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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

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