Hansbrough v. Indiana Revenue Bd.

• Decision Date: 30 April 1975
• Docket Number: No. 2--174A31,2--174A31
• Citation: 164 Ind.App. 56,326 N.E.2d 599
• Parties: Max J. HANSBROUGH, on behalf of himself and all other taxpayers of the City of Indianapolis, County of Marion, State of Indiana, similarly situated, Appellant (Plaintiff below), v. INDIANA REVENUE BOARD et al., Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 599

326 N.E.2d 599

164 Ind.App. 56

Max J. HANSBROUGH, on behalf of himself and all other taxpayers of the City of Indianapolis, County of Marion, State of Indiana, similarly situated, Appellant (Plaintiff below), v. INDIANA REVENUE BOARD et al., Appellees (Defendants below).

No. 2--174A31.

Court of Appeals of Indiana, Second District.

April 30, 1975.

Robert V. Bridwell, Robert D. Epstein, Connor, Epstein & Frisch, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., for appellees.

BUCHANAN, Judge.

CASE SUMMARY

Plaintiff-Appellant Max J. Hansbrough (Hansbrough) seeks to appeal from the dismissal of his taxpayer's complaint against the Defendant-Appellee Indiana Revenue Board (Board) for payment of interest on a previously court-ordered distribution of Indiana Inheritance Tax funds without having filed a motion to correct errors to the trial court's final judgment.

We dismiss the appeal sua sponte.

FACTS

Because of the limited scope of our decision, only the procedural facts are pertinent.

On February 25, 1973. Hansbrough, on behalf of himself and all other taxpayers of Indianapolis, filed a class action seeking collection of judicial interest on Inheritance Tax funds in the amount of $12,373,338.97 previously ordered paid by the Appellate Court of Indiana to the Mass Transportation Authority of Greater Indianapolis (now the Department of Transportation of the City of Indianapolis). (See State ex rel. Mass Transportation Authority v. Indiana Revenue Board (1969), 144 Ind.App. 63, 242 N.E.2d 642, 253 N.E.2d 725.)

Thereafter, on March 14, 1973, the Board filed a Motion to Dismiss pursuant to Trial Rule 12(B)(6), contending that Hansbrough failed to state a claim upon which relief could be granted. Specifically, the Board alleged that judicial interest lies only on a money judgment and that the judgment of the Appellate Court was in the form of a Writ of Mandate, not a money judgment.

At a hearing on April 25, 1973 the Board's Motion to Dismiss and a Motion by Hansbrough for determining if a class action should be maintained were argued. The court made no ruling on these motions at that time and gave the parties 'two weeks to brief additional points raised by the Court.'

After supplemental briefs and memoranda were filed by the respective parties, the trial court on July 5, 1973, sustained the Board's Motion to Dismiss in these words:

'Motion to dismiss sustained. Motion to make class action now moved and overruled.'

(the July Fifth Entry)

No further proceedings occurred until August 31, 1973, when Hansbrough filed a Motion to Correct Errors and supporting memorandum directed to the July Fifth Entry arguing the points of law previously raised in the pleadings.

Then on October 25, after oral argument, the Motion to Correct Errors was overruled and the trial court, for the first time, made findings and conclusions relating not only to the question of whether judicial interest lies on a Writ of Mandate (as opposed to a money judgment), but also made findings and conclusions relating to jurisdiction and standing issues. The exact wording of this Entry of October 25 is set out below.

Hansbrough did not file a Motion to Correct Errors to the October Twenty-Fifth Entry.

ISSUE

We deem the only issue to be:

Should this 'appeal' be dismissed because a Motion to Correct Errors was not filed to the October Twenty-Fifth Entry?

Neither party formulates an argument specifically addressed to this issue. However, this Court's continuing duty to take notice of its lack of jurisdiction requires us to be cognizant of our limitations, and therefore we raise this issue sua sponte. Bell v. Wabash Valley Trust Company (1973), Ind.App., 297 N.E.2d 924, 925; Bobbitt, 1 Indiana Appellate Practice and Procedure 539 (1972), and cases cited at footnote 50.

DECISION

CONCLUSION--It is our opinion that this appeal must be dismissed because Hansbrough failed to file a Motion to Correct Errors to the October Twenty-Fifth Entry, which was the final judgment of the trial court.

One of the chasms over which an aspiring Appellant must leap on the laborious appellate trail is to demonstrate that he has filed a Motion to Correct Errors to a final appealable judgment. Rule TR. 59(G), Rule AP. 4.

Hansbrough did file such a Motion to the July Fifth Entry . . . an entry which simply sustained the Board's Motion to Dismiss and overruled Hansbrough's Motion to make class action, and purported to do no more. It was to this Entry (July Fifth) that Hansbrough's Motion to Correct Errors was directed. No such Motion was filed to the October Twenty-Fifth Entry, which, for reasons hereinafter discussed, we believe to be the final judgment from which an appeal should have been taken.

The October Twenty-Fifth Entry for the first time set forth the reasons in fact and law upon which the July Fifth Entry was based and also included new and additional findings and conclusions of law as to the trial court's jurisdiction and Hansbrough's standing. It provided:

'This case came on for hearing on plaintiff's motion to correct errors, said motion having been heard on the 19th day of September, 1973. Said motion to correct errors sought to overturn the Court's entry of July 6, 1973, sustaining defendants' motion to dismiss.

'The plaintiff appeared on September 19, 1973, by his attorneys Robert D. Epstein and Robert V. Bridwell; defendants appeared on said date by Curtis J. Butcher, Deputy Attorney General, and Robert S. Spear, Deputy Attorney General.

'The Court now finds and concludes as follows:

'1. The Appellate Court of Indiana, pursuant to Burns' (1968 Repl.) § 3--2121, took complete and original (sic) jurisdiction for all purposes of the case of State ex rel. Mass Transportation Authority v. Indiana Revenue Board (1968), 144 Ind.App. 63, 242 N.E.2d 642; ibid., 144 Ind.App. 63, 253 N.E.2d 725; ibid., 146 Ind.App. 334, 255 N.E.2d 833, by removing said case from the Superior Court of Marion County, Room No. 3. Therefore, this Court cannot rightfully assume jurisdiction of any ancillary proceedings of the subject matter of said cause.

'2. Even if subject matter jurisdiction properly were vested in this Court:

'A. No interest was requested and none awarded in the decision of State ex rel. Mass Transportation Authority v. Indiana Revenue Board, supra and no motion to correct errors was timely filed.

'B. Plaintiff herein is a stranger to the record of said case. No motion to intervene in said case nor any other pleading was filed therein on behalf of plaintiff Hansbrough.

'C. Plaintiff herein did not attempt to intervene or take other appropriate action in a timely fashion, but instead waited until February 21, 1973, to file the instant action.

'D. Any action to recover any interest which might accrue would properly be against officials of the Metropolitan Transportation Authority for failure to request said interest, not against the State of Indiana.

'E. Notwithstanding any other issues of this cause, judicial interest will not lie on a writ of mandate. The decision of the Appellate Court of Indiana in State ex rel. Mass Transportation Authority v. Indiana Revenue Board, supra, was clearly a writ of mandate, not a judgment for money within the meaning of the statutes of the State of Indiana. Plaintiff's complaint therefore does not state a claim upon which relief can be granted under any set of facts.

'It is, therefore, ORDERED, ADJUDGED, and DECREED that plaintiff's motion to correct errors is hereby overruled this 25 day of October, 1973.

'/s/ G. W. Funk, Judge, Superior Court of Mation County--Room No. 3'

(the October Twenty-Fifth Entry)

Thus we conclude that for the first time it set forth findings of fact and conclusions not present in the July Fifth Entry.

Here we must pause to determine if this new Entry of October Twenty-Fifth was in truth a final judgment . . . and we conclude it possessed such finality.

The ultimate test of what constitutes a final judgment from which an appeal may be taken was described in Krick v. Farmer's & Merchants Bank of Boswell ¹ (1972), Ind.App., 279 N.E.2d 254;

'To be appealable as a final judgment, an order or judgment must be one which finally determines the rights of the parties involved; or,

'(I)f it does not dispose of all the issues, it will be appealable if it disposes of some distinct and definite branch of the proceedings leaving no further question for future determination by the court as to that particular issue.' (Emphasis supplied).

279 N.E.2d at 259

See also, Thompson v. Thompson (1972), Ind., 286 N.E.2d 657, 659; State ex rel. Neal v. Hamilton Circuit Court (1967), 248 Ind. 130, 134, 224 N.E.2d 55; Seaney v. Ayres (1958), 238 Ind. 493, 151 N.E.2d 295, 296, 297; Schenkel et al v. Citizens State Bank (1967), 140 Ind.App. 558, 559, 560, 224 N.E.2d 319; Vinson v. Rector (1960), 130 Ind.App. 606, 609, 610, 167 N.E.2d 601; Bobbitt, 1 Indiana Appellate Practice and Procedure 364 (1972), and cases cited at footnotes 7--9.

Examining the October Twenty-Fifth Entry it is apparent that for the first time the trial court made various findings and conclusions: That judicial interest does not lie on a writ of mandate (which was the only issue raised in the Board's Motion to Dismiss); that the trial court did not have subject matter jurisdiction over Hansbrough's claim; that even if there was subject matter jurisdiction, nevertheless the question of judicial interest was not timely raised, nor was Hansbrough the proper party to raise this question.

There was, then, no question left for future determination. All issues were resolved.

The trial court recognized the finality ² of its judgment by stating, 'Plaintiff's (Hansbrough) Complaint therefore does not state a claim upon which relief can be granted under any set of facts.' . . . and further expressed its intent to finally dispose of the rights of the parties by ordering, adjudging and decreeing that...