MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Nov 14 2016, 8:35 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE,
John A. Cremer                                          STUART G. KELLY
Jonathan E. Lamb                                        Jay Curts
Cremer & Cremer                                         John V. Maurovich
Indianapolis, Indiana                                   Alex Emerson
                                                        Coots, Henke & Wheeler, P.C.
                                                        Carmel, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Patrick J. Overman,                                     November 14, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A05-1510-EU-1561
        v.                                              Appeal from the Grant Superior
                                                        Court
Estate of Shirley Ann Overman,                          The Honorable Warren Haas,
William Scott Overman, the                              Judge
Executor,                                               Trial Court Cause No.
Appellee,                                               27D03-1209-EU-140

Stuart G. Kelly,
Appellee-Claimant.




Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016    Page 1 of 8
                                         Statement of the Case
[1]   Patrick J. Overman (“Overman”) appeals the trial court’s order requiring the

      Estate of Shirley A. Overman (“the Estate”) to apply his share of the Estate to

      repay money he owed to Stuart G. Kelly (“Kelly”) pursuant to three promissory

      notes. Because we conclude that Overman forfeited his right to appeal by

      failing to file a timely notice of appeal and there are no extraordinarily

      compelling circumstances for us to restore that right, we dismiss Overman’s

      appeal.


[2]   We dismiss.


                                                        Issue
              Whether Overman forfeited his right to appeal by failing to file a
              timely notice of appeal.

                                                        Facts
[3]   Between April 2010 and July 2011, Overman drafted and executed three

      promissory notes (“the Notes”) to Kelly for various amounts. On April 30,

      2010, he executed the first promissory note (“Note 1”) in the amount of

      $50,000;1 on December 15, 2010, he executed the second promissory note

      (“Note 2”) in the amount of $15,000; and on July 22, 2011, he executed the




      1
       In spite of the $50,000 listed on the promissory note, it is undisputed that Kelly only loaned Overman
      $25,000.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016         Page 2 of 8
      third promissory note (“Note 3”) to Kelly in the amount of $24,000.2 Note 3

      provided that the Notes would become mature—meaning payment would

      become due—on the earlier of two dates: (1) fifteen days after Overman’s

      receipt of escrowed royalties paid to him in another cause, Cause Number 08-

      11-18261-CV (“the Texas lawsuit”); or (2) the distribution of the Estate. Also,

      the Notes specified that Kelly was required to give Overman written notice in

      the case of default and ten days to cure the default before exercising any legal

      remedies.


[4]   On September 7, 2012, over a year after Overman had executed Note 3 but

      before Overman had received funds from the Texas lawsuit or a distribution

      from the Estate, Kelly filed a complaint (“Debt Case”) seeking to recover the

      amount owed under the Notes.3 Overman filed an Answer, arguing that: (1)

      the Notes were not yet mature because he had not received funds from the

      Texas lawsuit or a distribution from the Estate; (2) Kelly had failed to provide

      him with written notice of default and a period to cure, as required under the

      Notes; (3) the terms of the Notes violated Indiana limitations on consumer-

      related loans; and (4) Kelly had breached the terms of the Notes by filing his




      2
        The interest rates for the Notes varied, as well. Note 1 required Overman to pay zero percent interest before
      the note’s maturity and ten percent interest after the note’s maturity. Note 2 required Overman to pay fifty
      percent interest if he repaid the note “on or before [the] due date” and one hundred percent if “paid after [the]
      due date.” (App. 48). Note 3 required Overman to pay twenty-five percent interest if the amounts lent under
      Note 3 were repaid before January 31, 2012; fifty percent interest if the amounts were repaid between
      January 31, 2012 and July 31, 2012; and one hundred percent interest if the amounts were repaid after July
      31, 2012.
      3
          The Debt Case is distinct from the instant case and was filed under Cause Number 27D01-1209-CC-000939.


      Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016            Page 3 of 8
      complaint before their maturity date and, therefore, Kelly had unclean hands

      and could not recover. Upon Overman’s request, the trial court ordered

      Overman to pay the court $64,000, to be held in escrow pending the disposition

      of the case, which Overman did.


[5]   Subsequently, on January 10, 2014, Overman filed a motion for summary

      judgment on Kelly’s complaint, again arguing, in relevant part, that the Notes

      had not been mature when Kelly filed his complaint. On October 29, 2014, the

      trial court granted Overman’s motion, concluding that Kelly’s complaint had

      not been ripe when he filed it because the notes had not yet matured and

      because Kelly had not provided Overman with written notice of default as

      required under the Notes. The trial court awarded Overman $16,630.24 in

      attorney fees based on its conclusion that Kelly had frivolously, unreasonably,

      and without ground filed and continued to litigate his complaint. It then

      ordered the clerk to pay the balance of Overman’s $64,000 in escrow to Kelly,

      which it held was “also a credit to [Overman] for any amounts [Overman] may

      owe [Kelly] in relation to the notes.” (App. 40).


[6]   In the meantime, Kelly and Overman had become parties in the instant case

      concerning the disbursement of the Estate (“Estate Case”). On August 28,

      2015, the trial court entered a final judgment in the Estate Case. In its final

      judgment, it “with consent of the parties . . . resolve[d] the issues that were not

      finally disposed of in the Court’s October 29, 2014 Order Granting [Overman’s]

      Motion for Summary Judgment” in the Debt Case. (App. 29). Specifically, it

      held that, after Overman’s escrow funds from the Debt Case had been applied

      Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016   Page 4 of 8
      to the Notes, Overman still owed Kelly a balance of $49,785.84, including

      interest. Finding that Overman had “authorized payment of the amount owed .

      . . from his interest in the Estate,” the trial court ordered the Estate to pay the

      amount Overman still owed from his share of the Estate. (App. 33). Overman

      now appeals.


                                                  Decision
[7]   On appeal, Overman argues that the trial court erred in allowing Kelly to

      recover under the Notes because Kelly materially breached the terms of the

      Notes when he filed the Debt Case before the Notes had matured. In support of

      this argument, Overman cites to Indiana precedent holding that a party first

      guilty of a material breach of contract may not maintain an action against, or

      recover damages from, the other party to the contract. See Ream v. Yankee Park

      Homeowner’s Ass’n, 915 N.E.2d 536, 547 (Ind. Ct. App. 2009), trans. denied.

      Alternatively, Overman argues that the trial court inappropriately calculated the

      interest that he owed Kelly under the Notes. In response, Kelly argues that

      Overman forfeited his claims by failing to file a timely notice of appeal.

      Because we find Kelly’s argument dispositive, we need not address Overman’s

      arguments.


[8]   Pursuant to Appellate Rule 9(A):

              A party initiates an appeal by filing a Notice of Appeal with the
              Clerk . . . within thirty (30) days after the entry of a Final
              Judgment is noted in the Chronological Case Summary. . . .
              Unless the Notice of Appeal is timely filed, the right to appeal
              shall be forfeited[.] . . .

      Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016   Page 5 of 8
The trial court signed its final judgment in the Estate Case on August 28, 2015.

There is an entry in the chronological case summary (“CCS”) on August 31,

2015 stating “Comes now the Court and enters Judgment Order.” (App. 13).

The order that is the subject of this entry is listed as being file stamped on

August 28, 2015. It is well-settled that the trial court speaks through its CCS or

docket. City of Indianapolis v. Hicks, 932 N.E.2d 227, 233 (Ind. Ct. App. 2010),

reh’g denied, trans. denied. Accordingly, we conclude that the trial court noted its

entry of its final judgment in the Estate Case in the CCS on August 31, 2015. 4

Overman then had thirty days, pursuant to Appellate Rule 9(A), to file his

notice of appeal, which he did not do. He did not file his notice of appeal until




4
    The trial court also noted a second entry of final judgment in the CCS on September 10, 2015. It stated:

           Final Judgment entered (Judicial Officer” Haas, Warren)
           Monetary Award
              Status: Active; Signed Date: 08/28/2015
              Awarded to: Stuart G. Kelly, Dds
              Awarded against: Patrick J. Overman
              Judgment: $49,785.84
              RJO: Book 2015, Page 0828
              Judgment: Book 2015, Page 0828

(App. 13-14). Overman argues that the trial court noted its entry of final judgment in the CCS for purposes of
Appellate Rule 9 in this entry, rather than its August 31, 2015 entry. We disagree and find that this second
entry was instead a nunc pro tunc entry that supplemented the trial court’s earlier entry. A nunc pro tunc
entry is defined in law “‘as an entry made now of something which was actually previously done, to have
effect as of the former date.’” Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995) (quoting Perkins v. Haywood, 31
N.E. 670, 672 (Ind. 1892)). Such an entry “may be used to either record an act or event not recorded in the
court’s order book or to change or supplement an entry already recorded in the order book.” Id. Both of the
trial court’s entries refer to the same trial court order, which was signed August 28, 2015. The second entry
merely supplements the first entry by providing additional information, including the amount of the
judgment and the location of the entry in the Record of Judgments and Orders, among other notations.
Because a nunc pro tunc entry still has effect “as of the former date,” we conclude that the trial court entered
final judgment for purposes of appeal on August 31, 2015. See id.

Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016            Page 6 of 8
       October 6, 2015. Therefore, we agree with Kelly that Overman forfeited his

       right to an appeal.


[9]    Nevertheless, in Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014), our supreme

       court recently clarified that, even though a party forfeits the right to an appeal

       by failing to file a timely notice of appeal, we may restore that right if there are

       “extraordinarily compelling reasons” for why the forfeited right should be

       restored. There, the supreme court concluded that there were extraordinary

       compelling reasons because the case concerned a fundamental liberty interest

       protected by the United States Constitution—the traditional right of parents to

       establish a home and raise their children. Id. at 972. There was also evidence

       that the appellant had attempted to file a timely appeal and had requested

       counsel to do so but had not been appointed counsel until after the deadline for

       filing a timely notice of appeal had passed. Id.


[10]   Unlike in O.R., we do not find any “extraordinarily compelling reasons” to

       restore Overman’s right to appeal. This case does not concern any protected

       liberty interests such as the right of parents to establish a home and raise their

       children. Overman merely attempts to avoid the trial court’s judgment

       regarding a contract into which he freely entered. In addition, while Overman

       submitted supplemental exhibits documenting his emails to his attorney in

       which he requested that his attorney file a timely notice of appeal, Overman’s

       situation is different than the appellant’s situation in O.R. A notice of appeal

       provides both the court and opposing parties with notice that an appellant

       intends to appeal a judgment. Even though the appellant in O.R. did not file a

       Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016   Page 7 of 8
       timely notice of appeal, he constructively notified the court that he intended to

       appeal the court’s judgment by requesting the court to appoint him an attorney.

       Overman’s attempts to notify his attorney that he wished to appeal the trial

       court’s judgment did not serve any such constructive notice of appeal to the

       court in the instant case.


[11]   In sum, we do not find the compelling circumstances that existed in O.R. also

       present here. Because we conclude that Overman forfeited his right to appeal

       the trial court’s judgment and we do not find any extraordinarily compelling

       reasons to restore that right, we dismiss his appeal and need not address his

       arguments.


[12]   Dismissed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1510-EU-1561] | November 14, 2016   Page 8 of 8
