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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.

Where Arbitrator’s report was messier than the divorce itself, case was reversed and remanded

In divorce case out of Lake County, parties submitted to arbitration. Arbitrator made ruling and Husband timely appealed after filing a timely motion to correct error that the Court did not address.

IN CoA found that report was inconsistent for several reasons, to wit:

  1. Finding that Wife submitted no evidence of medical condition but was awarded maintenance in the form of health insurance premiums for one year;
  2. Denying Wife’s motion for deviation from 50/50 split and then failing to account for several items of personal property;
  3. After the above defect was subsequently corrected, the CoA still found that the property was split in Wife’s favor and that some bank accounts were still not accounted for.

Court reversed and remanded case to remedy these issues.

www.in.gov/judiciary/opinions/pdf/03061401jsk.pdf.

Attorneys’ fees not recoverable under Crime Victims’ Act for common law fraud

While Crime Victims Relief Act provides for attorneys’ fees for criminal fraud, elements of common law fraud and burden of proof were different so as to bar a claim for attorneys’ fees under the Act for common law fraud.

www.in.gov/judiciary/opinions/pdf/03031402ehf.pdf.

IN CoA changes position on statute of limitations on amended complaints

In case where motion to amend complaint, adding new defendants, along with proposed amended complaint was filed before statute of limitations but amended complaint and issue of summons were approved after SOL expired, suit was timely filed as to newly added Defendants. Court expressly abrogated the position it took on the same fact pattern presented in A. J.’s Auto. Sales v. Freet, 725 N.E.2d 955 (Ind. Ct. App. 2000) (a case decided at the trial level by Judge Crone and at the appellate level by Judge Friedlander, Sr. Judge Garrard, and Judge Darden, none of whom participated in this opinion). Instead, the panel took the occasion to adopt the majority view on this issue and deemed that the addition of the defendants was timely by virtue of the filed motion and proposed complaint.

www.in.gov/judiciary/opinions/pdf/02201401msm.pdf.

Hutchison, et al. v. Trilogy Health Services, LLC (1-30-14)

IN CoA (Kirsch; Friedlander and Bailey concur). Healthcare Law – 3rd Party Guarantor Agreements

Court of Appeals reverses judgment of small claims court. Plaintiff nursing care facility had move-in agreement with defendant’s mother containing 3rd Party/Responsible Agent language where resident could designate party to handle resident’s tab with the facility using resident’s funds. In this case, resident’s daughter (the defendant) was never appointed as agent and was given oral assurances that the move-in agreement did not make her financially liable for her mother’s care. The small claims court disagreed, eventually citing the move-in agreement.

The nursing care facility did not even file an Appellate brief and the CoA reversed the small claims court’s decision. The Court tinkered with the idea of ruling on the legality of 3rd party agent/nursing home agreements but declined and opted to wait another day.

www.in.gov/judiciary/opinions/pdf/01301407jsk.pdf.

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