Opinion
22A-SC-1337
03-13-2023
Andre Wells, Appellant-Plaintiff, v. Dushan Zatecky, Appellee-Defendant.
APPELLANT PRO SE Andre Wells Pendleton, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Scott A. Norrick, Judge Trial Court Cause No. 48C05-2103-SC-199
APPELLANT PRO SE Andre Wells Pendleton, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Robb, Judge.
Case Summary and Issue
[¶1] Andre Wells filed a notice of small claim against the warden of the Pendleton Correctional Facility. Following a hearing, the trial court entered judgment in favor of the defendant. Wells did not timely appeal the trial court's decision. However, Wells filed a petition for permission to file a belated notice of appeal which the trial court denied. Wells now appeals, raising multiple issues for our review which we consolidate and restate as whether the trial court abused its discretion by denying his petition for permission to file a belated notice of appeal. Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[¶2] On April 17, 2020, Wells was present during a prison riot in the Pendleton Correctional Facility. On March 9, 2021, Wells filed a notice of small claim against the warden of the Pendleton Correction Facility alleging that as a result of being moved from his cell because of the riot, he lost over $291.00 worth of his personal property. See Appendix of Appellee, Volume II at 25. A bench trial was held on September 16 and the trial court entered judgment in favor of the defendant. On September 25, according to the Chronological Case Summary ("CCS"), paper notice was issued to Wells. See id. at 4.
[¶3] In December, Wells requested an update on his case. The CCS does not show a response to Wells' inquiry. However, on March 16, upon Wells' request, the trial court clerk mailed him a copy of the CCS. See id.
[¶4] On April 4, Wells filed a petition seeking permission to file a belated notice of appeal, arguing he had not been given timely notice of the trial court's judgment and therefore could not timely appeal. Wells invoked several authorities in support of his motion, but he essentially sought relief under Trial Rule 72(E). The trial court denied his motion. Wells now appeals.
Discussion and Decision
I. Standard of Review
[¶5] We review the trial court's ruling on a motion for relief under Indiana Trial Rule 72 for an abuse of discretion. Vaughn v. Schnitz, 673 N.E.2d 501, 502 (Ind.Ct.App. 1996). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law. Id.
II. Belated Notice of Appeal
[¶6] Wells argues the trial court abused its discretion by denying his petition for permission to file a belated notice of appeal. Specifically, Wells contends that he was not notified of the trial court's judgment in time to file an appeal within the statutorily required thirty days. See Ind. Appellate Rule 9(A). Pursuant to Indiana Trial Rule 72(E):
Lack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk shall not affect the time within which to contest the ruling, order or judgment, or authorize the Court to
relieve a party of the failure to initiate proceedings to contest such ruling, order or judgment, except as provided in this section.
Further, Trial Rule 72(E) plainly states that the trial court may grant an extension of time to initiate an appeal only "[w]hen the service of a copy of the entry by the Clerk is not evidenced by a note made by the Clerk upon the Chronological Case Summary[, and] . . . [s]uch extension shall commence when the party first obtained actual knowledge and not exceed the original time limitation."
[¶7] Here, the CCS indicates the trial court clerk served Wells a copy of the trial court's judgment:
09/24/2021 Order on Hearing (Judicial Officer: Clase, Stephen - SR)
Order Signed: 09/23/2021
Plaintiff appears in person on September 16th, 2021 in person from DOC telephone line. Defendant appears by Counsel. Evidence heard on the record. Case taken under advisement; having had this matter under advisement, the Court now records it's decision. Judgement entered in favor of defendant. So Ordered, Stephen D Close, Senior Judge, el
09/25/2021 Automated Paper Notice Issued to Parties
Order on Hearing - 9/24/2021: Andre C.T. Wells DOCH196966
09/25/2021 Automated ENotice Issued to Parties
Order on Hearing - 9/24/2021: William Andrew Kirtley; Brandy n Lee ArnoldApp. of Appellee, Vol. II at 4. Our supreme court has held that "references to notice contained in the CCS sufficiently demonstrate mailing notice" of a trial court's order. Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 118 (Ind. 1994). Accordingly, we conclude Wells was not entitled to relief under Trial Rule 72(E) and the trial court did not abuse its discretion by denying his petition for permission to file a belated notice of appeal.
Conclusion
[¶8] We conclude the trial court did not abuse its discretion by denying Wells' petition requesting permission to file a belated notice of appeal. Accordingly, we affirm.
[¶9] Affirmed.
Mathias, J., and Foley, J., concur.