Anderson v. Indiana State Employees' Appeals Commission

360 N.E.2d 1040, 172 Ind. App. 529, 1977 Ind. App. LEXIS 789
CourtIndiana Court of Appeals
DecidedMarch 24, 1977
Docket2-976A331
StatusPublished
Cited by21 cases

This text of 360 N.E.2d 1040 (Anderson v. Indiana State Employees' Appeals Commission) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Indiana State Employees' Appeals Commission, 360 N.E.2d 1040, 172 Ind. App. 529, 1977 Ind. App. LEXIS 789 (Ind. Ct. App. 1977).

Opinion

Per Curiam

This cause is pending before the Court on the appellees’ Motion to Dismiss or Affirm, which alleges multiple defects in the record of the proceedings and in the appellant’s brief. We have carefully examined the record of the proceedings and appellant’s brief and, after such examination, we reluctantly conclude that the appellant has failed to file a record qnd brief sufficient to preserve and present any errors for our consideration on appeal. Accordingly, we affirm.

This was an action in the trial court for judicial review of the order of the Indiana State Employees’ Commission which affirmed appellant’s dismissal as a permanent status employee in the Indiana State Merit Service.

The record before us is in three volumes. Two of the volumes contain the proceedings before the State Employees’ Appeals Commission and the third volume contains the pro-ceedings on judicial review in the Marion Circuit Court. The two volumes of the proceedings before the Commisison contain no table of contents as required by Rule *531 AP. 7.1 (C), nor do they contain any marginal notations as required by Rule A.P. 7.2(A)(3)(a). Since these two volumes of the record contain the evidence adduced before the Commission, without the navigational aids of a table of contents and marginal notations, the reader is left adrift and at a complete loss to know where the testimony of any particular witness is, and whether on any given page the examination is direct, cross or redirect without rummaging through the records to find the testimony of a particular witness, then searching to find the various portions of that witness’s testimony.

The third volume contains the proceedings in the Circuit Court. This volume does contain a table of contents, but only as to the matters contained in the third volume. There are no marginal notations, however, on any of the pages. The pleadings and orders in this volume are not arranged in chronological order. There are various extraneous matters contained in this volume which had not previously been presented to and considered by the Commission, contrary to the provisions of IC 1971, 4-22-1-18, which provides that the reviewing court shall not try or determine the cause de novo, but the facts shall be considered and determined exclusively upon the record filed with said court pursuant to this Act.

Of graver consequence, however, is the fact that the record of the proceedings before the Marion Circuit Court contains only one order book entry, that showing the overruling of petitioner-appellant’s Motion to Correct Errors. Rule AP. 7.2(A) (2) requires that the record shall contain a copy of the order book entries. The Marion Circuit Court is a court of record. Our Supreme Court has recently affirmed the maxim that a court of record speaks only through its order book entries. State ex rel. Mammoth Development and Construction Consultants, Inc., etc. v. Superior Court of Marion County, et al. (1976), 265 Ind. 573, 357 *532 N.E.2d 732. 1 Thus, appellant has failed to bring a record which 'demonstrates any of the proceedings of the Marion Circuit Court except the overruling of the Motion to Correct Errors. It is the duty of the appellant to bring a record which supports his claimed errors and which is sufficient to permit an intelligent decision of the issues. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532; Burns v. State (1970), 255 Ind. 1, 260 N.E.2d 559.

We further note in our examination of the record that the Motion to Correct Errors is not sufficiently specific to have presented any error to the trial court nor to preserve any error for appeal. The Motion to Correct Errors contains various bald assertions of error, couched in general rather than specific statements, and the motion is not accompanied by a statement of the facts and grounds upon which the errors are based, all as required by Rule TR. 59 (B). Both the Supreme Court of Indiana and this Court have written repeatedly to the requirement of specific assertions in the motion to correct errors. As we stated in Johnson v. State (1975), 167 Ind. App. 292, 338 N.E.2d 680 at 682:

“The requirement of specificity contained in TR. 59(B) and echoed by TR. 59 (G) should be notorious by now. Not only must the alleged error be specifically set out, but also •the facts and grounds in support of the claimed error must be discussed with enough particularity that the trial court may be made aware of the exact legal issue involved. Failure to comply waives any claimed error except suffiicency of the evidence, pursuant to TR. 50(A) (5).”

While we recognize the Motion to Correct Errors was filed in this case before Johnson, supra, was handed down, nonetheless there had been numerous decisions on this point beginning as early as 1971, as cited in Johnson, so that appellant's counsel should have been aware of the necessity for specificity in the motion to correct errors.

*533 In the case now before us, considering the multiple deficiencies of the three volumes of the record, we must conclude that the appellant has failed in his duty to bring before us a record which is sufficient to support the claimed errors and permit an intelligent review of the issues.

Turning now to the appellant’s brief, it is immediately apparent that the brief has not been prepared in compliance with Eule AP. 8.3(A). The various sections of the brief are not in the sequence required by Eule AP. 8.3(A) (3), (4), and (5). There is no verbatim statement of the judgment being appealed from as required by Eule AP. 8.3 (A) (4). In the statement of facts section of the brief, there are no references to the record as required by Eule AP. 8.3(A) (5). The brief fails to contain sufficient citations to the pages of the record in the argument section as required by Eule AP. 8.3 (A) (7). This omission is particularly glaring in view of the deficiencies of the two volumes of the record containing the evidence as discussed hereinabove.

The argument section of the brief is not sufficient to demonstrate error. Appellant has intertwined in the argument the three elements of evidence elicited at the proceedings before the Commission, matters which he sought to present as newly discovered evidence which the trial court did not permit to be presented, and matters totally outside of the proceedings before the Commission and the trial court. Without searching the record to compare the matters contained therein with the assertions contained in the brief, it is impossible to tell which is which. An appellant’s brief is required to be prepared so that each judge, considering the brief alone and independently from the record, can intelligently consider each question presented. Thonert v. Daenell (1970), 148 Ind. App. 70, 263 N.E.2d 749.

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Bluebook (online)
360 N.E.2d 1040, 172 Ind. App. 529, 1977 Ind. App. LEXIS 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-indiana-state-employees-appeals-commission-indctapp-1977.