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Appeal was not timely filed when movant did not properly seek additional time

Sometimes it is easier (and best) just to file a notice of appeal. After losing custody of his child by court order on January 17, 2013, the following timeline occurred:

  1. Petitioner timely filed his Motion to Correct Error on February 8, 2013.
  2. He then filed a motion for extension of time to file a memorandum of law until March 31, 2013, which the trial court granted.
  3. Petitioner timely filed his memorandum of law on April 1, 2013 (March 31 was a Sunday).
  4. Petitioner then filed his notice of appeal on May 30, 2013.
  5. Notably, petitioner never filed for an extension of time for a ruling.

Based on this timeline and facts, the Court of Appeals determined that the following timeline at law applied:

  1. Motion would have been deemed denied forty-five days after it was filed, i.e., on March 25, 2013.
  2. Pursuant to Trial Rule 53.3(D), the trial court had the power to extend its deadline for ruling only for an additional thirty days, i.e., until April 24, 2013.
  3. Thirty days thereafter, the notice of appeal was due (May 24, 2013).

Without filing for an additional time for a ruling to the Supreme Court under Rule 53.1(D), the Court of Appeals allowed for the maximum amount of time to file an appeal, which was May 24, 2013. Petitioner apparently thought he had thirty days from the date his motion was deemed denied in his eyes, which was around May 14, 2013.

www.in.gov/judiciary/opinions/pdf/03191409jsk.pdf.

Medical malpractice complaint deemed filed on date sent via FedEx

The Indiana Supreme Court reversed the Appellate Court’s holding that a medical malpractice complaint could only be deemed filed as of the date of mailing if, and only if, the complaint were sent out via registered or certified mail. This interpretation of Ind. Code § 34-18-7-3(b) excluded delivery services such as FedEx or UPS. Thus, a party filing a medical malpractice complaint via FedEx, as in this case, would have their complaint with the Dept. of Insurance deemed filed on the date of receipt by the DOI rather than the date it was sent out. Here, it meant the filing of the complaint occurred after the statute of limitations expired.

On a petition for rehearing (which was denied without any further opinion), the plaintiff raised for the first time that Ind. Code § 1-1-7-1(a) should control. That statute reads in relevant part:

If a statute enacted by the general assembly or a rule . . . requires that notice or other matter be given or sent by registered mail or certified mail, a person may use: (1) any service of the United States Postal Service [“USPS”] or any service of a designated private delivery service (as defined by the United States Internal Revenue Service) that: (A) tracks the delivery of mail; and (B) requires a signature upon delivery . . . .

Id. (emphasis added in opinion).

Thus, two issues were presented to the Court: 1) could the plaintiff raise this argument for the first time on rehearing, and 2) could the above statute control the application of Ind. Code  § 34-18-7-3(b). The Supreme Court answered both of these questions in the affirmative.

As to the first point, the Court observed: “The crucial factor, however, in determining whether [the plaintiff] may interject what appears to be a new issue into the appeal is whether [the defendant] had unequivocal notice of the existence of the issue and, therefore, had an opportunity to defend against it.” Hochstedler v. St. Joseph Cnty. Solid Waste Mgmt. Dist., 770 N.E.2d 910, 918 (Ind. Ct. App. 2002), trans. denied. The Court found that the issue of whether the complaint was timely filed was clearly conveyed at all levels and so defendants’ objection on this argument was overruled.

On the second, the Court focused on two portions of the statute: 1) that the med mal statute required delivery by registered or certified mail in order to deem a complaint filed; and 2) that the filing of the complaint fell under the “or other matter” provision.

In closing the Court emphasized that its opinion was an elevation of “form over substance” and observed that there really was no difference anyway between filing a complaint via FedEx or UPS overnight and doing so via registered or certified mail.

www.in.gov/judiciary/opinions/pdf/03101401bd.pdf.

IN CoA sua sponte denies interlocutory appeal for lack of jurisdiction due to untimeliness

In what is now the 9th published decision (State and Federal) emanating from the Mark S. Weinberger, M.D. saga, the Indiana Court of Appeals dismissed the interlocutory appeal of Lake County Judge, Calvin Hawkins’s grant of partial summary judgment. The trial court issued its order on Nov. 19, 2012. The plaintiff then filed a motion to reconsider on January 7, 2013. On April 3, 2013, the trial court entered a stipulated order denying the motion to reconsider and certifying the matter for interlocutory appeal. The order did not cite good cause for delay for filing for interlocutory appeal nor did it include any findings for good cause.

Despite the fact that neither party raised the issue of timeliness, the Appellate Court noted Indiana Appellate Rule 14(B) which provides:

A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion. If the trial court grants a belated motion and certifies the appeal, the court shall make a finding that the certification is based on a showing of good cause, and shall set forth the basis for that finding.

Thus, even though the certification of interlocutory appeal went uncontested at all stages, the failure to follow this appellate procedure deprives the Appellate Court of jurisdiction to hear argument on the matter. Here, the motion to reconsider could not toll the limitations date and the trial court’s order lacked any findings to go beyond the 30 day deadline to file an interlocutory appeal. Thus, the appeal was dismissed for lack of jurisdiction.

www.in.gov/judiciary/opinions/pdf/02181402cds.pdf.

Reed v. Bethel (1-24-14)

CoA (Pyle; Barnes & Crone concur). Evidence objections at trial

www.in.gov/judiciary/opinions/pdf/01241401rrp.pdf.

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