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COA split on ability to review case

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The majority on a personal injury case has dismissed it for appellate review, finding the Indiana Court of Appeals doesn’t have jurisdiction. The majority believed the case was not timely appealed.

In Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc., No. 20A04-1106-CT-342, Todd and Matenia Walters sued Aaron Austin and his employer, Herman & Goetz, after Austin’s company van lost control on black ice and hit Todd Walters. Walters had just hit a patch of black ice and was standing on the side of the road next to his car when he was hit.

A jury ruled in favor of Austin and his employer. The Walterses filed a motion to correct error May 20, 2011, which the trial court denied on May 23. Unaware of this ruling, that same day the couple filed an amended motion to correct error and a motion to relate the amended motion back to the filing date of the original motion to correct error. The trial court granted the motion to relate back May 24, but denied the amended motion to correct error. The Walterses then filed their notice of appeal June 23.

The defendants argue that the appeal should be dismissed for failure to timely file a notice of appeal because it was filed after 31 days. The majority agreed. Judges Edward Najam and Patricia Riley cited Indiana Trial Rule 53.4, which says that repetitive motions “shall not delay the trial or any proceedings in the case, or extend the time for any further required or permitted action, motion, or proceedings under these rules.” The amended motion to correct error was nearly identical to the original motion, except for typographical and grammatical corrections. The amended motion was also to relate back to the original motion.

“We conclude that the amended motion to correct error was a repetitive motion and, therefore, the filing of the amended motion did not change the date for filing the notice of appeal,” wrote Najam.

Judge Carr Darden dissented because he believed the couple did not file their amended motion in an effort to extend time to file their notice of appeal. He would review the case on the merits.

 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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