CNA Ins. Companies (CNA) v. Vellucci

• Decision Date: 21 July 1992
• Docket Number: No. 57A05-9103-CV-85,57A05-9103-CV-85
• Citation: 596 N.E.2d 926
• Parties: CNA INSURANCE COMPANIES (CNA) Appellant-Plaintiff, v. Frank A. VELLUCCI, Midland Engineering Company, Margaret M. Saunders and Aladean M. Derose, Co-Administratices of the Estate of Richard Saunders Appellees-Defendants.
• Court: Indiana Appellate Court

Page 926

596 N.E.2d 926

CNA INSURANCE COMPANIES (CNA) Appellant-Plaintiff, v. Frank A. VELLUCCI, Midland Engineering Company, Margaret M Saunders and Aladean M. Derose, Co-Administratices of the Estate of Richard Saunders Appellees-Defendants.

No. 57A05-9103-CV-85.

Court of Appeals of Indiana Fifth District.

July 21, 1992.

Rehearing Denied Aug. 27, 1992.

Thomas A. Reed, Peterson & Ross, Chicago, Ill., Don Blackmond, Doran, Blackmond, Ready, Hamilton & Williams, South Bend, for appellant-plaintiff.

Robert J. Palmer, May, Oberfell & Lorber, South Bend, Thomas D. Blackburn, Sweeney, Pfeifer & Blackburn, Ft. Wayne, for appellees-defendants.

SHARPNACK, Judge.

Transportation Insurance Company ("CNA") appeals from the grant of summary judgment in favor of Frank A. Vellucci, Midland Engineering Company, Margaret M. Saunders and Aladean M. Derose (the latter two as administratrices of the Estate of Richard Saunders) (collectively "the Estate") in a declaratory judgment action filed by CNA. We dismiss the appeal for want of jurisdiction.

The following is a brief procedural history. On January 17, 1986, Richard Saunders was killed while riding as a passenger in a truck owned by Midland and driven by Vellucci. The truck was insured under a policy issued by CNA. Saunders' estate filed a wrongful death action against Vellucci in St. Joseph Superior Court and, on February 17, 1988, Saunders' estate received a judgment against Vellucci in the amount of $1,750,000. Approximately one month before the wrongful death trial, CNA filed a declaratory judgment action against the Estate seeking a declaration that the insurance policy did not cover the accident. The Estate filed an answer, affirmative defenses, and counterclaims.

On January 29, 1990, the Estate filed a motion for summary judgment alleging that CNA was collaterally estopped by the wrongful death proceeding from asserting that the accident fell within the policy's "fellow-servant" exclusion. The trial court granted the Estate's motion for summary judgment on July 27 with an order accompanied by findings of fact. The findings of fact included the following relevant statement:

"The Court further concludes that there is no just reason for delay and concludes that a judgment should be entered at this time as to the Complaint for Declaratory Judgment, but reserves as an issue for trial the Counterclaims filed by the Defendant Estate and Defendant Vellucci against CNA."

(Record, p. 1268.) In addition, the "Judgment" portion of the order included the following language:

"IT IS FURTHER ORDERED AND ADJUDGED BY THE COURT that there is no just reason for delay and a Declaratory Judgment should be entered at this time.

IT IS FURTHER ORDERED AND ADJUDGED BY THE COURT that Declaratory judgment be, and hereby is, entered for the Defendant Estate...."

(Record, p. 1269.)

On August 20, CNA filed a motion requesting the trial court to enter a final judgment pursuant to Trial Rules 54(B) and 56(C). The trial court granted that motion on August 24. CNA filed a motion to correct error on September 24, and the Estate responded with a motion to strike on the basis that CNA had not timely filed its motion to correct error. On November 26, following a hearing, the trial court denied both the motion to correct error and the Estate's motion to strike. CNA filed its praecipe on December 21. On March 18, 1991, the Estate filed with this court a motion to dismiss the appeal based upon a lack of jurisdiction, arguing that CNA had not timely filed its praecipe. We denied that motion by order dated July 25, 1991. The Estate again raised the issue of our jurisdiction in a cross-appeal.

Upon reconsideration, we hold that we do not have jurisdiction to entertain CNA's appeal. CNA disputes our ability to reconsider the question of our jurisdiction, contending that we are bound by our July 25, 1991, order under the doctrine of the law of the case. However, that doctrine does not prohibit an appellate court from reconsidering its ruling on a motion when raised again in the same appeal. Even the cases cited by CNA, Matter of Guardianship of Posey (1986), Ind.App., 513 N.E.2d 674 cert. denied, (1988), 485 U.S. 988, 108 S.Ct. 1292, 99 L.Ed.2d 502 and Galloway v. State (1985), Ind.App., 485 N.E.2d 637, describe the doctrine in terms of matters once decided on appeal being binding on the appellate court in a subsequent appeal. Furthermore, because we could change our decision pursuant to a petition for rehearing, it would make no sense to refuse to do so at an earlier stage before we have expended further resources.

Turning to the substance of the jurisdictional question, the timing requirements contained in Ind. Appellate Rule 2(A) and Ind. Trial Rule 59(C) control this case. Ind. Appellate Rule 2(A) states, in relevant part:

"[T]he praecipe ... shall be filed within thirty (30) days after the entry of a final judgment or an appealable final order or, if a motion to correct error is filed, within thirty days after the court's ruling on such motion.... Unless the praecipe is filed within such time period, the right to appeal will be forfeited."

The relevant portion of T.R. 59 provides:

"(C) Time for Filing: Service on Judge. The motion to correct error, if any, shall be filed not later than thirty days after the entry of a final judgment or an appealable final order."

CNA did not file its appeal within thirty days of the trial court's order of summary judgment, regardless of whether we look to the July 27 order or the August 24 order. However, CNA did file its praecipe within thirty days of the trial court's ruling on the motion to correct error. Therefore, we must decide whether CNA timely filed its motion to correct error, because, if it did not, the trial court's ruling on that motion was a nullity and cannot be used to extend the time for filing a praecipe. Swain v. Swain (1991), Ind.App., 565 N.E.2d 1134, 1135; Kratkoczki v. Regan (1978), 178 Ind.App. 184, 381 N.E.2d 1077, 1079.

We conclude that, because the trial court entered an appealable order on July 27, 1990, CNA's motion to correct error was not timely filed. Such a conclusion is mandated by the clear language of our trial rules. Trial Rule 56(C) provides, in relevant part:

"[A] summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is not just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties." (emphasis added)

Rule 54(B), in relevant part, provides:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.... A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final." (emphasis added)

The time for filing either a motion to correct error or a praecipe begins with the entry of an appealable order under T.R. 54(B) or T.R. 56(C). See Lawson v. Howmet Aluminum Corp. (1983), Ind.App., 449 N.E.2d 1172, 1176-1177.

Here, both the "Findings of Fact" and "Judgment" sections of the July 27 order find no just reason for delay and order entry of judgment upon less than all of the issues. The order unambiguously complied with T.R. 56(C) and T.R. 54(B) and therefore triggered the thirty day time limit to file either a praecipe or a motion to correct error.

CNA contends that, even if its motion to correct error was not timely filed under the rules, we have discretion to consider the merits of its appeal due to its reliance on the trial court's August 24 order. However, the relevant law indicates that, except in a narrow range of extraordinary circumstances, the mandatory language of T.R. 59(C) and App.R. 2(A) leaves us with no discretion to mitigate potentially harsh applications of the rules. There is a distinction between jurisdictional and nonjurisdictional requirements under the appellate rules. The court has discretion to proceed to the merits in the latter case, but no discretion in the former, except in certain extreme circumstances. Timely filing of a praecipe is a jurisdictional prerequisite, and, therefore, noncompliance with applicable time limits results in forfeiture of the appeal. Dixon v. State (1991), Ind.App., 566 N.E.2d 594; Hughes v. Morgan County (1983), Ind.App., 452 N.E.2d 447; Bailey v. Sullivan (1982), Ind.App., 432 N.E.2d 75.

We find the case of In re Estate of Moore (1973), 155 Ind.App. 92, 291 N.E.2d 566 (per curiam) to be particularly germane to the situation before us. In Moore, the appellant did not file its praecipe until more than thirty days after the trial court overruled the motion to correct error. The trial court entered a nunc pro tunc order directing the record to be corrected to show the praecipe filed on an earlier date, the date appellant had orally requested preparation of the transcript and praecipe. Id. at 568. The trial court explained that its staff customarily undertook the preparation of material for appeals, including the praecipe. Id. The court of appeals, however, applied the strict language of App.R. 2(A) and found that the rule provided for no exceptions. Id. at 569. The court held that the appellant had forfeited its right to appeal and that the trial court's nunc pro tunc...