Parks v. Cunningham
Parks v. Cunningham
Opinion of the Court
OPINION
Timothy Parks appeals the trial court's denial of his motion for relief from judgment. Because we hold that the trial court was the incorrect forum in which to seek relief, we dismiss this appeal.
Cunningham was appointed to represent Parks in probation revocation proceedings. Parks later took issue with Cunningham's representation of him, and filed, pro se, a "Civil Action for Legal Malpractice and Denial of Effective Assistance of Counsel" in Sullivan Cireuit Court. Appellant's Appendix at 6. Parks was incarcerated at the time at the Wabash Valley Correctional Facility and remains there today. On January 9, 2001, summary judgment was granted for Cunningham on Parks' complaint.
Parks attempted to initiate an appeal of the summary judgment order by preparing a Notice of Appeal and having it sent from the correctional facility to Sullivan Circuit Court on or about January 29, 2001. However, the Chronological Case Summary does not show that a Notice of Appeal was received or filed by Sullivan Cireuit Court on or around that date, and a file-stamped copy of the Notice of Appeal was never returned to Parks. Thereafter, when Parks attempted to file his Appellant's
On May 25, 2001, this court issued a show cause order to Parks, ordering him to show cause why his appeal should not be dismissed because his Case Summary reflects that the Notice of Appeal was not timely filed. Parks responded to the show cause order, arguing that the Notice of Appeal was not timely filed due to no fault of his own and urging this court to accept the date in the Certificate of Service appended to the Notice of Appeal as the date of filing. This court entered an order which stated in pertinent part as follows:
In his Response, [Parks] claims that on January 30, 2001, he mailed his Notice by regular U.S. mail. Thus, [Parks] contends that because he deposited his Notice in the mail nine days before it was due, he timely filed his Notice. In support, [Parks] has provided what appears to be a copy of his Notice. The Notice is not file-stamped but bears a January 30, 2001, certificate of service. [Parks] has also provided what appears to be a copy of the mail log from his correctional facility. The log appears to show that [Parks] took some action regarding a Notice on January 29, 2001.
However, [Parks] admits he has no direct proof that he mailed his Notice on January 30, 2001, because, he alleges, his correctional facility does not keep such records. He also admits that the chronological case summary ("CCS") shows no filing of a Notice at the end of January 2001 or the beginning of February 2001. [Parks] explains this by speculating that the U.S. Postal Service lost the Notice, or the trial court clerk received the Notice but lost it before it could be entered on the CCS.
Finally, [Parks] admits that the CCS shows that the trial court did not receive and file a Notice until March 26, 2001. However, he claims that once he learned that the trial court clerk had not received the Notice he mailed on January 30, 2001, he immediately mailed another Notice, which is the Notice recorded on the CCS as filed on March 26, 2001.
Having reviewed [Parks'] Response . and being duly advised, the Court FINDS AND ORDERS AS FOLLOWS:
1) Because [Parks] mailed his Notice of Appeal by regular U.S. mail, his Notice would have been deemed filed upon delivery to the trial court clerk. See Ind. Trial Rule 5(E).
2) Because the CCS shows that the trial court clerk did not receive a Notice of Appeal from the Appellant by the February 8, 2001, deadline, [Parks] failed to timely file his Notice of Appeal.
3) [Parks] has failed to show cause why this appeal should not be dismissed. Accordingly, this appeal is dismissed with prejudice. ...
Appellant's App. at 225-26.
Parks then filed a Motion for Relief from Judgment in Sullivan Cireuit Court, again seeking relief from the January 9, 2001, order which led to this somewhat complicated procedural history. Part of his argument therein concerns the late filing of his Notice of Appeal and dismissal of his action in this court. The trial court denied the motion, and Parks now appeals to this court.
Appeal dismissed.
. "Transfer may be sought from adverse decisions issued by the Court of Appeals in the following form: ... (4) an order dismissing an appeal."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.