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1-year limit toll not extended by appeal

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The one-year limit to file a motion for relief from judgment under Indiana Trial Rule 60(B) is not from the time an appeals court rules on the matter, but must be made within one year after the trial court enters its order, the Indiana Court of Appeals ruled today in an issue of first impression.

Indiana’s appellate courts haven’t addressed the argument that the one-year limit is calculated from the date of any appellate decision or that an appeal extends or tolls that one-year limit for motions filed pursuant to T.R. 60(B)(1)-(4). Pro se appellant Luiz Alves made this argument in his appeal of the denial of his T.R.60(B) motion for relief from judgment in Luiz Alves v. Old National Bank f/k/a St. Joseph Capital Bank, No. 71A03-0909-CV-416.

Alves claimed to have newly discovered evidence and a fraud argument against the bank and filed a motion for relief from judgment pursuant to T.R. 60(B)(2) in June 2009. This was nearly two years after the trial court entered summary judgment in Old National Bank’s favor in Alves’ suit against the bank. He sued in 2006 claiming the bank owed him a duty, it worked with his former business partner to undermine his role in the company, breached its duty to him, and the breach caused him to suffer financial ruin and face possible deportation.

Alves appealed the trial court’s decision, in which the Court of Appeals affirmed in June 2008. The trial court denied his 2009 T.R. 60(B) motion.

He claimed the one-year limit to file the motion for relief from judgment started after the appellate decision. Because the issue hasn’t come up in state appellate courts yet, the Court of Appeals looked to the 7th Circuit Court of Appeals case, Bershad v. McDonough, 469 F.2d 1333, 1336 (7th Cir. 1972). That ruling held a motion can be made only within one year after the judgment has been entered and the taking of an appeal doesn’t extend this one-year period.

Federal Rule of Civil Procedure 60 is nearly identical to the state’s rule, and like the federal rule, the Court of Appeals concluded that an appeal does not extend the one-year limit contained in T.R. 60(B).
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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