Anderson v. Indiana State Employees' Appeals Commission

Decision Date24 March 1977
Docket NumberNo. 2--976A331,2--976A331
Citation172 Ind.App. 529,360 N.E.2d 1040
PartiesArthur ANDERSON, Petitioner-Appellant, v. INDIANA STATE EMPLOYEES' APPEALS COMMISSION et al.,
CourtIndiana Appellate Court

M. Daniel Friedland, Indianapolis, for petitioner-appellant.

Theo. L. Sendak, Atty. Gen., Darrell K. Diamond, Deputy Atty. Gen., Indianapolis, for respondents-appellees.

ON THE APPELLEES' MOTION TO DISMISS OR AFFIRM

PER CURIAM.

This cause is pending before the Court on the appellees' Motion to Dismiss or Affirm, which alleges multiple defects in the record of the proceedings and in the appellant's brief. We have carefully examined the record of the proceedings and appellant's brief and, after such examination, we reluctantly conclude that the appellant has failed to file a record and brief sufficient to preserve and present any errors for our consideration on appeal. Accordingly, we affirm.

This was an action in the trial court for judicial review of the order of the Indiana State Employees' Commission which affirmed appellant's dismissal as a permanent status employee in the Indiana State Merit Service.

The record before us in three volumes. Two of the volumes contain the proceedings before the State Employees' Appeals Commission and the third volume contains the proceedings on judicial review in the Marion Circuit Court. The two volumes of the proceedings before the Commission contain no table of contents as required by Rule AP. 7.1(C), nor do they contain any marginal notations as required by Rule AP. 7.2(A)(3)(a). Since these twq volumes of the record contain the evidence adduced before the Commission, without the navigational aids of a table of contents and marginal notations, the reader is left adrift and at a complete loss to know where the testimony of any particular witness is, and whether on any given page the examination is direct, cross or redirect without rummaging through the records to find the testimony of a particular witness, then searching to find the various portions of that witness's testimony.

The third volume contains the proceedings in the Circuit Court. This volume does contain a table of contents, but only as to the matters contained in the third volume. There are no marginal notations, however, on any of the pages. The pleadings and orders in this volume are not arranged in chronological order. There are various extraneous matters contained in this volume which had not previously been presented to and considered by the Commission, contrary to the provisions of IC 1971, 4--22--1--18, which provides that the reviewing court shall not try or determine the cause de novo, but the facts shall be considered and determined exclusively upon the record filed with said court pursuant to this Act.

Of graver consequence, however, is the fact that the record of the proceedings before the Marion Circuit Court contains only one order book entry, that showing the overruling of petitioner-appellant's Motion to Correct Errors. Rule AP. 7.2(A)(2) requires that the record shall contain a copy of the order book entries. The Marion Circuit Court is a court of record. Our Supreme Court has recently affirmed the maxim that a court of record speaks only through its order book entries. State ex rel. Mammonth Development and Construction Consultants, Inc., etc., v. Superior Court of Marion County, et al. (1976), Ind., 357 N.E.2d 732. 1 Thus, appellant has failed to bring a record which demonstrates any of the proceedings in the Marion Circuit Court except the overruling of the Motion to Correct Errors. It is the duty of the appellant to bring a record which supports his claimed errors and which is sufficient to permit an intelligent decision of the issues. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532; Burns v. State (1970), 255 Ind. 1, 260 N.E.2d 559.

We further note in our examination of the record that the Motion to Correct Errors is not sufficiently specific to have presented any error to the trial court nor to preserve any error for appeal. The Motion to Correct Errors contains various bald assertions of error, couched in general rather than specific statements, and the motion is not accompanied by a statement of the facts and grounds upon which the errors are based, all as required by Rule TR. 59(B). Both the Supreme Court of Indiana and this Court have written repeatedly to the requirement of specific assertions in the motion to correct errors. As we stated in Johnson v. State (1975), Ind.App., 338 N.E.2d 680 at 682:

'The requirement of specificity contained in TR. 59(B) and echoed by TR. 59(G) should be notorious by now. Not only must the alleged error be specifically set out, but also the facts and grounds in support of the claimed error must be discussed with enough particularity that the trial court may be made aware of the exact legal issue involved. Failure to comply waives any claimed error except sufficiency of the evidence, pursuant to TR. 50(A)(5).'

While we recognize the Motion to Correct Errors was filed in this case before Johnson, supra, was handed down, nonetheless there had been numerous decisions on this point beginning as early as 1971, as cited in Johnson, so that appellant's counsel should have been aware of the necessity for specificity in the motion to correct errors.

In the case now before us, considering the multiple deficiencies of the three volumes of the record, we must conclude that the appellant has failed in his duty to bring before us a record which is sufficient to support the claimed errors and permit an intelligent review of the issues.

Turning now to the appellant's brief, it is immediately apparent that the brief has not been prepared in compliance with Rule AP. 8.3(A). The various sections of the brief are not in the sequence required by Rule AP. 8.3(A)(3), (4), and (5). There is no verbatim statement of the judgment being appealed from as required by Rule AP. 8.3(A)(4). In the statement of facts section of the brief, there are no references to the record as required by Rule AP. 8.3(A) (5). The brief fails to contain sufficient citations to the pages of the record in the argument section as required by Rule AP. 8.3(A)(7). This omission is particularly glaring in view of the deficiencies of the volumes of the record containing the evidence as discussed hereinabove.

The argument section of the brief is not sufficient to demonstrate error. Appellant has intertwined in the argument the three elements of evidence elicited at the proceedings before the Commission, matters which he sought to present as newly discovered evidence which the trial court did not permit to be presented, and matters totally outside of the proceedings before the Commission and the trial court. Without searching the record to compare the matters contained therein...

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    • October 30, 1980
    ...same requirement. Although similar failures have often been deemed as waiver of the issues, see, e. g., Anderson v. Indiana State Employees' Comm'n (1977), Ind.App., 360 N.E.2d 1040; Newell v. Standard Land Corp. (1973), 156 Ind.App. 597, 297 N.E.2d 842; Clemans Truck Lines, Inc. v. Vaughn ......
  • Terpstra v. Farmers and Merchants Bank
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    ...and independently from the record, can intelligently consider each question presented. Anderson v. Indiana State Employees' Appeals Comm'n. (1977), 172 Ind.App. 529, 533, 360 N.E.2d 1040, 1043, trans. den. Nonetheless, we have chosen to reach the merits of the instant case despite the failu......
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    ...general rather than specific terms do not constitute substantial compliance with the rules of procedure. Anderson v. Ind. State Employees Appeals Comm., (1977) Ind.App., 360 N.E.2d 1040. In Johnson v. State, (1975) Ind.App., 338 N.E.2d 680 at 682, we "The requirement of specificity containe......
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    ...which is sufficient to permit an intelligent decision of the issues. Ind. Rules A.P. 7.2(A)(2); Anderson v. Indiana State Emp. Appeals Commission, (1977) 172 Ind.App. 529, 360 N.E.2d 1040. Thus the issue of whether the rule was properly applied is Kranda challenges several instructions give......
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