Koehn v. Devereaux

• Decision Date: 16 July 1986
• Docket Number: No. 3-285A31,3-285A31
• Parties: Jerry KOEHN, d/b/a Koehn & Moore Grain and Limestone Transporting Company and Estate of Robert A. Williams, et al., Appellants (Defendants Below), v. Charmaine DEVEREAUX, Individually and as the Executrix of the Estate of Arnold Devereaux, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 211

495 N.E.2d 211

Jerry KOEHN, d/b/a Koehn & Moore Grain and Limestone

Transporting Company and Estate of Robert A.

Williams, et al., Appellants (Defendants Below), v. Charmaine DEVEREAUX, Individually and as the Executrix of

the Estate of Arnold Devereaux, Appellee (Plaintiff Below).

No. 3-285A31.

Court of Appeals of Indiana,

Third District.

July 16, 1986.

R. Kent Rowe, Edmond W. Foley, Rowe & Laderer, South Bend, for appellants.

April Hansen, Peter L. Obremskey, Parr, Rickey, Obremskey & Morton, Lebanon, for amicus curiae.

Thomas C. Sopko, John C. Firth, Thomas C. Sopko & Associates, James R. Kuehl, Kuehl & Kuehl, South Bend, for appellee.

HOFFMAN, Judge.

At the time of his death, Arnold Devereaux was a veteran fireman with the LaPorte City Fire Department. According to the complaint, on May 1, 1980 Robert Williams was delivering limestone. He was operating a truck which was allegedly owned by Jerry Koehn, d/b/a Koehn & Moore Limestone Transporting Company (collectively referred to as Koehn). Williams was alleged to be an employee of Koehn. While Williams was operating the truck, it came into contact with overhead electrical power lines which were the property of Kankakee Valley Rural Electric Membership Corporation (Kankakee). Kankakee was alleged to have installed and maintained the lines. Upon contact with the power lines, electricity flowed into the truck and Williams was put in a position of peril. Devereaux came upon the scene and attempted to rescue Williams, but Devereaux sustained injuries himself which resulted in his death.

Charmaine Devereaux, as wife of the deceased and executrix of his estate, filed suit against Koehn's business, the estate of Williams and Kankakee alleging negligence which placed Williams in a position of peril inviting rescue. The defendants/appellants filed a motion for summary judgment. The trial court denied the motion and certified three issues for interlocutory appeal:

"1. Does the Fireman's Rule exception to the Rescue Doctrine apply in Indiana?

2. If it applies, does it apply to the facts of this case?

3. If it applies to the facts of this case, does it defeat plaintiff's right of recovery against defendants as a matter of law?"

Before addressing these issues, it is necessary to address the appellee's contention that this Court lacks jurisdiction of this appeal. Appellee argues appellant has failed to file the record of proceedings within 30 days of the "ruling" which, appellee asserts, refers to the order sought to be appealed. Ind. Rules of Procedure, Appellate Rule 3(B). Appellee is correct; the record was not filed within 30 days plus extensions of the date of the denial of the summary judgment. However, this Court has jurisdiction.

The denial of a motion for summary judgment is an interlocutory order and not a final judgment. Pitts v. Woolridge et al. (1974), 161 Ind.App. 404, 315 N.E.2d 736. After a final judgment, such ruling may be raised in a motion to correct error pursuant to Ind. Rules of Procedure, Trial Rule 56(E), Kasten, Admx. v. Sims Transp. et al. (1975), 166 Ind.App. 117, 333 N.E.2d 906. The general appeal of interlocutory orders is provided for in Ind. Rules of Procedure, Appellate Rule 4(B) which reads in pertinent part:

"(B) ... Also, appeal from interlocutory orders shall be taken to the Court of Appeals in the following cases:

(1) For the payment of money or to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidence of debt, documents or things in action;

(2) For the delivery of the possession of real property or the sale thereof;

(3) Granting, or refusing to grant, or dissolving or overruling motions to dissolve preliminary injunctions; or the appointment of receivers;

(4) Orders and judgments upon writs of habeas corpus not otherwise authorized to be taken directly to the Supreme Court;

(5) Transferring or refusing to transfer a case pursuant to Trial Rule 75;

(6) Any other interlocutory order, if the trial court certifies and the court on appeal or a judge thereof finds on petition that:

(a) The appellant will suffer substantial expense, damage or injury if the order is erroneous and the determination thereof is withheld until after judgment, or

(b) The order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case, or

(c) The remedy by appeal after judgment is otherwise inadequate. The petition under subsection (6) of subdivision (B) of this rule shall not stay proceedings in the trial court unless the trial court judge or the court on appeal or a judge thereof shall so order, and such order may be made conditional upon the furnishing of a bond or security protecting the appellee against loss incurred thereby, if any."

The denial of a motion for summary judgment is not an interlocutory order specifically made appealable in subsections (1) through (5) of the rule. It is therefore subject to the provisions of subsection (6) which provides for discretionary interlocutory appeals. Pursuant to subsection (6), the trial court must certify that one of the conditions enumerated in subsections (a) through (c) applies. The prospective appellant must then petition the Court of Appeals requesting the interlocutory order be found appealable. The appellate court must also find to exist one of the conditions specified in subsections (a) through (c) in order to establish the order as an appealable interlocutory order. Since the order is not appealable prior to the appellate court's finding, the time for compliance with the procedural requirements for appeal does not begin to run until the appellate court's ruling that the order is within the purview of one of the subsections and thus appealable.

Ind. Rules of Procedure, Appellate Rule 3(B) provides for the time in which appeals must be submitted to the appellate court. It provides:

"(B) ... In all appeals and reviews, except those from interlocutory orders, the record of the proceedings must be filed with the clerk of the Supreme Court and Court of Appeals within ninety days from the date of the judgment or the ruling on the motion to correct errors, whichever is later. In appeals and reviews of interlocutory orders the record of the proceedings shall be filed within thirty days of the ruling. However, if the statute under which the appeal or review is taken fixes a shorter time, the time fixed by the statute shall prevail."

The "ruling" from which the 30 days for filing of record is calculated is not specified or defined. However, consistent with the above reasoning, the applicable ruling is the ruling which establishes the order as appealable, i.e. the ruling of the Court of Appeals pursuant to A.R. 4(B)(6). Thus for interlocutory orders specifically appealable in A.R. 4(B)(1) through (5) the ruling of the trial court creates an appealable order and the 30 days for filing of record is calculated from that date. But for an interlocutory order appealable only through the discretionary process found in A.R. 4(B)(6), the ruling from which the 30 days is calculated is the Court of Appeals finding of appealability.

In addition, a motion to correct error is not applicable to an appeal of an interlocutory order pursuant to A.R. 4(B). See, Hudson v. Tyson (1978), 178 Ind.App. 376, 383 N.E.2d 66 and Protective Ins. Co. et al. v. Steuber (1977), 175 Ind.App. 139, 370 N.E.2d 406. Instead, the record consists of a specific assignment of the error alleged. Ind. Rules of Procedure, Appellate Rule 7.2(A)(1)(b). Therefore there is no ruling on a motion to correct error from which to time the 30 days specified in Ind. Rules of Procedure, Appellate Rule 2(A) for filing a praecipe. Consequently, although a request of some type is necessary to obtain the record from the clerk of the trial court for filing with the appellate court clerk, for an interlocutory appeal the filing of the praecipe is not jurisdictional being impossible of time calculations as provided in A.R. 2(A).

The requirements of Appellate Rule 2(C) for the pre-appeal conference must accomodate the distinctions between the interlocutory appeal and the appeal of a final judgment. The documents required by Rule 2(C) applicable to an interlocutory order must be filed. Preferably, this filing will accompany the petition to the Court of Appeals requesting a finding of appealability.

Applying these principles to the present case, this Court does not lack jurisdiction for failure of the prospective appellant to file a praecipe within a specified time. The record was not due in the appellate court until 30 days after the ruling on July 20, 1985 accepting jurisdiction, plus any appropriate extensions of time. An extension of time is permissible pursuant to Ind. Rules of Procedure, Appellate Rule 14(B)(3) if the request for the record was filed within 30 days of the ruling from which the time for appeal began to run. Here that date was July 20, 1985 when the Court of Appeals accepted jurisdiction. The prospective appellant filed the request for the extension of time early having calculated the time from the denial of the motion for summary judgment, and this Court appropriately granted the request for extension at the time jurisdiction was accepted.

The prerequisites for a discretionary interlocutory appeal have been met by appellant and this Court has jurisdiction to address the certified issues.

Indiana law recognizes the rescue doctrine as was established in Neal, Admr. v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280, reh. denied, 111 N.E.2d 713 even though the doctrine was found not to apply in Neal. The doctrine and its firm entrenchment in Indiana law was recently reaffirmed by the Indiana Supreme Court in Lambert v. Parrish (1986), 492 N.E.2d 289, reversing the Court of Appeals' decision found at 467 N.E.2d 791. The rescue doctrine has been defined in these cases as follows: " 'One who has,...