Just when you think it couldn't get any dumber, the Indiana Court of Appeals deems my Appellant Brief and Appendix untimely because the Dearborn Superior Court II screwed up again. On February 5, 2018, I filed my appellant brief and appendices with the Indiana Court of Appeals. On February 12, 2018, the Clerk of the Indiana Court of Appeals filed two notices in my appeal: a Notice of Defect re: untimely Appellate Brief, and a Notice of Defect re: untimely Appendix from the Indiana Supreme Court stating,
The Clerk’s Office has received your Appellant's Brief [and Appendix] tendered on 02/05/18, for filing in the above-referenced appeal. Your document has not been filed because it has been tendered after its due date. See Appellate Rule 45(B).
I checked Appellate Rule 45(B):
Appellant's Brief. The appellant's brief shall be filed no later than thirty (30) days after: (a) the date the trial court clerk or Administrative Agency serves its Notice of Completion of Clerk's Record on the parties pursuant to Appellate Rule 10(C)
So, then I checked Appellate Rule 10(C):
C. Notice of Completion of Clerk's Record. On or before the deadline for assembly of the Clerk's Record, the trial court clerk or Administrative Agency shall issue and file a Notice of Completion of Clerk's Record with the Clerk and shall serve a copy on the parties to the appeal in accordance with Rule 24 to advise them that the Clerk's Record has been assembled and is complete.
And then I checked Appellate Rule 24:
24(C). Manner and Date of Service. All E-Filed documents will be deemed served when they are electronically served through the IEFS in accordance with Rule 68(F)(I). Documents exempted from E-Service will be deemed served when they are: (2) deposited in the United States Mail, postage prepaid
The Case Summary of my appeal on the website of the Indiana Supreme Court provides the following as to when the Notice of Completion of Clerk’s record was filed: “File Stamp 01/04/18.” I called the clerk for the Indiana Court of Appeals to get a grasp on the logic. The woman explained my filings were untimely because my 30-day time frame to file my appellant brief and appendix began on 01/03/18; the date listed on the Notice of Completion of Clerk’s Record and attached Certificate of Service filed by Rick Probst, Clerk of the Dearborn Superior Court II:
I certify that on January 03, 2018, I served a copy of this document upon the following person(s) by MAIL.
The certificate of service listed the Office of the Indiana Attorney General, Daniel Brewington, and Clerk of the Appellate Court as recipients of the clerk’s Notice. The problem is Probst failed to mail the Notice until the day after the date Probst certified the Notice as being mailed and served.
Appellate Rule 25 states the computation of time for deadlines begins on the day following an order or applicable act. Thirty days after the January 4th filing of the Notice of Completion landed on Saturday February 3, 2018, which advances the deadline to the following business day; Monday February 5, 2018. When I called the Clerk of the Indiana Court of Appeals, she said I missed the deadline.
The woman claimed I should have begun computation of time from the date stamped on the trial clerk’s Notice, not the date shown as being filed with the Indiana Supreme Court/Court of Appeals. After inquiring as to why the Clerk of the Appellate Courts showed the Notice as being filed on January 4th She told me the Appellate Court filing date was dictated by the date of the postmark, which was January 4th. She then suggested that Rick Probst may have been a day late mailing the Notice to the Court of Appeals. I told her both the Appellate Court and I were copied to the certificate of service and my envelope was also was post-marked January 4, 2018. The woman instructed me to be sure to include a copy of the postmarked envelope in my Motion to File a Belated Appeal.
“Belated Appeal?” I can’t make this up. I get punished because the Dearborn Superior Court II mailed the Notice of Completion the day after the date listed on the Certificate of Service. The Indiana Court of Appeals said my appellate filings were untimely claiming my computation of time began on the day before the Court could recognize the Notice as being filed. Seriously. “Documents exempted from E-Service will be deemed served when they are...deposited in the United States Mail.” The Notice of Completion of Clerk’s Record was postmarked January 4, 2018. The entry on the case summary from the Indiana Court of Appeals also includes a memo stating, “Certificate of Service-Mailed 01/03/18.” If the Notice was mailed on 01/03/18, the Court’s case summary would also show the Notice as being filed on 01/03/18. The absurdity of the situation is beyond comprehension:
The Indiana Rules of Appellate Procedure precluded the Indiana Supreme Court from file stamping the Notice of Completion of Clerk’s Record prior to the postmark date; however, the Court ruled my Appellant Brief and Appendix were untimely because I should have recognized that the computation of time started the day before the Supreme Court could recognize the Notice as being filed.
There really are no words. I guess I’ll just keep fighting the good fight and file what I need to file. Stay tuned for more information.