ILNews

Court clarifies rules relating to filing deadlines

Back to TopCommentsE-mailPrintBookmark and Share

Filing deadlines are important for attorneys in any case.

But some recent confusion in a child custody appeal brought to light some uncertainty about how the state’s appellate rules compute some of those deadlines when “non-business days” or “calendar days” are applied to the motions practices before the Court of Appeals and Supreme Court.

The Indiana Supreme Court issued an order Jan. 14 that delves into those issues and offers some guidance for attorneys whose court filings may hinge on a single day when determining if they’re timely or not.

Justices issued the order in the case of Allan C. Bir v. Cynthia Bir, No. 06A01-1009-DR-449, which involves a post-divorce child custody dispute that’s on appeal before the Indiana Court of Appeals. The father had filed an emergency request for transfer in November, and the mother on Dec. 10 filed her response to that request.

But following that, Allan C. Bir and his attorneys sought leave to file a reply in support of the earlier motion for emergency transfer and that’s where the appellate rules overlapped and created confusion for the attorneys representing the father.

The mother filed the document Dec. 10, and the father filed a reply request on Dec. 21 – one day past the date the clerk’s office determined was the deadline according to the Indiana Appellate Rules 25 and 34(D).

Determining the father’s reply was untimely, the clerk’s office refused to file it but the attorneys then asked for permission to file a belated document in the case. The rules at issue are 25(C) regarding an automatic extension of an “additional three days from the date of deposit in the mail or with the carrier,” as well as 25(B) that discusses computing time as “non-business days” and 34(D) which says replies must be filed within five days of service of the response.

Specifically, the attorneys for Allan Bir questioned whether “non-business days” or “calendar days” should be applied to the deadlines in this case.

“Appellant contended that the rule was unclear on this point and, therefore, he should be permitted to file his motion belated if the Clerk’s interpretation of the rules was correct,” the Supreme Court order says. “Appellant’s counsel also suggested that ‘[i]t would be a great benefit to appellate practitioners for this Court to issue a published order clarifying the operation of Rules 25 and Rule 34(D).”

Following that suggestion, the court published the order that clarifies how 25(B) and (C) operate and relate to determining a due date on a Rule 34(D) motion. Justice Steven David didn’t participate in the matter as he’d handled the child custody issue at the trial level when still on the Boone Circuit bench.

“Specifically, when a response to a motion is served by mail, three calendar days are immediately added to the service date per Appellate Rule 25(C)…,” the court wrote. “The five non-business days expressed in Rule 34(D) are then counted from that third calendar day if it is a business day, or are counted from the next business day if the third day of the 'additional three days' falls on a non-business day.”

As applied to the Bir case, the justices determined that the clerk’s office correctly interpreted the appellate rules and refused to file the reply. But it granted the belated document filing as a result of the confusion.

Ultimately, the court declined the emergency transfer request in this case and left jurisdiction with the Indiana Court of Appeals.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  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.

ADVERTISEMENT