Black v. Olive Garden Restaurant
| Decision Date | 28 December 1994 |
| Docket Number | No. 93A02-9306-EX-284,93A02-9306-EX-284 |
| Citation | 644 N.E.2d 627 |
| Parties | Terry A. (Propes) BLACK, Appellant-Plaintiff, v. OLIVE GARDEN RESTAURANT, Appellee-Defendant. |
| Court | Indiana Appellate Court |
On November 30, 1994, the Indiana Supreme Court issued its opinion upon transfer in Claywell v. Review Board of the Indiana Department of Employment and Training Services, (1994) Ind., 643 N.E.2d 330. In that opinion, the court held that the timely filing of an assignment of errors is an absolute prerequisite for entertainment of an appeal from a decision concerning unemployment compensation. In doing so, the Court stated that absent an assignment of errors in the record filed, "the Court of Appeals has 'no choice' but to dismiss." At 330. Notwithstanding its adherence to the "requirement of a timely filing" as a "bright line rule" at 330, the court somewhat curiously acknowledged that such rules are not truly jurisdictional because in some instances, pursuant to Lugar v. State ex rel. Lee (1978) 270 Ind. 45, 383 N.E.2d 287, the court may exercise jurisdiction to consider an appeal which has not been timely perfected. Other than a $1,310,696.73 judgment against City of Indianapolis Police Pension Fund, as was the case in Lugar, supra, we do not know in what "rare and exceptional cases" at 330, our Supreme Court will permit this court to consider the merits of an untimely appeal. 1 Nevertheless, the higher court has made it clear that we may not do so in unemployment compensation cases. The same rigid requirement presumably applies to review of workers compensation awards.
We are unable to discern what distinction lies between the unconditional jurisdictional requirement in unemployment benefit cases and the exception made for other "cases" as contemplated by Claywell, supra. However, as recently stated by our Supreme Court in Indiana Dep't. of Environmental Management v. Chemical Waste Management, Inc (1994) Ind., 643 N.E.2d 331, 340, "we can live with our inadequacy."
This appeal is dismissed.
I concur in the Majority's dismissal of this case. However, I cannot join in the Majority's opinion, because I do not believe our supreme court's recent decision in Claywell v. Review Board (1994) Ind., 643 N.E.2d 330, is either curious or inadequate. In fact, Claywell merely reinforces the well established rule that when an assignment of errors is required by statute, the filing thereof is a prerequisite to appellate jurisdiction. Id., at 330; see also South Madison Community School Corp. v. Review Board (1993), Ind.App., 622 N.E.2d 1042, 1043 (citing Ind.Appellate Rule 7.2(A)(1)).
It is the confusion in the Majority Opinion regarding Lugar v. State (1978), 270 Ind. 45, 383 N.E.2d 287, which I find curious. Lugar is factually inapposite to this case. Lugar involved the untimely filing of an appellant's brief pursuant to Ind.Appellate Rule 8.1(A), a deadline for which this court routinely grants extensions. This case involves the failure to file an assignment of errors, which is a statutory requirement for appealing a decision of the Unemployment Review Board. Ind.Code § 22-3-4-8(d) (1993); Ind.Appellate Rule 4(C).
Moreover, the Lugar court specifically outlined the limited parameters of this court's inherent powers:
This [supreme court] has inherent discretionary power to entertain an appeal after the time allowed has expired. The Court of Appeals also has this power. However[,] an appeal under such conditions is not a matter of right and will not be permitted in every situation. This Court will exercise such discretion 'only in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist.'
Id. at 46-47, 383 N.E.2d at 289 (citations omitted). The distinction between the cases to which Lugar refers and the case at bar is easily discernable. The...
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Sneed v. Associated Group Ins., 93A02-9501-EX-53
...an appeal from the Worker's Compensation Board where the appellant did not file an assignment of errors in Black v. Olive Garden Restaurant (1994) Ind.App., 644 N.E.2d 627. 4 In so doing, we did not address the relationship between the appellate rules and the statutory requirement, though J......