Koehn v. Devereaux ( 1986 )

STATON, Presiding Judge,

dissenting.

I dissent from the Majority Opinion because this Court lacks jurisdiction. Koehn failed to file his praecipe within thirty days of the trial court's ruling as provided by Appellate Rule 2(A). He filed his praecipe one hundred and thirty-one days after the trial court's ruling. Too, the Majority has promulgated a new appellate rule which is an invasion of the Indiana Supreme Court rule making power under our constitution. Therefore, I dissent and would dismiss the appeal.

After the ruling of the trial court on January 8, 1985 which denied the motions for summary judgment, Koehn waited thirty days before filing a petition with the Court of Appeals for an extension of time to file his record-a record which had not been praeciped. On May 22, 1985, one hundred and thirty-one days after the ruling of the trial court, Koehn finally files his praecipe for the record. Later, the Court of Appeals accepts jurisdiction of Koehn's interlocutory appeal and grants him an additional thirty day extension. Appellate Rule 2(A) provides:

An appeal is initiated by filing with the clerk of the trial court a praecipe designating what is to be included in the record of the proceedings, and that said praecipe shall be filed within thirty [30] days after the court's ruling on the Motion to Correct Errors or the right to appeal will be forfeited. A copy of such praecipe shall be served promptly on the opposing parties.

Appellate Rule 14(B)(8) provides:

Unless the praecipe or written request for the record and transcript was filed within thirty [80] days from the time when the period begins to run within which an appeal may be taken, no extension of time for the preparation of the record and transcript will be granted. The petition shall state any other facts showing that the court in which the appeal is taken or to be taken has jurisdiction and that the briefs will be on the merits. When the petition for an extension of time is filed by the appellee, the petition shall show that all motions to dismiss and all dilatory motions on behalf of the petitioner have been filed.

An examination of the record shows that Koehn forfeited his appeal by filing his praecipe one hundred and thirty-one days after the ruling of the trial court. AP 2(A) provides: "... said praecipe shall be filed within thirty [30] days after the court's ruling on the Motion to Correct Errors or the right to appeal will be forfeited." My emphasis.

Since the praecipe was not filed within the thirty day period required under AP 2(A), this Court had no jurisdiction to grant Koehn's petition for an extension of time to file his record. AP 14(B)(3); "Unless the praecipe ... for the record ... was filed within thirty [80] days .... no extension of time for the preparation of the record and transcript will be granted."

If the appeal was never properly initiated under the Indiana Rules of Appellate Procedure, this Court is without jurisdiction to grant a petition for an extension of time, and it can not assume jurisdiction of the appeal at a later time. The Rules of Procedure govern the conduct of the litigants and the Court of Appeals. The Rules must apply equally to all appeals or not at all. Appellate Rule 2(A) is mandatory. Kelsey v. Nagy (1980) Ind.App., 410 N.E.2d 1333; Spencer v. Miller (1973) 156 Ind.App. 462, 297 N.E.2d 491.

In all interlocutory appeals, the Appellate Rules provide that the praecipe shall be filed within thirty days from the ruling being appealed. In this case, thirty days from the ruling on the motions for summary judgment. The Majority attempts to draw distinctions between interlocutory appeals taken under AP 4(B)(I-5) and interlocutory appeals taken under AP 4(B)(6). Because interlocutory appeals under AP 4(B)(6) are dependent upon a finding by the Court of Appeals. Too, because no motion to correct errors is involved in an interlocutory appeal "... the filing of the praecipe is not jurisdictional being impossible of time calculations as provided in A.R. 2(A)." Because of these distinctions, no motion to correct errors and a necessary finding by the Court of Appeals, the Majority concludes that "The record was not due in the appellate court until 30 days after the ruling on July 20, 1985 accepting jurisdiction, plus any appropriate extensions of time." This conclusion by the Majority constitutes a new appellate rule of procedure. It can not be legitimately inferred from any language in the present rules. It mandates a special procedure which has not been applied to all interlocutory appeals. It provides for a procedure which is not readily discernible from a reading of the present rules. If there is to be a new rule of appellate procedure regarding interlocutory appeals, it should be promulgated by the Indiana Supreme Court and made a part of AP 4.

What should Koehn have done? He should have followed the Indiana Rules of Appellate Procedure. After the trial court denied the motions for summary judgment, he should have filed his praecipe immediately so that the intent of the rule would be followed-an expedited appeal on a limited question of law. The very limited record could have been filed with the Clerk and filed stamped "Received" until the Court of Appeals made its finding of jurisdiction. Upon acceptance of jurisdiction, the record would have been stamped "Filed" and the appeal could have proceeded in the expeditious manner provided under the Appellate Rules. Since Koehn filed his praecipe one hundred and thirty-one days instead of thirty days after the ruling of the trial court, I would dismiss the appeal. Under the Indiana Rules of Appellate Procedure, AP 2 and AP 14(B)(3), this Court does not have jurisdiction of the appeal.