ILNews

Misplaced court order not the same as undelivered, COA rules

Back to TopCommentsE-mailPrintBookmark and Share

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).”
 

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. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  2. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  3. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  4. Why do so many lawyers get away with lying in court, Jamie Yoak?

  5. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

ADVERTISEMENT