MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Oct 06 2017, 10:50 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Preeti (Nita) Gupta Joshua W. Casselman
Indianapolis, Indiana Rubin & Levin, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcos Fernandes a/k/a Marcos October 6, 2017
Fernandez Individually and Court of Appeals Case No.
d/b/a M&A Auto Wholesale, 49A02-1704-CC-700
Appellant-Defendant, Appeal from the Marion Superior
Court
v. The Honorable Kimberly D.
Mattingly, Magistrate
Automotive Finance Trial Court Cause No.
Corporation d/b/a AFC 49D13-1607-CC-25856
Automotive Finance
Corporation d/b/a AFC,
Appellee-Plaintiff.
Mathias, Judge.
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[1] M&A Auto Wholesale (“M&A”) appeals from the trial court’s denial of its
motion to file a belated appeal.
[2] We affirm.
Facts and Procedural History
[3] On July 21, 2016, Automotive Finance Corporation (“AFC”) filed a complaint
against M&A. M&A did not respond. On August 24, AFC filed a motion for
default judgment against M&A, which was granted five days later. After
learning of the default judgment, M&A appeared by counsel on November 3,
and subsequently filed a motion to vacate the default judgment.
[4] The trial court held a hearing on M&A’s motion to vacate on February 16,
2017. Following the hearing, the trial court denied the motion, and the default
judgment was upheld. On March 27, M&A filed a motion to file a belated
appeal. AFC objected, and the trial court denied M&A’s motion on April 4.1
M&A now appeals.
1
We note that the trial court magistrate signed the order denying M&A’s motion to file a belated appeal. Our
supreme court has explained, “Magistrates may enter final orders in criminal cases, I.C. §§ 33-23-5-5(14), -
9(b), but otherwise ‘may not enter a final appealable order unless sitting as a judge pro tempore or a special
judge.’ I.C. § 33-23-5-8(2).” In re Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015). There is nothing in
the record to indicate that the magistrate was sitting as judge pro tempore or a special judge. Therefore, the
April 4 denial is not a final appealable order. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App.
2010), trans. denied. However, because neither party has objected, the issue is waived. Floyd v. State, 650
N.E.2d 28, 32 (Ind. 1994)
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Discussion and Decision
[5] M&A argues that it should have been permitted to file a belated notice of
appeal. We disagree.
[6] Indiana Appellate Rule 9(A)(5) explains, “Unless the Notice of Appeal is timely
filed, the right to appeal shall be forfeited except as provided by P.C.R. 2.”
Here, the notice of appeal was not timely filed, and this case does not involve
post-conviction relief.
[7] However, our supreme court has explained that the failure to timely file an
appeal “is not a jurisdictional defect depriving the appellate courts of authority
to entertain the appeal.” In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014).
Therefore, even though the right to appeal is forfeited, “the question [becomes]
whether there are extraordinarily compelling reasons why this forfeited right
should be restored.” Id.
[8] M&A contends that it should have been permitted to file a belated appeal
because the underlying case “involves several significant issues, including
service of process, the application of statutes and contract interpretation.” 2
Appellant’s Br. at 5. However, these reasons do not rise to the requisite level of
2
M&A also argues that it was “tricked by the way the items [were] listed in the CCS” because entry for the
denial of the motion to set aside default judgment was initially listed before the entry for the hearing.
Appellant’s Br. at 5. This argument would fall under Indiana Trial Rule 72; however, M&A makes no
mention of it, and therefore, we will not address it. Ind. Appellate Rule 46 (A)(8)(a); see also Thacker v.
Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (“It is well settled that we will not consider an appellant's
assertion on appeal when he has not presented cogent argument supported by authority and references to the
record as required by the rules.”).
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“extraordinarily compelling” based on case law from our supreme court and
this court. Adoption of O.R., 16 N.E.3d at 971.
[9] In Adoption of O.R., our supreme court was confronted with “the constitutional
dimensions of the parent-child relationship” when it restored the forfeited right
to appeal. Id. at 972. The court clarified that it was because of the “unique
confluence of a fundamental liberty interest along with one of the most valued
relationships in our culture,” that influenced the court to decide the case on the
merits and reinstate the right to appeal. Id. (internal quotations omitted).
[10] In Cannon v. Caldwell, we restored a father’s forfeited right to appeal where a
child support order was in clear violation of the Child Support Guidelines. 74
N.E.3d 255, 258–59 (Ind. Ct. App. 2017). There we explained, “we must
conclude that manifestly unjust result constitutes an extraordinarily compelling
reason to reach the merits of an otherwise forfeited appeal.” Id. at 259.
[11] In Robertson v. Robertson, we found that due to the “constitutional dimensions of
the parent-child relationship,” a mother’s right to appeal a modified custody
order should be reinstated. 60 N.E.3d 1085, 1090 (Ind. Ct. App. 2016). We
echoed Adoption of O.R. when we noted, “a parent’s interest in the custody of his
child is a fundamental liberty interest, and the parent-child relationship is one of
the most valued relationships in our culture.” Id.
[12] Finally, in Satterfield v. State, we reinstated the right of a defendant to appeal the
trial court’s denial of his bail. 30 N.E.3d 1271 (Ind. Ct. App. 2015). In that case
we explained, “It is the unique confluence of this fundamental liberty interest
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along with one of the most valued rights in our culture—the right to bail—that
we conclude that [the defendant’s] otherwise forfeited appeal deserves a
determination on its merits.” Id. at 1275.
[13] The case before us does not implicate constitutional rights or a fundamental
liberty interest. As AFC points out, “This case involves a money judgment
arising from business transactions between parties presumed to be commercially
sophisticated.” Appellee’s Br. at 11. Therefore, our review of the record does
not reveal the existence of any “extraordinarily compelling reasons” to consider
this untimely appeal on the merits, and M&A does not offer any. Adoption of
O.R., 16 N.E.3d at 971.
[14] Accordingly, we affirm the trial court.
Vaidik, C.J., and Crone, J., concur.
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Marcos Fernandes a/k/a Marcos Fernandez Individually and d/b/a M&A Auto Wholesale v. Automotive Finance Corporation d/b/a AFC Automotive Finance Corporation d/b/a AFC (mem. dec.)
Combined Opinion