ILNews

Appeal filed beyond 30-day limit must raise new facts

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In dismissing an interlocutory appeal as untimely, the Indiana Court of Appeals told the appellants they still have the ability to attack the trial court’s interlocutory orders.

James Kindred, Thomas Kindred and Sam Kindred filed a motion to dissolve a preliminary injunction six months after the Owen Circuit Court entered an order granting the injunction.

The trial court denied the Kindreds’ motion to dissolve as well as their motion to reconsider. Within 30-days of the denial, they filed a notice of appeal from the trial court’s interlocutory order.

On appeal, the defendants claim the motion to dissolve was not based on any new facts or circumstances that had arisen since the trial court’s entry of the preliminary order. Instead it was based on arguments that were available at the time the preliminary injunction was entered.

 “If a party fails to do so (to challenge a preliminary injunction order within 30 days), it may not thereafter seek to dissolve the preliminary injunction based upon grounds that were known or knowable at the time of the entry of the preliminary injunction, as this would simply be a belated, collateral attack on the trial court’s initial decision to enter or deny the injunction,” Judge Paul Mathias wrote in James Kindred, Thomas Kindred, and Sam Kindred v. Betty Townsend and Harmon Crone, 60A01-1304-PL-156. “To hold otherwise would allow limitless appeals based on the same facts tried and decided to enter or deny a preliminary injunction.”

In a footnote, the Court of Appeals pointed out to the Kindreds that their appeal may not be dead. Citing Bojrab v. Bojrab, 810 N.E.2d 1008, 1014 (Ind. 2004), the COA noted the Kindreds may attack the trial court’s interlocutory orders on appeal from the final judgment.

 

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  1. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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