sharla-c-williams-v-tradewinds-services-inc-board-of-directors-of ( 2015 )

MEMORANDUM DECISION
Jun 10 2015, 9:36 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Brenda J. Marcus Philip F. Cuevas
Merrillville, Indiana Litchfield Cavo LLP
Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
Sharla C. Williams, June 10, 2015
Appellant- Petitioner, Court of Appeals Cause No.
45A03-1406-CT-202
v.
Appeal from the Lake Superior
TradeWinds Services, Inc., Board Court
The Honorable William E. Davis,
of Directors of TradeWinds Judge
Services, Inc., Jon Gold in his Cause No. 45D05-1308-CT-152
individual capacity and official
capacity,
Appellees-Respondents,
Robb, Judge.
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Case Summary and Issues
[1] Sharla Williams appeals the trial court’s order granting summary judgment—
and eventual entry of final judgment—on a number of her claims against
TradeWinds Services, Inc., the TradeWinds Board of Directors, and Jon Gold
(collectively, “TradeWinds”). Williams also appeals two interlocutory orders,
which were a denial of her motion to file an amended complaint, and a denial
of her motion for preservation of evidence. Williams raises the following issues
for our review: (1) whether the trial court erred by treating TradeWinds’s
motion to dismiss as a motion for summary judgment after the parties
submitted materials outside of the pleadings; (2) whether the trial court erred by
directing the entry of final judgment on several of Williams’s claims; (3)
whether the trial court abused its discretion by denying Williams’s motion to
amend her complaint; and (4) whether the trial court abused its discretion by
denying Williams’s motion for an order to preserve evidence. Concluding
Williams has forfeited her right to appeal by failing to adhere to Indiana
Appellate Rule 9, we dismiss the appeal.
Facts and Procedural History
[2] Williams began working for TradeWinds in 1999. In the fall of 2009,
TradeWinds became suspicious that Williams had improperly taken money
from a customer account and initiated an investigation of the matter. In
November 2009, Williams resigned from TradeWinds.
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[3] In March 2010, Williams was criminally charged with theft and exploitation of
a dependent, both Class D felonies. However, those charges were later
dismissed. Also in 2010, Williams filed an action against TradeWinds in the
United States District Court for the Northern District of Indiana. A third
amended complaint was filed in that action, which alleged federal claims of
race discrimination and sex discrimination, in addition to a number of state law
claims. On March 4, 2013, the district court dismissed Williams’s federal
claims and declined to retain jurisdiction over her state law claims.
[4] On April 2, 2013, Williams commenced this action. Her complaint consisted of
eleven counts: (1) wrongful discharge; (2) intentional interference with
employment; (3) intentional infliction of emotional distress; (4) negligence; (5)
defamation; (6) defamation per se; (7) intentional fraudulent misrepresentation;
(8) false imprisonment; (9) malicious prosecution; (10) malicious prosecution;
and (11) breach of duty. On May 20, 2013, TradeWinds filed a motion to
dismiss Williams’s complaint. On July 8, 2013, Williams filed both a motion to
amend her complaint and a memorandum in opposition to TradeWinds’s
motion to dismiss. On August 8, 2013, Williams filed an amended
memorandum in opposition to TradeWinds’s motion to dismiss. In arguing the
issues raised in TradeWinds’s motion to dismiss, both parties submitted,
referenced, and relied upon additional exhibits outside the pleadings. On
October 15, 2013, the trial court issued an order on TradeWinds’s motion to
dismiss; the trial court noted that the motion was treated as one for summary
judgment because facts outside of the pleadings were presented for the trial
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court’s consideration. The trial court granted summary judgment to
TradeWinds on Counts 1, 2, 3, 4, 7, and 11. On the same day, the trial court
also issued an order denying Williams’s motion to amend her complaint,
stating that she failed to submit a proposed amended complaint for the trial
court’s review.
[5] On November 22, 2013, the trial court denied a motion filed by Williams
seeking a court order for TradeWinds to preserve certain documents that
Williams believed were relevant for discovery purposes. The Court denied
Williams’s motion because Williams did not previously seek to have the
documents produced through discovery.
[6] On December 9, 2013, TradeWinds filed a motion requesting that the trial court
enter final judgment on the Counts for which the trial court granted summary
judgment. On February 11, 2014, the trial court granted TradeWinds’s motion
and entered final judgment pursuant to Indiana Trial Rules 54(B) and 58. On
March 24, 2014, Williams filed a motion to correct error, which the trial court
denied on May 9, 2014. This appeal followed.
Discussion and Decision
I. Forfeiture of Appeal
[7] Indiana Appellate Rule 9(A)(1) provides:
A party initiates an appeal by filing a Notice of Appeal . . . within
thirty (30) days after the entry of a Final Judgment is noted in the
Chronological Case Summary. However if any party files a timely
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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 . . . .
(emphasis added). “Unless the Notice of Appeal is timely filed, the right to
appeal shall be forfeited except as provided by P.C.R. 2.”1 Ind. App. Rule
9(A)(5).
[8] The trial court entered final judgment on February 11, 2014. Williams filed her
motion to correct error on March 24, 2014—well outside the thirty-day window
provided by Indiana Trial Rule 9(A)(1) and Indiana Trial Rule 59(C). Because
Williams failed to file her notice of appeal following a timely motion to correct
error in accordance with Appellate Rule 9, we conclude that she has forfeited
her right to an appeal.2
Conclusion
[9] Williams failed to file a timely motion to correct error and corresponding notice
of appeal. Therefore, we dismiss her appeal.
[10] Dismissed.
Bailey, J., and Brown, J., concur.
1
Post-Conviction Rule 2 is not relevant to this matter.
2
Our supreme court has said that an appellant who procedurally forfeits her right to an appeal may have
that right restored by the appellate court where there are “extraordinarily compelling reasons” to address the
appeal on its merits. In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Such extraordinarily compelling
reasons do not exist in this case.
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