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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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