Misplaced court order not the same as undelivered, COA rules

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Reviewing an appeal arising from a misplaced court order, the Indiana Court of Appeals has made clear that relief under Indiana Trial Rule 72(E) requires evidence that counsel did not receive the court’s notice.

On Nov. 14, 2012, a Marion County court entered an order in favor of Veolia Water of Indianapolis. Christina Atkins’ counsel did receive a copy of the order but apparently misfiled it and did not learn of the judgment until counsel went to court two months later.  

Atkins filed a motion seeking relief from the judgment and leave to file a belated appeal under Trial Rule 72(E). After the trial court denied the motion, Atkins filed an appeal, asserting the lower court erred because the court clerk’s chronological case summary did not note service of the order.

The Court of Appeals ruled that relief under Trial Rule 72(E) is contingent upon not receiving a notice of court’s ruling, order or judgment. Lack of notice is the prerequisite and counsel must first establish either the notice was never mail or mailed to the wrong address.

It is undisputed that Atkins’ counsel received a copy of the order.

Consequently, the Court of Appeals affirmed the denial of Atkins’ request to file a belated appeal in Christina Atkins, and Kyla Atkins, by her parents and next friend Christina Atkins v. Veolia Water Indianapolis, LLC, 49A02-1302-CT-181.
While the COA acknowledged that no court has previously held that lack of notice is a prerequisite for relief under Trial Rule 72(E), it noted that statements by the Indiana Supreme Court supported its interpretation. Specifically, it referred to Markle v. Indiana State Teachers Ass’n, 514 N.E.2d 612, 614 (Ind. 1987) and Collins v. Covenant Mutual Insurance Co., 644 N.E.2d 116, 117-18 (Ind. 1994).

“A copy of the Order was mailed to the office of Atkins’s counsel,” Chief Judge Margret Robb wrote for the court. “It may well be true that her counsel never physically laid eyes on the Order and thus did not have actual knowledge of it. But her counsel’s mishandling of the Order does not negate the fact that notice was given. Because that notice was given, Atkins cannot now obtain relief under Rule 72(E). A contrary result would undermine the purpose of Rule 72(E).”


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

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  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.