Carter v. Jones

751 N.E.2d 344, 2001 Ind. App. LEXIS 1196
CourtIndiana Court of Appeals
DecidedJuly 17, 2001
DocketNo. 48A04-0011-CV-466
StatusPublished
Cited by3 cases

This text of 751 N.E.2d 344 (Carter v. Jones) 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
Carter v. Jones, 751 N.E.2d 344, 2001 Ind. App. LEXIS 1196 (Ind. Ct. App. 2001).

Opinion

OPINION

BAILEY, Judge

Case Summary

Mary Carter, defendant below, appeals the trial court's grant of additur in favor of Tracy and Monty Jones, plaintiffs below, and the court's denial of Carter's motion to enforce a qualified settlement offer. We dismiss this appeal for lack of jurisdiction.

Issue

Carter presents several issues, the following of which is dispositive: Did the trial court's failure to rule on the Joneses's motion to correct error in a timely manner render its belated order granting additur a ° nullity? 1

Facts and Procedural History

On July 29, 1994, Tracy Jones was driving in her car when it was rear-ended by Carter's vehicle. The Joneses sued Carter for Tracy's alleged personal injuries, and Monty's alleged loss of consortium. On May 5, 2000, Carter offered to settle Tracy's claim for $7,500.00, and Monty's claim for $1.00. The offers were apparently rejected, and the case went to trial on June 15, 2000. Carter conceded her lability, but contested the Joneses's damages. The jury awarded Tracy $5,000.00, but found against Monty. (R. 7.) On June 22, 2000, the Joneses filed their "Motion to Correct Error/Additur," asking the court to either enter judgment greater than that contemplated by the jury, or to grant a new trial. The court held hearings on the motion on July 14 and August 11, 2000. (R. 7, 562.) On October 3, 2000, the court purportedly granted the Joneses's motion for additur, finding that the jury's award was inadequate as a matter of law, and adding $50,000.00, for a total judgment of $55,000.00. Carter filed her praccipe on October 28, 2000, and now appeals.

Discussion and Decision

A. Standard lof Review

A trial court has considerable discretion to grant or deny motions to correct [346]*346error. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind.Ct.App.2000), trams. denied. We will reverse only if the court has abused its discretion. Id. An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and circumstances before it, and when the court's decision is without reason or is based upon impermissible reasons or considerations. Id.

B. Analysis

Carter argues that the court's order granting additur is void because it was not issued in a timely manner. The Joneses appropriately sought additur under Trial Rule 59, which provides that a motion to correct error is a prerequisite for appeal "when a party seeks to address ... [a] claim that a jury's verdict is excessive or inadequate." Trial Rule 53.8(A) provides that

[in the event a court ... 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. An appeal shall be initiated by filing the notice of appeal under [former] Appellate Rule 2(A) [now Appellate Rule 9] within thirty (80) days after the Motion to correct Error is deemed denied.

"A trial court has no power to rule on a motion to correct error after the time designated by the rule has passed, and any subsequent ruling is a nullity." Johnson v. Johnson County Bd. of Zoning Appeals, 732 N.E.2d 865, 865-866 (Ind.Ct.App.2000). The court heard the Joneses's motion on July 14 and August 11, 2000, but did not rule on it until October 2, 2000. The motion was therefore "deemed denied" under Trial Rule 53.3 as of September 11, 2000, thirty days after the August 11 hearing. Carter thus asserts that the court's October 2, 2000 ruling granting additur was a nullity and must be reversed.

The Joneses respond by asserting that the court's order granting additur is not a nullity, but is simply voidable under the exception to the Trial Rule 58.3 deadlines delineated in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, 289 (Ind.2000)2 In Cavinder, the Indiana Supreme Court held that a trial court's untimely ruling on a motion to correct errors may be voidable rather than a nullity. Id. The court, however, expressly stated that this exception to Trial Rule 58.3's deadlines would apply only when the party filing the motion to correct errors timely pursues an appeal within thirty days of the deemed denial of the motion. Id. Here, the Joneses did not commence an appeal under former Appellate Rule 2(A) by October 11, 2000, thirty days after the deemed denial of their motion as required by Trial Rule 58.3, and Carter urges us to hold that the exception set out in Cavinder does not apply.

The Joneses claim that they promptly appealed the deemed denial of their motion to correct error, and thus fall within the Cavinder exception, by characterizing their status before this court as "cross-appellants" under Trial Rule 59(G) with regard to the issues raised by Carter. This argument misunderstands and misconstrues both Cavinder and the applicable trial rules. First, the Joneses are not cross-appellants under Trial Rule 59(G). That rule permits a party responding to an [347]*347appeal taken in lieu of a motion to correct error to defend against that motion by raising any available ground for the first time upon appeal, and to raise any grounds as cross-errors. This does not help the Joneses, because aside from characterizing themselves as "cross-appellants," they have not identified any action of the trial court they claim to be error. In any event, even if the Joneses had asserted eross-errors here, they unquestionably failed to commence an appeal within thirty days of the deemed denial of their motion, the only fact pertinent to the applicability of the Cavinder exception. The exception therefore does not apply, and the court's untimely order granting additur was a nullity.

As a result, we lack jurisdiction over this appeal. Former Appellate Rule 2(A), in effect until December 31, 2000, required a party seeking an appeal to file a pracecipe within thirty days of the entry of final judgment. As noted above, however, when a party files a motion to correct error, Trial Rule 58.3 provides that the appeal must be commenced within thirty days from the date the court rules on the motion, or within thirty days after the motion is deemed denied. In either case, the filing of the praecipe in a timely manner is a jurisdictional prerequisite to any appeal, and the failure to commence an appeal in a timely manner deprives us of jurisdiction over the remainder of the appeal, and mandates dismissal. See Roscoe v. Roscoe, 673 N.E.2d 820, 821 (Ind.Ct.App.1996) (dismissing appeal for lack of jurisdiction after holding the trial court's belated ruling on a motion to correct errors a nullity, because the party commene-ing appeal failed to file a praccipe within thirty days of the deemed denial of the motion to correct errors). Here, neither party commenced an appeal within thirty days after the Joneses's motion to correct errors was deemed denied by virtue of the trial court's failure to rule upon it, and both parties' rights to an appeal were waived. We accordingly lack jurisdiction, and the appeal must be dismissed.3

Appeal dismissed.

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Related

Capehart v. Capehart
771 N.E.2d 657 (Indiana Court of Appeals, 2002)
Parks v. Indiana
535 U.S. 1020 (Supreme Court, 2002)
Carter v. Jones
751 N.E.2d 344 (Indiana Court of Appeals, 2001)

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Bluebook (online)
751 N.E.2d 344, 2001 Ind. App. LEXIS 1196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-jones-indctapp-2001.