994 N.E.2d 1287
Ind. Ct. App.2013Background
- Atkins filed a negligence action against Veolia in 2009.
- Veolia moved for judgment on the pleadings on July 20, 2012, and the court granted it on November 14, 2012.
- The Order was mailed to Atkins’s counsel but misfiled and not seen by counsel.
- The CCS did not record service of the Order to counsel; Atkins learned of the Order in January 2013.
- Atkins sought relief under Trial Rule 72(E) and leave to file a belated appeal; the trial court denied, and Atkins appealing.
- This Court affirms the denial, holding lack of notice is a prerequisite to relief under Rule 72(E).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion under Rule 72(E). | Atkins contends lack of notice/actual receipt | Veolia contends proper notice existed | No abuse; notice established; relief denied |
Key Cases Cited
- Markle v. Indiana State Teachers Ass’n, 514 N.E.2d 612 (Ind. 1987) (notice and mailing of orders under Rule 72(D) guidance)
- Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116 (Ind. 1994) (CCS evidence governs extension for lack of notice)
- Driver v. State, 954 N.E.2d 972 (Ind. Ct. App. 2011) (distinguishes notice vs. actual knowledge; dicta cited by court)
- In re Sale of Real Prop. with Delinquent Taxes or Special Assessments, 822 N.E.2d 1063 (Ind. Ct. App. 2005) (copy of order not mailed; relief under Rule 72(E) possible)
- Gable v. Curtis, 673 N.E.2d 805 (Ind. Ct. App. 1996) (copy of order mailed to wrong address; relief discussed)
- Blichert v. Brososky, 436 N.E.2d 1165 (Ind. Ct. App. 1982) (notice constitutes notice for Rule 72(E) purposes)