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10/19/87 DONALD MARKLE v. INDIANA STATE TEACHERS

Filed: October 19, 1987.

DONALD MARKLE, APPELLANT,
v.
INDIANA STATE TEACHERS ASSOCIATION AND RALPH EMERSON, APPELLEES



APPEAL FROM THE HAMILTON CIRCUIT COURT, Cause No. C83-476, The Honorable Judith S. Proffitt, Court of Appeals No. 29A02-8602-CV-50.

DeBruler, J., Shepard, C.j., Givan, Pivarnik and Dickson, JJ

Author: Debruler

DeBRULER, J.-

We grant transfer in this case to analyze the effect of the amendment to Trial Rule 72(D) effective January 1, 1985.

The pertinent facts, as related by the Court of Appeals, are as follows: Markle filed a complaint against the Indiana State Teachers Association and Ralph Emerson (hereinafter referred to collectively as ISTA) alleging violation of the Federal Wiretap Act. After a jury verdict for Markle, the trial court entered final judgment pursuant to T.R. 54(B) on October 24, 1985. On November 4, 1985, ISTA filed two documents with the trial court: a motion to correct error and a motion to stay its third-party claim against Northwestern School Corporation (Northwestern) pending appeal. On November 19, 1985, Markle filed a statement in opposition to ISTA's motion to correct error. On November 23, 1985, a Saturday, the trial court denied ISTA's motion to correct error and granted its motion for stay of third-party claims. The following Monday, a deputy clerk added the following entry to the docket sheet indicating the trial court's rulings on the motions. The entry, excerpted from the record in its original form, is as follows:

23 Nov 85 Motion to Correct Errors filed by Defendants, Ralph Emerson and Indiana State Teachers Association, is hereby denied. Motion for Stay of Third-Party Claims filed November 4, 1985 is hereby granted per order [Illegible word]. Darkes, Taylor, Richards.

The clerk added the handwritten notation, "Darko, Taylor, Richards", following the typewritten docket entry and, according to her

affidavit in the record, mailed copies of the docket entry to the three attorneys representing the parties in this action. Within the next few days, Richard Darko (Darko), counsel for ISTA, and J. Alton Taylor (Taylor), counsel for Northwestern, received copies of the order granting the stay only. Dean Richards (Richards), counsel for Markle, received copies of both the order granting the stay and the docket sheet showing the court's ruling on the motion to correct error. Darko and Taylor did not discover that the motion to correct error had been denied until January 8, 1986, well after the expiration of the time limit for filing a praecipe. Darko promptly filed a T.R. 60(B) motion asking the court to vacate that portion of its November 23, 1985 order in which it denied ISTA's motion to correct error. After a hearing on January 23, 1986, the trial court granted ISTA's T.R. 60 (B) motion, vacated its November 23, 1985 order denying ISTA's motion to correct error, and entered a new order denying ISTA's motion to correct error as of January 27, 1986. On January 30, 1986, Markle filed a motion to correct error challenging the trial court's order granting ISTA relief under T.R. 60(B). The trial court denied this motion on January 31, 1986.

Markle appealed the trial court's denial and the Court of Appeals reversed holding that the trial court acted without authority in granting the relief requested by ISTA, in an opinion appearing as Markle v. Indiana State Teachers Association (1986), Ind.App., 498 N.E.2d 1273. We grant transfer in order to clarify the application of T.R. 72(D) to the present situation.

Prior to amendment, T.R. 72(D) provided in part:

"[T]he clerk shall serve a notice of the entry by mail...and shall make a note in the docket of the mailing...lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed."

This rule, as amended effective January 1, 1985, now provides:

"[T]he clerk shall serve a notice of the entry by mail...and shall make a note in the docket of the mailing...Lack of notice, or the lack of the actual receipt of notice...shall not affect the time within which to contest the ruling...or authorize the court to relieve a party...except in the following instances: whenever the mailing of the notice by the clerk...is not evidenced by a note made by the clerk, upon the docket...."

This provision further authorizes the court upon application for good cause to grant an extension of any time limitation when these factors are present and there is a lack of actual knowledge or ...


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