Hogan v. Review Bd. of Indiana Dept. of Employment and Training Services

Decision Date31 May 1994
Docket NumberQ-1,No. 93A02-9305-EX-00231,93A02-9305-EX-00231
Citation635 N.E.2d 172
PartiesJames H. HOGAN, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF EMPLOYMENT AND TRAINING SERVICES, Mable Martin-Scott, Chairperson, George H. Baker, Member, and Mark T. Robbins, Member, andMotor Express, Inc. Appellees.
CourtIndiana Appellate Court

James H. Hogan, pro se.

Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellees.

SULLIVAN, Presiding Judge.

In two cases decided this date, two appellate panels have decided that failure to file an assignment of errors deprives the appellate court of review jurisdiction. CLAYWELL V. REVIEW BD. OF THE INDIANA DEPT. OF EMPLOYMENT AND TRAINING SERV., (1994) 5TH DIST. IND.APP., 635 N.E.2D 181; 1 ST. AMAND-ZION V. REVIEW BD. OF THE INDIANA DEPT. OF EMPLOYMENT AND TRAINING SERV., (1994) 4TH DIST. IND.APP., 635 N.E.2D 184. 2 This district disagrees. The jurisdictional predicate relied upon by the other panels is a relic of the past. The requirement has been abolished. 3

REVIEW JURISDICTION
I. History of the Jurisdictional Rule

An appeal must be initiated within a specific number of days from an appealable judgment, determination, or award. 4 Historically, our Supreme Court has held that perfecting a timely appeal is jurisdictional. Vail v. Page (1911) 175 Ind. 126, 93 N.E. 705. As there are many components in the appellate process, there were numerous ways in which a litigant could fail to timely perfect an appeal. Accordingly, the case books are filled with precedent holding that timely filing a praecipe, an assignment of errors, or a transcript is not merely a procedural rule, but a jurisdictional requirement. Vail, supra at 131, 93 N.E. 705; Davis v. Pelley (1952) 230 Ind. 248, 102 N.E.2d 910. 5 The filing of a praecipe or an assignment of errors was held to "confer[ ]" or "vest[ ]" jurisdiction with the reviewing court. 230 Ind. at 254, 102 N.E.2d at 912; Higginson v. State (1957) 237 Ind. 256, 258, 142 N.E.2d 435, 436. Failure to file a praecipe or assignment of errors The jurisdictional theory was bolstered by our court's promulgation of Ind. Appellate Rule 2(A) which states that if a praecipe is not filed within the time limits contained in the rule, "the right to appeal will be forfeited." (Burns Code Ed.1994). 6 In 1973, our Supreme Court held that where an appellant failed to file a praecipe within the time limits, "the Court of Appeals had no choice but to deny the petition for the extension of time...." Sears, Roebuck and Co. v. Hutchens (1973) 260 Ind. 561, 563, 297 N.E.2d 807, 808 (emphasis supplied).

prevented the court from "obtaining jurisdiction." Meier v. Social Sec. Admin., supra n. 2, 237 Ind. at 422, 146 N.E.2d at 240.

II. Abolition of the Jurisdictional Rule

Perhaps realizing the dangerous course upon which it had embarked, our Supreme Court all but reversed Sears, Roebuck and Co. just three months after it was decided. Soft Water Utilities v. Le Fevre (1973) 261 Ind. 260, 301 N.E.2d 745. In Soft Water Utilities, the appellant filed a late praecipe due to misinformation supplied by the court clerk. Upon appeal, the appellee argued to the Appellate Court that the mandatory language of App.R. 2(A) required dismissal. 261 Ind. at 268, 301 N.E.2d at 750. After all, if it is the praecipe which confers jurisdiction, where no praecipe is filed, a reviewing court has no power to relieve the appellant from unfortunate circumstances. The Appellate Court agreed and dismissed the appeal. However, our Supreme Court reversed the dismissal stating, "To hold that an appeal is forfeited ipso facto ... would raise substantial constitutional questions concerning such procedure in light of the guarantee of the right to appeal." Id. The court based its decision, in part, on Art. 7 § 6 of the Indiana Constitution which states that all litigants have an "absolute right to one appeal...." (West's Ann.Code 1985). 7

Although not expressly stated, the court seemingly relied upon the principle that the Indiana Constitution grants appellate tribunals "inherent power to do everything that is necessary to carry out the purpose of their creation." Knox County Council v. State ex rel McCormick (1940) 217 Ind. 493, 498, 29 N.E.2d 405, 407. Cases stating that jurisdiction is conferred by the filing of a praecipe, or some other document, impermissibly restrict the powers granted appellate courts by the Indiana Constitution as those powers have been interpreted by our Supreme Court.

Despite Soft Water Utilities, the appellate courts continued to hold that filing a praecipe or assignment of errors was a jurisdictional requirement. 8 Therefore, in 1978, our Supreme Court handed down its decision in Lugar v. State "to settle confusion created by three separate opinions of [the appellate] court demonstrating differences of opinion as to the application of procedural rules...." (1978) 270 Ind. 45, 46, 383 N.E.2d 287, 288-89. 9 In Lugar, appellant's Motion to Correct Errors, then considered a condition precedent To hold that a praecipe or assignment of errors confers jurisdiction upon the reviewing court is to relinquish our inherent power to entertain a belated appeal. This district, for one, declines to do so. While the jurisdictional language, perhaps because it is so simple, is a tempting way to dispose of untimely appeals, it is inaccurate and unconstitutional. Where an appeal has not been perfected, a court may and should state that it is under no obligation to entertain the cause upon the merits. However, the court may not divest itself of the inherent jurisdiction vested in it by the Indiana Constitution.

to appeal, did not specify as error the argument made on appeal. It was therefore akin to a failure to file a timely Motion, yet our Supreme Court stated, "This Court has inherent discretionary power to entertain an appeal after the time allowed has expired. The Court of Appeals also has this power." 270 Ind. at 46, 383 N.E.2d at 289 (citations omitted). The court went on to hold that where the time to appeal has expired, the appellant is divested of his or her absolute right to appeal. Id. However, the appellate courts may, in the exercise of this inherent discretion, choose to hear the case. Id. Lugar, then, stands for the proposition that failure to file a timely Motion to Correct Errors did not deprive the appellate court of jurisdiction. This is axiomatic to the Lugar holding. Otherwise, Lugar would stand for the proposition that a court may exercise its discretion to decide a case even though it does not have jurisdiction. Such an interpretation would clearly violate a basic judicial principle.

Nevertheless, like a persistent weed, the theory that the appellate court has no jurisdiction over a late appeal refuses to be eradicated. Cases decided this year retain the same old language. "Timely filing ... a praecipe is a jurisdictional matter and is an absolute precondition to an appeal." Bd. of Comm'rs of Lake County v. Foster (1993) 3d Dist.Ind.App, 614 N.E.2d 949, 950. 10 The language in Lugar is clear: the foregoing interpretation of App.R. 2(A) is incorrect and inappropriate.

III. Assignment of Errors

The jurisdictional theory has also been applied to a party's failure to file a timely assignment of errors or motion to correct errors. Davis v. Pelley, supra, 102 N.E.2d 910. Although a praecipe and an assignment of errors serve different purposes upon appeal, our court's decisions in Soft Water Utilities and Lugar are applicable to these documents as well. Both the praecipe and the assignment of errors were deemed jurisdictional for the same reason: they were the instruments by which a party "perfect[ed] the appeal within the time required...." Meier, supra, 237 Ind. at 421, 146 N.E.2d at 240. Where the reasoning for holding that a praecipe confers jurisdiction has been found faulty, the reasoning for holding that an assignment of errors confers jurisdiction must also fall. In fact, in Lugar, our court did address the merits of the case despite a faulty motion to correct errors. 11

In Lugar, supra, the opposing party argued that the Appellate Court could not consider Failure to file an assignment of errors or motion to correct errors cannot deprive an appellate tribunal of its inherent constitutional power of discretionary review any more than the failure to file a praecipe. Jurisdiction is conferred by the Indiana Constitution or by statute, State ex rel. Wilson v. Howard Circuit Court (1957) 237 Ind. 263, 145 N.E.2d 4; jurisdiction cannot be conferred by a piece of paper. See n. 5, supra.

                an issue not preserved in a timely motion to correct errors. 12  Our Supreme Court disagreed.  270 Ind. at 47, 383 N.E.2d at 289.   In so doing, the court relied upon the First District's opinion in Costanzi v. Ryan (1977) 1st Dist., 174 Ind.App. 454, 368 N.E.2d 12.   In Costanzi, the opposing party argued that the appellate court was required to dismiss the appeal for failure to file a timely assignment of errors.  The appellate court held that it had jurisdiction to hear the case despite Costanzi's failure to comply with procedural time limits.  " '[J]urisdiction is the legal power, as distinguished from the right, to entertain any matter or proceeding, and to act therein....' "  174 Ind.App. at 458, 368 N.E.2d at 14-15.   The First District, in turn, relied upon Soft Water Utilities in determining that it was within the scope of its powers as a reviewing court to allow an appeal "by act of grace."  Id
                
IV. Use of Inherent Power

Our Supreme Court has enunciated some guidelines for the use of a reviewing court's inherent power. In Lugar, the court stated that reviewing courts should exercise discretion " 'only in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist.' " 383 N.E.2d at 289 (appeal from order requiring the trustees of the Police Pension Fund to include clothing...

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