Lugar v. State ex rel. Lee

Decision Date10 April 1978
Docket NumberNo. 2-675A145,2-675A145
Citation176 Ind.App. 103,374 N.E.2d 1159
PartiesRichard 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 as members of the Board of Trustees of the Police Pension Fund of the City of Indianapolis, Indiana, Appellants (Defendants below), 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 (Plaintiffs below).
CourtIndiana Appellate Court

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.


This suit was brought by representatives of a class comprised of former members of the Indianapolis Police Department, either retired or disabled, and the widows and next of kin of former policemen all of whom are entitled to benefits from the Policemen's Pension Fund pursuant to I.C. 19-1-18-13 (Burns Code Ed.1974). Their complaint for mandate sought an order from the trial court directing the Trustees of the Fund to include, in the computation of pension benefits, the clothing allowance which the City pays to first-class patrolmen pursuant to I.C. 19-1-10-1 (Burns Code Ed.1974).

In considering the representatives' motion for summary judgment, the trial court found, as a matter of law, that the salary formula for computing benefits did include the clothing allowance. Thereafter, the trial court heard evidence with respect to the issue of damages and, in a supplemental entry, ordered the Trustees to pay, as compensation for past deficiencies, the sum of $1,301,696.73, less attorney fees of $162,712.09.

On appeal, the Trustees of the Pension Fund challenge the summary judgment as being contrary to law. Because we reverse on this ground, we need not reach their other asserted error.


Before turning to a discussion of the merits, we must dispose of various contentions that either the appeal should be dismissed or that the claimed error should be deemed waived.


The representatives argue that this Court lacks jurisdiction because the Trustees' last petition to extend the time for filing their brief did not comply with Ind. Rules of Procedure, Appellate Rule 14(A). The rule requires that such petitions be filed at least five days before the expiration of the time period, unless good cause of an emergency nature is shown under oath.

The Trustees had until January 29, 1976 to file their brief as a result of two previous extensions of time. On January 28, 1976, the day before their time was to expire, they filed the petition in question for "Emergency Extension of Time Within Which to File Appellants' Brief." The petition was granted by order of this Court and the brief thereafter was filed within the time period as extended.

However, because the last petition was not filed at least five days before the expiration of the time sought to be extended, pursuant to Rule A.P. 14(A), the Trustees were required to show by sworn statement that the facts which were the basis of the petition did not exist or were not known in sufficient time to comply with the five-day rule. The representatives claim that the petition failed to satisfy this requirement. 1

The Court of Appeals has discretion to determine whether a belated petition is to be deemed timely filed. See, Terry v. Terry (1st Dist.1974),160 Ind.App. 653, 313 N.E.2d 83. According to the verified petition, co-counsel for Appellants (William L. Soards) had to devote time to his duties as a member of the Indiana House of Representatives. This Court determined that the asserted reason was sufficient and accepted the belated petition. Although such discretionary determinations are subject to review and possible rescission, 2 in this case a majority of the panel finds no reason to overturn the earlier ruling.

I.C. 2-3-5-1 (Burns Code Ed.1972) establishes the right of an attorney-legislator to a continuance in civil and criminal actions. The policy expressed therein provided a basis for the exercise of discretion which resulted in acceptance of the Trustees' belated petition for extension of time. A majority of this panel therefore holds that such exercise was not improper as a matter of law.


The representatives argue next that the claimed error was waived by the Trustees' failure to include that specification in their Motion to Correct Errors.

The specification does appear and is fully argued in the accompanying memorandum, but no reference to it appears in the Motion proper. In the Motion, the summary judgment is challenged on very specific factual grounds, but not for the reason that the trial court erred, purely as a matter of law, in its interpretation of the statute. 3 A majority of this panel concludes nevertheless that the issue should be treated on the merits.

The question raised on appeal has been the central issue in this case from the outset. As the representatives themselves paraphrased the issue in the memorandum attached to their motion for summary judgment, "(t)he question . . . is whether 'bonuses' and clothing allowances are to be considered salary . . ." within the meaning of the pension provisions. The trial court's ruling from which this appeal was taken dealt exclusively with this issue. The trial court concluded:

"That the amount of the clothing allowance paid to a first grade patrolman is 'salary' within the meaning of the word 'salary' as it is used in the Acts 1953, Chapter 34, Sec. 13, as amended."

The Trustees' challenge to the trial court's interpretation of the statute was then presented and argued extensively in the memorandum accompanying their Motion to Correct Errors of August 12, 1975.

Under the circumstances, the dual purpose of the Motion to Correct Errors 4 has been satisfied. The trial court was obviously cognizant of the error being relied upon and had an opportunity to correct it. At the appellate level, the Motion to Correct Errors read together with the accompanying memorandum gives adequate notice of the complained error. Neither this Court, the trial judge, nor opposing counsel could have been misled.

In this respect the case at bar presents a unique situation. The author of this opinion does not suggest that an issue is always preserved for review on appeal if it is merely included in the accompanying memorandum. That would require the trial court to then scrutinize for possible error not only the Motion to Correct Errors but also the accompanying memorandum. This plainly is not what Ind. Rules of Procedure, Trial Rule 59 contemplates, although that is not conceived to be unduly burdensome. Under T.R. 59(G), it is the party's responsibility to draw attention to the assigned error and ordinarily the error relied upon must be discernible from the Motion to Correct Errors itself.

Exception is made in this case only because the notification aspect is especially salient. Appellants have not attempted to raise a new issue. The error asserted on appeal was the main issue before the trial judge and was clearly embraced within his ruling on the motion for summary judgment. For these reasons and because of our stated preference for deciding cases on the merits, the issue is deemed preserved. Cf., Board of Commissioners of the County of Howard v. Kokomo City Plan Commission (2d Dist.1974), Ind.App., 310 N.E.2d 877, 881-83, rev'd on other grounds, Ind., 330 N.E.2d 92.


The remaining waiver contentions relate to alleged deficiencies in the Trustees' brief. The representatives argue that all asserted errors should be deemed waived because Appellants' brief does not comply with Ind. Rules of Procedure, Appellate Rule 8.3(A)(5) and (7).

Where a brief is in substantial compliance, failure to include all that is technically required does not result in a waiver of error fairly and clearly presented. Indiana State Board of Tax Commissioners v. Lyon and Greenleaf Co., Inc. (3d Dist.1977), Ind.App., 359 N.E.2d 931.

We have on numerous occasions stated our preference for deciding cases on their merits whenever possible. The Supreme Court reemphasized this principle in Pinkler v. State (1977), Ind., 364 N.E.2d 126, 128-29:

"Rule 8.3(A) was adopted by this Court to facilitate our thorough, orderly, and expeditious consideration of appeals. It confers no right on the appellee to avoid the substance of an appellant's arguments; the right to invoke the sanction of the rule belongs to the reviewing court, for whose benefit the rule was intended. This Court and the Court of Appeals have often refused to consider issues because of noncompliance with Rule 8.3(A), especially where that noncompliance was found to be so substantial as to interfere with rational consideration of the issues, or was the result of the lack of a good faith effort to comply with the rule. See Davis v. State, (1976), Ind., 355 N.E.2d 836, 839. But the primary purpose of appellate review is to ensure that justice is done in our courts and to provide unity and coherence in judicial application of the laws, not to secure compliance with technical rules prescribing the form and arrangement of appellate briefs."

Regarding compliance with Rule A.P. 8.3(A)(5), the Trustees' brief does contain an adequate "statement of the facts relevant to the issues presented for review." This appeal is from a summary judgment based entirely on the complaint as amended. Since no supporting affidavits or other evidence was before the trial court, the only facts relevant to our review are those pleaded in the amended complaint. Although the...

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