The trial court denied the appellants' (the Lodges) request for permission to file a belated praecipe so that they might challenge a summary judgment entered in the appellees' (the State) favor. We are asked to review that denial in light of the Lodges' claim that they did not receive notice of the court's ruling on the State's motion for summary judgment.
The State of Indiana provides funding to the Room and Board Assistance (RBA) program which helps qualified individuals defray certain living and personal expenses. The Lodges operate residential care facilities that provide RBA program recipients with room, board and other services. The State reimburses the Lodges for their services at a rate predetermined by the Department of Public Welfare.
This appeal arises out of a class action for mandate in which the Lodges claim that the State failed to allocate all of the funds appropriated by the legislature for RBA services. The State moved to dismiss the Lodges' complaint. Upon accepting materials presented outside the pleadings, the trial court converted the State's motion into one for summary judgment. Ind.Trial Rule 12(B). In reply to the Lodges' opposition to the motion, the State filed the affidavit of Rachel McGeever.
On October 25, 1993, the Lodges filed a written motion and proposed order to strike the McGeever affidavit. On the same day, the trial court heard oral argument on the State's summary judgment motion and took it under advisement. The Lodges' counsel contends that the court then stated it would render a decision in about one month. Just ten days later, on November 4,1993, the trial court granted the State's motion for summary judgment and denied the Lodges' motion to strike the McGeever affidavit. The Lodges' counsel received the court's order denying the motion to strike the McGeever affidavit, but did not receive notice of the Court's granting of the State's summary judgment motion.
Beginning on November 29, 1993, a member of the Lodges' counsel's staff made weekly calls to the court to inquire whether a ruling on the summary judgment motion had been entered. The staff member called the court on seven different occasions. Each time, she was informed that no ruling had been made on the pending summary judgment motion. On January 13, 1994, one of the Lodges' counsel spoke directly to the trial court bailiff who informed him that the State's motion had been granted on November 4, 1993. Three weeks later, the Lodges filed an Ind.Trial Rule 60(B) motion captioned "Motion for Change of Date of Summary Judgment Entry and for Leave to File Belated Praecipe," together with affidavits, a proposed praecipe, and a supporting memorandum.
By written order dated March 11, 1994, the trial court denied the Lodges' 60(B) motion. The Lodges timely perfected the present appeal.
DISCUSSION AND DECISION
Our supreme court has recently held that extensions of the time limits for filing an
A notation in the Chronological Case Summary satisfies the recording requirement. Collins, 644 N.E.2d at 117. Trial Rule 72(E) governs a party's claim that it did not receive notice of a ruling. It provides:
In Collins, our supreme court considered the circumstances under which a party may challenge the receipt of notice and seek to file a belated praecipe. In that case, the trial court issued several rulings on January 31, 1991. Two of the rulings were issued in a written order. The remaining rulings, including a summary judgment granted in favor of Covenant Mutual, were issued in a separate written entry. As here, Collins' counsel acknowledged receiving the January 31 order, but claimed he did not receive the separate entry granting Covenant Mutual's summary judgment motion until four months after it was entered. During those four months, Collins' counsel telephoned the court on three separate occasions to inquire as to the status of the pending motions, and each time was misinformed by court personnel.
Based upon T.R. 72(E), the court held that "only if the CCS does not contain evidence that a copy of the court's entry was sent to each party may a party claiming not to have received such notice petition the trial court for an extension of time to initiate an appeal." Collins, 644 N.E.2d at 117-18. After examining the Chronological Case Summary (CCS), the court determined that the typewritten notation "1/31/91 Notice: Y" which preceded a description of both the order and the entry was sufficient to demonstrate mailing of the court's entry granting Covenant Mutual's motion for summary judgment. This being so, Collins was precluded from seeking an extension of time to initiate an appeal.
Here, the court's case activity report appears in the record as follows:
11/04/93 AA014 COURT DENIES MOTION TO STRIKE AFFIDAVIT OF RY025 RACHEL MCGEEVER. 11/04/93 99999 DEFENDANTS' MOTION TO DISMISS TREATED AS SUMMARY RY025 JUDGMENT; SUMMARY JUDGMENT GRANTED. 11/04/93 AA051 FREE-FORM TEXT NOTICE WAS SENT TO SIDNEY MISHKIN [the Lodges' counsel]. 11/04/93 AA051 FREE-FORM TEXT NOTICE WAS SENT TO GORDON EUGENE WHITE JR. [the State's counsel].
Record at 6. The Lodges contend that they are entitled to challenge the receipt of notice the CCS, bringing the present case outside
According to the Lodges, the present case involves circumstances more like those held by our supreme court to justify the filing of a belated praecipe in Markle v. Indiana State Teachers Ass'n (1987), Ind., 514 N.E.2d 612. In Markle, our supreme court held that the handwritten listing of the three attorneys involved in the litigation, which listing followed a one paragraph notation in the docket of two orders entered on the same date, was not conclusive evidence that notice of the first order was mailed.
In Collins, the court distinguished Markle on the ground that the CCS in Collins, unlike the CCS in Markle, contained "a specific reference to notice having been sent." Collins, 644 N.E.2d at 118. We conclude that the same distinction governs here. The CCS at issue contains specific reference that notice was sent to the Lodges' counsel. According to Collins, such a specific reference satisfies the requirements of Trial Rule 72 and precludes the Lodges' challenge to the receipt of notice.
In reaching our decision, we are not unmindful of our supreme court's statement in Markle addressing Trial Rule 72:
514 N.E.2d at 613.
We agree with the Lodges that the denial of relief is repugnant to this policy, and we, too, are unable to reconcile the result reached in Collins with the policy statement set forth in Markle. The rule set forth in Collins puts a nearly impossible burden on trial counsel. After Collins, lawyers must once again continuously check the docket books (now, the Chronological Case Summary of each case) in each court in which they have a case pending to protect their clients and themselves or run the risk of forfeiture of their appellate rights. For those attorneys whose offices are in close proximity to the courthouse, this burden is heavy; for those whose location is more remote, the burden is onerous. For those located in other counties, the burden becomes nearly impossible. It requires a tremendous expenditure of time and resources for very little benefit. It is also inconsistent with the spirit of our trial rules as set forth in Trial Rule 1: "[T]hese rules . . . shall be construed to secure the just, speedy and inexpensive determination of every action."
Where there exists clear and convincing evidence of non-receipt, a showing of diligent efforts to stay advised of the status of a case, and a reliance upon the representations of court personnel regarding such status, a party's appellate rights should not be forfeited. We are constrained, however, to follow our supreme court's pronouncement as set forth in Collins, and we conclude that the trial court properly denied the Lodges' request for relief.
SHARPNACK, C.J., concurs.
FRIEDLANDER, J., dissents.
FRIEDLANDER, Judge, dissenting.
I respectfully dissent.
It is apparent to me that an ambiguity exists on the face of the CCS which exempts this case from the rule announced in Collins v. Covenant Mut. Ins. Co. (1994), Ind., 644 N.E.2d 116.
The separate entry granting Covenant Mutual's summary judgment motion dated January 31, 1991 provided as follows:
Id. at 118.
As the Collins court observed, "the written notation `1/31/91 Notice: Y' precedes a description of both the Order and the Entry. . . . [T]he CCS in this case contains a specific reference to notice having been sent. . . ." Id. at 118 (emphasis supplied). While the majority places reliance upon Collins, the "notice" provision contained in the CCS in that case preceded the entire paragraph encompassing the ruling on the summary judgment motion. The Collins court also observed that "fejvery entry in the CCS follows the form of the one at issue in this appeal and set forth above," in determining that no ambiguity existed. Id. (Emphasis supplied). The circumstances here are more akin to those presented in Markle v. Indiana State Teachers Ass'n (1987), Ind., 514 N.E.2d 612. In Markle, our supreme court determined that the trial court was entitled to extend the time to initiate an appeal based upon appellant-Markle's claim that he did not receive notice of the court's ruling on the motion to correct error. In writing for the majority, Justice DeBruler observed as follows:
Id. at 613-14 (emphasis supplied).
As in Markle, the CCS summary here only indicates that some notice was sent to counsel. The trial court made two entries, each contained in separate paragraphs, when it made its November 4 ruling. There was only one "notice" entry directed to the Lodges' counsel which appears below the second entry. The CCS fails to mention whether both orders were mailed.
I would therefore hold that the Lodges may challenge the receipt of notice in accordance with T.R. 72(E) because an ambiguity exists on the face of the CCS.