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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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