September 29, 2011
Earlier today, the Indiana Court of Appeals had to resort to a remedy that it does not favor, dismissing a case because of violation of the Appellate Rules, in
Zent v. Stallaed & Associates, Inc., Cause No. 49A02-1012-PL-1364, a memorandum decision, uncitable as authority under
App. R. 65(D). What did the appellant's attorney do to deserve this? Read on and see.
less..
The appellant's attorney failed to do all of the following:
- Place the complaint, amended complaint, or motions, memoranda, and briefs related to summary judgment in the appendix, even thought the appeal was from a grant of summary judgment;
- Correct the appendix when ordered to do so by the Court;
- Pay the filing fee when filing the notice of appeal;
- File a timely appellant's case summary;
- Did not correct defects in the appellant's case summary, even after notified of the defects by the Court's clerk, until the third try and then failed to serve this on the appellee;
- File an appellant's brief until 36 days after it was due without requesting an extension of time;
- File a brief that was bound, covered correctly, contained a page-numbered appendix, or signed.
Zent's counsel has not shown good cause or offered any reasonable explanation for the late filings or defects other than to state that it is his "first appeal." Instead, a large part of his brief in response to the cross-appeal is devoted to minimizing his failure to comply with the appellate rules. Specifically, he refers to the failure to "submit documents in accordance with the rule to each party" as a mere courtesy. But the Appellate Rules are not to be taken so lightly. Timely service on other parties is a requirement, not a courtesy.
The Court dismissed the appeal.
For those of you wondering whose work the Court was describing, you can click on the case and find out for yourself. But it should make us all feel better knowing that this attorney's address is New York City, not anywhere in Indiana. For those attempting their first appeal, ask for advice before making the same mistake Zent's lawyer did.
Lessons:
- The fact an appeal is your first appeal does not give you an excuse to violate basic rules of appellate procedure.
- Ask someone for advice before attempting your first appeal.
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