Indiana Law Review


Indiana Appellate Procedure in 1997

Michael A. Wilkins*
A. Richard M. Blaiklock

Introduction

During the survey period* there were no landmark judicial decisions

applicable to appellate procedure. However, there were important cases which
addressed appellate procedures and, in some cases, changed appellate procedures.
Those cases are addressed in Part I of this Article. During the survey period
there were also some changes to the Indiana Rules of Appellate Procedure,^
effective January 1, 1998. Those changes are addressed in Part H ofthis Article.^

I. Cases Addressing Appellate Procedure

A. The Appellate Rules

I. Appellate Rule 2(A) andIndiana Trial Rules 23(B) and 59(C).—^The issue
ofwhat constitutes an "appealable final order" within the meaning of Appellate
Rule 2(A) and Indiana Trial Rule 59(C) remains unsettled with respect to class

action certification orders."^ At issue is the scope of the Indiana Supreme Court's
ruling in Berry v. Huffman,^ which seemingly rejected the "definite and distinct

branch" doctrine, which previously governed the issue of whether a ruling

constitutes an "appealable final order."^ It is necessary to briefly discuss Berry

in order to put the issue into context.

The issue in Berry was whether a summary judgment ruling on less than all
of the issues, which did not expressly state that "there [was] no just reason for
delay and expressly direct[ed] entry of judgment,"^ was an "appealable final
order." A determination ofthat issue rested on whether the supreme court would
continue to recognize the "doctrine of finality employed prior to the adoption of

* Partner, Ice Miller Donadio & Ryan. B.A., 1985, University ofNotre Dame; J.D., 1988,
University of Notre Dame.

** Associate, Ice Miller Donadio & Ryan. B.A., 1990, Hanover College, Hanover, Indiana;
J.D., Summa Cum Laude, 1997, Indiana University School ofLaw—Indianapolis.

1

.

October 1 , 1 996 to September 30, 1 997.

2. Hereinafter "Appellate Rule(s)."

3. In James J. Ammeen, Jr., Developments in Appellate Practice in J 996, 30 IND. L. Rev.

1 165 (1997), a thorough analysis ofthe standards of review employed by appellate courts is found.

See id. at 1 178-1 181 . No significant changes to those standards occurred during the survey period.
As a result, those standards will not be addressed in this Article.

4. The procedures for class certifications are found in Indiana Trial Rule 23.

5. 643 N.E.2d 327 (Ind. 1994).

6. Id at 329.

7. Id



670 INDIANA LAW REVIEW [Vol. 31:669

the Indiana Rules of Trial Procedure in 1970,"^ pursuant to which "a judgment

was final and appealable even if it did not dispose of all the issues as to all the

parties, so long as it disposed of 'a distinct and definite branch ofthe litigation.."^

Because that "scheme . . . often left litigants uncertain whether to pursue an

appeal that might be dismissed as premature or risk losing their right of appeal

altogether,"'^ Indiana adopted "Trial Rules 54(B) and 56(C) in an effort to

provide greater certainty to the parties and to strike an appropriate balance

between the interest in the speedy review of certain judgments and the

inefficiencies of piecemeal appeals."''

Trial Rules 54(B) and 56(C) work as follows:

Trial Rule 54(B) defines the procedure for entering a final judgment

as to less than all ofthe issues, claims, or parties in an action. According

to this rule, ajudgment as to less than all of the parties is final only when

the court in writing expressly determines that there is no just reason for

delay and expressly directs entry ofjudgment. The rule explicitly states

that, absent certification, the judgment "shall not terminate the action as

to any of the claims or parties" and "is not final." Similarly, T.R. 56(C)

states that partial summary judgments are interlocutory unless the trial

judge expressly determines in writing that there is not just reason for

delay and expressly directs entry of judgment as to less than all the

issues, claims, or parties.'^

Rejecting the argument that "the distinct and definite branch doctrine of

finality survived the adoption of the Trial Rules," the supreme court held "that

the certification requirements of Trial Rules 54(B) and 56(C) supercede the

distinct and definite branch doctrine."'^

Judgments or orders as to less than all of the issues, claims, or

parties remain interlocutory until expressly certified as final by the trial

judge. To the extent that Richards [v. Crown Point Community School

Corp.Y^ and other cases support the distinct and definite branch doctrine.

8. Id. at 328.

9. Id. "In multiparty litigation, this meant that an order finally determining all of the issues

and claims raised by one ofthe parties was final. If that party failed to perfect a timely appeal from

that judgment, he lost his right to appeal." Id.

10. /^. at 328-29.

11. Id 2X329.

12. Id

13. Id

14. 269 N.E.2d 5 (Ind. 1 97 1 ) (holding that a partial summary judgment settling a distinct

and definite branch of the litigation was final and could be appealed if the party filed a motion to

correct errors). The supreme court in Berry observed that "[w]hile the parties to that appeal did not

raise the applicability of the new Trial Rules, effective only four months when that appeal was

docketed, there was at least an implication that 'distinct and definite' might still be viable." Berry,

643 N.E.2d at 329.



1 998] INDIANA APPELLATE PROCEDURE 67

1

they are overruled. Were we to hold otherwise, litigants would again be
left to guess whether or not a given order was appealable. This is
precisely the situation that T.R. 54(B) and 56(C) were drafted and

adopted to prevent.'^

The holding in Berry seems clear. '^ However, when applied in the class
action certification context, that seeming clarity has been clouded. In Martin v.

Amoco Oil Co.^^ the court of appeals discussed'^ the issue of whether a class
certification order is a "final appealable order" even if it does not contain the

"magic language"—i.e., an express determination that there "is no just reason for
delay" accompanied by an express direction of entry ofjudgment—from Trial
Rule 54(B). '^ Cases prior to Berry followed the decision in Gulf Oil Corp. v.
McManus^^ which held that "class certification orders were final and appealable
because they disposed of a distinct and definite branch of the litigation."^' The
court in Martin wrote that "[tjhough we agree with the reasoning in GulfOil that
class certification hearings and orders are the only 'trial' to be had on the issue

of class certification and therefore should be final and appealable, we are
constrained by Berry from simply so holding."^^

Subsequent to Judge Garrard's opinion in Martin^ Judge Najam relied on
Martin to "treat [a] class certification order as a final, appealable order."^^ The
court in Connerwood Healthcare, Inc. v. Estate ofHerron^^ cited Martin for the
proposition that resolution of the issue of whether class certification orders are

"final appealable orders" is "uncertain after the supreme court's decision in

Berry v. Huffman . . . ."^^ Nonetheless, the court stated that it "agree[d with
Martin^ that class certification orders are final and appealable . . . ."^^ The court
in Connerwood Healthcare failed to recognize that the court in Martin, despite

15. ^grry, 643 N.E.2d at 329.

16. See, e.g., Hanson v. Spolnik, 685 N.E.2d 71, 81 (Ind. Ct. App. 1997) ("our supreme

court recently clarified when an order becomes final and appealable in Berry v. Huffman" (citation

omitted)).

17. 679 N.E.2d 139 (Ind. Ct. App. 1997).

18. The court did not decide the issue, choosing instead to reach a decision on other

grounds. Id. at 144 ("We decline to ground our holding on the sole premise that class certification

orders are final and appealable interlocutory orders, because it is not clear after our supreme court's

decision in Berry v. Huffman, 643 N.E.2d 327 (Ind. 1994) whether class certification orders are

final and appealable orders at the present time.").

1 9. See Berry, 643 N.E.2d at 328-29.

20. 363 N.E.2d 223 (Ind. App. 1977).

21. Martin, 679 N.E.2d at 144.

22. Id.

23. Connerwood Healthcare, Inc. v. Estate of Herron, 683 N.E.2d 1322, 1325 n.2 (Ind. Ct.

App. 1997).

24. Id

25. Id

26. Id



672 INDIANA LAW REVIEW [Vol. 3 1 :669

questioning the decision in Berry, nonetheless recognized that it was
"constrained by Berry from ruling as the court did in ConnerwoodHealthcare?^
By failing to exercise the same restraint as the court in Martin, the court in
Connerwood Healthcare took Martin one step further by expressly stating that
a class action certification order is a "final appealable order."^^

The holding in Berry is written in clear and concise language: "We hold
today that the certification requirements of Trial Rules 54(B) and 56(C)

supercede the distinct and definite branch doctrine.""^^ The court expressly
overruled other cases that recognized the "distinct and definite branch

doctrine."^^ Because the GulfOil decision, upon which the court in Martin rested

its criticism of the Berry decision (and subsequently the court in Connerwood
Healthcare), was based on the "distinct and definite branch doctrine," it seems

clear that Berry overrules the reasoning of the Gulf Oil decision. Indeed, the

court in Martin recognized as much.^'

Based on the above, it is predicted that when the supreme court considers the
issue of whether a class action certification order is a final appealable order, it

will decide that unless the "magic language" of Trial Rule 54(B) is included in

the order, then the order is not automatically considered a "final appealable

order" within the meaning of Appellate Rule 2(A) and Indiana Trial Rule 59(C).

Such a result is consistent with the predictability that was at the core of the Berry

decision,^^ and which is now lost because of the Connerwood Healthcare
opinion. In the meantime, practitioners are urged to treat a class action

certification order as an "appealable final order," and make the decision of
whether, and when, to pursue an appeal accordingly. It is better to appeal and

learn that the appeal is premature, than to not treat the order as a "final

appealable order" and risk losing the right to appeal at a later time. Of course,
the uncertainty can be avoided by ensuring that the "magic language" of Trial

Rule 54(B) is included in any class certification order.

2. Appellate Rule 2(A) and Indiana Trial Rule 53.3.—^In Marshall v. K&W
Products,^^ the court considered the issue of timely appeals when an appellant
files a motion to correct errors. In Marshall, the plaintiff in a small claims action

prevailed. Judgment was entered on August 28, 1995, in an amount of $6.25,

27. In Connerwood Healthcare, the court noted that the appellee did not "challenge the

propriety of [the court's] review where . . . [the court] treat[ed] the class certification as a final,

appealable order." Id.

28. Connerwood Healthcare, 683 N.E.2d at 1325 n.2; see also Independence Hill

Conservancy Dist. v. Sterley, 666 N.E.2d 978, 980 (Ind. Ct. App. 1996) (stating, without discussing

the Berry decision, that "[a] class certification order is a final, appealable order.").

29. Berry, 643 N.E.2d at 329 (emphasis added).

30. Id

3 1

.

Martin, 679 N.E.2d at 144.

32. See Berry, 643 N.E.2d at 329 ("Were we to hold otherwise, litigants would again be left

to guess whether or not a given order was appealable. This is precisely the situation that T.R. 54(B)

and 56(C) were drafted and adopted to prevent.").

33. 683 N.E.2d 1359 (Ind. Ct. App. 1997).



1 998] INDIANA APPELLATE PROCEDURE 673

significantly less than the amount sought in his complaint?"* The plaintiff filed
a motion to correct errors on September 27, 1995. On October 11, 1995, a
hearing on the motion was set for November 21, 1995, which was continued to
December 15, 1995, at which time the court took the motion under advisement.
On March 27, 1996, the court denied the plaintiffs motion. On April 19, 1996,
the plaintiff filed his praecipe.

The main issue presented in Marshall was whether the failure of an appellant
to personally serve the trial judge with a motion to correct errors, as mandated
by Indiana Trial Rule 59(C), serves as an excuse^^ to the self-executing thirty-day

time limitation to rule on a motion to correct errors'^ when the trial judge, despite
not being personally served with a copy of the motion, has actual knowledge of
its existence.^^

The court in Marshall first set forth a concise statement of the law
interpreting the procedural interplay between Appellate Rule 2(A) and Indiana

Trial Rule 53.3(A):

Indiana Appellate Rule 2(A) requires that every party seeking an appeal

must first file a praecipe within thirty days ofthe entry of final judgment.

When a party opts to file a motion to correct error, however, the praecipe
must be filed within thirty days from either the date the trial court rules

34. The plaintiff, whose automobile transmission burned out because of a leak, sued the

manufacturer of a product which promised to stop transmission leaks. The plaintiff sued under a

breach of warranty theory, and sought damages for the expenses of repairing the car's transmission,

towing, overnight accommodations caused by the fact that his car broke down out of state, and loss

of use of his automobile. The small claims court entered judgment in favor of the plaintiff, but

awarded him a refund in the amount of the cost of a can of the defendant's product, plus interest

on that amount from the date of purchase. Id. at 1360.

35. Indiana Trial Rule 53.3(B)(1) states: "The time limitation for ruling on a motion to

correct error established under Section (A) of this rule shall not apply where: (1) the party has

failed to serve the judge personally. . . ."

36. Indiana Trial Rule 53.3(A) states:

In the event a court fails for forty-five (45) days to set a Motion to Correct Error for

hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was

heard or forty-five (45) days after it was filed, if no hearing is required, the pending

Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing

the praecipe under Appellate Rule 2(A) within thirty (30) days after the Motion to

Correct Error is deemed denied.

37. The court also addressed the issue of whether "|j]udgments in small claims actions are

'subject to review as prescribed by relevant Indiana rules and statutes.'" Id at 1360 (quoting IND.

Small Claims R. 1 1(A)). In particular, the issue in Marshall was whether the same procedures
apply to motions to correct errors filed in small claims courts as in Indiana trial courts. The court

in Marshall held that those procedures do apply, noting "[o]ur supreme court has held that 'the

Rules of Trial Procedure apply in small claims court unless the particular rule in question is

inconsistent with something in the small claims rules.'" Id. at 1361 (quoting Bowman v. Kitchel,
644 N.E.2d 878, 879 (Ind. 1995)).



674 INDIANA LAW REVIEW [Vol. 3 1 :669

on the motion to correct error or the date the motion is deemed denied.
Failure to file the praecipe in a timely manner is a jurisdictional failure

requiring dismissal of the appeal. Additionally, [Indiana Trial Rule

53.3(A)] limits the time available for a trial court to rule on a motion to

correct error. If the trial court "fails to rule on a Motion to Correct Error

within thirty (30) days after it was heard," the motion "shall be deemed
denied." This rule is self-activating upon the passage of the requisite

number of days.^^

The court then noted what the record did not indicate that the plaintiff had

personally served the trial judge with a copy of his motion to correct errors, as

required by Indiana Trial Rule 59(C).^^ Thus, on its face, it would seem that the

Indiana Trial Rule 53.3(B)(1) exception to the time limits set forth in Indiana

Trial Rule 53.3(A)'*^ would excuse the plaintiffs tardiness. However, the court

went beyond the text ofIndiana Trial Rule 53.3(B)(1) and considered its purpose,

which is to ensure that a trial judge has actual knowledge of a motion to correct

errors before the self-executing time requirements of Indiana Trial Rule 53.3(A)

are triggered."*' The court in Marshall concluded that:

the exception for personal service of the judge only applies where the

judge has no actual knowledge of the motion to correct error, such as

where the motion would be deemed denied after 45 days for failure to set

the motion for hearing. Where, as here, a hearing was held and the judge

plainly had actual knowledge of the motion, the exception for personal

service serves no purpose. We hold that the exception found in [Indiana
Trial Rule 53.3(B)(1)] does not apply to [Indiana Trial Rule 53.3(A)]

where the judge has actual knowledge of the motion to correct errors."*^

The court then dismissed the appellant's appeal because "his praecipe was

not timely filed and as a result, [the court of appeals] lack[ed] jurisdiction
"'^^

Clearly, based on Marshall, an appellate court will not allow a practitioner to use

a technical reading of Indiana Trial Rule 53.3(B)(1) as an excuse for failing to

38. /<i. at 1361 (citations omitted).

39. Id.

40. See supra notes 6-7.

41. Marshall, 683 N.E.2d at 1361.

42. Id.

43. Id. The court explained:

Here, the trial court held a hearing on Marshall's motion to correct error on December

15, 1995. Thus, the trial court had until January 16, 1996 to rule on the motion.

[January 14, 1996 fell on a Sunday, and the following day was a legal holiday].

Marshall's motion was therefore deemed denied on January 16, 1996 and Marshall was

required to file his praecipe by February 15, 1996. Because Marshall did not file his

praecipe until April 19, 1996, his praecipe was not timely filed and as a result, we lack

jurisdiction and must dismiss the appeal.

Id



1998] INDIANA APPELLATE PROCEDURE 675

timely file 2i praecipe pursuant to Appellate Rule 2(A). If the record reveals that
the trial judge had actual knowledge of the motion, an appellate court will not
apply Indiana Trial Rule 53.3(B)(1) literally in order to vest itself with
jurisdiction.

3. Appellate Rule 2(A) and Indiana Trial Rule 72(E).—During the survey
period there were two cases in which the interplay between Indiana Trial Rule
72(E)^ and Appellate Rule 2(A) was addressed. In Vaughn v. Schnitz,^^ the trial
court entered judgment against the defendant on April 3, 1995; the defendant
filed a motion to correct errors on May 3, 1995; a hearing was set on that motion
for July 24, 1995; and the defendant's motion was denied on July 31, 1995.
Notice of the court's order was sent to plaintiffs counsel and to the defendant,
but not to the defendant's counsel. The defendant never told his attorney about
the ruling. The defendant's attorney waited until September 15, 1995 to check
the court records, despite the fact that, pursuant to Indiana Trial Rule 53.3, the
motion would have been deemed automatically denied on August 30, 1995. On
October 6, 1995, defendant's counsel, relying on Indiana Trial Rule 72(E), filed
a motion for an extension oftime within which to file 2i praecipe. The trial court
denied that motion and the defendant appealed, arguing that the trial court abused
its discretion by so ruling because the defendant's attorney was without notice
of the court's order denying the motion to correct errors.

The appeals court rejected the appellant's argument:

[Appellant's] argument suffers from a fundamental error; the trial court
does not have the authority to grant an extension of time within which
to file a praecipe. [T]he timely filing of a praecipe is a jurisdictional
prerequisite to an appeal and a precondition to the right to an appeal.
[P]erfecting an appeal in a timely manner is a jurisdictional matter. . .

.

Thus, once the thirty day time limit ofAppellate Rule 2 has expired, this
court is without jurisdiction to hear the appeal and we must dismiss. To
permit a trial court to grant an extension of time within which to file a
praecipe would allow the trial court to revive this court's jurisdiction
contrary to supreme court procedural rules. This a trial court cannot do.
Accordingly, the trial court did not abuse its discretion when it denied

44. Indiana Trial Rule 72(E) states:

Lack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk

shall not affect the time within which to contest the ruling, order or judgment, or

authorize the Court to relieve a party of the failure to initiate proceedings to contest such

ruling, order or judgment, except as provided in this section. When the mailing of a
copy of the entry by the Clerk is not evidenced by a note made by the Clerk upon the
Chronological Case Summary, the Court, upon application for good cause shown, may
grant an extension of any time limitation within which to contest such ruling, order or

judgment to any party who was without actual knowledge or who relied upon incorrect
representations by Court personnel. Such extension shall commence when the party
first obtained actual knowledge and not exceed the original time limitation.

45. 673 N.E.2d 501 (Ind. Ct. App. 1996).



676 INDIANA LAW REVIEW [Vol. 31:669

[appellant's] 72(E) motion/^

The court went on to state:

However, this court, under its inherent power, has the authority to
entertain an appeal after the time permitted has expired. This court will

exercise its inherent power and grant equitable relief only in rare and
exceptional cases, such as in matters of great public interest, or where
extraordinary circumstances exist. Generic grounds such as lack of

prejudice to the opposing party or lack of disadvantage to the reviewing

court are insufficient to invoke this equitable relief."*^

The court refused to exercise that inherent power, holding that the facts in
Vaughn were "not the type of extraordinary circumstances warranting equitable

relief. Equity aids the vigilant, not those who sleep on their rights."^^
The clear teaching of Vaughn is that an attorney has a proactive duty to check

with the trial court to determine whether a ruling has been made on a motion to
correct errors; the consequences for failing to timely do so cannot be alleviated

by a motion for extension of time filed pursuant to Indiana Trial Rule 72(E). A
trial court cannot expand the subject matter jurisdiction of Indiana's appellate

courts.

In Gable v. Curtis,'^^ the court of appeals again considered the interplay

between Indiana Trial Rule 72(E) and Appellate Rule 2(A). In Gable, when the
plaintiffs attorney initiated the action in the trial court, she listed a Greenwood,

Indiana, address. Subsequent to filing the complaint, the plaintiffs attorney filed

a notice of a change in her address with the clerk of the trial court. The

Chronological Case Summary (CCS) contained a mention of that filing and the
plaintiffs attorney's new Indianapolis address. On November 28, 1995,
summary judgment was entered in favor of the defendant. On December 28,
1995, the plaintiffs attorney filed a motion to correct errors, at the bottom of

which she listed her new Indianapolis address. The trial court denied the motion
on January 5, 1996, with said denial evidenced in the CCS. The CCS also stated
that the plaintiffs attorney was notified of that ruling on January 9, 1996.
However, the notice that the motion to correct errors had been denied never made
it to the plaintiffs attorney because it was mailed to her Greenwood address. An
entry in the CCS reflected that failure, and noted that the mailing was returned
because of "insufficient address."^^

Because the plaintiffs attorney did not receive notification of a ruling on the

plaintiffs motion to correct errors, she assumed that the motion had been

automatically deemed denied by operation of Indiana Trial Rule 53.3. As a
result, she filed a. praecipe on March 1 1, 1996, within thirty days of the date she

46. Id. at 502 (citations omitted).

47. Id. (citations and quotations omitted).

48. Id at 503.

49. 673 N.E.2d 805 (Ind. Ct. App. 1996).

50. Id at 808.



1 998] INDIANA APPELLATE PROCEDURE 677

thought her motion to correct errors had been deemed denied. After subsequently
learning that the trial court had actually denied the motion to correct errors on

January 5, 1996 (and thus, her praecipe filed on March 1 1, 1996 was untimely)
plaintiffs attorney requested relief pursuant to Indiana Trial Rule 72(E). The
trial court granted that motion, and the appellees argued to the court of appeals

that the trial court abused its discretion by so ruling.

The appellees argued that the trial court abused its discretion because the
CCS affirmatively evidenced that the notice ofthe denial of the motion to correct
errors had been mailed. In support of their argument, the appellees cited Collins

V. Covenant Mutual Insurance Co.,^^ and Minnick v. Minnick, ^^ which have

interpreted Indiana Trial Rule 72(E) "as providing that, where the CCS
affirmatively evidences that notice ofthe final judgment has been mailed by the

clerk, the trial court lacks the authority to relieve a party from the consequences

of failing to timely file a praecipe. ''^^ The court in Gable held that those cases
were "clearly distinguishable" because the CCS in Gable "demonstrates more
than mere mailing of the notice by the clerk. The CCS affirmatively
demonstrates that [plaintiffs attorney] did not receive the notice because it had

been insufficiently addressed."^"* The court in Gable also noted that "the CCS
affirmatively demonstrates that [plaintiffs attorney] had provided the clerk with

her correct address as required under [Indiana Trial Rule 3.1(E)]."^^ The court
held that to be "mailed" a pleading must be correctly addressed: "[o]bviously,

when service is to be made by mail, the papers must be deposited in the United
States mail addressed to the person on whom they are being served, with postage
prepaid."^^ Therefore, "the clerk's mailing of notice of the denial of the motion

to correct error with an insufficient address did not constitute a 'mailing' as

contemplated under [Indiana Trial Rule 72(E)]."^^ Further, "the trial court did

not err in giving [plaintiff] an extension in which to file the praecipe initiating
[the] appeal

"^^

Gable is consistent with Vaughn.^^ Furthermore, Gable adds an element to

the teaching of Vaughn. An appellate attorney, when being proactive in
perfecting an appeal, should always, at a minimum, file a praecipe within the
time requirements of Indiana Trial Rule 53.3. If an appellant has done all she/he

can do to preserve her/his rights (as in Gable, but unlike in Vaughn) an appellate

court will likely (and, indeed, should) conclude that it has jurisdiction over the

appeal.

4. Appellate Rule 4(B)(5) and Indiana Trial Rule 76.—Appellate Rule

51. 644N.E.2dll6(Ind. 1994).

52. 663 N.E.2d 1226 (Ind. Ct. App. 1996).

53. Gable, 673 N.E.2d at 808.

54. Id.

55. Id.

56. Id. (emphasis added).

57. Id

58. Id

59. See supra notes 45-48 and accompanying text,



678 INDIANA LAW REVIEW [Vol. 3 1 :669

4(B)(5) expressly requires an interlocutory appeal of an adverse decision
regarding preferred venue under Indiana Trial Rule 75, which sets forth the rules
for preferred venue.^^ No mention of Indiana Trial Rule 76—which deals with
motions for change of venue or judge—is found anywhere in Appellate Rule
4(B). Yet, the court in Trojnar v. Trojnar^^ held that a ruling on a Trial Rule 76
motion must be treated like a Trial Rule 75 ruling: i.e., both require interlocutory
appeals pursuant to Appellate Rule 4(B)(5)."

The court in Trojnar based its decision on the following reasoning:

At the time of an adverse ruling under T.R. 76, the parties must perfect
an appeal. Myriad reasons, including judicial economy and fairness to
the parties, dictate that parties may not save an issue which would render
all subsequent action moot, allowing litigation on the merits of a claim
to the point of an adverse ruling and then appeal matters outside of the
merits. To hold otherwise would be to condone a collateral attack on the
judgment.^^

In a strongly worded dissent. Judge Staton criticized the majority for
attempting to "promulgate a new Appellate Rule—a responsibility reserved to the
Indiana Supreme Court under the Indiana Constitution."^"^ In response to Judge
Staton 's dissent, the majority wrote:

The dissent's myopic view of the law would lead to an absurd result.
Allowing appeal of a change ofjudge ruling after the merits of the cause
would allow an aggrieved party to wait through protracted proceedings
including discovery, preliminary hearings, and trial to nullify all action
after the ruling. Reversal of a cause after the decision on the merits

based upon a procedural matter is tantamount to "two bites at the apple."
A party displeased with the judgment on the merits could have a second
chance by saving an appeal ostensibly based upon the adverse change of
judge ruling, but in reality wiping the slate clan on the merits as well.

Far from creating new law as asserted by the dissent, our construction of
the trial and appellate rules is mandated by our basic tenets of law and
judicial disdain for waste. The dissent does not question the basis for
the rule in T.R.75 matters, and does not offer explanation as to how the

60. Appellate Rule 4(B)(5) states that an interlocutory appeal must be taken in cases

"[t]ransferring or refusing to transfer a case pursuant to Trial Rule 75." Indiana Trial Rule 75(E)

states that: "An order transferring or refusing to transfer a case under this rule shall be an

interlocutory order appealable pursuant to Appellate Rule 4(B)(5) . . . ."

61. 676 N.E.2d 1 094 (Ind. Ct. App. 1 997).

62. Id. at 1096.

63. Id. at 1096-97.

64. Id. at 1098 (Staton, J., dissenting).



1998] INDIANA APPELLATE PROCEDURE 679

same type of ruling in T.R. 76 proceedings should render a different
result. Clearly, the explicit rule regarding interlocutory appeal of an

adverse T.R.75 ruling applies with equal force to T.R.76 matters.

Suffice it so say, the mandatory interlocutory appeal evolved to prevent

parties from trumping judgments on the merits in the manner attempted

here, and "two bites at the apple" has never been the law.^^

The holding in Trojnar must be recognized by appellate practitioners. The

safe course of action is to treat a ruling on a Trial Rule 76 motion as a Trial Rule

75 order which "shall be an interlocutory order appealable pursuant to Appellate

Rule 4(B)(5)."''

5. Appellate Rule 8.1.—During the survey period it was re-affirmed an
appellant's failure to file a brief on time does not automatically result in

"summary dismissal" of an appeal pursuant to Appellate Rule 8.1(A).'^
However, a court will most likely only forgive a practitioner's tardiness if that

tardiness is slight.

In Howell v. State, the appellant's brief was filed one day late.'^ The court

chose to consider the merits of the appeal anyway, writing:

Rule 8.1(A) does not mandate an automatic dismissal when an appellant
has not timely filed its brief Dismissal for the late filing of an

appellant's brief is within the discretion of this court, rather than

mandatory. Because we prefer to decide a case upon its merits, we
exercise our discretion to reach the merits when violations are
comparatively minor.'^

The filing of an appellant's brief on time is not a condition precedent to

invocation of an appellate court's jurisdiction as is the case with the timely filing

of Si praecipe.

6. Appellate Rule 8.3.—During the survey period there were several
examples, both in Indiana Supreme Court^° and court of appeals' opinions,^* of

cases in which the failure to comply with Appellate Rule 8.3 was both noted,^^

65. Mat 1097 n.3.
66. IND. Tr. R. 75(E).

67. See Howell v. State, 684 N.E.2d 576, 577 n.l (Ind. Ct. App. 1997).

68. Id.

69. Id. (citations omitted).

70. See, e.g., Potter v. State, 684 N.E.2d 1 127 n.l, 11 30 (Ind. 1997); Williams v. State, 681

N.E.2d 195, 203 (Ind. 1997); Humphrey v. State, 680 N.E.2d 836, 842 n.l 1 (Ind. 1997); Steele v.

State, 672 N.E.2d 1348, 1351 (Ind. 1996).

71. See, e.g., Strowmatt v. State, 686 N.E.2d 154, 158 (Ind. Ct. App. 1997); Natural Gas

Odorizing, Inc. v. Downs, 685 N.E.2d 155, 158 n.4 (Ind. Ct. App. 1997); Young v. Butts, 685

N.E.2d 147, 149-51 (Ind. Ct. App. 1997).

72. See, e.g.. Potter, 684 N.E.2d at 1 130 n.l; Callis v. State, 684 N.E.2d 233, 235 n.l (Ind.

Ct. App. 1997) (stating that "[cjounsel for Appellant is advised to observe [Appellate Rule

8.3(A)(4)]").



680 INDIANA LAW REVIEW [Vol. 3 1 :669

and resulted in the waiver of an otherwise valid argumentJ^ Although it is within

an appellate court's discretion to consider an appeal when a party substantially
complies with the appellate rules,^"^ exercise of that discretion remains the

exception rather than the rule. Consideration of the purpose of Appellate Rule

8.3 provides insight into when a court might exercise that discretion. In Young
V. Butts,^^ the court of appeals succinctly reminded practitioners of the purpose

behind the many requirements of Appellate Rule 8.3:

[Appellate courts] demand cogent argument supported with adequate
citation to authority because it promotes impartiality in the appellate

tribunal. A court which must search the record and make up its own
arguments because a party has not adequately presented them runs the

risk of becoming an advocate rather than an adjudicator .... A brief
should not only present the issues to be decided on appeal, but it should

be of material assistance to the court in deciding those issues .... On
review, [an appellate court] will not search the record to find a basis for

a party's argument, . . . nor will [an appellate court] search the

authorities cited by a party in order to find legal support for its

position.^^

Clearly, Indiana's appellate courts have, and continue, to consider Appellate

Rule 8.3 and other technical rules on briefing^^ as "gatekeepers" to their ability

to impartially adjudicate an appeal. Failure to comply with those rules will,

almost inevitably, lead an appellate court to forego the chance to adjudicate,

rather than risk adjudicating (or the appearance of adjudicating) in an impartial

manner. For that reason, practitioners must be sure to comply with the

procedural safeguards found in Appellate Rule 8.3 while drafting substantive

appellate arguments, lest those substantive arguments fall on deaf ears.

7. Appellate Rule 15(G).—During the survey period, Indiana's appellate
courts considered the issue of sanctions under Appellate Rule 15(G)^^ on at least

five occasions,^^ awarding sanctions only once.^^ A review of those cases

73. See, e.g., Williams, 681 N.E.2d at 203. (noting that "[b]ecause [appellant] fails to make

a cogent argument with appropriate citations to the record, he has waived this issue").

74. See Mitchell v. Stevenson, 677 N.E.2d 551, 555 n.l (Ind. Ct. App. 1997) (stating that

"[djespite [appellant's] failure to comply with the appellate rules, we will address the merits of the

issues before us").

75. 685 N.E.2d 147 (Ind. Ct. App. 1997).

76. Id. at 1 5 1 (citations omitted).

77. See, e.g. , iND. APP. R. 8. 1 , 8.2 & 8.4.
78. Appellate Rule 1 5(G) states:

If the court on appeal affirms the judgment, damages may be assessed in favor of the

appellee not exceeding ten percent (10%) upon the judgment, in money judgments, and

in other cases in the discretion of the court; and the court shall remand such cause for

execution.

79. See Young v. Butts, 685 N.E.2d 147, 150 (Ind. Ct. App. 1997); SDL Enters., Inc. v.

DeReamer, 683 N.E.2d 1347, 1350 (Ind. Ct. App. 1997); Mitchell v. Stevenson, 677 N.E.2d 551,



1 998] INDIANA APPELLATE PROCEDURE 68

1

provides insight into the type of conduct which will result in the imposition of
sanctions pursuant to Appellate Rule 15(G).

In Young v. Butts^^ the court of appeals, pursuant to Appellate Rule 15(G),
remanded the case to the trial court "for a determination of the appropriate
amount of damages to be awarded" to the appellees for the defense of the
appeal. ^^ In so ruling, the court in Young set forth the following succinct
standards for imposition of sanctions under Appellate Rule 15(G):

Indiana Appellate Rule 15(G) provides that when we affirm a judgment,
damages may be assessed in favor of the appellee. Such an award of
damages is proper if the appeal is "permeated with meritlessness, bad
faith, frivolity, harassment, vexatiousness, or purpose of delay.'*^ The
sanctions available under rule 15(G) are punitive, so they may not be
imposed to punish lack of merit unless an appellant's contentions and

argument are utterly devoid of all plausibility.^"*

The appellant in Young failed in several respects to comply with Appellate
Rule 8.3.^^ Perhaps the linchpin of the court's decision to remand for an award
of sanctions was the fact that the arguments of appellant's counsel were not only
"devoid of plausibility,"^^ but were "based on remarkable mischaracterizations

and blatant misstatements of the evidence in the record."^^ The court found the
appellant's "number of affirmative misrepresentations of the evidence in the

record" to be "particularly offensive because they would, if true, directly affect

the propriety of the trial court grant ofjudgment on the evidence."^^ For those

reasons, the court found the "appeal to be frivolous, wholly without merit, and

565 n.7 (Ind. Ct App. 1997); Yanoff v. Muncy, 676 N.E.2d 765 (Ind. Ct. App. 1997), vacated by

688 N.E.2d 1259 (Ind. 1997), 690 N.E.2d 1190 (Ind. 1997).; John Malone Enters., Inc. v.

Schaeffer, 674 N.E.2d 599, 607 (Ind. Ct. App. 1996); Powers v. Lacny, 671 N.E.2d 1215, 1217

(Ind. Ct. App. 1996).

80. See Young, 685 N.E.2d at 152.

81. Id.

82. Mat 152.
83. Id at 151 (quoting Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152 (Ind. 1987)).

84. Id (citing Orr, 5 1 2 N.E.2d at 1 53).

85. See id. at 149 n.2 ("We note that Young's counsel failed to include in his Statement of

the Case a verbatim statement of the trial court judgment as required by Ind. Appellate Rule

8.3(A)(4). Young's Statement of the Case also includes argument, which is inappropriate in that

section of an appellate brief"); Id. at 150 ("Because Young's counsel has not favored us with a

cogent argument supported by legal authority and references to the record as our rules require, see

Ind. Appellate Rule 8.3(A)(7), we are unable to consider his assertions on appeal."); Id. at 151

(Failure to comply with Appellate Rule 8.2(B)(1) was found in that "there [was] not a single

pinpoint citation to be found anywhere in counsel's eight page argument").

86. Id at 151.

87. Mat 150.
88. Mat 151.



682 INDIANA LAW REVIEW [Vol. 3 1 :669

brought in bad faith . . .
."«'

Contrast Young with three other opinions in which Appellate Rule 1 5(G) was
considered.^ In SDL Enterprises v. DeReamer^^ the appellee sought imposition
of sanctions because the appellant "failed to include several documents in the

record and made various misstatements in its brief.'*^ Although recognizing that
those deficiencies in fact existed, the appellate court held that those deficiencies

"[did] not rise to the level warranting sanctions."^^ In DeReamer, unlike in

Young, the court noted that "[w]hen reviewing request for sanctions against [an]

appellant, [an appellate court] must use extreme restraint to avoid causing a

'chilling effect upon the exercise of the right to appeal.'"^'*

In John Malone Enterprises v. Schaeffer^^ like DeReamer, the appellee
argued that the appellant's misstatement of the record warranted imposition of

sanctions.^^ The appellee contended that the appellant's argumentative statement

of facts, in conjunction with a misstatement of the record, was "procedural bad
faith" sufficient to warrant the imposition of sanctions.^^ Without further

analysis, the court held that "[b]ecause we cannot say that [appellant's]
arguments [were] utterly devoid of all plausibility, an award of damages pursuant

to Appellate Rule 15(G) would be inappropriate."^^ The court also addressed the

appropriateness of an award of attorney fees pursuant to section 34-1-32-1 of the

Indiana Code:^^

89. Id.

90. See SDL Enters, v. DeReamer, 683 N.E.2d 1347 (Ind. Ct. App. 1997); John Malone

Enters, v. Schaeffer, 674 N.E.2d 599 (Ind. Ct. App. 1996); Powers v. Lacny, 671 N.E.2d 1215 (Ind.

Ct. App. 1996). In Mitchell v. Stevenson, the appellees' request for sanctions pursuant to Appellate

Rule 15(G) was denied because appellant's appeal was granted in part. 677 N.E.2d 551, 565 n.7

(Ind. Ct. App. 1997).

91. SDL Enters., 683 N.E.2d at 1347.

92. Id. at 1350.

93. Id. The court did award the appellee costs in accordance with Appellate Rule 15(H). Id.

94. Id (quoting Orr v. Turco Mfg. Co., 5 1 2 N.E.2d 151,152 (Ind. 1 987)); accord Schaeffer,

61A N.E.2d at 606-07.

95. 674 N.E.2d 599 (Ind. Ct. App. 1996).

96. Id at 606.

97. Id

98. Id at 607.

99. Section 34-1-32-1 states:

(a) In all civil actions, the party recovering judgment shall recover costs, except in those

cases in which a different provision is made by law.

(b) In any civil action, the court may award attorney's fees as part of the cost to the

prevailing party, if it finds that either party:

(1) brought the action or defense on a claim or defense that is

frivolous, unreasonable, or groundless;

(2) continued to litigate the action or defense after the party's claim or

defense clearly became frivolous, unreasonable, or groundless; or

(3) litigated the action in bad faith.



1 998] INDIANA APPELLATE PROCEDURE 683

Procedural bad faith on appeal is present when a party flagrantly
disregards the form and content requirements of the Rules of Appellate

Procedure, omits and misstates relevant facts appearing in the record,

and files briefs appearing to have been written in a manner calculated to

require the maximum expenditure oftime both by the opposing party and
the reviewing court. However, conduct can constitute procedural as

opposed to substantive bad faith even though the objectionable conduct

falls short of being "deliberate or by design." It depends upon the

circumstances of the given case.'^^

The court did not find the existence of such procedural bad faith in Schaeffer}^^
In Powers v. Lacney,^^^ the appellees based their plea for sanctions on the

lack of merit in the appellant's argument.^^^ There was no assertion, as in
DeReamer or Young, that the appellant misstated the record. The court, without
analysis, held that the "appellees [were] not entitled to an award of appellate
attorney's fees."^''

Based on a review of the above cases, it is clear that appellate courts

continue to adhere to the seminal case of Orr v. Turco Manufacturing Co.^^^

when applying Appellate Rule 15(G). Additionally, at least based on the cases
considered above, it appears that more than an occasional misstatement of the
record must be present before an appellate court will impose sanctions pursuant

to Appellate Rule 1 5(G). Indeed, courts appear reluctant, as set forth expressly

in DeReamer^^ and Schaejfer^^^ to impose sanctions for fear of chilling the right
to appeal. '^^ However, that is not to suggest that an appellant can, in total

disregard of the Appellate Rules and the appellate process, advance an appeal.

Rather, it is simply a recognition that Indiana's appellate courts allow an

appellant wide latitude in constructing arguments; however, that latitude cannot

be abused—if it is, appellate courts will not hesitate to impose sanctions.
H. Appellate Rule 17(B).—In last year's Article discussing this rule, it was

observed that the amendment to Appellate Rule 17(B) eliminating the "no
reasonable person" standard ofreview "has the potential for a tremendous impact

(c) The award of fees under subsection (b) does not prevent a prevailing party from

bringing an action against another party for abuse of process arising in any part on the

same facts, but the prevailing party may not recover the same attorney's fees twice.

IND. Code § 34-1-32-1 (1993).

100. Schaeffer, 674 N.E.2d at 607 (quoting Watson v. Thibodeau, 559 N.E.2d 1205, 1211

(Ind. Ct. App. 1990)).

101. 674 N.E.2d at 607.

102. 671 N.E.2d 1215 (Ind. Ct. App. 1996).

103. Id at 1217.

104. Id.

105. 512N.E.2d 151 (Ind. 1987).

106. 683 N.E.2d 1347, 1350 (Ind. Ct. App. 1997).

1 07. 674 N.E.2d 599, 606-07 (Ind. Ct. App. 1 996).

108. See supra noiQ 57

.



684 INDIANA LAW REVIEW [Vol. 3 1 :669

in criminal appeals."'^^ That impact did not come to fruition during the survey
period. However, one case does shed some light on the new Appellate Rule
17(B) standard. In Mayo v. State,^^^ the supreme court considered an appellant's
assertion that his sentence was manifestly unreasonable within the meaning of
Appellate Rule 17(B). In considering that assertion, the court in Mayo, wrote as
follows:

With respect to the claim of overall sentence unreasonableness, we will
not revise a sentence authorized by statute unless we find it "manifestly
unreasonable in light of the nature ofthe offense and the character of the

offender." Ind. Appellate Rule 17(B). While we recognize that the
aggregate sentence is substantial [in this case], we do not find the degree
of claimed unreasonableness so clearly apparent as to warrant our

concluding that it is manifestly unreasonable. We find no sentencing
error and decline to revise the sentence.^'^

Therefore, it could be gleaned from Mayo that for a sentence to be deemed
"manifestly unreasonable" pursuant to Appellate Rule 17(B), that

unreasonableness must be "clearly apparent" before a sentence will be revised.
^^^

It is anticipated that during the upcoming year further refinements to Appellate
Rule 1 7(B) will occur.

B. Common Law Appellate Procedural Jurisprudence

1. Prima Facie Error.—Indiana's appellate courts applied Xht primafacie
error rule^'^ in several cases during the survey period. However, the scope and
application of the doctrine is difficult to extract from those cases, as has been

apparent with cases considering the prima facie error rule in years past.'^"*
Courts appear to apply XhQ primafacie error rule in four ways: (1) application
of the rule sub silento; (2) failure to apply the rule sub silento, despite

acknowledging its applicability; (3) express application of the rule; and (4)

109. Ammeen, supra note 3, at 1 172.

110. 681 N.E.2d 689 (Ind. 1997).

111. Id. at 695 (emphasis added).

112. Id

113. The primafacie error rule was explained in State v. Lamar, 680 N.E.2d 540, 542 n. 1

(Ind. CtApp. 1997):

When only the appellant files a brief, [an appellate court] may reverse the trial court if

the appellant makes a prima facie showing of error. This rule "protects [appellate

courts] and relieves [them] from the burden of controverting arguments advanced for

reversal, a duty which properly remains with counsel for the appellee." Prima facie

error is error at first sight, on first appearance or on the face of it.

Id. (citations omitted).

1 14. See William O. Harrington, 1994 Developments in Indiana Appellate Procedure: Old

Lessons Revisited and the Scope ofthe Court ofAppeals' Discretion, 28 iND. L. REV. 985, 990

(1995).



1 998] INDIANA APPELLATE PROCEDURE 685

failure to apply the rule despite the ability to do so.

The decision in Jones v. Harner^^^ is illustrative of a decision in which a
court acknowledged the applicability ofihQprimafacie error rule, then—^without
expressly exercising its discretion not to apply the rule^^^—appears to exercise
that discretion sub silento. In a footnote in Jones, the court merely stated the

primafacie error rule that it "may reverse" the trial court's judgment because the
appellee failed to file a brief

^^^
Without any further mention of i\iQ primafacie

error rule, the court appeared to address the appeal on its merits.^ ^^ The court
affirmed and reversed in part the trial court's entry ofjudgment/ ^^ It did so
without stating that the appellant had made a showing ofprimafacie error. From
a review ofthe opinion, it appears that despite the court's earlier pronouncement
that the primafacie error rule "relieves the appellate courts from the burden of
controverting the arguments advanced for a reversal,"'^^ the court nevertheless

reviewed the record to find evidence to support the non-briefing appellee's

position.
^^^

Contrast Jones with Kostuck v. Vincent D.,'^^ in which the court analyzed the

appellant's arguments to ensure that he had QsXd^AxshQd primafacie error. The
appellate court then reversed the trial court's decision, expressly stating that its

decision to reverse rested on the appellant's ability to d^monsXtdiiQ primafacie
error. ^^^ In several other decisions where the prima facie error rule was
mentioned, the court ordered reversal on appeal. ^^"^ In these decisions, the
appellate court made no express mention (as was done in Kostuck) that the
appellant made a showing ofprima-facie error.

In In re Marriage ofJackson^^^ the court recognized ^qprimafacie error
rule. However, based on the proposition that "it is within [the court's] discretion
to decide a case on the merits,"'^^ the court chose "to exercise that discretion"

115. 684 N.E.2d 560 (Ind. Ct App. 1997).

116. See infra note 1 25

.

1 1 7. Jones, 684 N.E.2d at 562 n. 1

.

118. Mat 561-63.
119. Mat 561.
120. Mat562n.l.

121

.

M at 562 ("The record supports the trial court's finding [against the appellant].").
122. 684 N.E.2d 573 (Ind. Ct. App. 1997).

123. Id. at 576 ("Landlord has established pn>w<3 ^ac/e error in the trial court's award of

damages based on the cost of alternative housing.").

124. See Newman v. Wilson, 682 N.E.2d 1320 (Ind. Ct. App. 1997) (reversal of trial court
judgment without controverting appellant's arguments); Kokomo Center Twp. Consol. School
Corp. v. McQueary, 682 N.E.2d 1305 (Ind. App. Ct. 1997) (stating ikit primafacie error rule, and

reversing the trial court's failure to enter summary judgment against the appellant without again

mentioning the rule); Taylor v. State, 675 N.E.2d 1 128 (Ind. Ct. App. 1997) (stating the primafacie

error rule, and reversing revocation of appellant's probation).

125. 682 N.E.2d 549 (Ind. Ct. App. 1997).

126. Mat 551.



686 INDIANA LAW REVIEW [Vol. 3 1 :669

and hear the case on its merits. '^^ The court rested its decision on Head v.
State,^^^ in which that court similarly exercised its discretion to hear a case on its

merits, despite the absence of an appellee's brief.
'^^

In considering the differing applications of thQ primafacie error rule, there

does not appear to be any consistent basis for how Indiana's appellate courts
apply, or refuse to apply the rule. Indeed, because refusing to apply the rule is

within the court's "discretion,"'^^ a "bright line" test should not be expected.

Nonetheless, the two cases in which the court refused to apply the primafacie
error rule are interesting in that they both involved particularly sensitive issues:

one involved children, the other adult entertainment.

In Marriage ofJackson,^^^ child support provisions of a divorce decree were

at issue. ^^^ Specifically, the father-appellant argued that the trial court erred

when it ordered him to pay $15,950 in child support arrearage.'^^ The mother-
appellee failed to file a brief

'^"^ The court decided to consider argument in

contravention of father-appellant's position, but ultimately still reversed the trial

court judgment.
*^^

In Deja Vu, the trial court entered a preliminary injunction enjoining a

tavern/restaurant from operating, inter alia,^^^ a part of its business that offered

"cabaret style adult entertainment."'^^ The trial court entered the injunction

based on its finding that the cabaret style adult entertainment conducted in the

tavern/restaurant was in violation of a city ordinance.'^^ Deja Vu appealed, but
the City of Lake Station failed to file an appellee's brief.'^^

Based on Marriage ofJackson and Deja Vu, one could speculate that, when
dealing with a particularly sensitive issue, an appellate court faced with the

failure of an appellee to file a brief will nonetheless expressly opt out of applying

thQ primafacie error rule and consider arguments counter to those proffered by

an appellant. However, it is interesting that, despite their failure to apply the

127. Id.

128. 632 N.E.2d 749 (Ind. Ct. App. 1994); see also Deja Vu of Hammond, Inc. v. City of

Lake Station, 681 N.E.2d 1 168, 1 170 (Ind. Ct. App. 1997) ("We exercise our discretion to consider

the merits of the issue presented.").

129. //ea^, 632 N.E.2d at 750.

130. Id.

131. 682 N.E.2d 549 (Ind. Ct. App. 1997).

132. Mat 550.
133. Id

134. Id at 55\.

135. /^. at 552.

136. Deja Vu of Hammond, Inc. v. City of Lake Station, 681 N.E.2d 1 168, 1 173 n.5 (Ind. Ct.

App. 1997). The trial court also enjoined the tavern/restaurant from using part of an addition as

"storage building." Id. The tavern/restaurant did not appeal that part of the injunction. Id.

1 37. Id. at 1 170. One might suggest that the Deja Vu was "asking for it" when they named

the adult entertainment part of their premises the "Bare-ly Legal." Id.

138. Id

139. Id



1 998] INDIANA APPELLATE PROCEDURE 687

primafacie error rule, the courts in both Deja Vu and Marriage ofJackson still
ruled in favor ofthe appellants. What ultimately can be gleaned from those cases
that considered XhQ primafacie error rule in 1996 and 1997? File a brief.

'"^^

2. Subject Matter Jurisdiction.—In City ofNew Haven v. Chemical Waste
Management ofIndiana, LLC,^^^ the court of appeals considered an issue of
first impression related to its subject matter jurisdiction: whether a permissive

intervening party in the trial court may maintain an appeal of a judgment when
the original parties to the dispute have settled their claims and dismissed the case

as between themselves. A brief review of the relevant procedural background in
City ofNew Haven is necessary to put the issue in context.

'"^^

The city filed a complaint to enforce a zoning ordinance, naming the county
board of zoning appeals and a chemical company as defendants, alleging that the
chemical company was violating the zoning ordinance. The city sought a court
order to have the chemical company cease operations. The county zoning
administrator issued the injunction by entering several "stop work" orders. The
zoning appeals board then filed a complaint for injunctive relief, seeking to

enforce the stop work orders which the zoning administrator had entered, and the
zoning appeals board affirmed.

Pursuant to Indiana Trial Rule 24(B)(2), the city filed a petition to intervene

as a plaintiff in the zoning appeals board enforcement action. The trial court
granted the petition and the parties then filed summary judgment motions. The
trial court granted in part, and denied in part, the chemical company's motion.
The zoning appeals board, the zoning administrator, and the city filed a joint
praecipe for appeal of the adverse rulings. Subsequent to the trial court's order

on the summary judgment motions, the zoning appeals board, the zoning
administrator, and the chemical company reached a settlement agreement. The
trial court then entered an agreed judgment in both cases dismissing all claims
with prejudice. The city, not a party to that agreed judgment, remained the sole
appellant.

On appeal, the chemical company argued that a permissive intervening
plaintiff, such as the city, could not maintain an appeal once the original parties

had been dismissed from the cause of action, "Essentially, [the chemical
company asked the court of appeals] to question [its] jurisdiction to hear the . .
. appeal."^"^^ The court, in considering that assertion, framed the issue as follows:

Indiana law provides that an intervenor takes the case as he finds it and

1 40. Accord Harrington, supra note 1 1 4, at 990 (After noting that the developing primafacie

error rule is "unpredictable," concluding that: "Appellees should always file a brief. Appellees

who fail to do so run the risk that their successes in the trial court will be the subject of a diluted

standard of review on appeal.").

141. 685 N.E.2d 97 (Ind. Ct. App. 1 997).

142. There was a "complex procedural background" in City ofNew Haven, which the court
of appeals provided in a "somewhat simplified version . . . ." Id. at 99. The procedural version set

forth in this Article is even more simplified; readers are referred to the opinion for more details.

143. Id at 100.



688 INDIANA LAW REVIEW [Vol. 3 1 :669

cannot change the issues or raise unrelated issues. Accordingly, one

should not be granted permissive intervention if the effect of granting the

motion would be to open up new areas of inquiry or raise unrelated
issues. Although one who has been granted permissive intervening
status cannot later interject new areas of inquiry or raise unrelated
issues, the question remains as to what rights the intervening party has

to continue to pursue issues raised by the original parties where those

parties have decided to settle and/or dismiss the case as between

themselves.
^'*'*

Because of the lack of Indiana authority on point, the court turned to federal

cases that had addressed the same issue under Federal Rule of Civil Procedure

24. Accordingly, the court noted that "'[t]he weight of authority in the United

States Court[s] of Appeals supports the principle that an intervenor can continue

to litigate after dismissal of the party who originated the action. '"^"^^ However:

Most of the circuits that have reached that conclusion have set standards

for determining under what circumstances an intervening party may
continue to litigate after dismissal of the original party and have

generally adopted, inter alia, the approach that an intervener may
continue provided that an independent basis for jurisdiction exists.

^"^^

The chemical company urged the court of appeals to find that it lacked

independent jurisdiction over the appeal, and thus to dismiss the appeal.
^"^^ The

court rejected that argument. Recognizing the difference between federal and

state subject matterjurisdiction, the court stated: "The power of this court to hear

appeals is not limited by the same parameters as the federal circuit courts of

appeals."^'** In Indiana, "[p]rovided that certain procedural requirements are met,

appeals may be taken by either 'party' from all final judgments and from
interlocutory orders under specified circumstances."'"*^

The court then held that although

one who is not a party or has not been treated as a party to a lawsuit has
no right to appeal from a judgment rendered therein . . . one who is not
an original party to a lawsuit may of course become a party and, in
effect, gain the right to appeal, by intervention, substitution or third-

party practice.
'^^

Therefore, because the city was a proper intervenor, and because there was no

144. Id. at 100-01 (citations omitted).

145. Id. at 101 (quoting Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir. 1994) (second alteration

in original)).

146. /<i. (emphasis added).

147. Id

148. Id at 102.

149. Id (citing IND. APP. R. 4(A) & (B)).
150. Id



1 998] INDIANA APPELLATE PROCEDURE 689

indication the city failed to meet the appellate procedural requirements to bring
an appeal, the city had a right to appeal the trial court's judgment "to the extent
that it [was] adverse to those interests which made intervention possible in the
first place.'"''

11. Rule Changes Effective January 1, 1998

Effective January 1, 1998, the supreme court amended Appellate Rules 2,
2.1,4,7.2,8.2, 11, 14, and 15.

A. Appellate Rule 2

1. Appellate Rule 2(C).—Certainly the most significant of the 1998
amendments to the Appellate Rules are the changes found in Appellate Rule 2.
Sub-parts 2(A) and 2(B) to Appellate Rule 2 remain unchanged from their 1997

form. However, the 1997 form of sub-part 2(C)
—

"Court of Appeals Pre-Appeal

Conference"—-has been eliminated. The new sub-part 2(C)—"Court of Appeals
Notice of Appeal"—requires that:

Any party seeking an appeal or review by the Supreme Court or the
Court of Appeals, shall file a notice of appeal with the Clerk of the

Supreme Court, Court of Appeals and Tax Court. The filing of a notice
of appeal will satisfy the requirement to file an appearance pursuant to

Appellate Rule 2.1.^^2

Douglas E. Cressler, the Administrator of the Indiana Supreme Court, has
written that "the principal purpose for the new [Rule 2(C)] is to provide the
appellate courts a basis for case management."''^ The notice shall be filed within
"fourteen (14) days ofthe filing of the praecipe or, in the case of an interlocutory

appeal under Appellate Rule 4(B)(6), with the petition to the Court of Appeals

requesting permission to file an interlocutory appeal "'^"^ The notice must set
forth the following information: Party Information;'^^ Trial Information;'^^

151. Id.

152. IND. App. R. 2(C).

153. Douglas E. Cressler, Appellate Practice From Inside The Indiana Supreme Court

Administrator's Office, THE APPELLATE ADVOCATE, Spring 1998, at 5.

154. iND. App. R. 2(C)(1).

155. Id. The following must be included in the required "Party Information":

(a) Name, address and telephone number of the parties initiating the appeal or review;

(b) Name, address, attorney number, FAX number, telephone number and computer
address, if any, of the attorneys representing the parties initiating the appeal or review;

and (c) Whether the attorney is requesting service of orders and opinions by FAX
pursuant to Appellate Rule 12(F).

M.

156. Id. The following must be included in the required "Trial Information":

(a) Title of case; (b) Trial court or other tribunal; (c) Case number; (d) Name of trial
judge; (e) Date case initially commenced; (f) Date ofjudgment or order; (g) Whether



690 INDIANA LAW REVIEW [Vol. 3 1 :669

Record Information;'^^ and Appeal Information.'^^ The following documents

must be attached to that notice of appeal:

(a) In civil cases, a copy of the judgment or order appealed from, to

include findings of fact and conclusions, where made; (b) In criminal

cases, a copy of the judgment or order appealed from, to include any

sentencing order; (c) A copy of any motion to correct errors filed in the
trial court; and (d) A copy of the praecipe. '^^

If a party fails to file the notice of appeal, then "[t]he Clerk of the Supreme
Court and Court of Appeals shall not accept for filing any record, motion, or

other documents ofthe proceedings, until the notice of appeal has been filed."'^^

Thus, the filing of a notice of appeal is, in effect, a condition precedent to the

timely filing of the record.'^'

It is interesting to note that the ramifications for failing to timely file the

notice of appeal are not couched in absolute terms. That is, although the notice

of appeal has to be filed "within fourteen (14) days of the filing of the

praecipe''or an interlocutory petition,'^^ Appellate Rule 2(C)(2) states only that

the various filings will not be accepted "until the notice of appeal has been

filed.'"^^ Appellate Rule 2(C)(2) does not state that the various filings shall

Id.

Id.

Id

trial was by judge or jury; (h) Synopsis ofjudgment and sentence, if applicable; and (i)

Case type using classification in Administrative Rule 8(B)(3).

157. Id. The following must be included in the required "Record Information":

(a) Date praecipe was filed; (b) Date record is due to be filed; and (c) The following

transcript information: 1) Name, address and telephone number of court reporter

responsible for preparing transcript; 2) Date ordered (or reason it has not been ordered);

3) Payment arrangements; 4) Estimated length of transcript; 5) Estimated time required

for preparation; and 6) Estimated completion date.

158. Id. The following information must be included in the required "Appeal Information'

(a) A short and plain statement of the anticipated issues on appeal; provided, however,
that the statement of anticipated issues shall not prevent the raising of any issue on

appeal; (b) Prior appeals in same case; (c) Related appeals (prior, pending or potential)

known to the party; (d) Indication whether a request for oral argument is anticipated; (e)

Pre-appeal conference request; if desired, include purpose of proposed conference; (f)

Criminal cases—status of defendant (i.e. on bond, incarcerated and, if so, where); (g)
Civil cases—whether Alternative Dispute Resolution has been used and whether it
should be used on appeal; and (h) Certification that case does or does not involve issues

relating to custody, support, visitation or parental relationship of a child.

159. Id

160. IND. App. R. 2(C)(2).

161

.

See iND. App. R. 3(B) (time within which the record must be submitted).

162. iND. App. R. 2(C)(1).

163. iND. App. R. 2(C)(2).



1 998] INDIANA APPELLATE PROCEDURE 69

1

never be accepted if the notice of appeal is not filed within that fourteen day
period.

^^^

Implicitly, then, Appellate Rule 2(C)(1) could be read to allow a party who
fails to submit the notice ofappeal within the fourteen day period to have up until
the eve of the deadline(s) for submitting the record^^^ in which to submit the
notice of appeal. It will be interesting to see how the appellate courts apply
Appellate Rule 2(C) if (and when) that situation arises, and whether failure to
strictly adhere to the Appellate Rule 2(C) deadline will mean that the appellate
courts will refuse to hear an appeal, as is the case when an appellant fails to
comply with, for example, Appellate Rule 2(A).

^^^

In response to the question "What happens if no notice of appeal is filed?",
Douglas Cressler, Administrator of the Indiana Supreme Court, has written:

The rule itself, as amended, provides that "[t]he Clerk of the Supreme
Court and Court of Appeals shall not accept for filing any record,

motion, or other documents of the proceedings, until the notice of
appeals has been filed." App.R.2(C)(2)(1998). [T]]hat provision is only

being enforced if the praecipe was filed in 1998. If the praecipe was
filed in 1998 and a motion or record is tendered without a notice of

appeal having been previously or contemporaneously submitted, the

appellate courts are allowing such materials to be "received" rather than

filed. Counsel for the appellant will then be contacted by the Clerk's
office about the deficiency. Once the notice of appeal is filed, the
previously received documents will be shown as "filed" and processed
accordingly. The courts may (and probably will) decide to adopt a more
rigid interpretation of the rule after it has been in effect for awhile.

'^^

Thus, it appears that Indiana's appellate courts will not strictly construe

Appellate Rule 2(C) yet. As it is unclear from the above when that lenient
construction of the Rule will be lifted, practitioners are cautioned not to rely on
the above as persuasive authority for avoiding whatever consequences may lie
for failing to comply with Appellate Rule 2(C).

1 64. In a preliminary draft ofthe revised Appellate Rule 2(C), monetary sanctions would have

been imposed if an appellant failed to file the notice of appeal. See, Ammeen, supra note 3, at 1 186

n. 1 1 5. Under that version of the rule it would appear that the notice of appeal is not a jurisdictional

requirement. However, such a clear cut "sanction" is not found in the 1998 version of Appellate

Rule 2(C), leaving the issue open to interpretation.

165. ^-ee IND. App. R. 3(B).

166. See Jennings v. Davis, N.E.2d 810 (Ind. Ct. App. 1994) (finding that filing of praecipe

31 days after entry of final judgment resulted in dismissal of appeal); Koons v. Great Southwest

Fire Ins. Co., 530 N.E.2d 780 (Ind. Ct. App. 1988) (failure to timely file the record results in

dismissal because of lack of subject matter jurisdiction); see also Ammeen, supra note 3, at 1 186.

("Substantial issues still must be resolved before a docketing statement can be instituted. For

example, should filing the docketing statement be jurisdictional or simply a notice?").

167. Cressler, supra note 153, at 6.



692 INDIANA LAW REVIEW [Vol. 3 1 :669

2. Appellate Rule 2(D).—The only substantive change^^^ to Appellate Rule
2(D) is that parties may now request a preappeal conference. '^^ In the 1997
version of Appellate Rule 2(D), it was only the court of appeals that had the
ability to "direct" such a conference. '^^ Under the new Appellate Rules, the court
of appeals has retained that power, only now, in addition, the conference can be

requested by an appealing party.
'^*

B. Appellate Rule 2.1(A)

Two changes are found in the 1998 version of Appellate Rule 2.1(A). First,
it is no longer a requirement that "[i]n the case of an interlocutory appeal under

Appellate Rule 4(B)(6), the appearance form shall be filed with the petition to

entertain jurisdiction."'^^ Second, "[t]he filing of a notice of appeal pursuant to

Appellate Rule 2(C) will satisfy the requirement to file an appearance" under

Appellate Rule 2.1(A).'^^ Thus, the notice of appeal has a dual purpose.

C. Appellate Rule 4(C)

Appellate Rule 4(C) has been the subject of some interesting appellate
decisions over the last few years.'^"^ The court in Sneed v. Associated Group
Insurance^^^ held that the procedures in the Appellate Rules take precedence over

conflicting statutory procedures. '^^ At issue in Sneed v^diS whether the failure to

file an assignment of errors, which was not required by the Appellate Rules'^^
(but was required by statute'^^), meant that the appellate court did not have
jurisdiction to consider the merits of the appeal. '^^ At the time of the Sneed

decision. Appellate Rule 4(C) stated that "[i]t shall be unnecessary to file a

separate assignment of errors in the court of appeals to assert that the decision of

any board, agency, or other administrative body is contrary to law."'^^ The 1998

version of Appellate Rule 4(C) states that "[i]t shall be unnecessary to file an

168. The internal numbering of the rule has changed. IND. APP. R. 2(D).

169. Id.

170. Id.

171. Id

172. See iND. A??. R. 2.1 (amended 1998).

173. Id

174. For an excellent discussion of those cases, see Harrington, supra note 1 14, at 993-96;

Ammeen, supra note 3, at 1 \12>'1A.

175. 663 N.E.2d 789 (Ind. Ct. App. 1996).

176. /J. at 794.

1 77. The court in Sneed held that, although the version of Appellate Rule 4(C) in effect at the

time of an appeal required the filing of an assignment of errors, the subsequently amended version

of Appellate Rule 4(C), which did not require the filing of an assignment of errors, nonetheless

applied. Id. at 797.

178. Ind. Code §22-3-4-8 (1993).

179. Sneed, 663 N.E.2d at 791.

1 80. Ind. App. R. 4(C) (amended 1 998).



1 998] INDIANA APPELLATE PROCEDURE 693

assignment of errors in the court of appeals to assert that the decision of any

board, agency, or other administrative body is contrary to law."'^* Although the
change is subtle—from "a separate assignment" to "an assignment"—^the change
can be read to implicitly clarify and affirm the Sneed decision. The 1998 version
removes language that could be read to acknowledge the possibility that a party

needs to file "a separate" assignment, even if such an assignment is required by
a conflicting statutory provision, as in Sneed.

D. Appellate Rule 7.2(B)

The 1998 version of Appellate Rule 7.2(B) has been amended in two
respects: the first substantive; the second stylistic. The first change to Appellate
Rule 7.2(B) requires the appellant, rather than the trial court clerk, to "transmit

the whole record to the court on appeal."'^^ This change firmly places the burden

on an appellant to ensure that an appellate court has the whole record.

The second change is an elimination of the italicized portion of the
following:

Neither party shall request parts of the record or a transcript of the

proceedings which are not needed for the issues to be asserted upon
appeal, including without limitation the following: The pleadings or
parts thereofnot related to a claimed error; the verdict, when theform,
language or its scope is not in issue; evidence or parts thereofwhich is

not involved in the appeal or related to the error claimed; instructions,

tendered instructions, findings or proposed or omittedfindings which
are not in issue; evidence, other instructions orfindings orpleadings or

parts thereofwhich are notparticularly related to instructions, tendered

instructions, findings, or proposed or omittedfindings claimed to be
erroneous; or motions and orders or rulings thereon not connected with
the error claimed.

^^^

Clearly, the supreme court believes that, with respect to the specificity of
Appellate Rule 7.2(B), less is better. The change is not substantive, as it simply
removes the "including without limitation" clause and leaves a less-detailed,
albeit substantively the same, mandate.^^"^ Regardless of the form and specificity

ofAppellate Rule 7.2(B), a party is still required to submit to the court of appeals

those parts of the record or transcript which are needed for the issues on
appeal.

'^^

181. IND. App. R. 4(C).

182. Compare I^fD. A??. R 7.2(B) (1997), with iND. APP. R. 7.2(B) (1998).
183. Compare iND. APP. R. 7.2(B) (1997), with iND. APP. R. 7.2(B) (1998).

184. Perhaps all that can be gleaned from the change is that the supreme court wants to

remove from an appealing party the argument that one of the formerly enumerated parts of the

record or transcript was not requested because the 1997 Appellate Rule 7.2(B) explicitly stated that

that part of the record was "not needed for the issues to be asserted upon appeal."

185. iND. App. R. 7.2(B).



694 INDIANA LAW REVIEW [Vol. 3 1 :669

E. Appellate Rule 11(B)

The requirements for a petition for transfer continue to evolve. Three
changes to Appellate Rule 1 1(B) are effective in 1998. The first change is the
addition of the following italicized language:

Within thirty (30) days from an adverse decision in the Court of Appeals

or, in the event a petition for rehearing^o/w an adverse decision is filed

in the Court of Appeals, within thirty (30) days from the disposition of

such petition, a party may petition the Supreme Court to transfer the
case.'^^

The second change is the addition of the following language:

A published opinion, an unpublished memorandum decision, or an order
dismissing an appeal issued by the Court of Appeals may be considered
an adverse decision for purposes of petitioning for transfer. Any other
order issued by the Court of Appeals, including an order denying a

petition for interlocutory appeal under Appellate Rule 4(B)(6), shall not

be considered an adverse decision for purposes of petitioning for

transfer, regardless of whether rehearing is sought.
'^^

Finally, the court has reduced the length of the petition to transfer from 1400

to 1000 words.
'^^

Conclusion

During the survey period, Indiana's appellate courts continued to refine and,

in some cases, re-define, appellate procedure. The Indiana Supreme Court
continues to refine the Appellate Rules. While in some cases these changes have

added clarity to the appellate process, other changes have, in fact, clouded the

process. However, as long as appellate practitioners are aware of the changes,

then the murkiness of certain rules can be factored in to any procedural decisions

so that an appellant or appellee's rights are not forfeited due to procedural errors.

186. Ind.App.R. 11(B).

187. Id.

188. Id.