ILNews

1-year limit toll not extended by appeal

Back to TopE-mailPrintBookmark and Share

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).
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

  2. Mr. Straw, I hope you prevail in the fight. Please show us fellow American's that there is a way to fight the corrupted justice system and make them an example that you and others will not be treated unfairly. I hope you the best and good luck....

  3. @ President Snow - Nah, why try to fix something that ain't broken??? You do make an excellent point. I am sure some Mickey or Minnie Mouse will take Ruckers seat, I wonder how his retirement planning is coming along???

  4. Can someone please explain why Judge Barnes, Judge Mathias and Chief Judge Vaidik thought it was OK to re weigh the evidence blatantly knowing that by doing so was against the rules and went ahead and voted in favor of the father? I would love to ask them WHY??? I would also like to ask the three Supreme Justices why they thought it was OK too.

  5. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

ADVERTISEMENT