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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. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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