Schumacher v. Radiomaha, Inc.

• Decision Date: 24 August 1993
• Docket Number: No. 49S00-9306-CV-598,49S00-9306-CV-598
• Citation: 619 N.E.2d 271
• Parties: William George SCHUMACHER, also known as, Bill Butler, Appellant, v. RADIOMAHA, INC., doing business as, Radio Station KCRO, Appellee.
• Court: Indiana Supreme Court

Page 271

619 N.E.2d 271

William George SCHUMACHER, also known as, Bill Butler, Appellant, v. RADIOMAHA, INC., doing business as, Radio Station KCRO, Appellee.

No. 49S00-9306-CV-598.

Supreme Court of Indiana.

Aug. 24, 1993.

William F. Thompson, Indianapolis, for appellant.

Christopher E. Baker, Rubin & Levin, P.C., Indianapolis, for appellee.

GIVAN, Justice.

This appeal originally was filed in the Court of Appeals; however, because two recent appointments to that court were involved in the trial court proceeding from which this appeal arises, this Court accepted jurisdiction as per order dated June 4, 1993.

Appellee has filed a motion to dismiss the appeal or in the alternative to affirm the judgment of the trial court. Appellee takes the position that because appellant filed neither a motion to correct error nor a praecipe for appeal within 30 days after the December 13, 1990 judgment in favor of appellee, his appeal should be dismissed as not being timely filed under Ind.Trial Rule 59 and also that the motion failed to state grounds which enable the court to set aside the judgment under Ind.Trial Rule 60(B). However, appellant's appeal is not based upon the judgment rendered on December 13, 1990.

On October 1, 1991, appellant appeared by counsel and filed a motion to set aside the judgment. On January 27, 1992, the trial court granted the motion in part by setting aside the damages portion of the judgment but affirmed the liability portion of the judgment. On February 7, 1992, appellee filed a motion to reconsider the trial court's January 27, 1992 partial granting of appellant's motion to set aside the judgment. That motion was denied on March 13, 1992. On February 28, 1992, appellee filed a praecipe. On March 13, 1992, appellee filed a motion for summary judgment with respect to damages. On May 26, 1992, the record for the appeal by Radiomaha was filed. On July 8, 1992, the trial court granted summary judgment to Radiomaha in the sum of $136,489.38. This sum represented actual damages including attorney fees but did not include an award of punitive or treble damages. It is from that judgment that appellant now takes a timely appeal.

Appellant raises two issues: 1) whether the trial court had jurisdiction to act on either appellee's motion to reconsider or its motion for summary judgment; and 2) whether the trial court's entry of summary judgment on the issue of damages was contrary to law.

Radiomaha instituted an appeal from the trial court's judgment setting aside the amount of damages originally awarded by filing their record of proceedings on May 26, 1992. While that appeal was pending in the Court of Appeals, the lower court on July 8, 1992 granted appellee's motion for summary judgment for compensatory damages. Once an appeal has been perfected to the Court of Appeals or the Supreme Court, the trial court has no further jurisdiction to act upon the judgment appealed from until the appeal has been terminated. Coulson v. Indiana & Michigan Elec. Co. (1984), Ind., 471 N.E.2d 278; Bright v. State (1972), 259 Ind. 495, 289 N.E.2d 128; Kyle v. Kyle (1991), Ind.App., 582 N.E.2d 842.

Appellee takes the position that the jurisdictional question here is not a lack of jurisdiction of subject matter but is jurisdiction of the particular case and that by not raising that issue at the time the trial court rendered the decision appealed from, the issue has been waived. They cite State ex rel. Dean v. Tipton Cir. Ct. (1962), 242 Ind. 642, 181 N.E.2d 230. However, in that case, the...