Board of Com'rs of Benton County v. Whistler

• Decision Date: 14 November 1983
• Docket Number: No. 4-582A107,4-582A107
• Citation: 455 N.E.2d 1149
• Parties: BOARD OF COMMISSIONERS OF BENTON COUNTY, State of Indiana, Appellants (Plaintiffs Below), v. Loyd WHISTLER, Auditor of Benton County, Appellee (Defendant Below), and Agnes Hickman, Cora Murphy, Loyd Whistler, Lillian Goetz, Bob Nesbitt, Nadine Laswell, Harold Furr, Lyndall Winterstein, and Helen Brost, Appellees (Intervenors Below), and The Board of Trustees of the Public Employees' Retirement Fund of Indiana, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1149

455 N.E.2d 1149

BOARD OF COMMISSIONERS OF BENTON COUNTY, State of Indiana Appellants (Plaintiffs Below), v. Loyd WHISTLER, Auditor of Benton County, Appellee (Defendant Below) and Agnes Hickman, Cora Murphy, Loyd Whistler, Lillian Goetz Bob Nesbitt, Nadine Laswell, Harold Furr, Lyndall Winterstein, and Helen Brost, Appellees (Intervenors Below) and The Board of Trustees of the Public Employees' Retirement Fund of Indiana, Appellees (Defendants Below).

No. 4-582A107.

Court of Appeals of Indiana, Fourth District.

Nov. 14, 1983.

Charles R. Vaughan, Charles Max Layden, Vaughan, Vaughan & Layden, Lafayette, for appellants.

Stephen C. Bower, Kentland, for appellees.

MILLER, Judge.

The instant case arises from the Board of Commissioners of Benton County's (Commissioners) dispute over its modification to a resolution to enroll certain county employees in the Public Employees' Retirement Fund (PERF). The Commissioners brought two different suits, one against the County Auditor and the other against the PERF Board, resulting in opposing effective dates for the modification. After both judgments had been rendered, certain Benton County employees attempted to intervene in and to consolidate both suits to protect their interests in the retirement benefits, and the trial court granted the employees' petition for declaratory judgment by adjudging the second decision invalid. The Commissioners appeal this declaration setting forth various grounds for reversal. We find the trial court's decision was invalid and reverse and remand for further proceedings.

ISSUES

We reverse this action because of procedural problems arising from the employees' failure to properly intervene in one of the cases and their failure to consolidate them. However, because one intervention was actually accomplished and because we remand the case, we must address certain pertinent issues raised by the Commissioners:

1. Did the trial court err in granting intervention to the employees?

2. Did the trial court err in granting the employees' motion to consolidate?

3. Was the second judgment substantively incorrect because the Commissioners were estopped from relitigating whether their PERF resolution had been properly modified?

FACTS

In September, 1974, the County Council of Benton County adopted a resolution to join PERF, which resolution enrolled all elected county officials and their employees in the pension fund. The Council later attempted to modify Benton County's inclusion in the fund, prior to the effective date of January 1, 1975, by limiting the enrollment to only the county highway employees. The County Auditor, pursuant to a letter from the Attorney General's office, presented his proposed payroll to the Commissioners, incorporating deductions for withholding PERF contributions for all county employees, not just county highway employees. The Commissioners brought an action for injunctive relief against the County Auditor in Benton Circuit Court in July, 1975, to prevent such deductions from being made. The trial court, in denying the Commissioners' complaint, rendered its judgment that the modification of Benton County's PERF enrollment would not be effective for six years, and, until that time, the Auditor must make deductions for all county employees:

"6. Deletion of the group 'All County Employees' was accomplished by notice to the Board of Trustees of Public Employees' Retirement Fund prior to January 1, 1975, but after September 25, 1974, in conformity, and not in conflict with the provisions of I.C. 5-10-1-23. The Court, thus, concludes that the group 'All County Employees' of Benton County were, in conformity with statute, withdrawn from participation in Public Employees' Retirement Fund, such ceasation [sic] of participation of said group to be effective on and after January 1, 1981."

Record, p. 69. No appeal was taken.

In March, 1976, the Commissioners initiated a second suit in the same court, this time against the PERF board, and sought a declaratory judgment that the modification was effective. A different judge ruled only county highway employees were covered by the PERF agreement because the modification had been effective:

"It further appears to the court and the court consludes [sic] the trustees of the Public Employees' Retirement Fund agreed that any modification received prior to the effective date would be accepted and the action of the Board in January, 1975, constituted a ratification of the prior agreement and related back to the date of receipt of the modification. The court further concludes that the representations made by the representative of the Public Employees' Retirement Fund in regard to modification was a part of the consideration involved in entering into the original contract.

There being no clear statutory violation herein the intention of the parties is that only Benton County Highway employees be covered by the Public Employees' Retirement Fund and that all County employees plus all county elected officials are not covered by Public Employees' Retirement Fund."

Record, p. 612. No appeal was taken this time either (by PERF in this instance).

In September, 1977, county employees who were included in PERF in the first judgment, but not the second, intervened in the first (1975) action, the one brought against the County Auditor. They sought, and a third judge granted, a declaratory judgment that the second (1976) judgment was invalid. A fourth judge denied the Commissioners' motion to correct errors, and this appeal followed.

DECISION

Grounds for Reversal

The crux of the problem here is that all parties have assumed both petitions for intervention were granted and the cases consolidated. However, we have searched the record and have found that at no time was the petition to intervene in the second suit nor the motion to consolidate ever granted. And neither party has correctly cited to any portion of the record where they were granted . ¹ The resolution of this case in this court would have indeed been different if such had been done. However, the record filed in this case imports absolute verity and is conclusive on us in absence of contradiction to the clerk's certification. See Southern Indiana Gas & Electric Co. v. Decker, (1974) 261 Ind. 527, 307 N.E .2d 51; Auto Owners Insurance Co. v. Buckeye Union Casualty Co., (1962) 133 Ind.App. 379, 182 N.E.2d 429. The parties' assertions in their briefs that the county employees effectively intervened in and consolidated the two cases cannot refute the record. See Browne v. Blood, (1964) 245 Ind. 447, 199 N.E.2d 712. Only one petition to intervene was actually granted; the other such petition and the motion to consolidate were not. Thus, no error can be predicated thereon. See Falender v. Atkins, (1911) 178 Ind. 476, 94 N.E. 323; Richmond Gas Corp. v. Reeves, (1973) 158 Ind.App. 338, 302 N.E.2d 795. The practical effect thereof is to leave us with only the consideration of the effect of the first (1975) case wherein a petition to intervene was actually granted.

It is quite apparent that by reason of intervention in one suit we have been presented an appeal from a collateral attack--attacking the validity of the judgment in the second suit by bringing action in the first. The decision of such appeal can have no effect inasmuch as a collateral attack cannot affect another judgment. This court has said that

"[g]enerally, a party to a judgment may not collaterally attack a final judgment of a court of competent jurisdiction when the record is regular on its face.... Such judgment is entitled to full faith and credit by courts of coordinate jurisdiction until set aside, either by appeal or by direct proceeding brought in the court rendering it for that purpose."

State v. Dossett, (1977) 174 Ind.App. 501, 505, 368 N.E.2d 259, 262; Gill v. Wilke, (1970) 253 Ind. 576, 255 N.E.2d 662. A collateral attack could overturn the second (1976) judgment only if such judgment were void. State v. Dossett, supra. The second judgment was not void. The single judgment here improperly enforces only the first judgment at the expense of the second and must therefore be reversed. However, we must point out the parties still have quite a predicament with one valid judgment in 1975 and another valid one in 1976, neither of which has ever been directly attacked. In all practicality, it could place the Commissioners in contempt of court no matter what they do because they have procured two opposing judgments. Thus, a remand to disentangle the Commissioners is appropriate. In so doing, the following issues will again be raised so we feel compelled to address them to avoid any more expenditure of judicial time than necessary.

Intervention

The trial court granted intervention to the employees in the first judgment in spite of the Commissioners' arguments their petition was untimely because it was proffered 20 months after judgment. Inherent in any discussion of this sort must be reference to Ind.Rules of Procedure, Trial Rule 24, governing intervention, permissive and of right. In this particular case, we believe the employees were seeking to intervene as of right within the following:

"Upon timely motion anyone shall be permitted to intervene in an action ...

(2) when the applicant claims an interest relating to a property, fund or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest in the property, fund or transaction, unless the applicant's interest is adequately represented by existing parties."

Ind.Rules of Procedure, Trial Rule 24(A) (emphasis added). The interest the employees are, of course, trying to protect is their respective contributions already made to PERF by reason of the first judgment. Such contributions belong to each individual member. See IND.CODE 5-10-3-22 (Burns 1974) (suspension of membership...