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

MEMORANDUM DECISION

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

Preeti (Nita) Gupta

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Joshua W. Casselman

Rubin & Levin, P.C.

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Marcos Fernandes a/k/a Marcos 

Fernandez Individually and 

d/b/a M&A Auto Wholesale,

Appellant-Defendant,

v.

Automotive Finance 

Corporation d/b/a AFC 

Automotive Finance 

Corporation d/b/a AFC,

Appellee-Plaintiff.

October 6, 2017

Court of Appeals Case No.

49A02-1704-CC-700

Appeal from the Marion Superior 

Court

The Honorable Kimberly D. 

Mattingly, Magistrate

Trial Court Cause No.

49D13-1607-CC-25856

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CC-700 | October 6, 2017 Page 2 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.”).
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“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 5 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.