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Filed: March 2, 1988.


Consolidated Appeals from the St. Joseph Superior Court and the St. Joseph Circuit Court, The Honorable Jeanne J. Swartz, Judge, The Honorable John W. Montgomery, Judge, Cause Nos. K-8846, K-8847 & R-6346

Conover, J., Robertson, J., concurs. Garrard, P.j., Dissents with opinion.

Author: Conover


Plaintiffs-Appellants Deloris Artusi, et al. (retirees) appeal the St. Joseph Circuit Court's 1987 modification of a declaratory judgment it rendered in 1983 in an action filed by retired Mishawaka policemen, firemen, their widows and dependents. Defendants-appellees City of Mishawaka, et al. (Mishawaka) in turn appeal the award of pre-judgment interest in a subsequent mandamus action filed by retirees against Mishawaka to force payment of additional benefits to retirees as required by the earlier Circuit Court judgment.

Retirees present the following issue:

whether the trial court can change the substance of a judgment more than three years after its entry and affirmation on appeal.

Mishawaka presents the following issue:

whether the trial court erred by awarding pre-judgment interest in the mandamus action.

For the reasons stated below, we reverse both courts.

Retirees filed a declaratory judgment action in 1980 seeking a declaration of rights as to whether additional pension benefits were owing to them from Mishawaka. After trial, the St. Joseph Circuit Court on December 6, 1983, entered findings of fact and Conclusions of law which determined the method by which Mishawaka was to calculate monthly pension payments to retirees. The court determined Mishawaka was to consider wages paid to first class patrolmen based upon length of service in addition to their base salaries when computing monthly benefits to be paid retirees, so long as Mishawaka's incentive bonus program was administered by it as a longevity pay program. As part of its Conclusions the trial court stated:

3. The defendants should recompute pensions paid to the plaintiffs for the years 1978, 1979 and 1980 the recomputation to be based on the monthly wages received by fully paid first grade [patrolmen] including pay based on length of service.

4. The plaintiffs are entitled to judgment against the defendants for the difference between the pensions paid them and the pensions due them as determined by the recomputation.

Hereafter the pensions to be computed and paid to the plaintiffs shall be computed and paid on the basis of monthly wage paid to a fully paid first grade patrolman including pay based on length of service.

(R. 66-67).

Mishawaka appealed this judgment and in December, 1985, the trial court was affirmed in City of Mishawaka v. Squadroni (1985), Ind.App., 486 N.E.2d 1088. Mishawaka's petition to transfer the case to the Supreme Court was denied.

When Mishawaka failed to comply with the trial court's judgment, retirees filed a mandamus action in the St. Joseph Superior Court on June 9, 1986, to compel Mishawaka's compliance with the Circuit Court's prior declaratory judgment. Thereafter, on August 20, 1986, the parties also jointly filed in the Circuit Court a Motion to Clarify the Circuit Court's 1983 judgment purportedly under the authority of Ind. Rules of Procedure, Trial Rule 60(A). On January 23, 1987, the Circuit Court entered an order which it said "clarified, modified and amended" its 1983 declaratory judgment. The court therein determined Mishawaka had begun properly administering the incentive bonus program on April 1, 1981, and thereafter did so until the declaratory judgment trial began on December 8, 1982. It further determined incentive bonus payments made to first class patrolmen from April 1, 1981, until the time of trial on December 8, 1982, and in the future, so long as the incentive bonus program is properly administered "are not to be included in calculating the pension payments do to the [retirees]." (R. 95).

The St. Joseph Superior Court in the mandate action followed the Circuit Court's "clarification" order, but also entered an order requiring Mishawaka to pay pre-judgment and post-judgment interest to retirees for the years 1978, 1979, 1980 and to March, 1981.

Both retirees and Mishawaka appeal.


The retirees first argue the St. Joseph Circuit Court had no power or authority to change the substance of its 1983 declaratory judgment, even if the parties, in essence, authorized it to do so by jointly filing their purported "Motion to Clarify" under the authority of T.R. 60(A). We agree.

Trial Rule 60(A) merely provides a remedy to correct by nunc pro tunc entry clerical errors in judgments, orders, etc., or errors arising from oversight or omission. That trial rule, however, does not constitute a license to make judicial changes in the actual law or ruling of a case. Arsenal Savings Ass'n. v Westfield Lighting Co. (1984), Ind.App., 471 N.E.2d 322, 326. Nunc pro tunc entries must be based upon written memoranda, notes, or other memorials which (1) must be found in the records of the case; (2) must be required by law to be kept; (3) must show action taken or orders or rulings made by the court; and (4) must exist in the records of the court contemporaneous with or preceding the date of the action described. Arsenal Savings Ass'n., 471 N.E.2d at 326. Further, litigants cannot confer jurisdiction upon a trial court by agreement if the court is, in fact, without jurisdiction to act. Wadkins v. Thornton (1972), 151 Ind. App. 380, 279 N.E.2d 849, 850.

A final judgment is one which disposes of all issues as to all parties; it puts an end to the litigation. First Fed. Savings & Loan Ass'n. v. Stone (1984), Ind.App., 467 N.E.2d 1226, 1231. The Circuit Court's 1983 declaratory judgment was a final judgment from which an appeal was taken, see Squadroni, supra. Ind. Code 33-1-6-3 provides a trial court's jurisdiction over its judgments ceases after 90 days, except in certain cases not applicable here. Thus, the St. Joseph Circuit Court clearly was without ...

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