COA split on ability to review case

The majority on a personal injury case has dismissed it for appellate review, finding the Indiana Court of Appeals doesn’t have jurisdiction. The majority believed the case was not timely appealed.

In Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc., No. 20A04-1106-CT-342, Todd and Matenia Walters sued Aaron Austin and his employer, Herman & Goetz, after Austin’s company van lost control on black ice and hit Todd Walters. Walters had just hit a patch of black ice and was standing on the side of the road next to his car when he was hit.

A jury ruled in favor of Austin and his employer. The Walterses filed a motion to correct error May 20, 2011, which the trial court denied on May 23. Unaware of this ruling, that same day the couple filed an amended motion to correct error and a motion to relate the amended motion back to the filing date of the original motion to correct error. The trial court granted the motion to relate back May 24, but denied the amended motion to correct error. The Walterses then filed their notice of appeal June 23.

The defendants argue that the appeal should be dismissed for failure to timely file a notice of appeal because it was filed after 31 days. The majority agreed. Judges Edward Najam and Patricia Riley cited Indiana Trial Rule 53.4, which says that repetitive motions “shall not delay the trial or any proceedings in the case, or extend the time for any further required or permitted action, motion, or proceedings under these rules.” The amended motion to correct error was nearly identical to the original motion, except for typographical and grammatical corrections. The amended motion was also to relate back to the original motion.

“We conclude that the amended motion to correct error was a repetitive motion and, therefore, the filing of the amended motion did not change the date for filing the notice of appeal,” wrote Najam.

Judge Carr Darden dissented because he believed the couple did not file their amended motion in an effort to extend time to file their notice of appeal. He would review the case on the merits.