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.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CC-700 | October 6, 2017         Page 1 of 5
[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.”).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CC-700 | October 6, 2017               Page 3 of 5
       “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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CC-700 | October 6, 2017   Page 4 of 5
       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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