Lugar v. State ex rel. Lee

• Decision Date: 13 December 1978
• Docket Number: No. 1278S288,1278S288
• Citation: 270 Ind. 45,383 N.E.2d 287
• Parties: Richard G. LUGAR, Mayor of the City of Indianapolis, Winston Churchill, Chief of the Indianapolis Police Department, Lawrence L. Buell, Treasurer of Marion County, Indiana, Winston Churchill, President, James Langsford, Secretary and Michael T. Sergi, Judith Callahan, Earl Booth, Joseph Klein and John Hartnet, all members of the Board of Trustees of the Police Pension Fund of the City of Indianapolis, Indiana, Appellants, v. STATE of Indiana ex rel. George C. LEE and Charles L. Cline, Individually and as representing a class of others similarly situated, others being too numerous to mention, Appellees.
• Court: Indiana Supreme Court

Page 287

383 N.E.2d 287

270 Ind. 45

Richard G. LUGAR, Mayor of the City of Indianapolis, Winston Churchill, Chief of the Indianapolis Police Department Lawrence L. Buell, Treasurer of Marion County, Indiana Winston Churchill, President, James Langsford, Secretary and Michael T. Sergi, Judith Callahan, Earl Booth, Joseph Klein and John Hartnet, all members of the Board of Trustees of the Police Pension Fund of the City of Indianapolis Indiana, Appellants, v. STATE of Indiana ex rel. George C. LEE and Charles L. Cline Individually and as representing a class of others similarly situated, others being too numerous to mention, Appellees.

No. 1278S288.

Supreme Court of Indiana.

Dec. 13, 1978.

David R. Frick, Corp. Counsel, William L. Soards, Soards & Carroll, Indianapolis, for appellants.

John C. Ruckelshaus, Paul G. Roland, Rex P. Killian, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, for appellees.

GIVAN, Chief Justice.

Appellees filed a petition to transfer after an adverse decision in the Court of Appeals. This is an action in mandate brought by appellees, former members of the Indianapolis Police Department and the widows or next of kin thereof, to compel the trustees of the Police Pension Fund to include, in the computation benefits, the clothing allowance paid to policemen under IC § 19-1-10-1 (Burns' 1974). The trial court held the clothing allowance must be included in the salary computation and accordingly ordered the Trustees to pay $1,310,696.73 to the Fund. The Court of Appeals reversed the trial court. We agree with the result reached by the Court of Appeals. However, to settle confusion created by three separate opinions of that court demonstrating differences of opinion as to the application of procedural rules in the case, we hereby grant transfer and reverse the judgment of the trial court.

In the Court of Appeals, appellants had been given until January 29, 1976 to file their brief. On January 28, 1976, the attorney for appellants filed a petition for an emergency extension of time. A separate sworn statement as required by Ind.R.App.P. 14(A) did not accompany the petition. However, the verified petition stated that "despite due diligence and giving preference to this matter" the attorney for appellants would not be able to complete the brief in time because of his duties as a member of the Indiana House of Representatives.

This Court has inherent discretionary power to entertain an appeal after the time allowed has expired. State ex rel. Cook v. Howard, Warden (1945) 223 Ind. 694, 64 N.E.2d 25. The Court of Appeals also has this power. Lowe v. Gardner (1959) 129 Ind.App. 527, 158 N.E.2d 808. However an appeal under such conditions is not a matter of right and will not be permitted in every situation. This Court will exercise such discretion "only in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist." Costanzi v. Ryan (1977) Ind.App., 368 N.E.2d 12, 16.

Such is the situation in the case at bar. Although the petition does not state that the facts supportive thereof did not exist or were not known until less than five days before the deadline, it is reasonably inferable that such is the case. The petition does disclose that appellants' attorney was serving in the legislature at the same time he was attempting to prepare a brief in a matter of great public importance, involving millions of public dollars and private pension benefits. These were indeed extraordinary circumstances and an appellate court in such a case should not so strictly adhere to procedural rules as to ignore the practical dilemmas sometimes faced by counsel who are active in public affairs. The Court of Appeals was well within its discretion in granting the petition for an extension of time.

Following the trial court's entry of judgment, appellants filed a motion to correct error. The judgment was challenged on several grounds but not on the basis that it was contrary to law in that it contravened IC § 19-1-18-13(a) (Burns' 1974). This contention, however, was argued extensively on the first page of the accompanying memorandum. The appellees contend that the failure to insert the specification in the motion itself precluded appellate review.

The motion to correct error serves three purposes: (1) to present to the trial court an opportunity to correct error which occurs prior to the filing of the motion; (2) to develop those points which will be raised on appeal by counsel; and (3) to inform the opposing party concerning the points which will be raised on appeal so as to provide that party an opportunity to respond in the trial court and on appeal.

P-M Gas & Wash Co., Inc. v. Smith (1978) Ind., 375 N.E.2d 592, 594.

The question as to whether the clothing allowance is includable in the statutory definition of salary has been the focal point of this lawsuit from the outset. The question was raised specifically in the plaintiff-appellees' motion for summary...