State v. Kuespert

• Decision Date: 01 September 1981
• Docket Number: No. 1-1080A280,1-1080A280
• Citation: 425 N.E.2d 229
• Parties: STATE of Indiana, et al., Appellants-Defendants, v. Thomas L. KUESPERT, et al., Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 229

425 N.E.2d 229

STATE of Indiana, et al., Appellants-Defendants, v. Thomas L. KUESPERT, et al., Appellees-Plaintiffs.

No. 1-1080A280.

Court of Appeals of Indiana, First District.

Sept. 1, 1981.

Linley E. Pearson, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellants-defendants.

Michael A. Bergin, Kevin Charles Murray, Locke, Reynolds, Boyd & Weisell, Indianapolis, Jerry Susong, Gregg & Susong, Thorntown, E. Davis Coots, Coots, Henke & Wheeler, Carmel, for appellees-plaintiffs.

RATLIFF, Judge.

STATEMENT OF CASE

The state appeals from a judgment in favor of Thomas L. Kuespert and certain other employees of the Indiana State Police Department (Kuespert) upon their complaint for emergency service allowance benefits for 1975, 1976, and 1977. We affirm.

FACTS

Facts pertinent to this appeal have been recited in two opinions written in previous appeals of this cause and reported at Kuespert v. State, (1978) Ind.App., 378 N.E.2d 888 at 889-92, trans. denied, and State v. Kuespert, (1980) Ind.App., 411 N.E.2d 435 at 436. We find it unnecessary to recount them here.

ISSUES

1. Did the trial court abuse its discretion in ordering sanctions pursuant to Ind.Rules of Procedure, Trial Rule 37(B)(3)?

2. Did the trial court err in entering summary judgment in favor of Kuespert and other employees of the Indiana State Police Department on the issue of Emergency Service Allowance benefits?

3. Did the trial court erroneously compute the benefits under the statute?

DISCUSSION AND DECISION

Issue One

The state argues that the trial court abused its discretion in imposing sanctions pursuant to T.R. 37(B)(3) when it ordered the state to produce evidence in sixty days to show which members of the class were not sworn.

Kuespert contends that this issue has been determined in an earlier appeal, State v. Kuespert, (1980) Ind.App., 411 N.E.2d 435. He points out that the state raised this issue in its motion to correct errors which launched that appeal but then neglected to pursue it with argument in its appellate brief. Kuespert argues that Ind.Rules of Procedure, Appellate Rule 8.3(A)(7) should be used to foreclose consideration of issues raised in a motion to correct errors but not argued or briefed for the court and, additionally, that the doctrine of "law of the case" should be applied here to foreclose further consideration of this issue.

The state responds that neither the doctrine of law of the case nor the doctrine of waiver is applicable here because the court's order with regard to discovery was interlocutory and did not become an appealable final order until judgment was entered in this cause on May 21, 1980, and June 26, 1980. The state asserts that it was not entitled to raise this part of the order until now.

We find that we agree with both parties as to certain aspects of their arguments.

First, the state is correct in contending that the court's order establishing certain evidence as admitted unless the state refuted it within sixty days was properly severable from the order for the payment of attorney's fees for the purpose of interlocutory appeals under Ind.Rules of Procedure, Appellate Rule 4.

It is true that discovery orders are generally considered to be interlocutory in nature. Greyhound Lines, Inc. v. Vanover, (1974) 160 Ind.App. 289, 311 N.E.2d 632. Appeals from interlocutory orders will lie only when expressly authorized, and such authorization is to be strictly construed. Anthrop v. Tippecanoe School Corp., (1972) 257 Ind. 578, 277 N.E.2d 169. Interlocutory orders for the payment of money are appealable as a matter of right under Ind.Rules of Procedure, Appellate Rule 4(B)(1). Matter of Estate of Newman, (1977) Ind.App., 369 N.E.2d 427; Castor v. Castor, (1975) 165 Ind.App. 520, 333 N.E.2d 124. However, the imposition of other sanctions may not lead to an appeal as of right.

The court's order for sanctions in the instant case was two-pronged. It read as follows:

"ORDER FOR SANCTIONS

This matter, having come before the court on November 8, 1979, for a hearing to determine the propriety of allowance of expenses, including reasonable attorneys (sic) fees, incurred by plaintiffs, against the defendants allegedly responsible for unexcused conduct in acting in bad faith and abusively resisting and obstructing the production of evidence, and the court having heard evidence now makes the following findings and entry:

1. On January 15, 1979, plaintiffs filed with the court and served upon defendants a Request for Admissions, among which was statement # 1 which reads as follows:

All State Police employees holding the following positions during 1976 were sworn as Limited Police officers:

Probationary Officer (Radio)

Communications Office I

Communications Officer Tech I

Communications Officer II

Chief Communications Officer

Communications Supervisor

Communications Engineer

Chief Communications Engineer

Police Dispatcher

Post Security Officer

Weigh Master

Weighmen

Photographer (Civil Disorder).

2. On February 16, 1979(,) the defendants served upon plaintiffs their response to said Request for Admission which reads as follows:

Denied. Some were sworn and some were not. See attached lists. For past employees, no record exists from which to determine whether or not the employee was sworn.

3. Plaintiffs believed that records existed for past employees evidencing the swearing of such officers.

4. On June 8, 1979(,) plaintiffs filed a request for production seeking all certificates, copies thereof or other documents concerning the swearing in of all Limited Police Employees listed in the response to plaintiffs interrogatory previously served.

5. Plaintiffs responded with a letter and enclosures, dated July 27, 1979, purportedly containing each document so requested.

6. Such production did not appear to plaintiffs to amount to a complete and thorough response to said request for production. However, the response only included swearing in certificates for present employees.

7. To ascertain the completeness of the defendants(') response plaintiffs were forced to expend time and money to contact class members which were believed to be sworn state police officers.

8. Various correspondence with said class members confirmed the fact defendants(') prior production was evasive, incomplete and inadequate in that it did not provide the swearing in certificates for post (sic) employees.

9. Thereafter counsel for plaintiffs contacted counsel for defendants by telephone and demanded full and complete production within a reasonable time prior to trial. Counsel for defendants admitted that additional certificates for past employees were available.

10. By letter dated October 22, 1979(,) defendants notified plaintiffs that compliance with the production request prior to the trial date of November 8, 1979(,) was apparently impossible. The defendants further stated that they did not have the manpower to make such a production and further that only employees of the state police could have access to such information, thus precluding any search by plaintiffs.

11. The defendants(') conduct in failing to respond to said production request threatens to so delay and obstruct the rights of the plaintiffs that sanctions are necessary to protect said rights.

IT IS THEREFORE ORDERED as follows:

1. The defendants have the burden of proving which members of the class were not sworn in. Such evidence must be produced in 60 days hereof. After such time all class members who(m) the defendants have failed to prove unsworn shall be deemed sworn state police officers for purposes of this action.

2. The plaintiffs are hereby awarded $1381.34 for costs, including reasonable attorneys (sic) fees, assessed against the defendants for plaintiffs (') expenditures in attempting to ascertain the completeness of defendant's (sic) production.

IT IS SO ORDERED, ADJUDGED, AND DECREED this 20 day of November, 1979.

/s/ PAUL H. JOHNSON, JR.

/s/ Judge, Boone Superior Court"

Thus, the court's order of the payment of attorney's fees clearly was a properly appealable interlocutory order under A.R. 4(B)(1). The other prong of the court's order for sanctions in this cause, however, did not fit into those categories of interlocutory orders of A.R. 4(B) which are appealable as of right and could have been appealed only if certified by the trial court and accepted by this court according to A.R. 4(B)(5).

Second, we must also agree with Kuespert when he contends that the matter of whether or not the trial court abused its discretion in proceeding to impose sanctions under T.R. 37 has already been determined by this court and that further litigation of the matter is forestalled by the law of the case doctrine. Our earlier opinion reported in State v. Kuespert, (1980) Ind.App., 411 N.E.2d 435, dealt not only with the issue of whether the trial court's award of attorney's fees was excessive (Issue Two at 411 N.E.2d 438-39) but also whether the court abused its discretion in issuing an order for sanctions pursuant to T.R. 37(B) in the first place (Issue One at 411 N.E.2d 436-38). In this latter issue we disposed of the question of whether the state's failure to comply with discovery was properly found by the court to have been an abuse or obstruction of discovery. We held that the state failed to carry its burden of proving otherwise on appeals in the following words:

"We remind the state that this court presumes that the trial court has correctly decided the questions presented below and that appellant has the burden of overcoming this presumption by clearly showing the trial court's error. American Optical Co. v. Weidenhamer, (1980) Ind.App., 404 N.E.2d 606 (petition for transfer pending); New York Central Railroad Co. v. Milhiser, (1952) 231 Ind. 180, 106 N.E.2d 453, reh. den., 231 Ind. 180, 108 N.E.2d 57. '(A) court of appeals will not presume anything in favor of appellant to sustain his alleged error.' New York...