Naked City, Inc. v. State

• Decision Date: 27 April 1982
• Docket Number: No. 3-282A23,3-282A23
• Parties: NAKED CITY, INC., and Richard Drost, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 576

434 N.E.2d 576

NAKED CITY, INC., and Richard Drost, Appellants, v. STATE of Indiana, Appellee.

No. 3-282A23.

Court of Appeals of Indiana, Third District.

April 27, 1982.

Frederick F. Cohn, Chicago, Ill., G. Max Rettig, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen., George Huff, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

ORDER DISMISSING PETITION FOR REHEARING

Comes now the Attorney General of Indiana by his Deputy, George B. Huff, Jr., and files his "Petition for Rehearing" to the order of this Court issued on February 22, 1982 in the above entitled appeal which granted the petition of Richard Drost for the setting of an appeal bond pending his appeal to this Court; said "Petition for Rehearing" is in the following words and figures, to-wit:

(H. I.)

And, Comes now Richard Drost by his Attorneys, Frederick F. Cohn and Max Rettig and files his "Brief in Opposition to Petition for Rehearing" which is in the following words and figures, to-wit:

(H. I.)

The Court having read and examined said "Petition for Rehearing" and "Brief in Opposition to Petition for Rehearing" and being duly advised in the premises, now finds:

1. That the petition for an appeal bond was filed by Richard Drost prior to submission of his appeal to this Court.

2. That the record of the proceedings in the Newton County Superior Court under Cause Number SPRS 80-77 and 78 have not been filed with the Clerk of this Court.

3. That the Order issued by this Court on February 22, 1982 granting the petition of Richard Drost was issued pursuant to Rule 6(B), Ind.Rules of Appellate Procedure.

4. That the setting of an appeal bond by this Court is discretionary under Rule 6(B), Ind.Rules of Appellate Procedure.

5. That the Appellant, Richard Drost, has acquired a Seventy-five thousand dollar ($75,000.00) appeal bond by paying a nonrefundable bond fee of seven thousand five hundred dollars ($7,500.00) and has filed said appeal bond with the Clerk of this Court pursuant to said Order.

6. That the Appellant, Richard Drost, has submitted to a physical examination at the Westville Correctional Center as ordered by this Court and that said medical report stated in part that:

"This man's condition is equivalent to that of a quadriplegic. He can move his fingers, raise the right arm slightly and the left arm about four inches. He can move his neck but has no shoulder strength. He is unable to move his torso, lower extremities. He has no broken skin areas or any indication of skin deterioration. He has a noticeably swollen left foot with some swelling of right foot. He is unable to move either foot, and they must stay as placed until someone else moves them. He wears special shoes due to the continuous swelling. He states he is not on any medication and rarely needs any. If he must take medication he either gets it in liquid form or chews the tablets because he is unable to swallow pills. He takes liquid Geritol with iron. He had to clear his throat frequently due to accumulation of mucus. He has difficulty digesting foods and states he has metabolic disturbances from an enlarged liver. His diet is practically salt free and low in sugar, but he chooses from regular foods. He does use a specially prepared honey. He has diarrhea usually two-three times a day and must be in a prone position to adequately eliminate. He uses a urinal and does not need a catheter at the present time. He gives a history of reacting to drafts, cold weather or high heat. He easily spikes a high temperature, has chills with accompanying dizziness and anxiety. He maintains he needs a high humidity environment with a stable temperature of 80-82 to prevent breathing difficulties. He cannot lie on his left side and must be turned hourly at night.

"Mr. Drost will require total care. He is unable to feed himself, bathe, do oral hygiene, wash his hair, shave, move, turn, propel a wheelchair, transfer from a wheelchair to bed, or sit on a commode to defecate. He will be prone to skin breakdown without intensive skin care measures round the clock.

"Another area of concern is the physical safety of Mr. Drost. We will not be able to watch him continuously. He is physically unable to protect himself in any manner except to call for help. If he should be molested by any of the other offenders, a hand over his mouth would prevent even this possibility.

"With the present staff we cannot provide even minimal basic care for Mr. Drost. One more Special Attendant would be needed per shift to provide this basic care and still care for the other medical/surgical infirmary patients. Therefore, an additional six Special Attendant positions would be needed to provide the extra Special Attendant on duty each shift."

and said medical report concludes that it will cost the taxpayers of Indiana thirty-five to forty-five thousand dollars ($35,000.00 to $45,000.00) a year to care for Richard Drost if he is not placed on probation in his home and taken care of at his own expense.

7. That the Order of this Court issued on February 22, 1982 in the above entitled cause has in all things been complied with by the Appellant, Richard Drost.

8. That the Order of this Court issued on February 22, 1982 in the above entitled cause is not a majority opinion in writing on the law and the facts of the above entitled appeal.

9. That the Order of this Court issued on February 22, 1982 was merely collateral and procedurally incidental to the eventual final written majority opinion of this Court to be handed down when all of the preliminary procedures have been complied with so that this Court can consider the merits of the appeal.

10. That the Attorney General of Indiana by his Deputy, George B. Huff, Jr. has prematurely filed a "Petition for Rehearing" pursuant to Rule 11(A), Ind.Rules of Appellate Procedure.

11. That the "Petition for Rehearing" filed herein by the Attorney General of Indiana should be dismissed and it shall be so ordered.

IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED that the "Petition for Rehearing" filed herein by the Attorney General of Indiana by his Deputy, George B. Huff, Jr. on the 11th day of March, 1982 be and the same hereby is dismissed.

The rationale for the above ruling by the Court is as follows: When a petition for rehearing is filed in the Indiana Court of Appeals pursuant to Rule 11(A), Ind.Rules of Appellate Procedure, it is filed "... primarily as the basis for a petition to transfer to the Indiana Supreme Court." II A. Bobbitt, Indiana Appellate Practice and Procedure, p. 626, Section 12.

The object of a petition for a rehearing is to point out mistakes of law or of fact which were allegedly made by the Court of Appeals in arriving at its written majority opinion. II A. Bobbitt, Indiana Appellate Practice and Procedure, pp. 618-7, Section 2; also see Lesh v. Johnson Furniture Co. (1938), 214 Ind. 176, 13 N.E.2d 708. "If a petition for rehearing is denied, that is the end and termination of the case in that court and of all matters which were or might have been litigated in the appeal. The appeal court has no further jurisdiction in the case after the denial of the petition for a rehearing." II A. Bobbitt, Indiana Appellate Practice and Procedure, p. 626, Section 11; also see Center Township v. Board of Comm'rs of Marion County (1887), 110 Ind. 579, 588, 10 N.E. 291, 295. If a petition for rehearing is not filed, the majority opinion of the Court is certified to the trial court as provided by statute. IC 1971, 33-3-2-15.

No written majority opinion has been handed down in the present appeal. This appeal is in the preliminary procedural stages. The record of the proceedings has not been filed as of this date. The Order issued by this Court on February 22, 1982 setting an appeal bond for the Appellant, Richard Drost, is "... merely collateral and procedurally incidental to an eventual final decision." City of Ft. Wayne v. Board of Trustees (1971), 257 Ind. 4, 268 N.E.2d 735. In City of Ft. Wayne, the Indiana Supreme Court dismissed a petition to transfer brought before the Court on the denial of a motion to affirm or dismiss filed in the Indiana Court of Appeals. A unanimous Indiana Supreme Court Opinion written by Justice Hunter held that the petition to transfer which was predicated upon a petition for rehearing in the Court of Appeals was premature and dismissed the petition. Justice Hunter further stated:

"If we are to preserve the operating scheme of appellate practice established by our appellate rules of procedure, it is clear that appellees' petition to transfer must be dismissed. Implicit in Rule AP11(B) is the requirement that the Appellate Court decide the case with a written opinion before transfer may be sought. The order above referred to cannot be considered a final disposition of the cause in any sense of the word but was merely collateral and procedurally incidental to an eventual final decision."

268 N.E.2d at 736.

It takes little imagination to appreciate the morass that would be created in the appellate process if each order of this Court could be transferred to the Supreme Court. In the Court of Appeals last year, approximately three thousand six hundred (3,600) orders were signed on collateral and incidental matters affecting an appeal. If a petition for rehearing could be filed on every collateral and incidental ruling, neither the Court of Appeals nor the Supreme Court would be able to function in an orderly fashion. As Justice Hunter so aptly pointed out in City of Ft. Wayne, "the operating scheme of appellate practice established by our appellate rules of procedure" must be followed. The repetitive reference in Rule 11 to "written opinion or memorandum decision" and the obvious scheme of the Appellate Rules for an orderly appeal of the merits leave little doubt that the petition for rehearing before us is premature. ¹

PAUL H. BUCHANAN, Jr.

Chief Judge

ROBERT H. STATON, Judge

ROBERT W. NEAL, Judge

HOFFM...