Black v. Olive Garden Restaurant , 1994 Ind. App. LEXIS 1804 ( 1994 )

OPINION

SULLIVAN, Judge.

On November 30, 1994, the Indiana Supreme Court issued its opinion upon transfer in Claywell v. Review Board of the Indiana Department of Employment and Training Services, (1994) Ind., 643 N.E.2d 330. In that opinion, the court held that the timely filing of an assignment of errors is an absolute prerequisite for entertainment of an appeal from a decision concerning unemployment compensation. In doing so, the Court stated that absent an assignment of errors in the record filed, "the Court of Appeals has 'no choice' but to dismiss." At 330. Notwithstanding its adherence to the "requirement of a timely filing" as a "bright line rule" at 330, the court somewhat curiously acknowledged that such rules are not truly jurisdictional because in some instances, pursuant to Lugar v. State ex rel. Lee (1978) 270 Ind. 45, 383 N.E.2d 287, the court may exercise jurisdiction to consider an appeal which has not been timely perfected. Other than a $1,310,696.73 judgment against City of Indianapolis Police Pension Fund, as was the case in Lugar, supra, we do not know in what "rare and exceptional cases" at 830, our Supreme Court will permit this court to consider the merits of an untimely appeal.¹ Nevertheless, the higher court has made it clear that we may not do so in unemployment compensation cases. The same rigid requirement presumably applies to review of workers compensation awards.

We are unable to discern what distinction lies between the unconditional jurisdictional requirement in unemployment benefit cases and the exception made for other "cases" as contemplated by Claywell, supra. However, as recently stated by our Supreme Court in Indiana Dep't. of Environmental Management v. Chemical Waste Management, Inc. (1994) Ind., 643 N.E.2d 831, 340, "we can live with our inadequacy."

This appeal is dismissed.

FRIEDLANDER, J., concurs. STATON, J., concurs with separate opinion.

1 . Judge Staton's concurring opinion misreads Lugar v. State ex rel. Lee (1978) 270 Ind. 45, 383 N.E.2d 287. The concurrence assumes that the only procedural deficiency in Lugar was the filing of a belated appellant's brief. It may be first noted that that belated brief was filed pursuant to authorization specifically granted by the Court of Appeals. See Lugar v. State ex rel. Lee (1978) Ind.App., 374 N.E.2d 1159, 1161. The more glaring defect present in Lugar and the defect deemed to trigger the Court's inherent authority to consider the merits of the appeal, was the fact that the Motion to Correct Errors did not allege the error sought to be argued upon appeal. In this regard, the Lugar appeal was in the same posture of a case in which no Motion to Correct Errors had been filed. At the time of the Lugar decision, a Motion to Correct Errors was a condition precedent to appeal.