# McKinney v. Public Service Co. of Indiana

> Indiana Court of Appeals · August 26, 1992 · 597 N.E.2d 1001

URL: https://www.frixlaw.com/law-library/cases/9709628

## Case

- **Full name:** Beverly McKINNEY, as the Administratrix of the Estate of Hugh L. McKinney, Appellant-Plaintiff, and Corporation of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, and Eugene Brobst, Appellants-Defendants, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., and Wanda R. Schnell, Appellees-Defendants
- **Court:** Indiana Court of Appeals
- **Decided:** August 26, 1992
- **Citations:** 597 N.E.2d 1001; 1992 Ind. App. LEXIS 1360; 1992 WL 204182
- **Precedential status:** Published
- **Opinion:** On rehearing by Robertson
- **Judges:** Baker, Hoffman, Robertson
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9709628

## How later opinions describe it (automated extraction)

- holding that issue of whether death was proximately caused by intervenihg and superseding cause was not appropriately resolved by summary judgment

## Opinion text

OPINION ON JOINT PETITION FOR CLARIFICATION AND REHEARING
ROBERTSON, J.
Appellees Public Service Company of Indiana, Inc. [PSI] and Wanda R. Schnell have petitioned this court for clarification and rehearing of our written opinion designated for publication, McKinney v. PSI and Schnell (1992), Ind.App., 597 N.E.2d 1001 , in which we reversed the summary judgment entered in favor of PSI and Schnell in the wrongful death action brought by Beverly McKinney, as the Ad-ministratrix of the Estate of Hugh L. McKinney [McKinney]. PSI and Schnell assert that McKinney failed to timely file a praecipe in the trial court below and failed to file a record of proceedings and an appellant's brief in our court. Thus, PSI and Schnell argue, McKinney may not benefit from the relief granted on appeal and may not ultimately be awarded a judgment against PSI and Schnell. Instead, PSI and Schnell argue that, upon remand, they should be considered non-parties within the meaning of the Indiana Comparative Fault Act, IND.CODE 34-4-88-1 et seq. In oth er words, although fault may be allocated to PSI and Schnell, no judgment may be entered against them.
Indiana Appellate Rule 2(B) provides that all parties of record in the trial court shall be parties on appeal. Parties who fail to perfect an appeal in their own right are inactive parties on appeal. Marshall v. Russell R. Ewin, Inc. (1972), 152 Ind.App. 171 , 282 N.E.2d 841 , trans. denied.
Since parties to the action in the trial court are parties to the appeal by operation of A.R. 2(B), the failure to name all parties in the caption does not deprive the court of appeals of jurisdiction over all parties to the appeal. State ex rel. Murray v. Estate of Heithecker (1975), 165 Ind.App. 613 , 333 N.E.2d 308 . Even though the State's brief expressly stated that the Governor was not a party to the appeal, A.R. 2(B) operates of its own force to make all parties in the trial court parties on appeal whether such parties participate actively or not. State v. Nixon (1979), 270 Ind. 192 , 384 N.E.2d 152 .
Clearly, McKinney is a party to this appeal under A.R. 2(B) notwithstanding her failure to perfect an appeal in her own right. McKinney's inactive status in this appeal does not deprive this court of jurisdiction or diminish our ability to render relief to any party on appeal. Therefore, McKinney has forfeited no rights by failing to perfect an appeal in her own right and PSI and Schnell are not to be considered non-parties upon remand.
Petition for clarification granted: petition for rehearing denied.
BAKER, J. AND HOFFMAN, J. CONCUR.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9709628. Public record. Not legal advice.