[W]e will maintain
the entire elevator equipment as herein described, using skilled elevator
maintenance men . . . [who] will employ all reasonable care to see that the
elevator equipment is maintained in proper and safe operating condition."
Record at 164 (emphasis added).
Because a grant of summary judgment is predicated upon the absence of
any genuine issue of material fact, we have noted that, where a grant of
summary judgment turns on a written document, the court must find that the
key provisions of the document are unambiguous. B & R Farm Services, Inc.
v. Farm Bureau Mut. Ins. Co., 483 N.E.2d 1076, 1077 (Ind. 1985). We find
that the elevator maintenance contract at issue here does not unambiguously
establish the absence of duty on the part of the defendant.
Conclusion
We reverse the entry of summary judgment for the defendant and remand
this cause to the trial court for further proceedings.
BOEHM and RUCKER, JJ., concur. SULLIVAN, J., dissents with separate
opinion, in which SHEPARD, C.J., concurs.
Attorneys for Appellant
W. Brent Threlkeld
Robert A. Durham
Rocap, Witchger & Threlkeld
Indianapolis, Indiana
Attorneys for Appellee
Thomas E. Hastings
Brown, Hastings & Clutter
Indianapolis, Indiana
IN THE
INDIANA SUPREME COURT
CAVINDER ELEVATORS, INC.,
Appellant (Defendant below),
v.
WILLIAM L. HALL,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 55S01-0004-CV-233
)
) Court of Appeals No.
) 55A01-9602-CV-56
)
)
)
APPEAL FROM THE MORGAN CIRCUIT COURT
The Honorable James E. Harris, Judge
Cause No. 55C01-9109-CP-290
ON PETITION TO TRANSFER
SULLIVAN, Justice, dissenting.
I respectfully dissent. Trial Rule 53.3(A) provides that “[i]n the
event a court . . . fails to rule on a Motion to Correct Error within
thirty (30) days after it was heard . . ., the pending Motion to Correct
Error shall be deemed denied.” The trial court here failed to rule on
plaintiff’s motion to correct error until after the 30-day period had
expired and so it was deemed denied.
The majority opinion effectively repeals T.R. 53.3(A)’s time limits in
those cases where the party filing the motion to correct error timely
initiates an appeal and the trial court thereafter belatedly grants the
motion. The majority holds that in such cases, the motion is not deemed
denied after all and instead the court’s new ruling replaces its former
ruling as an appealable final order. This not only conflicts with the
clear and unambiguous language of T.R. 53.3(A) but with established
precedent as well. Each of the following cases holds that a trial court
has no power to rule on a motion to correct error after the 30-day period
expires and that any subsequent ruling is a nullity: Rose v. Denman, 676
N.E.2d 777, 781 (Ind. Ct. App. 1997); Roscoe v. Roscoe, 673 N.E.2d 820,
821 (Ind. Ct. App. 1996); Moran v. Cook, 644 N.E.2d 179, 180 (Ind. Ct. App.
1994); Jackson v. Paris, 598 N.E.2d 1106, 1107 (Ind. Ct. App. 1992). I
cannot agree that a ruling repeatedly held in case law to be a “nullity”
can be an appealable final order.
The majority advances several policy justifications for its new rule.
I respectfully suggest that there are countervailing policy reasons that
are just as weighty, chief among them the general value of certainty that
the current bright-line rule provides. More specifically, by leaving open-
ended the time a trial court has to rule on a motion to correct error,
litigants and the Court of Appeals are left in a highly uncertain world —
not knowing whether or not the trial court will grant the motion, rendering
the appeal moot, and placing the party originally favored by the court’s
ruling in the position of having to decide whether to appeal.
Litigants should be able to rely on our rules as written. If we are
going to change the operation of T.R. 53.3(A) in this way, I think we
should do so through the rule-making process and not case law.[9]
We have used the Supreme Court Committee on Rules of Practice and
Procedure created by T.R. 80 as a source of expert opinion and as a
listening post — for bench and bar comments on prospective rule changes.
The majority gives no reason for not employing the Rules Committee process
here. And I would observe that the principal reason for having rules in
the first place is to provide a level playing field for litigants in the
sense that everyone knows the rules upfront. While new Trial Rules are
prospective in their application, the new rule promulgated by the majority
is given retroactive application — not only to these litigants but
presumably to all other litigants whose cases are pending on appeal as of
the date of this decision.[10]
To repeat, here the trial court failed to rule on plaintiff’s motion
to correct error until after the 30-day period had expired and so it was
deemed denied. While I recognize that the plaintiff abandoned his timely-
filed praecipe only after the trial court ruled in his favor on the motion
to correct error, that ruling was a “nullity.” In accordance with rule and
precedent, the plaintiff should have continued to perfect his appeal.
Doing so is a jurisdictional prerequisite to appellate review; failure to
comply with applicable appellate time limits results in forfeiture of an
appeal. See Claywell v. Review Bd. of the Indiana Dept. of Employment and
Training Serv., 643 N.E.2d 330, 330 (Ind.1994). The plaintiff did not
comply with the applicable time limits. Nor is the defendant’s appeal
properly before us for the reasons discussed above — the order defendant
appealed from was a nullity. We lack jurisdiction (as did the Court of
Appeals) and must dismiss. Roscoe, 673 N.E.2d at 821; Harkrider v.
Lafayette Nat. Bank, 613 N.E.2d 36, 41 (Ind. Ct. App. 1993); Jackson, 598
N.E.2d at 1107; accord Claywell, 643 N.E.2d at 330.
SHEPARD, C.J., concurs.
-----------------------
[1] Trial Rule 53.3 permits these time limitations to be waived by
express agreement of counsel on the record or by trial court entry made
before the time expires. See T.R. 53.3(B) & (D).
[2] This construction will likewise apply under the revised Indiana
Rules of Appellate Procedure that become effective January 1, 2001. See
App. R. 2(H)(5), 4(A), 5(A) (rev.).
[3] App. R. 2(A). The same thirty-day time limit will apply under the
revision of the Indiana Rules of Appellate Procedure effective January 1,
2001. App. R. 9(A) (revised).
[4] If the trial court belatedly grants a motion to correct error
before the party filing the motion to correct error initiates an appeal but
during the time period within which such party is entitled to appeal from
the deemed denial, the party may assert as cross-error the issues presented
in its "deemed denied" motion to correct error.
[5] App. R. 3(A). Similarly, under the revision of the Indiana Rules
of Appellate Procedure effective January 1, 2001, the appellate court
acquires jurisdiction "on the date the trial court clerk issues its Notice
of Completion of Clerk's Record." App. R. 8 (revised).
[6] The right to cross-appeal by raising cross-appeal issues in the
appellee's brief is likewise recognized in the revision of Indiana Rules of
Appellate Procedure that becomes effective January 1, 2001. App. R. 9(D)
(revised).
[7] We need not address the plaintiff's claim of newly-discovered
evidence because we find the summary judgment issue dispositive.
[8] This second claim is necessarily insufficient. Because the moving
party has the burden of establishing his entitlement to summary judgment, a
claim that the plaintiff has failed to produce evidence on each element of
his case is insufficient to entitle the defendant to summary judgment.
Jarboe, 644 N.E.2d at 123.
[9] It is worth noting that when our court last amended T.R. 53.3(A),
it was to eliminate the uncertainty that surrounded its use. Prior to
1989, the rule had provided that if the trial court had not ruled on a
motion to correct error within the requisite time period, “upon application
of any interested party, the pending motion to correct error may be deemed
denied.” T.R. 53.3(A) (West 1988) (effective Jan. 1, 1983). To eliminate
the uncertainty occasioned by the open-ended nature of this language, this
court amended the rule effective February 16, 1989, adopting its current
language: if the trial court has not ruled on a motion to correct error
within the requisite time period, “the pending Motion to Correct Error is
deemed denied.” T.R. 53.3(A) (West 1999) (effective Feb. 16, 1989).
Today’s opinion reintroduces at least some of the uncertainty that this
court sought to eliminate in 1989.
[10] See Sneed v. Associated Group Ins., 663 N.E.2d 789, 795 (Ind. Ct.
App. 1996) (“With respect to new rules announced through adjudication, the
rule generally will be applied to all cases pending on direct appeal at the
time of the decision. With respect to new rules announced through a
rulemaking process, however, the new rule generally will only be applied to
cases which arise after the new rule has been announced.” (citations
omitted)).
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