City Of Ind.polis v. Cynthia Hicks On Behalf Of

Decision Date15 October 2010
Docket NumberNo. 49A02-1002-CT-95.,49A02-1002-CT-95.
Citation932 N.E.2d 227
PartiesCITY OF INDIANAPOLIS, Appellant-Defendant, v. Cynthia HICKS on behalf of and as next friend of Jada Richards, a minor, Appellee-Plaintiff.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Jonathan L. Mayes, Chief Litigation Counsel, Shannon L. Logsdon, Assistant Corporate Counsel, Indianapolis, IN, Attorney for Appellant.

Randall L. Juergensen, Matthew C. Boulton, Andy Ray, Keller & Keller, Indianapolis, IN, Attorney for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

The City of Indianapolis appeals the trial court's nunc pro tunc order granting plaintiff Cynthia Hicks's motion to correct error and reinstating Hicks's negligence suit brought against the City on behalf of her minor child. The City raises three issues for our review, which we restate as:

1) whether an initial order granting Hicks's motion to correct error was invalid for being signed only by a magistrate; 2) whether the trial court properly used a later nunc pro tunc order to retroactively sign and grant Hicks's motion to correct error; and 3) whether the grant of Hicks's motion to correct error was, on its merits relative to the Indiana Tort Claims Act (“ITCA”), an abuse of discretion. We conclude the City waived any challenge based on the magistrate's lack of authority by failing to object until after time for ruling on the motion to correct error expired, and waiver notwithstanding, the trial court's chronological case summary (“CCS”) entries provided a sufficient basis to later issue its nunc pro tunc order granting Hicks's motion to correct error. Further concluding the grant of the motion to correct error was not an abuse of discretion because the City failed to show noncompliance with the tort claim notice requirements of the ITCA, we affirm.

Facts and Procedural History 1

On March 3, 2005, Hicks's seven-year-old daughter, Jada Richards, was struck by a passing vehicle as she crossed the street on her way to school. On May 17, 2005, Hicks mailed a tort claim notice to Indianapolis Public Schools (“IPS”), and on October 17, 2006, Hicks mailed a tort claim notice to the City.

In February 2008, Hicks filed her negligence complaint against the City and IPS, 2 acting as next friend on behalf of Jada and seeking recovery for Jada's personal injuries. The City filed a motion to dismiss, arguing Hicks failed to timely file a tort claim notice with the City. On July 16, 2009, Magistrate Burnett Caudill heard argument on the City's motion and took the matter under advisement. On August 13, 2009, the trial court granted the City's motion to dismiss. The order was signed by both Magistrate Caudill, recommending the order for approval, and Marion Superior Court Judge John F. Hanley, approving and so ordering.

On September 10, 2009, Hicks filed a motion to correct error. On October 8, 2009, Magistrate Caudill entered an order granting Hicks's motion to correct error and reversing the previous dismissal in favor of the City. Magistrate Caudill signed on the line titled “Judge, Marion Superior Court 11.” Appellant's Appendix at 76. However, nothing in the record indicates Magistrate Caudill was appointed special judge or judge pro tempore in the matter. CCS entries for October 8, 2009, state: Court approves granting Plaintiff's motion to correct error and denying Defendant's City of Indianapolis, motion to dismiss; “Jacket entry: Plaintiff's motion to correct error granted. See entry. Reistate [sic] file to open.” Id. at 9. 3 The jacket entry, handwritten and dated October 8, 2009 on paper headed “Minutes of the Court,” was signed B. Caudill.” Appellant's Supp. App. at 9.

On December 22, 2009, the trial court set the case for telephonic pre-trial conference. On January 15, 2010, the City filed a motion to vacate the pre-trial conference, arguing the October 8, 2009 order granting Hicks's motion to correct error had no legal effect for being signed only by a magistrate, the motion to correct error was deemed denied on October 26, 2009, and the case came to an end when Hicks failed to file a notice of appeal. On January 22, 2010, the trial court issued the following order:

Nunc Pro Tunc Order Granting Plaintiff's Motion to Correct Error and Denying Defendant's ... Motion to Dismiss

Comes now [Hicks], by counsel, having filed Plaintiff's Motion to Correct Error ... and the Court, having examined said Motion, and having ruled in favor of said Motion on October 8, 2009 ... now finds that [it] should be granted and Defendant's, City of Indianapolis, Motion to Dismiss should be denied, Nunc Pro Tunc to October 8, 2009.

It is therefore Ordered that Plaintiff's Motion to Correct Error is Granted and Defendant's, City of Indianapolis, Motion to Dismiss is Denied as of October 8, 2009.

Appellant's App. at 13. The nunc pro tunc order was signed by both Magistrate Caudill and Judge Hanley. The City now appeals.

Discussion and Decision
I. Standard of Review

In general, we review a trial court's ruling on a motion to correct error for an abuse of discretion. Hawkins v. Cannon, 826 N.E.2d 658, 661 (Ind.Ct.App.2005), trans. denied. However, to the extent the issues raised by the City are purely questions of law, our review is de novo. See Ind. BMV v. Charles, 919 N.E.2d 114, 116 (Ind.Ct.App.2009) (“Although rulings on motions to correct error are usually reviewable under an abuse of discretion standard, we review a case de novo when the issue ... is purely a question of law.”); Christenson v. Struss, 855 N.E.2d 1029, 1032 (Ind.Ct.App.2006) (challenge to magistrate's authority to conduct hearing on motion to correct error presented question of law reviewed de novo).

II. Magistrate's Authority

The City argues, and Hicks does not dispute, that Magistrate Caudill lacked the authority to enter an order granting Hicks's motion to correct error. Except in criminal trials and other circumstances not applicable here, a magistrate “may not enter a final appealable order unless sitting as a judge pro tempore or a special judge.” Ind.Code § 33-23-5-8. 4 Hicks does not argue Magistrate Caudill was sitting as a judge pro tempore or special judge, and there is no evidence in the record suggesting he was so appointed. Therefore, Magistrate Caudill's October 8, 2009 order purporting to grant Hicks's motion to correct error was defective for failing to contain Judge Hanley's signature or another indication it was approved or adopted by the trial court. See Ind.Code § 33-23-5-9(a) (magistrate “shall report findings in an evidentiary hearing, a trial, or a jury's verdict to the court but [t]he court shall enter the final order”); Christenson, 855 N.E.2d at 1033 (magistrate may conduct hearing on motion to correct error, but “the judge must still perform the necessary judicial act of granting or denying the motion”) (quotation omitted); see also In re Hawkins, 902 N.E.2d 231, 240-41 (Ind.2009) (emphasizing that [r]eview of final orders by the presiding judge is not a mere technicality,” and finding that judge's regularly permitting master commissioner to issue purportedly final PCR orders constituted conduct prejudicial to the administration of justice).

However, Hicks contends, and we agree, the City waived any challenge to the validity of the October 8, 2009 order by failing to make any objection until January 15, 2010, ninety-nine days after the defective order was issued and well after the forty-five day time for ruling on Hicks's motion to correct error expired pursuant to Trial Rule 53.3(A). Our supreme court has long held that defects in the authority of a court officer, as opposed to the jurisdiction of the trial court itself, to enter a final order will be waived if not raised through a timely objection. See Floyd v. State, 650 N.E.2d 28, 33 (Ind.1994) (holding “the failure of a defendant to object at the original trial to the jurisdiction of a court officer to enter a final appealable order operates as waiver of the issue both on appeal ... and on collateral attack....”); Gordy v. State, 262 Ind. 275, 282-83, 315 N.E.2d 362, 366-67 (1974) (holding defendant waived challenge raised for first time on appeal that commissioner who conducted trial lacked requisite authority, because “when a judge has been called or an attorney appointed to try a cause, and no objection is made at the time, or to his sitting in the cause when he assumes to act, all objections thereto will be deemed waived”) (emphasis added; quotation omitted). More recently, this court has applied the same principle to civil proceedings and clarified that any objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs, or at least within such time as the tribunal is able to remedy the defect. See Sullivan v. City of Evansville, 728 N.E.2d 182, 188-90 (Ind.Ct.App.2000) (holding that appellant, by failing to object to commissioners' authority before or at the administrative hearing, waived any challenge, and citing Atkinson v. City of Marion, 411 N.E.2d 622, 629 (Ind.Ct.App.1980), which held issue of authority was waived when raised by appellant ‘for the first time at a point when the Board could no longer attempt to rectify the situation’).

Here, the City eventually called the trial court's attention to the defect of the October 8, 2009 order being signed only by Magistrate Caudill, but did not do so until well after the deadline for ruling on Hicks's motion to correct error had expired. Thus, not only did the City fail to challenge at the first instance an irregularity apparent on the face of the order, 5 it also failed to raise the issue until a point when the trial court could no longer correct the error by issuing an amended order bearing the trial judge's signature. We conclude the City's failure to timely object waived any challenge based on Magistrate Caudill's lack of authority. However, even if the issue had not been waived, for the reasons explained...

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