COSTANZI v. RYAN

ON MOTION TO DISMISS

PER CURIAM.

This cause is before the Court on a motion to dismiss Sonja C. Costanzi's appeal from an interlocutory order. Her appeal is brought pursuant to Rule AP. 4(B)(5) of the Indiana Rules of Appellate Procedure. In its motion to dismiss the Board of Trustees of Bartholomew County Hospital raises two issues:

We deny the motion to dismiss.

Sonja C. Costanzi (Costanzi) commenced the trial court proceeding by filing her complaint against William J. Ryan (Ryan), Robert B. Krueger (Krueger), and the Board of Trustees of Bartholomew County Hospital (Hospital) in the Bartholomew Circuit Court October 29, 1976. Hospital and Ryan filed interrogatories propounded to Costanzi January 5, 1977, and January 10, 1977, respectively. Costanzi requested and received an enlarged period of time (to and including March 1, 1977) in which to answer. On March 1, 1977, Costanzi filed her answers and objections to Hospital's and Ryan's interrogatories. Both Ryan and Hospital filed motions and supporting briefs for orders compelling answers to the interrogatories to which Costanzi objected. The trial court granted the motions and entered orders on March 28, 1977, as to Ryan, and on April 6, 1977, as to Hospital. These orders read as follows, in part:

March 28, 1977:

April 6, 1977:

On April 21, 1977, Costanzi filed a motion asking the trial court to reconsider its orders dated March 28, 1977, and April 6, 1977. The trial court set the motion for hearing to be held May 6, 1977, and gave Costanzi until April 29, 1977, to file a brief in support of her motion; Costanzi filed the brief April 29, 1977.

On May 10, 1977, the trial court overruled Costanzi's motion to reconsider and vacate the orders dated March 28, 1977, and April 6, 1977, and the trial court entered an order reading as follows, with formal parts omitted:

Costanzi filed in the trial court on June 6, 1977, her consolidated motions (1) to certify the interlocutory order to the Court of Appeals pursuant to Rule AP. 4(B)(5), and (2) to stay or suspend the interlocutory order pending determination by the Court of Appeals of appealability of the order and during pendency of appeal. The trial court ordered the relief prayed for June 6, 1977, and certified eight questions of law to the Court of Appeals for resolution. This order concludes as follows:

On June 10, 1977, Constanzi filed a praecipe with the clerk of the trial court, Hospital filed its motion asking the trial court to reconsider and vacate its order of certification, and the trial court entered an order denying Hospital's motion filed that date.

Costanzi filed her petition for leave to appeal the interlocutory order, and supporting brief, with the Clerk of the Supreme Court and Court of Appeals July 5, 1977. She tendered the record at that time, and the Clerk retained the record while awaiting authorization to file it. Hospital filed its brief opposing the petition July 20, 1977. On August 9, 1977, the Court of Appeals granted Costanzi's petition for leave to appeal the interlocutory order, accepted jurisdiction of the appeal pursuant to the provisions of Rule AP. 4(B)(5), ordered the Clerk to file the record as of August 9, 1977, and granted Costanzi to and including August 19, 1977, to file a brief.

While preparing her brief, Costanzi discovered that the record which she tendered July 5, 1977, and which the Clerk marked filed August 9, 1977, was barren of any assignment of errors. On August 15, 1977, Costanzi filed a petition for leave to amend the record to include an assignment of errors and tendered the assignment of errors at that time. When Costanzi filed her brief August 19, 1977, and returned the record to the Clerk, she placed the assignment of errors and the amended table of contents in the record for the convenience of Hospital in preparing its brief. On August 24, 1977, the Court of Appeals granted leave to amend the record by including the assignment of errors, amending the table of contents, and renumbering the pages.

The Board of Trustees of Bartholomew County Hospital filed its motion to dismiss September 6, 1977, "for the reason that plaintiff-appellant has failed to conform to the requirements of Appellate Rule 3 which requires the filing of a Record of Proceedings including an assignment of errors within thirty days of an interlocutory order."

Hospital's arguments on Issue One may be summarized as follows: Rule 53.3(A) of the Indiana Rules of Procedure prevents the order dated May 10, 1977, from being the relevant order for appeal. Regardless of the holding on that argument, the appeal must be dismissed because Costanzi failed to file the record within thirty days of either April 6, 1977, or May 10, 1977.

As to Issue Two, Hospital argues that Rule AP. 7.2 requires inclusion of an assignment of errors in the record when an appeal is taken from an interlocutory order. Because the record contained no assignment of errors when filed August 9, 1977, the appeal must be dismissed.

The Supreme Court of Indiana has declared that

The Court of Appeals is a court established by Article 7, § 1, of the Constitution of the State of Indiana. The Court of Appeals is authorized by Article 7, § 6, to "exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules."

The Supreme Court has adopted Rule AP. 4(B)(5). A party proceeding under Rule AP. 4(B)(5) asks first the trial court and then the Court of Appeals to find that

Costanzi appropriately describes the product of Rule AP. 4(B)(5) as an appeal by grace, for Rule AP. 4(B)(5) makes a non-appealable interlocutory order appealable only by act of grace of the trial court and by act of grace of the Court of Appeals.1

Costanzi has traversed the perils inherent in relying upon a procedural rule which has not been thoroughly examined and well defined by prior case law. Both the trial court and this Court have concluded that Costanzi has satisfied the requirements contained in Rule AP. 4(B)(5). Hospital, by its motion to dismiss, asks this Court to dismiss the appeal for failure of Costanzi to comply with rules of procedure imposing time limitations upon appeals from interlocutory orders which are appealable as a matter of right.

Cases are legion which hold that the procedural rules of the Supreme Court have the force and effect of law and are binding upon the courts as well as upon the litigants. However, it is the declared policy of our Supreme Court that cases be decided upon their merits insofar as possible. Deckard v. Adams (1965), 246 Ind. 123, 203 N.E.2d 303.

In Soft Water Utilities, Inc. v. LeFevre (1973), 261 Ind. 260, 301 N.E.2d 745, our Supreme Court determined that the trial court appropriately exercised its equitable discretion in granting relief from a judgment pursuant to TR. 60(B).2 When LeFevre argued that failure to follow procedural rules barred exercise of substantive rights encompassed in the relief provided by TR. 60(B), our Supreme Court, by Justice Hunter, stated:

The Supreme Court of Indiana has inherent power to grant time to perfect an appeal even after the expiration of time allowed by the rules of the Supreme Court, or statute, for sufficient reason shown. State ex rel. Thomas v. Elkhart Circuit Court (1950), 228 Ind. 572, 94 N.E.2d 485, cert. denied, 340 U.S. 922, 71 S.Ct. 355, 95 L.Ed. 666. This is done only in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist. As a court created by the Constitution of the State of Indiana, the Court of Appeals also possesses such inherent power.

Additionally, with Rule AP. 4(B)(5) the Supreme Court has specifically entrusted the Court of Appeals with power to grant appeals by favor which are not available by right. By necessity, the grant of such broad power to the Court of Appeals must include concomitant authority for the Court of Appeals to provide procedural avenues for a party attempting to use Rule AP. 4(B)(5).

We have carefully reviewed the specific procedure followed by Costanzi, and we have considered that procedure with regard to the specific circumstances involved in the case at bar. We conclude that Hospital's motion to dismiss must be denied.

TR. 53.3(A) provides that no motion to reconsider shall extend the period of time for further proceedings. Even though TR. 53.3 states that no hearing is required on such a motion, the trial court in the case at bar did schedule a hearing and did set a date by which Costanzi was to file a brief in support of her motion to reconsider. The trial court did not rule on that motion until more than thirty days after the order dated April 6, 1977. By scheduling the hearing the trial court indicated that the motion for certification might well be totally unnecessary. Costanzi acted reasonably and understandably when she waited for the trial court to rule on the motion to reconsider before she submitted her motion asking the trial court to certify the questions of law to the Court of Appeals.

We note also that the trial court's order of certification which Rule AP. 4(B)(5) makes a condition precedent to appeal specifically names the interlocutory order dated May 10, 1977. In essence, Hospital now challenges the trial court's appraisal of the proceeding in the lower court. At the time a party petitions the Court of Appeals for leave to appeal under Rule AP. 4(B)(5), certainly the trial court is in a better position than is this Court to determine the propriety of appeal from one interlocutory order as opposed to a preceding interlocutory order entered in a particular trial court proceeding. Hospital filed its motion asking the trial court to reconsider its order of certification and filed an eight-page brief in support of that motion. At no time did Hospital offer to the trial court the argument which it now offers this Court.

The record supports the action of the trial court in concluding that the order dated May 10, 1977, was eligible for certification pursuant to Rule AP. 4(B)(5), despite the statements contained in TR. 53.3. The order entered May 10, 1977, was not merely an order reaffirming the order dated April 6, 1977. It encompassed both the order dated April 6, 1977, and the order dated March 28, 1977, and it also imposed upon Costanzi for the first time a deadline for filing the answers to the remainder of Hospital's interrogatories.

Before an appeal is possible under Rule AP. 4(B)(5), there must be an interlocutory order, then an order of certification by the trial court, and finally an order of the Court of Appeals granting leave to appeal. A party has no appealable order until this progression is completed. Although Costanzi did not tender the record for filing within thirty days of May 10, 1977, she did seek an order of certification from the trial court and did file with this Court her petition for leave to appeal within a time period which was reasonable and which reflected the seriatim nature of the procedure set forth in Rule AP. 4(B)(5).

Our Supreme Court recognized that strict adherence to procedural rules could render relief pursuant to TR. 60(B) meaningless. Strict and uncompromising adherence to procedural rules could impose totally futile duties upon the parties, the trial court, and this Court, or even render relief pursuant to Rule AP. 4(B)(5) meaningless.

Hospital argues that Costanzi's failure to include an assignment of errors in the record at time of filing forces this Court to dismiss the appeal. Cases such as Lashley v. Centerville-Abington Community Schools (1973), 155 Ind.App. 556, 293 N.E.2d 519, provide apparent foundation for Hospital's argument. Lashley filed the record without including an assignment of errors when she appealed from an interlocutory order entered in a condemnation proceeding. In sustaining a motion to dismiss despite Lashley's petition for leave to file the assignment of errors, this Court explained:

In Moore v. Spann (1973), 157 Ind.App. 33, 298 N.E.2d 490, appellants failed to include in the record certified copies of their motions to correct errors. The Court of Appeals, Second District, dismissed the appeal and concisely noted the reason for doing so:

Costanzi argues persuasively that, at the time the record was filed, the issues had been defined with certainty and precision in (1) Costanzi's answers and objections filed March 1, 1977; (2) Costanzi's brief opposing Hospital's motion to compel answers to its interrogatories; (3) Costanzi's motion for the order of certification of the trial court; and (4) Costanzi's petition to the Court of Appeals for leave to appeal. Before the Court of Appeals could possibly have reviewed the matter, those issues were set forth again in Costanzi's brief on the merits filed August 19, 1977, and in the assignment of errors added by amendment of the record. Hospital had the benefit of all those items by the time it was called upon to prepare a brief on the merits.

In American States Insurance Co. v. State ex rel. Jennings (1972), 258 Ind. 637, 640, 283 N.E.2d 529, 531, our Supreme Court, by Justice Hunter, explained that the rules of procedure are meant as tools and not as barriers:

This Court, by necessity, has already considered the question of whether or not Costanzi presents a case worthy of appeal, and this Court has answered that question affirmatively by granting her petition for leave to appeal. Past petitioners for leave to appeal pursuant to Rule AP. 4(B)(5) could well attest that we grant such petitions neither generously nor indiscriminately. After Costanzi has obtained the order of certification of the trial court and obtained leave of this Court to appeal, Hospital asks this Court to dismiss the appeal for alleged procedural errors which have in no way affected Hospital's ability to argue the case on the merits and which have in no way affected this Court's ability to review the matter.

By providing Rule AP. 4(B)(5), our Supreme Court has shown extraordinary concern for making the appellate tribunal accessible upon proper showing of need. This Court would be fastening tighter the very chains which our Supreme Court has attempted to loosen if it were to dismiss a case such as the one at bar and proclaim that alleged procedural errors which have harmed no one warrant refusal by this Court to decide legal issues. Instead, we deny Hospital's motion to dismiss and await Hospital's argument on the merits.

Motion to dismiss is hereby denied.