Ed Blinn v. Mark Dyer

FOR PUBLICATION
Oct 31 2014, 9:34 am
ATTORNEY FOR APPELLANT:
MORRIS KELSAY
Marion, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ED BLINN, )
)
Appellant-Defendant, )
)
vs. ) No. 27A04-1403-SC-125
)
MARK DYER, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GRANT SUPERIOR COURT
The Honorable Warren Haas, Judge
Cause No. 27D03-1305-SC-884
October 31, 2014
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Ed Blinn, Jr., doing business as Blinn Auto Sales (“Blinn”), appeals the small claims
court’s denial of his motion to correct error, which challenged the court’s entry of judgment
and award of $1,800 in damages to Mark Dyer (“Dyer”) for money Dyer paid under a
layaway plan for purchase of a motorcycle from Blinn.
Concluding sua sponte that Blinn’s appeal is untimely, we dismiss.
Facts and Procedural History
During May and June 2012, Dyer and Blinn negotiated for Dyer to purchase a
motorcycle from Blinn under a layaway plan. Dyer paid $1,800 to Blinn, and agreed to
perform work for Blinn as additional consideration for purchase of the motorcycle. A dispute
eventually arose over the total purchase price for the motorcycle, and Dyer did not complete
the purchase. Based upon a provision in a written layaway agreement, Blinn refused to
refund any portion of the money to Dyer.
On May 3, 2013, Dyer filed suit against Blinn on the small claims docket of the Grant
Superior Court. A hearing was conducted on August 15, 2013, at the conclusion of which
the court found in favor of Dyer and stated that judgment would be entered against Blinn
within seven days of the hearing if Blinn did not refund Dyer’s money before that date.
Blinn did not refund the money, and on September 5, 2013, the trial court entered a final
judgment against Blinn.
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On September 23, 2013, Blinn filed a motion to correct error. A hearing was
conducted on the motion on October 17, 2013. On February 23, 2014, the trial court entered
an order denying the motion to correct error.
This appeal ensued.
Discussion and Decision
Blinn appeals, and in substance requests that this Court reverse the trial court’s denial
of the motion to correct error, and asks that this Court order the trial court to enforce the
forfeiture provision of the layaway agreement.
Our Appellate Rules require that a party initiate an appeal by filing a notice of appeal
within thirty days after entry of judgment. Ind. Appellate Rule 9(A)(1). “However, if any
party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30)
days after the court’s ruling on such motion is noted in the Chronological Case Summary or
thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs
first.” Id. (emphasis added).
Trial Rule 53.3 provides:
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. Any appeal shall be initiated by filing the notice of appeal under
Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is
deemed denied.
Ind. Trial Rule 53.3(A) (emphasis added).
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Failure to timely file a notice of appeal, while not a jurisdictional matter, nevertheless
forfeits the right to an appeal absent “extraordinarily compelling reasons.” In re Adoption of
O.R., 16 N.E.3d 965, 971 (Ind. 2014); App. R. 9(A)(5).
We note that in its holding that failure to timely file a notice of appeal is not a
jurisdictional matter, our supreme court’s opinion in Adoption of O.R. did not address
directly whether we may act sua sponte to dismiss an otherwise untimely appeal. The O.R.
Court observed that the purpose of the appellate rules is “‘to facilitate the orderly
presentation and disposition of appeals,’” for which the Rules serve as “‘merely means for
achieving the ultimate end of orderly and speedy justice.’” Id. at 971-72 (quoting In re
Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014)). And while we may waive the apparent
Appellate Rule 9(A)’s forfeiture requirement, we need not do so. Id. at 972; App. R. 1.
Here, Blinn filed the motion to correct error on September 23, 2013. A hearing was
conducted on October 17, 2013. Blinn filed the notice of appeal on March 20, 2014. The
court entered its order denying the motion to correct error on February 23, 2014—well
beyond the thirty-day period after which the motion was deemed denied under Trial Rule
53.3(A). Our review of the record does not reveal that any of the listed exceptions in Trial
Rule 53.3(B) or (D) apply, and Blinn’s dilatory conduct—waiting until several months after
the deemed denial of the motion to correct error—did not serve the interests of orderly and
speedy resolution of this appeal.
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Thus, Blinn’s notice of appeal was not timely filed. Our review of the record does not
reveal the existence of any “extraordinarily compelling reasons” to reinstate Blinn’s right to
appeal the judgment. Adoption of O.R., Id. at 971. We accordingly dismiss the appeal.
Dismissed.
NAJAM, J., and PYLE, J., concur.
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