                                                 FILED
                                               Apr 18 2012, 8:57 am
FOR PUBLICATION
                                                      CLERK
                                                    of the supreme court,
                                                    court of appeals and
                                                           tax court




ATTORNEY FOR APPELLANTS:                ATTORNEYS FOR APPELLEES:

DOUGLAS A. MULVANEY                     KRISTY M. RANS
Stutsman & Mulvaney                     MARTIN J. GARDNER
Elkhart, Indiana                        Gardner & Rans P.C.
                                        South Bend, Indiana


                         IN THE
               COURT OF APPEALS OF INDIANA

TODD WALTERS and MATENIA WALTERS,      )
                                       )
    Appellants-Plaintiffs,             )
                                       )
           vs.                         )       No. 20A04-1106-CT-342
                                       )
AARON AUSTIN and HERMAN & GOETZ, INC., )
                                       )
    Appellees-Defendants.              )


               APPEAL FROM THE ELKHART SUPERIOR COURT
                    The Honorable Stephen R. Bowers, Judge
                         Cause No. 20D02-0702-CT-12



                              April 18, 2012


                      OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Todd and Matenia Walters (collectively “the Walterses”) appeal the trial court’s

judgment on a jury verdict in favor of Aaron Austin and his employer, Herman & Goetz,

Inc., (collectively “Defendants”) on the Walterses’ complaint for damages arising from a

multi-vehicle accident. The Walterses present several issues for review. However,

because we determine that we do not have jurisdiction, we do not reach the merits of this

appeal.

       We dismiss.

                       FACTS AND PROCEDURAL HISTORY

       On February 28, 2005, Todd Walters was involved in a multi-vehicle accident in

the eastbound lane of the U.S. 20 bypass in northern Indiana. Several vehicles, including

Walters’ truck, hit a patch of black ice on an overpass. Walters was able to maneuver his

vehicle to the right side of the road, where it came to a stop. Austin, driving his

employer’s van, then lost control on the ice and hit Walters, who was standing on the

driver’s side of his vehicle. Walters was thrown by the impact and suffered serious

injuries.

       On February 27, 2007, the Walterses filed a complaint against the Defendants

seeking damages for his injuries. Following a four-day trial, the jury returned a verdict in

favor of the Defendants on April 21, 2011, and the trial court entered judgment on May 3.

The Walterses filed a motion to correct error on May 20, which the trial court denied on

May 23. Unaware of that ruling, the Walterses filed an amended motion to correct error

and a motion to relate the amended motion back to the filing date of the original motion


                                             2
to correct error. On May 24, the trial court granted the motion to relate back but denied

the amended motion to correct error.

        The Walterses filed their notice of appeal on June 23. On January 20, 2012, the

Defendants filed a motion to dismiss the appeal for failure to timely file a notice of

appeal. On February 7, the Walterses filed their response. A motions panel of this court

held the motion to dismiss in abeyance pending the completion of briefing and

assignment of this case to the writing panel.

                                  DISCUSSION AND DECISION

        During the briefing process in this case, the Defendants filed a motion to dismiss

the Walterses’ appeal, alleging that the Walterses had not timely filed the notice of

appeal. In 2011, the rule governing the initiation of an appeal provided:

        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 Judgment is noted in
        the Chronological Case Summary. However, if any party files a timely
        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 or thirty (30) days after the motion is deemed denied under
        Trial Rule 53.3, whichever occurs first. . . .

Ind. Appellate Rule 9(A)(1).1 The timely filing of a notice of appeal is a jurisdictional

prerequisite. State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009). Failure to

conform to the applicable time limits results in forfeiture of an appeal. Ind. App. R.

9(A)(5).

        Here, the trial court entered judgment in favor of the Defendants on May 3, 2011.

The Walterses timely filed a motion to correct error on May 20, and the trial court denied

        1
            Indiana Appellate Rule 9 was amended effective January 1, 2012. Although the amendments
do not materially affect the disposition of this case, we refer to the rule in effect at the time the Walterses
filed their notice of appeal.
                                                      3
that motion on May 23. Unaware of that order, the Walterses filed an amended motion to

correct error also on May 23 as well as a motion requesting that the amended motion

relate back to the original filing date of May 20. The Walterses have conceded that the

amended motion to correct error “is essentially the same Motion to Correct Errors and

Memorandum of Law in Support with the exception of typographical and grammatical

changes.” Motion to Dismiss, Exhibit D (Motion to Relate Filing Back to Original Filing

Date) at 2. The trial court granted the motion to relate back but denied the amended

motion to correct error. The Walterses then filed their notice of appeal on June 23, 2011.

      The Defendants contend that the appeal should be dismissed because the notice of

appeal was filed thirty-one days after the trial court denied the first motion to correct

error. The Walterses maintain that the relevant date for determining the timeliness of the

notice of appeal is May 24, 2011, the date the trial court denied the amended motion to

correct error. In support, they assert that the amended motion to correct error was “not

filed in an effort to extend the filing deadline [for the notice of appeal] nor was it an

attempt to ask the Trial Court to reconsider the motion as the Amended Motion to Correct

Errors was filed before counsel for plaintiff[s] was notified that the original Motion to

Correct Errors had been denied.” Response to Motion to Dismiss at *2. Therefore, the

Walterses believe that they timely filed their notice of appeal. We cannot agree.

      Indiana Trial Rule 53.4 provides in relevant part that repetitive motions “shall not

delay the trial or any proceedings in the case, or extend the time for any further required

or permitted action, motion, or proceedings under these rules.”        We find that rule

applicable here. The Walterses’ amended motion to correct error was nearly identical to


                                            4
the original motion to correct error, amending only non-substantive, typographical and

grammatical errors in the original motion. Further, the amended motion was to “relate

back” to the original motion. In effect, the amended motion was merged with the original

motion, and the denial date of the original motion was May 23. We conclude that the

amended motion to correct error was a repetitive motion and, therefore, the filing of the

amended motion did not change the date for filing the notice of appeal. See Peters v.

Perry, 873 N.E.2d 676, 678-79 (Ind. Ct. App. 2007), modified on other grounds on reh’g,

877 N.E.2d 498 (Ind. Ct. App. 2007) (treating subsequent motion to correct error as

motion to reconsider, which did not alter time for filing appeal). The Walterses’ notice of

appeal was filed thirty-one days after the trial court denied the first motion to correct

error. Because the notice of appeal was not timely filed, we do not have jurisdiction to

consider the merits of this appeal and must dismiss this appeal.

       Dismissed.

RILEY, J., concurs.

DARDEN, J., dissents with separate opinion.




                                             5
                               IN THE
                     COURT OF APPEALS OF INDIANA

TODD WALTERS and MATENIA WALTERS,                   )
                                                    )
       Appellants,                                  )
                                                    )
       vs.                                          )    No. 20A04-1106-CT-342
                                                    )
AARON AUSTIN and HERMAN & GOETZ,                    )
INC.,                                               )
                                                    )
       Appellees.                                   )


DARDEN, Judge, dissenting

       I respectfully dissent.   I do not agree with the majority’s holding that the

Walterses’ amended motion to correct error was a repetitive motion for the purposes of

Indiana Trial 53.4, which was designed to prevent delay through the filing of repetitive

motions. See Stephens v. Irvin, 734 N.E.2d 1133, 1134 (Ind. Ct. App. 2000), trans.

denied.

       The Walterses filed both of their motions to correct error well within the time

period to do so; filed the amended motion to correct error only three days after filing the

original motion; and filed the May 23 motion prior to receiving notice that the trial court

had denied the May 20 motion. The Walterses clearly did not file the May 23 motion in

an effort to extend the time for filing their notice of appeal. Accordingly, I do not believe

that the interest of justice is served by treating the May 23 motion as a repetitive motion.

I therefore would review this case on the merits.
                                             6
