Artusi v. City of Mishawaka

Decision Date02 March 1988
Docket NumberNo. 71A04-8707-CV-212,71A04-8707-CV-212
Citation519 N.E.2d 1246
CourtIndiana Appellate Court
PartiesDeloris ARTUSI, et al., Appellants (Plaintiffs Below), v. CITY OF MISHAWAKA, et al., Appellees (Defendants Below).

Timothy W. Woods, South Bend, for appellants.

John P. Gourley, James J. Olson, Mishawaka, for appellees.


Plaintiffs-Appellants Deloris Artusi, et al. (retirees) appeal the St. Joseph Circuit Court's 1987 modification of a declaratory judgment it rendered in 1983 in an action filed by retired Mishawaka policemen, firemen, their widows and dependents. Defendants-appellees City of Mishawaka, et al. (Mishawaka) in turn appeal the award of pre-judgment interest in a subsequent mandamus action filed by retirees against Mishawaka to force payment of additional benefits to retirees as required by the earlier Circuit Court judgment.

Retirees present the following issue:

whether the trial court can change the substance of a judgment more than three years after its entry and affirmation on appeal.

Mishawaka presents the following issue:

whether the trial court erred by awarding pre-judgment interest in the mandamus action.

For the reasons stated below, we reverse both courts.

Retirees filed a declaratory judgment action in 1980 seeking a declaration of rights as to whether additional pension benefits were owing to them from Mishawaka. After trial, the St. Joseph Circuit Court on December 6, 1983, entered findings of fact and conclusions of law which determined the method by which Mishawaka was to calculate monthly pension payments to retirees. The court determined Mishawaka was to consider wages paid to first class patrolmen based upon length of service in addition to their base salaries when computing monthly benefits to be paid retirees, so long as Mishawaka's incentive bonus program was administered by it as a longevity pay program. As part of its conclusions the trial court stated:

* * *

3. The defendants should recompute pensions paid to the plaintiffs for the years 1978, 1979 and 1980 the recomputation to be based on the monthly wages received by fully paid first grade [patrolmen] including pay based on length of service.

4. The plaintiffs are entitled to judgment against the defendants for the difference between the pensions paid them and the pensions due them as determined by the recomputation.

Hereafter the pensions to be computed and paid to the plaintiffs shall be computed and paid on the basis of monthly wage paid to a fully paid first grade patrolman including pay based on length of service.

(R. 66-67).

Mishawaka appealed this judgment and in December, 1985, the trial court was affirmed in City of Mishawaka v. Squadroni (1985), Ind.App., 486 N.E.2d 1088. Mishawaka's petition to transfer the case to the Supreme Court was denied.

When Mishawaka failed to comply with the trial court's judgment, retirees filed a mandamus action in the St. Joseph Superior Court on June 9, 1986, to compel Mishawaka's compliance with the Circuit Court's prior declaratory judgment. Thereafter, on August 20, 1986, the parties also jointly filed in the Circuit Court a Motion to Clarify the Circuit Court's 1983 judgment purportedly under the authority of Ind. Rules of Procedure, Trial Rule 60(A). On January 23, 1987, the Circuit Court entered an order which it said "clarified, modified and amended" its 1983 declaratory judgment. The court therein determined Mishawaka had begun properly administering the incentive bonus program on April 1, 1981, and thereafter did so until the declaratory judgment trial began on December 8, 1982. It further determined incentive bonus payments made to first class patrolmen from April 1, 1981, until the time of trial on December 8, 1982, and in the future, so long as the incentive bonus program is properly administered "are not to be included in calculating the pension payments due to the [retirees]." (R. 95).

The St. Joseph Superior Court in the mandate action followed the Circuit Court's "clarification" order, but also entered an order requiring Mishawaka to pay pre-judgment and post-judgment interest to retirees for the years 1978, 1979, 1980 and to March, 1981.

Both retirees and Mishawaka appeal.


The retirees first argue the St. Joseph Circuit Court had no power or authority to change the substance of its 1983 declaratory judgment, even if the parties, in essence, authorized it to do so by jointly filing their purported "Motion to Clarify" under the authority of T.R. 60(A). We agree.

Trial Rule 60(A) merely provides a remedy to correct by nunc pro tunc entry clerical errors in judgments, orders, etc., or errors arising from oversight or omission. That trial rule, however, does not constitute a license to make judicial changes in the actual law or ruling of a case. Arsenal Savings Ass'n. v Westfield Lighting Co. (1984), Ind.App., 471 N.E.2d 322, 326. Nunc pro tunc entries must be based upon written memoranda, notes, or other memorials which (1) must be found in the records of the case; (2) must be required by law to be kept; (3) must show action taken or orders or rulings made by the court; and (4) must exist in the records of the court contemporaneous with or preceding the date of the action described. Arsenal Savings Ass'n., 471 N.E.2d at 326. Further, litigants cannot confer jurisdiction upon a trial court by agreement if the court is, in fact, without jurisdiction to act. Wadkins v. Thornton (1972), 151 Ind.App. 380, 279 N.E.2d 849, 850.

A final judgment is one which disposes of all issues as to all parties; it puts an end to the litigation. First Fed. Savings & Loan Ass'n. v. Stone (1984), Ind.App., 467 N.E.2d 1226, 1231. The Circuit Court's 1983 declaratory judgment was a final judgment from which an appeal was taken, see Squadroni, supra. Ind.Code 33-1-6-3 provides a trial court's jurisdiction over its judgments ceases after 90 days, except in certain cases not applicable here. Thus, the St. Joseph Circuit Court clearly was without jurisdiction to enter its modification order three years after entry of its declaratory judgment. Arsenal Savings Ass'n., 471 N.E.2d at 325.

One of the issues before the Circuit Court during trial and this court on appeal was whether the Circuit Court's 1983 judgment should be limited to the years 1978, 1979, and 1980. That issue, raised in the first appeal by Mishawaka, was decided adversely to it. In Squadroni, Judge Hoffman said:

The City further contends that the trial court erred in not limiting the judgment to the years 1978, 1979, and 1980.

* * *

[D]uring the trial of this action, evidence was presented, without objection, on how the incentive bonus plan was being implemented up to the day of trial. From the issues framed by the complaint and the pre-trial order, and the evidence which was taken on all of those issues, there was no error in the trial court's award of damages. (Emphasis supplied).

Squadroni, 486 N.E.2d at 1094. Thus, it is the law of this case the City of Mishawaka was administering its bonus incentive program as if it were a longevity pay program from 1978 up to at least the day trial began on December 8, 1982. There is no ambiguity on this point.

The circuit court was without jurisdiction to change or modify its 1983 judgment in that or any other regard by its attempted January 23, 1987, order. Such order is void. The parties, the trial court, and this one in this second appeal are all bound by the law of the case doctrine, Horine v. Greencastle Production Credit Ass'n. (1987), Ind.App., 505 N.E.2d 802, 804, and the issue preclusion doctrine of res judicata. Coulson v. State (1986), Ind.App., 488 N.E.2d 1154, 1156.

However, Mishawaka argues trial courts retain jurisdiction over their judgments, having inherent power to see they are carried into effect, citing Wilson v. Wilson (1976), 169 Ind.App. 530, 349 N.E.2d 277, 280; Wabash Railroad Co. v. Todd (1916), 186 Ind. 72, 113 N.E. 997; and Linton v. Linton (1975), 166 Ind.App. 409, 339 N.E.2d 96, 97, in support of that proposition. While Mishawaka's assertion is true, neither the assertion nor the cases cited in support thereof are appropriate authority applying to the circuit court's subsequent action in this case. In the cases cited, each court exercised its inherent power to carry the previous judgments into effect, none of these courts attempted to change or modify the terms of the original judgment rendered. A court has inherent power to see that its orders and judgments are carried out. Linton, 339 N.E.2d at 97. Each acted under its inherent power only to carry its previous judgment into effect to make it binding and operative. Wilson, 349 N.E.2d at 280; Todd, 113 N.E. at 998. In matters concerning child support, the jurisdiction of the trial court is continuing. Linton, 339 N.E.2d at 97. In the instant case, the circuit court attempted to change and modify the substance of its earlier declaratory judgment three years later, an entirely different matter than the enforcement of the original judgment as rendered.

While it is true in a proper case, the declaratory judgment court may grant additional relief under IC 34-4-10-8 as the dissent suggests, the St. Joseph Circuit Court could not do so here. Its 1983 judgment was final, and its jurisdiction did not continue. Belanger v. Local Division No. 1128, Amalgamated Ass'n. of Street, Electric Railway & Motor Coach Employes of America (1949), 256 Wis. 274, 40 N.W.2d 504; Oklahoma Alcoholic Beverage Control Bd. v. Central Liquor Co. (1966), Okla., 421 P.2d 244.

The mandamus action was filed on June 9, 1986, and the "Motion to Clarify" was thereafter filed on August 20, 1986, in the circuit court. The superior court had jurisdiction to determine the facts as to whether Mishawaka was administering its incentive bonus plan as a longevity pay program since the date of the circuit court's earlier judgment, see IC 34-1-58-2 and...

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