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Tuesday, October 01, 2013

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Christina Atkins, and Kyla Atkins, by her parent and next friend Christina Atkins v. Veolia Water Indianapolis, LLC, a 7-page order, Chief Judge Robb writes:

Appellant Christina Atkins appeals the trial court’s denial of her motion for leave to file a belated appeal under Indiana Trial Rule 72(E). Atkins raises two issues for our review: (1) whether the trial court abused its discretion by denying Atkins’s Rule 72(E) motion and (2) if so, whether the trial court erred by granting a motion for judgment on the pleadings in favor of Veolia Water Indianapolis, LLC (“Veolia”). Concluding the trial court did not abuse its discretion by denying Atkins’s motion under Rule 72(E), we affirm. * * *

Counsel for Veolia received a copy of the Order from the trial court clerk on November 16, 2012. The Order was also received by Atkins’s counsel; however, the Order was apparently misfiled, and Atkins’s counsel did not actually see the Order. The date on which Atkins’s counsel received his copy of the Order is unknown. On January 28, 2013, Atkins’s counsel went to the trial court and learned that the Order had been issued more than two months before. * * *

A copy of the Order was mailed to the office of Atkins’s counsel. It may well be true that her counsel never physically laid eyes on the Order and thus did not have actual knowledge of it. But her counsel’s mishandling of the Order does not negate the fact that notice was given. Because that notice was given, Atkins cannot now obtain relief under Rule 72(E). A contrary result would undermine the purpose of Rule 72(E). See Markle, 514 N.E.2d at 613-14.

Conclusion. We conclude that because lack of notice is a prerequisite to relief under Indiana Trial Rule 72(E) and Atkins had notice of the Order, the trial court did not abuse its discretion by denying Atkins’s request to file a belated appeal. Therefore, we affirm.

NFP civil opinions today (3):

Kenneth W. Gibbs-El v. Christopher E. Meloy, et al. (NFP)

Samuel C. Bowyer v. Kelley S. Bowyer (NFP)

Brant Construction, LLC; and Dune Harbor, LLC v. Circle R Electric, Inc.; DeBoer Egolf Corporation; Auditor, Porter County, Indiana; First National Bank of Illinois; and Wachovia Financial Svcs. (NFP)

NFP criminal opinions today (1):

Warren E. Large v. State of Indiana (NFP)

Posted by Marcia Oddi on October 1, 2013 09:58 AM
Posted to Ind. App.Ct. Decisions