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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. Uh oh, someone is really going to get their panti ... uh, um ... I mean get upset now: http://www.theguardian.com/us-news/2015/mar/31/arkansas-passes-indiana-style-religious-freedom-bill

  2. Bryan, stop insulting the Swedes by comparing them to the American oligarchs. Otherwise your point is well taken.

  3. Sociologist of religion Peter Berger once said that the US is a “nation of Indians ruled by Swedes.” He meant an irreligious elite ruling a religious people, as that Sweden is the world’s least religious country and India the most religious. The idea is that American social elites tend to be much less religious than just about everyone else in the country. If this is true, it helps explain the controversy raking Indiana over Hollywood, San Fran, NYC, academia and downtown Indy hot coals. Nevermind logic, nevermind it is just the 1993 fed bill did, forget the Founders, abandon of historic dedication to religious liberty. The Swedes rule. You cannot argue with elitists. They have the power, they will use the power, sit down and shut up or feel the power. I know firsthand, having been dealt blows from the elite's high and mighty hands often as a mere religious plebe.

  4. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

  5. The more a state tries to force people to associate, who don't like each other and simply want to lead separate lives, the more that state invalidates itself....... This conflict has shown clearly that the advocates of "tolerance" are themselves intolerant, the advocates of "diversity" intend to inflict themselves on an unwilling majority by force if necessary, until that people complies and relents and allows itself to be made homogenous with the politically correct preferences of the diversity-lobbies. Let's clearly understand, this is force versus force and democracy has nothing to do with this. Democracy is a false god in the first place, even if it is a valid ideal for politics, but it is becoming ever more just an empty slogan that just suckers a bunch of cattle into paying their taxes and volunteering for stupid wars.

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