ILNews

Court chooses 'lesser of two evils'

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals was forced to choose between the lesser of two evils in a case in which an ex-husband appealed a trial court's nunc pro tunc order granting his ex-wife's motion to correct error regarding their marriage dissolution decree.

In James E. Johnson Jr. v. Marcia Johnson, No. 02A03-0710-CV-496, the appellate court had to decide whether the trial court erred in granting the nunc pro tunc order. James argued the trial court didn't rule on Marcia's motion to correct error pursuant to Trial Rule 53.3(A), so the motion was deemed denied after 30 days and Marcia failed to file a notice of appeal.

The trial court issued its decree of dissolution Oct. 10, 2006. On Nov. 8, 2006, Marcia filed a motion to correct error and requested a hearing. A magistrate judge presided over the May 14, 2007, hearing and orally informed the parties she was going to "grant the motion to correct errors." The court didn't enter the order until Aug. 1, 2007, almost 80 days after the hearing, and issued a nunc pro tunc amended decree in favor of Marcia.

James appealed, arguing the magistrate judge didn't have the authority to grant Marcia's motion and the nunc pro tunc order was issued after her motion had been "deemed denied" per T.R. 53.3, so the original dissolution decree should be reinstated.

Chief Judge John Baker wrote for the majority and agreed with James' arguments. Under civil proceedings, a magistrate cannot enter a final appealable order unless sitting as a judge pro tempore or a special judge; the magistrate in the Johnson's case was not presiding as either.

Even if the magistrate had the intent to grant Marcia's motion to correct error, she didn't have the authority to actually grant it, wrote Chief Judge Baker.

James argued that the motion to correct error was deemed denied pursuant to T.R. 53.3, 30 days after the May 14, 2007, hearing. Because Marcia didn't file a notice of appeal 30 days after the motion was deemed denied, the original dissolution decree needs to be reinstated, he argued.

The trial court didn't rule within 30 days of Marcia's motion to correct error, and based on holdings of Garrison v. Metcalf, 849 N.E.2d 1114, 1115 (Ind. 2006) and Paulsen v. Malone, No. 06A05-0709-CV-544 (Feb. 6, 2008), Marcia's motion was deemed denied pursuant to T.R. 53.3, 30 days after the hearing, "despite the trial court's belated attempt to grant the motion," he wrote.

The purpose of a nunc pro tunc order is to correct an omission of record of action that occurred. "Because there is no evidence that the trial court granted Marcia's motion within (30) days of the hearing, there was no basis in the record for the trial court to issue a nunc pro tunc order," Chief Judge Baker wrote.

As the Indiana Supreme Court has held, Marcia was required to file a notice of appeal within 30 days of her motion being deemed denied even if the trial court belatedly granted her motion. Since she did not, the Court of Appeals reversed the trial court's nunc pro tunc order and remanded so the trial court could reinstate the original dissolution decree.

In regards to the nunc pro tunc order, the court was required to choose the lesser of two evils - either hold that Marcia's motion was deemed denied and she had to appeal within 30 days of the denial, or hold that the trial court's nunc pro tunc order was valid and retroactively applies to the date of the hearing, he wrote.

"If we were to decide that the trial court's nunc pro tunc order was valid and retroactively applies to the date of the hearing - May 14, 2007 - James would have had to file his notice of appeal by June 13, 2007. However, the trial court did not even issue the nunc pro tunc order until August 1, 2007 - approximately seven weeks after the deadline for James to file a notice of appeal would have expired. Such a result would be illogical and, as our Supreme Court recognized in Garrison, would effectively amend the deadline in Rule 53.3," Chief Judge Baker wrote.

Judge Carr Darden dissented from the majority, finding that according to the record of the May 14, 2007, hearing, the trial court did rule on the motion at the end of the hearing, so T.R. 53.3 wouldn't have a dispositive effect on this case.

He believed at the end of the hearing, the parties understood the court had granted Marcia's motion and there is no indication that James' attorney wouldn't prepare the order to effect the trial court's order. There was also no reason for Marcia to file an appeal because she would not have reason to believe that an order prepared by James' attorney with the magistrate's ruling wouldn't have been adopted by the trial court.

"I believe that the trial court's nunc pro tunc entry was a proper exercise of its equity power by the trial court," he wrote.
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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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