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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowFinding an auto dealer untimely appealed the denial of his motion to correct error regarding a judgment in favor of a buyer, the Indiana Court of Appeals dismissed the appeal.
Ed Blinn Jr. and Mark Dyer entered into an agreement where Dyer would pay Blinn $1,800 toward the purchase of a motorcycle and would perform work for Blinn as additional consideration for purchase of the motorcycle. Dyer did not complete the purchase due to a dispute over the total purchase price. When Blinn refused to refund the $1,800, Dyer sued in small claims court and won a judgment in his favor on Sept. 5, 2013.
On Sept. 23, 2013, Blinn filed the motion to correct error. The trial court denied the motion Feb. 23, 2014.
Judge L. Mark Bailey cited Trial Rule 53.3 that says “In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied.”
He also referenced the recent Indiana Supreme Court decision, In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014), in which the high court held that failure to timely file a notice of appeal is not a jurisdictional matter.
But that case did not address directly whether a court may act sua sponte to dismiss an otherwise untimely appeal, Bailey pointed out in Ed Blinn v. Mark Dyer, 27A04-1403-SC-125.
The trial court entered is order denying the motion to correct error Feb. 23, 2014, far beyond the 30-day period after which the motion was deemed denied under Trial Rule 53.3(A). Blinn’s case does not fall under any of the exceptions, so the judge dismissed the appeal.
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