MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not                                          FILED
be regarded as precedent or cited before                               Dec 14 2017, 9:04 am

any court except for the purpose of                                         CLERK
establishing the defense of res judicata,                               Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Stacy L. Kelley                                      James R. Williams
Glaser & Ebbs                                        Edward A. DeVries
Indianapolis, Indiana                                Wilson Elser Moskowitz
                                                     Edelman & Dicker, LLP
                                                     Chicago, Illinois


                                          IN THE
   COURT OF APPEALS OF INDIANA

Juliette Boyd,                                        December 14, 2017
Appellant-Plaintiff,                                  Court of Appeals Case No.
                                                      49A05-1703-CT-707
        v.
                                                      Appeal from the Marion Superior
ERJ Dining IV, LLC d/b/a                              Court
Chili’s Grill and Bar #513,                           The Honorable Patrick Dietrick,
                                                      Judge
Appellee-Defendant.
                                                      Trial Court Cause No.
                                                      49D12-1507-CT-21804




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CT-707 | December 14, 2017         Page 1 of 4
[1]   Juliette Boyd appeals the entry of summary judgment in favor of ERJ Dining

      IV, LLC, d/b/a Chili’s Grill and Bar #513 (“Chili’s”). We find one issue

      dispositive, which is whether Boyd’s notice of appeal is timely. We dismiss.


                                      Facts and Procedural History

[2]   On July 1, 2015, Boyd filed a complaint for damages against Chili’s, alleging

      that she had eaten as a customer at Chili’s, that Chili’s negligently prepared and

      delivered food products with an unknown foreign substance, and that the

      negligence was the sole, direct, and proximate cause of her personal injuries.

      On November 11, 2016, Chili’s filed a motion for summary judgment and

      motion to dismiss claims asserted in Boyd’s complaint. On January 23, 2017,

      the trial court held a hearing on Chili’s motion for summary judgment, and on

      February 16, 2017, it entered findings of fact, conclusions of law, and order on

      summary judgment. The order is dated February 16, 2017 and an entry in the

      chronological case summary ("CCS") on that date shows that the order was

      issued. The trial court also issued an identical order on February 28, 2017. On

      March 30, 2017, Boyd filed a notice of appeal from a final judgment,

      identifying the court’s subsequent February 28, 2017 order as the order being

      appealed.


                                                  Discussion

[3]   We address the issue of whether Boyd’s appeal was timely. Ind. Appellate Rule

      9(A)(1) explains that a “party initiates an appeal by filing a Notice of Appeal

      with the trial court clerk within thirty (30) days after the entry of a Final


      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CT-707 | December 14, 2017   Page 2 of 4
      Judgment is noted in the Chronological Case Summary,” Rule 9(A)(5) explains

      that “[u]nless the Notice of Appeal is timely filed, the right to appeal shall be

      forfeited except as provided by P.C.R. 2,” and Rule 2(H)(1) explains a

      judgment is final if “it disposes of all claims as to all parties.” The trial court’s

      order on February 16, 2017, disposed of all claims as to all parties and was also

      noted in the CCS on February 16, 2017. It is a final order. It is not clear why

      the court issued the identical order twelve days later but it is of no import.

      Boyd’s March 30, 2017 notice of appeal was not filed within thirty days after

      the entry of the February 16, 2017 judgment noted in the CCS. Accordingly,

      Boyd did not timely file her appeal and has forfeited her right to appeal. We

      also do not find any extraordinarily compelling reasons as to why this forfeited

      right should be restored. Cf. In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind.

      2014) (noting the “unique confluence of a fundamental liberty interest along

      with ‘one of the most valued relationships in our culture’” in a case involving

      adoption, and finding extraordinarily compelling reasons to hear and determine

      a biological father’s otherwise forfeited appeal (citing In re I.A., 934 N.E.2d

      1127, 1132 (Ind. 2010))). Therefore, we dismiss.


[4]   Chili’s has filed a request for damages pursuant to Ind. Appellate Rule 66(E)

      citing Boyd’s failure to acknowledge the February 16, 2017 order and

      corresponding CCS entry, of which her counsel received notice on February 17,

      2017. Under Rule 66(E), damages may be assessed if an “appeal is permeated

      with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

      delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003) (citing Orr


      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CT-707 | December 14, 2017   Page 3 of 4
      v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152 (Ind. 1987). Such damages are in

      the Court’s discretion and we decline to award them here.


                                                  Conclusion

[5]   For the foregoing reasons, we dismiss Boyd’s appeal.


[6]   Dismissed.


      Najam, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CT-707 | December 14, 2017   Page 4 of 4
