Sharla C. Williams v. TradeWinds Services, Inc., Board of Directors of TradeWinds Services, Inc., Jon Gold in his individual capacity and official capacity (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 10, 2015
• Docket: 45A03-1406-CT-202
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 45A03-1406-CT-202 | June 10, 2015 Page 1 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 45A03-1406-CT-202 | June 10, 2015 Page 2 of 5 [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

Court of Appeals of Indiana | Memorandum Decision 45A03-1406-CT-202 | June 10, 2015 Page 3 of 5 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 Court of Appeals of Indiana | Memorandum Decision 45A03-1406-CT-202 | June 10, 2015 Page 4 of 5 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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