text:
    Joseph CLINARD, Appellant-Defendant, v. VISIO FINANCIAL SERVICES, INC., Appellee-Plaintiff.
    Court of Appeals Case No. 41A01-1707-MF-1552
    Court of Appeals of Indiana.
    Filed May 23, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

CRONE, J., Concurs.

BRADFORD, J., Concurs.


source: Caselaw Access Project

author: PYLE, J.

license: Public Domain

text:
    John Lee COUCH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1711-CR-2655
    Court of Appeals of Indiana.
    FILED May 24, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

VAIDIK, C.J., Concurs.

BARNES, J., Concurs.


author: Kirsch, Judge.

text:
    John RENO, Appellant-Plaintiff, v. Dennis O. HAMILTON, Cathy A. Hamilton, Stephen Wayne Bell II, Stephanie L. Bell, Stacie L. Bell, Sonia K. Bell-Brenizer, Appellees-Defendants.
    Court of Appeals Case No. 33A01-1711-PL-2669
    Court of Appeals of Indiana.
    FILED May 24, 2018
    Attorney for Appellant : Jeffrey K. Eicher, Greenfield, Indiana
    Attorney for Appellees : Martin R. Shields, New Castle, Indiana
    MEMORANDUM DECISION

      The CCS reflects that on August 8, 2016, plaintiff John Reno voluntarily dismissed the following defendants from the lawsuit: Stephen Wayne Bell II; Stacie L. Bell; Stephanie L. Bell; and Sonia K. Bell-Brenizer. Appellant's App. Vol. 2 at 8. However, for reasons not entirely clear, the trial court and the parties continued to include those individuals as defendants in notices, pleadings, and orders; thus, we include them here pursuant to Appellate Rule 17(A), which provides that a party of record in the trial court shall be a party on appeal.

   Kirsch, Judge.

[1] This case involves different parties purchasing the same parcel of real estate. John Reno ("Reno") filed a complaint to quiet title in the subject real property. Following a bench trial, the trial court determined that Reno was not entitled to the requested relief. Reno now appeals, raising two issues that we consolidate and restate as: Whether the trial court erred when it determined that Reno, who possessed a 2006 unrecorded deed, was not entitled to quiet title in the subject real property, which Dennis O. Hamilton and Cathy A. Hamilton ("the Hamiltons") purchased from third parties in 2012 for valuable consideration following at least two title searches that did not reflect Reno as being the owner of the property.

[2] We affirm.

Facts and Procedural History

[3] The property at issue consists of approximately 3.06 acres, described in three legal tracts, located on Trainor Street in New Castle, Indiana ("the Property"). One tract lies adjacent to land owned and occupied by Reno's business, Reno's Auto Salvage, and contains the driveway used to access Reno's Auto Salvage; the other two tracts are across a street. The Hamiltons, along with Cathy Hamilton's mother, own real estate either adjacent to or in the immediate vicinity of the Property. Tr. Vol. II at 117, 129. As is relevant here, the Property was transferred several times, and in his complaint, Reno claimed to have a superior interest. The relevant history of the Property is as follows.

[4] In 2000, the Property was owned by Reno. On October 17, 2000, Reno conveyed it to his friend, Stephen W. Bell ("Bell"). Reno conveyed the Property to Bell as a favor, in order that Bell would have collateral necessary to obtain a loan from the bank. On September 21, 2005, Bell died without a will. He was survived by four children: Stephen Wayne Bell II, Stephanie L. Bell, Stacie L. Bell, and Sonia K. Bell-Brenizer (together, "the Bell Heirs"). The Bell Heirs did not open or administer an estate for their father.

[5] Eventually, Bell's loan fell into default and the lender, MainSource Bank ("MainSource"), initiated a foreclosure action on a mortgage that was secured by the Property. MainSource named the Bell Heirs as defendants in the foreclosure action, and on May 5, 2006, MainSource obtained an in rem default judgment in the amount of $29,753.28. Thereafter, the Property was noticed for sale at a July 25, 2006 sheriff's sale. Michael McKown ("McKown"), a local real estate broker and long-time friend of Reno's, noticed that the Property was going to be sold at the upcoming sheriff's sale, and knowing that the Property adjoined Reno's salvage yard and that Reno previously had owned it, McKown contacted Reno to advise him that the Property was going up for auction. Reno advised McKown that he wanted to purchase it, so Reno attended the sheriff's sale with McKown on July 25, 2006, and with McKown's assistance with the bidding, Reno purchased the Property for $500. A Sheriff's Deed for the three tracts comprising the Property, dated July 25, 2006, was mailed to Reno. He received the Sheriff's Deed, but never recorded it.

[6] After he purchased the Property at the sheriff's sale, Reno began receiving the associated tax bills for the Property, addressed to "Stephen Bell in care of John Reno." Tr. Vol. II at 176. Reno did not timely pay the real estate taxes on the Property for the period of the sheriff's sale through and including October 2009.

[7] Cathy Hamilton ("Cathy"), a subsequent purchaser of the Property and a named defendant in Reno's complaint, was raised in the Trainor Street area, which was referred to by locals as the "Hollow" or "Blue River Valley," an area comprised of "small, humble homes." Id. at 123-25. After graduating from high school, Cathy moved away from the Hollow for several decades to attend college and work. In 2007, she moved back to the area with her husband, Dennis Hamilton ("Dennis"), and their adult daughter. Cathy's mother still lived in the Hollow. The Hamiltons bought a number of properties in the Hollow, tore down the dilapidated homes, cleaned up the area, and built two separate homes connected by a breezeway; this arrangement met the needs of their adult daughter, who Cathy testified had multiple disabilities and would never be able to live entirely on her own. Id. at 127-28. Cathy's mother's home was next to the Property.

[8] In October 2009, the Property was listed in a legal notice in the local newspaper, stating that the Property was going to be sold at an upcoming tax sale ("2009 Tax Sale"). Bell was listed in the legal notice as the owner of the Property. Appellees' App. Vol. 2 at 2. Dennis saw the publication for the 2009 Tax Sale, and because the Property was in the vicinity of the Hamiltons' home and next to Cathy's mother's residence, Dennis attended the 2009 Tax Sale and purchased the Property, receiving a tax sale certificate for his purchase.

[9] Prior to the date of the 2009 Tax Sale, McKown had seen the published legal notice stating that the Property was going to be up for sale, so he contacted Reno to let him know. Reno did not attend the 2009 Tax Sale, but McKown did, and he saw Dennis purchase the tax certificate for the Property. Evidence was presented that McKown approached Dennis at the sale and told him that someone else owned or had an interest in the Property. Following the 2009 Tax Sale, and because of McKown's comments, the Hamiltons retained an attorney, and the attorney obtained a title search for the Property. Tr. Vol. II at 158. The search revealed that Bell owned the Property and no one else had a legal interest in it.

[10] Under Indiana law, there is a one-year redemption period within which a property's delinquent taxes may be paid, and, if this occurs, then title does not pass to the purchaser of the tax sale certificate and, instead, the real estate remains titled as it was at the time of the tax sale. In this case, a few days before the expiration of the one-year redemption period for the Property, Reno paid the amount necessary to redeem the Property from the 2009 Tax Sale, such that Dennis's earlier purchase and receipt of the tax certificate had no legal effect.

[11] In early 2012, the Hamiltons received a telephone call from one of the Bell Heirs, Stephanie, who conveyed that the Bell Heirs had heard that the Hamiltons wanted to purchase the Property. Dennis informed Stephanie that the Hamiltons were, in fact, interested in purchasing it as long as the Bell Heirs had interest to sell. For that purpose, the Hamiltons obtained a second property records search on the Property, which covered the period of time from October 17, 2000 to January 20, 2012. It indicated that the title to the Property was listed in the name of the "Heirs at Law of Stephen Wayne Bell, deceased." Appellees' App. Vol. 2 at 4-5.

[12] On February 3, 2012, the Hamiltons met the Bell Heirs at the Hamiltons' attorney's office to close on the Hamiltons' purchase of the Property. The Hamiltons paid $4,000, or $1,000 to each of the four Bell Heirs. At that time, the real estate taxes were delinquent, and the Hamiltons also paid the taxes. In return, the Bell Heirs executed and gave to the Hamiltons an Affidavit of Transfer of Real Estate and a Warranty Deed to the Property. Appellees' App. Vol. 2 at 6-12. The Affidavit of Transfer stated, in part, that the Property was the only probate asset of their deceased father, the four Bell Heirs were the only legal heirs, and they were entitled to the Property as a result of their father's death. Id. at 9-10. The Hamiltons recorded the warranty deed on February 8, 2012.

[13] Approximately two months later, in April 2012, Cathy saw Reno and told him that the Hamiltons owned the Property, and Reno informed her about his possession of a 2006 Sheriff's Deed to the same property. Thereafter, the Hamiltons consulted their attorney, and a third property search was conducted. This time a copy of the unrecorded sheriff's deed was found in a file in the Henry County Clerk's Office. Reno attempted to record his Sheriff's Deed in the Henry County Recorder's Office, but the Recorder's Office did not allow him to do so because of the existing warranty deed that the Hamiltons had recorded in February 2012.

[14] On January 7, 2013, Reno filed a two-count complaint against the Hamiltons and the Bell Heirs. Appellant's App. Vol. 2 at 13-16. Count 1 of Reno's complaint was a quiet title claim and an adverse possession claim, claiming that Reno owned the Property based on his 2006 purchase of it at the sheriff's sale. Id. at 13-15. Count 2 of Reno's complaint was a claim for conversion, claiming that the Bell Heirs' warranty deed was fraudulent and represented conversion as to Reno's ownership rights to the Property. Id. at 15-16.

[15] The Hamiltons timely answered the complaint, and in addition to their general admissions and denials, the Hamiltons counterclaimed to quiet title in their favor. They alleged that they were bona fide purchasers of the Property, having purchased it from the Bell Heirs, in good faith, for a valuable consideration and without notice, after first obtaining two property record searches. Reno thereafter filed a motion for summary judgment, asserting that his Sheriff's Deed was first in time and that the Hamiltons were not bona fide purchasers for value. His motion acknowledged that the unrecorded Sheriff's Deed "may on the surface create a gap in the chain of title," but that the Hamiltons had "actual notice of [ ] Reno's interest in the subject real estate due to [his] continuous possession of said real estate." Id. at 69. The trial court denied Reno's motion by summary order, finding that genuine issues of material fact existed. The matter proceeded to bench trial on July 27, 2017.

[16] Sonia K. Bell-Brenizer ("Sonia"), one of Stephen W. Bell's children, testified telephonically at the bench trial. She was aware that her deceased father had a home on the Property, but she had never been to it or seen it; she moved to Indiana in 2006, after his death. She stated that he did not have a will when he died. She was not aware of the previous mortgage foreclosure action, in which she and her siblings were named as defendants. Tr. Vol. II at 56. Sonia stated that in 2012 or after, she was contacted by someone by phone who left a message on her answering machine, which message led to Sonia's sister, Stephanie, calling the Hamiltons to discuss with them whether they had an interest in buying her deceased father's property. Thereafter, the Bell Heirs met the Hamiltons at the Hamiltons' attorney's office in February 2012, and, Sonia explained, the Bell Heirs were shown a proposed deed transferring title from them, as surviving heirs, to the Hamiltons, and the Hamiltons offered to pay them $4,000 for the Property. Sonia testified that owning the Property was "a surprise to us" and "at first, we told them, well, ... we don't know anything about this land[,]" but that "[t]hey said they did several title searches and it fell back on my father's name" and therefore, after he died, to the four children. Id. at 59, 66, 68; see also id. at 68 ("They said that they had ran those titles back several times and it kept coming back in our father's name.").

[17] Reno testified that, with McKown's assistance, he bid on and purchased the Property at a sheriff's sale in 2006, that the Sheriff's Deed thereafter was mailed to him, but, at that time, he was recovering from surgery and an employee got his mail and put it in a lock box. Id. at 80. Reno testified that he assumed the deed had been recorded, noting that this was the first sheriff's sale that he ever attended and that when it arrived, it came in an official envelope that he believed was from the courthouse. Id. at 80-81, 85, 103. Reno explained that it was not until April 2012, when Cathy approached him and told him that the Hamiltons bought the Property, that he looked for and found the Sheriff's Deed. Id. at 81.

[18] On cross-examination, Reno acknowledged that he knew at the time of the 2006 sheriff's sale that it was his responsibility to record the Sheriff's Deed. Id. at 102. When he was questioned about the fact that, in 2010 when he redeemed the Property, it was still in Bell's name but he did not do anything about it, Reno asserted, "I hadn't had my deed yet" because it was still "locked up" in another location, where his employee had placed it when it came in the mail. Id. at 182. Counsel asked, "But that is no fault of the Hamilton[ ]s, is it?" and he replied, "That's no fault of mine either." Id. Reno also confirmed that he did not pay timely the property taxes on the Property after purchasing it at the sheriff's sale, until he paid in 2010, within the one-year redemption period. Id at 106. He also did not timely pay them after that, resulting in delinquent taxes being owed when the Hamiltons purchased the Property in February 2012. With regard to taxes, Reno stated that he knew "how [the redemption period] works. I know I got a year and I don't worry about it." Id. at 117. With regard to the Hamiltons' 2012 purchase of the Property, Reno acknowledged that his Sheriff's Deed was not "ever put in the chain of title," but maintained, "[The Hamiltons] didn't have no knowledge of my deed, but they had knowledge that I owned it," which knowledge was based on his use of it and what Reno believed other people, including McKown, had told the Hamiltons. Id. at 105.

[19] Cathy testified that before purchasing the Property, the Hamiltons had two title searches conducted, and there was no record of Reno owning the Property. She acknowledged having heard "rumors" that Reno had an ownership interest in the Property, but that was not reflected in their title searches. Id. at 133. She also testified that the advertisement for the 2009 Tax Sale indicated that Bell, not Reno, owned it. She stated that, after they had purchased the Property, and after Reno had told her that he owned the Property, the Hamiltons had a third title search done, and a copy of the unrecorded Sheriff's Deed was found in the Clerk's office in a file, "not in a judgment index or anything." Id. at 144. Cathy testified that she and her husband were "absolutely" dealing with Bell Heirs in good faith when the Hamiltons met and purchased the Property. Id. at 134. When asked whether she or her husband had hired a private detective to locate and contact the Bell Heirs, Cathy said, "Not for this or anything else in our entire life." Id. at 135. She testified that she, her husband, and to her knowledge, her attorney had "absolutely nothing" to do with finding the Bell Heirs. Id. at 150. With regard to whether the Hamiltons would be willing to convey a strip of land in fee simple to Reno for purposes of ingress and egress, she replied, "[O]f course, we would do that. We'd convey that to him[,]" and they would pay to have it surveyed and the deed prepared. Id.

[20] Dennis testified about the legal notice for the 2009 Tax Sale, which identified Bell as the owner, and about his attendance at the 2009 Tax Sale and purchase of the Property. With regard to whether McKown had approached Dennis at the 2009 Tax Sale and told him that Reno owned it, Dennis stated that he remembered that "a gentleman came up to me and said someone else is interested in this property," but did not identify by name the someone else. Id. at 158. Dennis said that he understood McKown's statements to mean that someone else thought that they owned it. Based on those comments, Dennis stated that he and Cathy hired a lawyer and had a title search conducted, which did not reflect any owner besides Bell. Dennis stated that sometime after the Property was redeemed, one of the Bell Heirs telephoned the Hamiltons, stating that they had heard that the Hamiltons "were possibly interested in that land" and asked if the Hamiltons would be interested in purchasing it from them. Id. at 160. In preparation for meeting with the Bell Heirs on February 3, 2012, the Hamiltons had the second title search completed and had their attorney prepare an Affidavit of Transfer of Real Estate for the Bell Heirs' signatures as well as a Warranty Deed. Dennis said that they paid $1,000 to each of the four Bell Heirs and also paid delinquent property taxes.

[21] On cross examination, Dennis acknowledged that, before buying the Property from the Bell Heirs, he knew that Reno owned the salvage yard near the Property and knew that Reno's driveway to the salvage yard was on the Property. Id. at 169. Dennis stated when the Property was redeemed in October 2010, following his purchase of it at the 2009 Tax Sale, he went to the county courthouse and asked who had redeemed the tax certificate and was told that Reno had redeemed it. Id. at 170.

[22] The trial court took the matter under advisement, and both parties submitted their respective proposed findings, orders, and judgments. Appellant's App. Vol. 2 at 147-66. The trial court, on September 1, 2017, entered its findings of fact, conclusions of law, and judgment. Id. at 121-40. It denied relief to Reno and awarded fee simple ownership and possession of the Property to the Hamiltons, determining that the Hamiltons were bona fide purchasers who purchased the real estate in good faith, for valuable consideration, and without notice of any outstanding legal right of Reno. Id. at 137. The Order reflected that the Hamiltons agreed to execute a warranty deed to Reno, conveying in fee simple a strip of land sixteen feet wide across one parcel of land, in order to allow Reno to have full access to his property, and the Hamiltons agreed to have the necessary survey prepared at the Hamiltons' expense. Reno filed a motion to correct error, alleging newly discovered evidence, and the trial court denied the motion. Reno now appeals.

Discussion and Decision

[23] Reno filed a complaint to, as is relevant here, quiet title in his favor as to the Property. Because Reno did not prevail at trial, he appeals from a negative judgment. Smith v. Dermatology Assocs. of Fort Wayne, P.C. , 977 N.E.2d 1, 4 (Ind. Ct. App. 2012) (judgment entered against a party who bore the burden of proof at trial is a negative judgment). On appeal, we will not reverse a negative judgment unless it is contrary to law. Id. "A judgment is contrary to law when the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to only one conclusion, but the trial court reached a different conclusion." Clark v. Crowe , 778 N.E.2d 835, 839 (Ind. Ct. App. 2002).

[24] When the trial court has entered findings of fact and conclusions of law pursuant to Indiana Trial Rule 52 we apply the following two-tier standard of review: whether the evidence supports the findings and whether the findings support the judgment. Id. The court's findings and conclusions will be set aside only if they are clearly erroneous, that is, that the record contains no facts or inferences supporting them. Id. at 839-40. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. at 840. We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Id.

[25] Reno asserts that he had valid title to the Property by virtue of the Sheriff's Deed and that the trial court erred when it did not quiet title in his favor. He argues that "[t]he law in Indiana is that 'recording does not establish ownership, and whether or not a deed is recorded has no effect on its validity.' " Appellant's Br. at 14 (citing to Patterson v. Seavoy , 822 N.E.2d 206, 211 (Ind. Ct. App. 2005) ). There is nothing in the record before us to indicate that the Sheriff's Deed did not give Reno valid title to the Property. However, because Reno never recorded it, we find no error with the trial court's refusal to quiet title in his favor.

[26] Indiana Code section 32-21-4-1 provides, in part:

(a) The following must be recorded in the recorder's office of the county where the land is situated:
(1) A conveyance or mortgage of land or of any interest in land.
(2) A lease for more than three (3) years.
(b) A conveyance, mortgage, or lease takes priority according to the time of its filing. The conveyance, mortgage, or lease is fraudulent and void as against any subsequent purchaser, lessee, or mortgagee in good faith and for a valuable consideration if the purchaser's, lessee's, or mortgagee's deed, mortgage, or lease is first recorded.

" 'The purpose of the recording statute is to provide protection to subsequent purchasers, lessees, and mortgagees.' " Kumar v. Bay Bridge, LLC , 903 N.E.2d 114, 116 (Ind. Ct. App. 2009) (quoting Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 774 (Ind. Ct. App. 2003) ). Indiana is a race-notice state, and instruments will have priority according to the time of the filing thereof. Meyer , 797 N.E.2d at 774.

[27] Consistent with the recording statute, Indiana recognizes the bona fide purchaser doctrine. Kumar , 903 N.E.2d at 116. " '[T]o qualify as a bona fide purchaser, one has to purchase in good faith, for a valuable consideration, and without notice of the outstanding rights of others.' " Id. (quoting Keybank Nat'l Ass'n v. NBD Bank, 699 N.E.2d 322, 327 (Ind. Ct. App. 1998) ). A record outside the chain of title does not provide notice to bona fide purchasers for value. Meyer , 797 N.E.2d at 774.

[28] Here, Reno conveyed the Property to his friend, Bell, in October 2000. Bell recorded the deed, and Bell used his ownership of the Property as collateral to secure a loan or mortgage from the bank. Bell died in 2005, his loan fell into default, and the Property was auctioned at a sheriff's sale in July 2006. Reno, with McKown's assistance, purchased it at the July 2006 sheriff's sale for $500. A Sheriff's Deed for the Property was mailed to Reno, and, while his testimony is somewhat conflicting as what exactly happened to the Sheriff's Deed, it is undisputed that Reno never recorded it, despite the fact that for several years, he received tax notices that arrived addressed to Bell "in care of" Reno, which arguably should have alerted Reno to the fact that Bell's name was still associated with the Property as an owner. Tr. Vol. II at 176. Yet, Reno did nothing to inquire about or rectify that.

[29] In October 2009, a legal notice appeared in the local newspaper indicating that the Property was going to be sold at an upcoming tax sale due to unpaid taxes, and the published legal notice listed Bell, not Reno, as the owner. Appellees' App. Vol. 2 at 2. Because the Property was adjacent to Cathy's mother's home, and in proximity to the Hamiltons' home, Dennis attended the 2009 Tax Sale and purchased a tax certificate for the Property. In December 2010, just a few days before the expiration of the one-year redemption period, Reno redeemed the Property by paying the taxes owed. Because Reno had never recorded his Sheriff's Deed, it is undisputed that the effect of his redemption returned title and ownership to then-deceased Bell. Once the Property was redeemed, the Hamiltons did nothing more to obtain the Property until receiving a phone call in January 2012 from one of the Bell Heirs, inquiring about the Hamiltons' interest in purchasing the Property. The Hamiltons obtained another title search that reflected record title of the Property being "Heirs at Law of Stephen Wayne Bell, deceased." Appellees' App. Vol. 2 at 4. On February 3, 2012, the Hamiltons paid $4,000 to the Bell Heirs for the Property, and the Hamiltons also paid delinquent taxes.

[30] Reno maintains the Hamiltons did not qualify as bona fide purchasers without notice because, at a minimum, they should have known that he already owned the Property. Reno argues that there were "numerous 'clues' " that would have "put the Hamiltons on inquiry notice that [ ] Reno actually owned the subject [P]roperty[,]" including that (1) he conspicuously kept personal property on it, and (2) other people, including McKown, had told the Hamiltons about Reno's ownership interest. Appellant's Br. at 17. Reno suggests that the Hamiltons "could have simply asked" him if he owned it, could have called MainSource "to find out what happened to [Bell]'s mortgage"; or "entered the names of the Bell [H]eirs into Doxpop or Odyssey." Id. at 18; Reply Br. at 5-6. However, we are unwilling to place those requirements on a potential purchaser. Rather, we have previously held, "A "purchaser of real estate 'is presumed to have examined the records of such deeds as constitute the chain of title thereto under which he claims, and is charged with notice, actual or constructive, of all facts recited in such records showing encumbrances, or the non-payment of purchase-money.' " Kumar , 903 N.E.2d at 116-17 (quoting Bank of New York v. Nally, 820 N.E.2d 644, 648 (Ind. 2005) ). Here, the Hamiltons acknowledged that they had heard rumors or had been told by McKown that Reno may have an interest, and precisely because of that, they paid for two title searches, both of which indicated that Bell or his heirs were the title owners of the Property and reflected nothing about the sheriff's sale or Reno's Sheriff's Deed. Given the record before us, we, like the trial court, find that the Hamiltons were bona find purchasers for value who purchased without notice of Reno's interest.

[31] To the extent that Bell asserts that the Hamiltons' warranty deed is "a worthless piece of paper" because the Bell Heirs lost any interest they had in the July 2006 sheriff's sale, Appellant's Br. at 22, there is no indication that the Hamiltons were aware of the sale, which we observe occurred before they moved back to the area in 2007, and no evidence that the Bell Heirs knew about the foreclosure or the sheriff's sale. Indeed, the evidence presented was that the Bell Heirs knew very little about the Property and were somewhat "surprise[d]" to learn about their ownership, but it was confirmed in the Hamiltons' title search. Tr. Vol. II at 59.

[32] Simply put, Reno was responsible for recording the 2006 Sheriff's deed, and he did not do so, despite knowing that recording deeds is necessary and despite continuing to receive tax bills in Bell's name. As a result of Reno's failure to record it, there was never any change in ownership reflected in the legal chain of title. Thus, pursuant to Indiana Code section 32-21-4-1(b), the Hamiltons' 2012 deed took priority over Reno's unrecorded 2006 Sheriff's Deed. Accordingly, the trial court's judgment, in favor of the Hamiltons and against Reno, is not contrary to law.

[33] Affirmed.

[34] Baker, J., and Bradford, J., concur.

      We note that Reno cites to various exhibits in his Appellant's Brief. See Appellant's Br. at 7-12 (citing to various of Plaintiff's and Defendant's exhibits from trial). Although a table of contents of exhibits was filed with this Court, the exhibits themselves were not. However, because we find that copies of the pertinent documents are included in the parties' appendices, we are able to review the case.

      The judgment was in rem only and thus was not a judgment against the Bell Heirs personally.

      "[A] purchaser of Indiana real property that is sold for delinquent taxes initially receives a certificate of sale.... Thereafter, a one-year redemption period ensues." In re 2002 Lake Cty. Tax Sale of Real Prop. With Delinquent Taxes or Special Assessments Tax I.D. No. 16-27-0122-0026., 818 N.E.2d 505, 508 (Ind. Ct. App. 2004) (citing to Indiana Code sections 6-1.1-25-1 and 6-1.1-25-4 ).

      The Bell Heirs did not file any responsive pleading to Reno's complaint.

      The record before us indicates that a prior bench trial was held on June 30, 2016, Reno thereafter filed a motion for new trial, and, according to the CCS, the request was granted in December 2016, with the second trial occurring on July 27, 2017. Appellant's App. Vol. 2 at 7, 8, 90, 174; see also Tr. Vol. II at 10 (recognizing at July 2017 trial that "we're trying this for a second time").

      Reno generally stated that his employee retrieved the Sheriff's Deed when it came in the mail and that employee put it in a lock box, and Reno did not look for it, or even see it, until April 2012 when he searched for the deed because Cathy told him that the Hamiltons purchased the Property. Tr. Vol. II at 79-81, 103, 182. However, Reno also stated, "I just got the deed, opened it, seen it, put it in the safe[,]" and it is not clear whether Reno was referring to when it came in the mail in 2006 or, later, in April 2012. Id. at 95.

      Reno suggests that MainSource Bank's mortgage foreclosure action and the in rem judgment should have been "a red flag" to a reasonable person, indicating that "there may be a problem with title." Reply Br at 6; id. at 7 (stating that the Hamiltons or their advisors had a duty to investigate how the MainSource mortgage was satisfied, whether paid off or foreclosed upon). To the extent that this is a claim that the Hamiltons' title searches were not done correctly or completely, we find that any challenge to the propriety of those searches is outside the scope of this appeal.

      Reno asserts on appeal that "There was little or no concern for the damage done to Reno because he did not record his Sheriff's Deed." Appellant's Br. at 19. We are not unsympathetic to Reno's frustration associated with the five years of litigation over the Property, but we disagree that there was "no concern" for his interests. The Hamiltons agreed to convey a strip of land in fee simple to Reno for him to use for his driveway, and they agreed to have the necessary survey prepared at their expense, which the trial court incorporated into its order.


text:
    Brittani WHITLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1706-CR-1371
    Court of Appeals of Indiana.
    FILED May 24, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

KIRSCH, J., Concurs.

BAILEY, J., Concurs.


author: MAY, J.

text:
    Margarita RUIZ, Appellant-Petitioner, v. Pedro J. TIRADO, Appellee-Respondent
    Court of Appeals Case No. 45A03-1709-DR-2249
    Court of Appeals of Indiana.
    FILED May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MAY, J.

Affirmed and remanded.

VAIDIK, C.J., Concurs.

ALTICE, J., Concurs.


author: BROWN, J.

text:
    Cory Lee WOODY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1710-CR-2423
    Court of Appeals of Indiana.
    FILED May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

BAILEY, J., Concurs.

CRONE, J., Concurs.


author: BARNES, J.

text:
    In the MATTER OF the Termination of Parental Rights of: F.J., C.O., J.O., & M.O., (Children), and M.O., (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 17A-JT-3036
    Court of Appeals of Indiana.
    Filed May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BARNES, J.

Affirmed.

VAIDIK, C.J., Concurs.

PYLE, J., Concurs.


text:
    Micah LMINGGIO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 79A02-1710-PC-2443
    Court of Appeals of Indiana.
    Filed May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BARNES, J.

Affirmed.

VAIDIK, C.J., Concurs.

PYLE, J., Concurs.


text:
    Kevin Derek RILEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 45A05-1708-CR-1821
    Court of Appeals of Indiana.
    FILED May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MAY, J.

Affirmed.

RILEY, J., Concurs.

MATHIAS, J., Concurs.


author: ALTICE, J.

text:
    Spencer Michael SPIELMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 30A05-1709-CR-2096
    Court of Appeals of Indiana.
    FILED May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ALTICE, J.

Affirmed.

NAJAM, J., Concurs.

ROBB, J., Concurs.


author: KIRSCH, J.

text:
    Dominic F. TRIPOLI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-193
    Court of Appeals of Indiana.
    FILED May 24, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

BAKER, J., Concurs.

BRADFORD, J., Concurs.


text:
    STATE of Indiana, Appellant-Plaintiff, v. Deana Lane GADDY, Appellee-Defendant.
    Court of Appeals Case No. 10A01-1712-CR-2894
    Court of Appeals of Indiana.
    FILED May 24, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Reversed and remanded.

BAILEY, J., Concurs.

CRONE, J., Concurs.


text:
    In the Matter of the Termination of the Parent-Child Relationship of A.B., Father, and B.B., Minor Child, A.B., Appellant-Respondent, v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner.
    Court of Appeals Case No. 19A01-1712-JT-2972
    Court of Appeals of Indiana.
    FILED May 24, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

BAKER, J., Concurs.

BRADFORD, J., Concurs.


author: BAKER, J.

text:
    Christopher JUSTICE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A02-1709-CR-2104
    Court of Appeals of Indiana.
    Filed May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

KIRSCH, J., Concurs.

BRADFORD, J., Concurs.


author: RILEY, J.

text:
    Joshua Cole SMITH, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 18A-PC-73
    Court of Appeals of Indiana.
    FILED May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

MAY, J., Concurs.

MATHIAS, J., Concurs.


text:
    Raymond MARLING, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 40A01-1711-PC-2620
    Court of Appeals of Indiana.
    Filed May 25, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

BAILEY, J., Concurs.

CRONE, J., Concurs.


author: NAJAM, J.

text:
    Garland P. JEFFERS, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 64A03-1710-CR-2324
    Court of Appeals of Indiana.
    Filed May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

ROBB, J., Concurs.

ALTICE, J., Concurs.


text:
    Gary HANKS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    Court of Appeals Case No. 10A01-1712-PC-2780
    Court of Appeals of Indiana.
    Filed May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

BAKER, J., Concurs.

BRADFORD, J., Concurs.


text:
    Michael YOUNG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 71A04-1708-CR-1867
    Court of Appeals of Indiana.
    Filed May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BARNES, J.

Affirmed.

VAIDIK, C.J., Concurs.

PYLE, J., Concurs.


author: VAIDIK, C.J., Concurs.

text:
    Joseph CHAPO and Sherry Chapo, Appellants-Defendants, v. JEFFERSON COUNTY PLAN COMMISSION, Appellee-Plaintiff.
    Court of Appeals Case No. 39A05-1612-CT-2840
    Court of Appeals of Indiana.
    FILED May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
    FRIEDLANDER, Sr.J.
    Affirmed.
   VAIDIK, C.J., Concurs.

BROWN, J., Concurs.


author: ROBB, J.

text:
    Tracey A. HARDY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 20A03-1708-PC-1992
    Court of Appeals of Indiana.
    Filed May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

NAJAM, J., Concurs.

ALTICE, J., Concurs.


text:
    In the MATTER OF the INVOLUNTARY TERMINATION OF the PARENT-CHILD RELATIONSHIP OF: N.C. (Minor Child) and T.C. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner, and Child Advocates, Inc., Guardian Ad Litem.
    Court of Appeals Case No. 49A02-1712-JT-2846
    Court of Appeals of Indiana.
    Filed May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

NAJAM, J., Concurs.

ALTICE, J., Concurs.


author: VAIDIK, C.J.

text:
    Daryl Clifton BRADLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 40A01-1710-CR-2310
    Court of Appeals of Indiana.
    FILED May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   VAIDIK, C.J.

Affirmed.

BARNES, J., Concurs.

PYLE, J., Concurs.


text:
    Larry MARTIN, Appellant, v. Gino BURELLI, Appellee.
    Court of Appeals Case No. 18A-MI-25
    Court of Appeals of Indiana.
    Filed May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BARNES, J.

Remanded.

VAIDIK, C.J., Concurs.

PYLE, J., Concurs.


text:
    Markquan LEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 48A02-1712-CR-2988
    Court of Appeals of Indiana.
    FILED May 29, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   VAIDIK, C.J.

Affirmed and remanded.

BARNES, J., Concurs.

PYLE, J., Concurs.


author: CRONE, J.

text:
    In the MATTER OF the 2013 LAKE COUNTY, INDIANA REAL ESTATE TAX SALE:
    Jennifer Brozak, Appellant-Respondent, and Barden Procurement Group, LLC, Respondent, v. Wintering, LLC, Appellee-Petitioner, and BMO Harris Bank, NA, Appellee-Petitioner/Intervenor
    Court of Appeals Case No. 45A05-1711-MI-2674
    Court of Appeals of Indiana.
    Filed May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

BAILEY, J., Concurs.

BROWN, J., Concurs.


text:
    Jody A. CLIVER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-194
    Court of Appeals of Indiana.
    FILED May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   NAJAM, J.

Affirmed.

ROBB, J., Concurs.

ALTICE, J., Concurs.


text:
    J.C., Appellant-Petitioner, v. E.C., Appellee-Respondent
    Court of Appeals Case No. 65A01-1712-DR-2978
    Court of Appeals of Indiana.
    Filed May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

BAILEY, J., Concurs.

BROWN, J., Concurs.


author: BRADFORD, J.

text:
    IN RE the Matter of the Termination of the Parent-Child Relationship of: N.M., R.M., Jr., L.M., and T.M. (Minor Children) and R.B. (Mother) and R.M. (Father), Appellants-Respondents, v. Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JT-91
    Court of Appeals of Indiana.
    FILED May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BRADFORD, J.

Affirmed.

BAKER, J., Concurs.

KIRSCH, J., Concurs.


text:
    David JOHNSON, IV, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 45A05-1710-CR-2434
    Court of Appeals of Indiana.
    FILED May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

KIRSCH, J., Concurs.

BRADFORD, J., Concurs.


author: MATHIAS, J.

text:
    James W. GEARY, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 34A02-1711-CR-2724
    Court of Appeals of Indiana.
    Filed May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

RILEY, J., Concurs.

MAY, J., Concurs.


text:
    Dustin Eugene HARPRING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 73A01-1711-CR-2693
    Court of Appeals of Indiana.
    FILED May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed and remanded.

BAILEY, J., Concurs.

BROWN, J., Concurs.


text:
    IN RE the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF L.S., C.H., and A.H. (Minor Children), and L.H. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 90A05-1712-JT-2954
    Court of Appeals of Indiana.
    FILED May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

RILEY, J., Concurs.

MAY, J., Concurs.

1

--------


text:
    In re the MATTER OF M.C. (Minor Child),
    J.C. (Father), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    Court of Appeals Case No. 31A01-1712-JC-2973
    Court of Appeals of Indiana.
    Filed May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

RILEY, J., Concurs.

MAY, J., Concurs.


text:
    Elaine DAVEY, Appellant-Plaintiff, v. Richard E. BOSTON, Appellee-Defendant
    Court of Appeals Case No. 89A01-1712-PL-2955
    Court of Appeals of Indiana.
    FILED May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Reversed and remanded.

KIRSCH, J., Concurs.

BRADFORD, J., Concurs.


text:
    IN RE ADOPTION OF A.R.,
    S.R., Appellant-Respondent, v. J.W., Appellee-Petitioner.
    Court of Appeals Case No. 82A01-1710-AD-2426
    Court of Appeals of Indiana.
    Filed May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MATHIAS, J.

Affirmed.

RILEY, J., Concurs.

MAY, J., Concurs.


text:
    In the MATTER OF the INVOLUNTARY TERMINATION OF the PARENT-CHILD RELATIONSHIP OF C.M., A.M. and Z.M. (Minor Children), and N.M. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 34A02-1711-JT-2578
    Court of Appeals of Indiana.
    FILED May 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

BAILEY, J., Concurs.

BROWN, J., Concurs.


author: BAILEY, J.

text:
    Sarah R. SCHNIEB, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 08A02-1710-CR-2403
    Court of Appeals of Indiana.
    Filed May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAILEY, J.

Affirmed.

CRONE, J., Concurs.

BROWN, J., Concurs.


text:
    Daniel LOPEZ-CASTILLO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 02A03-1711-CR-2783
    Court of Appeals of Indiana.
    Filed May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BRADFORD, J.

Affirmed.

BAKER, J., Concurs.

KIRSCH, J., Concurs.


text:
    Thomas SNEED, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 02A03-1712-CR-2966
    Court of Appeals of Indiana.
    Filed May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

MAY, J., Concurs.

MATHIAS, J., Concurs.


text:
    Andrew BIGGS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 71A05-1709-CR-2128
    Court of Appeals of Indiana.
    FILED May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   MAY, J.

Affirmed.

RILEY, J., Concurs.

MATHIAS, J., Concurs.


text:
    Eddie J. BATES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Cause No. 20A05-1712-CR-2791
    Court of Appeals of Indiana.
    Filed May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

MAY, J., Concurs.

MATHIAS, J., Concurs.


author: PYLE, J.

text:
    Jacob M. PASTERNAC and Rainbow Community, Inc., Appellants-Defendants, v. Robert A. HARRIS, TWG Merrill, LLC, BPRS Green Acres, LLC, and Weiner Green Acres, LLC, Appellees/Cross-Appellants-Plaintiffs.
    Court of Appeals Case No. 46A05-1704-MI-816
    Court of Appeals of Indiana.
    FILED May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Reversed and remanded with instructions.

RILEY, J., Concurs.

ROBB, J., Concurs.


text:
    Brandon D. METTLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 35A02-1711-CR-2742
    Court of Appeals of Indiana.
    FILED May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

BAILEY, J., Concurs.

BROWN, J., Concurs.


text:
    James R. MARTZ, Sr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 02A03-1712-CR-2979
    Court of Appeals of Indiana.
    FILED May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

VAIDIK, C.J., Concurs.

BARNES, J., Concurs.


text:
    Darryl ABRON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A04-1709-CR-2318
    Court of Appeals of Indiana.
    FILED May 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAKER, J.

Affirmed.

KIRSCH, J., Concurs.

BRADFORD, J., Concurs.


author: LOWY, J. BUDD, J. (concurring).

text:
    COMMONWEALTH v. Jason ROBINSON.
    SJC-09265
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued January 10, 2018 Decided July 26, 2018
    Paul B. Linn, Assistant District Attorney, for the Commonwealth.
    Rosemary Curran Scapicchio, Boston, for the defendant.
    Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
   LOWY, J.

The issue before us is whether a defendant who failed to raise a timely objection to an improper court room closure at trial nevertheless preserved the claim by raising the issue for the first time in his motion for a new trial, thirteen years after his convictions. Otherwise stated, by failing to raise the claim at trial, did the defendant "procedurally waive" his entitlement to the standard of review designated for preserved and meritorious claims of structural error, regardless of whether counsel and the defendant were subjectively unaware that the court room had been closed at trial? We answer the question in the affirmative: where a defendant fails to raise a timely objection to such a closure at trial, thus depriving the judge of the opportunity to either fix the error or analyze the closure under the standard set forth in Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the defendant forfeits or procedurally waives review of his or her claim under the standard designated for preserved claims of structural error. We emphasize that, although a defendant who fails to object to the closure at trial forfeits or procedurally waives the more favorable standard of review, the defendant does not waive the right to raise the claim. We review unpreserved court room closure claims to determine whether the improper closure created a substantial risk of a miscarriage of justice. Because we conclude that the defendant's claim was not preserved, the grant of the defendant's motion for a new trial must be reversed.

Background. In 2002, a jury in the Superior Court in Suffolk County convicted the defendant of murder in the first degree on a felony-murder theory, armed robbery, and unlawful possession of a firearm. Approximately thirteen years after he had been convicted, the defendant filed his first motion for a new trial, claiming that his Sixth Amendment right to a public trial had been violated because the court room had been improperly closed during jury empanelment. The defendant did not claim that his counsel had been ineffective for failing to object to the closure at trial. This was the first time that the defendant raised the claim, as his trial counsel had not objected to the closure at any point during trial.

Following an evidentiary hearing on the defendant's motion for a new trial, the motion judge (the trial judge having since retired) concluded that court officers had impermissibly closed the court room during jury empanelment and had excluded members of the public from entering the court room, including the defendant's family. The judge found that defense counsel did not object to the closure because neither counsel nor the defendant was aware that the court room had been closed during empanelment; the trial judge did not order the court room closure, nor was she aware of it. Defense counsel's focus on the jury selection process, according to the judge, was the reason counsel was unaware of the court room closure.

Although counsel was aware that court rooms in the Commonwealth would occasionally close during empanelment to accommodate large venires, counsel was unaware whether this was a practice in Suffolk County court rooms at the time of the defendant's trial. Similarly, counsel was unaware that the Sixth Amendment right to a public trial extended to jury empanelment. As a result, counsel stated, and the judge credited, that if he knew that the defendant's family members had been barred from the court room during jury selection, "he would have asked that they be admitted, but probably would not have made any other kind of objection."

The judge determined that because the defendant and his counsel were unaware that the court room had been closed during empanelment, counsel's failure to contemporaneously object to the closure did not constitute a procedural waiver of his Sixth Amendment public trial claim. Instead, the judge concluded that the defendant preserved his claim by raising it in his first motion for a new trial, which was filed while his direct appeal was pending in this court. The motion judge did not examine whether the defendant and counsel, as a factual matter, had an opportunity to perceive that members of the public had been excluded from the court room or that only prospective jurors were present during empanelment, or whether they otherwise should have perceived the exclusion of the public from the court room during empanelment. Construing the defendant's claim as a preserved structural error, the judge granted the defendant's motion for a new trial.

Discussion. The Commonwealth contends that the judge erroneously concluded that the defendant's Sixth Amendment public trial claim had not been procedurally waived despite counsel's failure to lodge a contemporaneous objection at trial to the closed court room. We agree.

We review the disposition of a motion for a new trial for "a significant error of law or other abuse of discretion." Commonwealth v. Forte, 469 Mass. 469, 488, 14 N.E.3d 900 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986).

The Sixth Amendment right to a public trial extends to the jury selection process, and a violation of that right constitutes structural error. See Weaver v. Massachusetts, --- U.S. ----, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017) ; Commonwealth v. Wall, 469 Mass. 652, 672, 15 N.E.3d 708 (2014) ; Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105-106, 921 N.E.2d 906 (2010). See also Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). It is similarly well settled that "[w]here a defendant timely raises and preserves a meritorious claim of structural error, this court 'will presume prejudice and reversal is automatic.' " Commonwealth v. Jackson, 471 Mass. 262, 268, 28 N.E.3d 437 (2015), cert. denied, --- U.S. ----, 136 S.Ct. 1158, 194 L.Ed.2d 187 (2016), quoting Commonwealth v. LaChance, 469 Mass. 854, 857, 17 N.E.3d 1101 (2014), cert. denied, --- U.S. ----, 136 S.Ct. 317, 193 L.Ed.2d 227 (2015). See Weaver, supra ("in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to 'automatic reversal' regardless of the error's actual 'effect on the outcome' " [emphasis added; citation omitted] ).

Notwithstanding the importance of the right to a public trial, it, "like other structural rights, can be waived" (citation omitted). Cohen (No. 1), 456 Mass. at 105-106, 921 N.E.2d 906. "Where counsel fails to lodge a timely objection to the closure of the court room, the defendant's claim of error is deemed to be procedurally waived." LaChance, 469 Mass. at 857, 17 N.E.3d 1101. See Commonwealth v. Alebord, 467 Mass. 106, 112, 4 N.E.3d 248, cert. denied, --- U.S. ----, 134 S.Ct. 2830, 189 L.Ed.2d 793 (2014). A claim is procedurally waived regardless of whether counsel's failure to object to the closure was a tactical decision or "where the failure to object is inadvertent." Commonwealth v. Lang, 473 Mass. 1, 9, 38 N.E.3d 262 (2015), quoting Wall, 469 Mass. at 672, 15 N.E.3d 708. See Commonwealth v. Morganti, 467 Mass. 96, 102, 4 N.E.3d 241, cert. denied, --- U.S. ----, 135 S.Ct. 356, 190 L.Ed.2d 251 (2014) (inadvertent procedural waiver where no tactical reason for counsel's failure to object). See also Commonwealth v. Vargas, 475 Mass. 338, 357, 57 N.E.3d 920 (2016) ("Such waiver need not be consented to by the defendant"). Indeed, a claim is procedurally waived "whenever a litigant fails to make a timely objection," including where counsel was unaware of the court room closure. Jackson, 471 Mass. at 269, 28 N.E.3d 437, quoting Wall, supra.

In reviewing a defendant's claim that the court room was improperly closed, the threshold inquiry is whether that claim was properly preserved at the time of the alleged closure. This court recently observed that in Weaver, 137 S.Ct. at 1910-1912, "the United States Supreme Court distinguished sharply between preserved and unpreserved errors on appeal." Commonwealth v. Kolenovic, 478 Mass. 189, 203, 84 N.E.3d 781 (2017). Reaffirming the principle that a contemporaneous objection to an offending court room closure is required to preserve the claim, we held that the dispositive inquiry is "not whether the claim was made in the direct appeal or in the motion for new trial, but rather whether the court room closure issue was preserved at trial" (emphasis added). Id. at 203 n.13, 84 N.E.3d 781. A contemporaneous objection is indispensable for purposes of preserving the claimed error on appeal because when the alleged error is raised contemporaneously with the closure, "the trial court can either order the court room opened or explain the reasons for keeping it closed." Weaver, supra at 1912.

Furthermore, a contemporaneous objection to an improper court room closure also creates a record that can be directly reviewed by an appellate court without the need for collateral proceedings to develop the court room closure issue. See Weaver, 137 S.Ct. at 1912 (when appellate courts adjudicate preserved errors raised on direct appeal, "the systemic costs of remedying the error are diminished to some extent ... because, if a new trial is ordered on direct review, there may be a reasonable chance that not too much time will have elapsed for witness memories still to be accurate and physical evidence not to be lost"). Absent a contemporaneous objection to the court room closure at trial, concluding that a claim is preserved "would tear the fabric of our well-established waiver jurisprudence ... and would defeat the core purposes of the waiver doctrine: to protect society's interest in the finality of its judicial decisions, and to promote judicial efficiency." LaChance, 469 Mass. at 858, 17 N.E.3d 1101, quoting Morganti, 467 Mass. at 102, 4 N.E.3d 241. See Commonwealth v. Randolph, 438 Mass. 290, 294, 780 N.E.2d 58 (2002). Our waiver doctrine prevents claims that are raised for the first time in postconviction proceedings from "function[ing] as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, thus undermining the finality of jury verdicts" (quotation and citation omitted). Weaver, supra.

The principles underpinning the doctrine of procedural waiver are deeply ingrained in our jurisprudence, and were recently reaffirmed by the United States Supreme Court in Weaver, 137 S.Ct. at 1912. As stated, analyzing whether a claimed error was properly preserved depends on whether the defendant contemporaneously objected to the closure at trial. See Jackson, 471 Mass. at 268-269, 28 N.E.3d 437. Indeed, only where a defendant raises a contemporaneous objection to an improper court room closure at trial has this court held that the defendant's claimed Sixth Amendment public trial violation was preserved. See Cohen (No. 1), 456 Mass. at 118, 921 N.E.2d 906. In that case, the defendant objected to the court room closure when defense counsel first discovered that the court officers had placed a sign on the court room door stating, "Jury empanelment Do not enter." Id. at 98, 921 N.E.2d 906. We concluded that the defendant properly preserved the public trial error because he objected "at a time when the violation could have been remedied by beginning the empanelment process anew." Id. at 118 n.35, 921 N.E.2d 906, citing Commonwealth v. McDuffee, 379 Mass. 353, 359, 398 N.E.2d 463 (1979) (noting that "rationale behind the requirement of a specific exception is to enable the judge to make any necessary correction"). See Commonwealth v. Lavoie, 464 Mass. 83, 89 n.11, 981 N.E.2d 192, cert. denied, 569 U.S. 981, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013) (noting that defendant's claim was factually different from claim in Cohen (No. 1)"in at least one important respect: Cohen's defense counsel objected to the court room closure at his trial").

Conversely, where a defendant fails to contemporaneously object to an improper court room closure at trial, we have steadfastly held that the defendant's claim is procedurally waived. See, e.g., Lang, 473 Mass. at 7-9, 38 N.E.3d 262 (no objection at trial; claim raised in first motion for new trial as Sixth Amendment violation while direct appeal pending); Jackson, 471 Mass. at 268-269, 28 N.E.3d 437 (no objection at trial; claim raised as Sixth Amendment violation in motion for new trial); Alebord, 467 Mass. at 107-108, 4 N.E.3d 248 (no objection at trial; claim not raised in first motion for new trial or direct appeal and asserted as claim of ineffective assistance of counsel); Lavoie, 464 Mass. at 84, 981 N.E.2d 192 (no objection at trial; claim raised as Sixth Amendment violation in defendant's first motion for new trial). Absent a contemporaneous objection, it is immaterial when or in what form the defendant later raises the claim in postconviction proceedings. See Kolenovic, 478 Mass. at 203 n.13, 84 N.E.3d 781 ("the important distinction is ... whether the court room closure issue was preserved at trial"). Cases noting that a defendant also failed to raise the claim in his or her first motion for a new trial or on direct appeal only serve to emphasize the egregiousness of the defendant's delay in raising the claim -- like here, where the defendant first raised the issue approximately thirteen years after his convictions. See, e.g., Commonwealth v. Celester, 473 Mass. 553, 577-578, 45 N.E.3d 539 (2016) (no objection at trial, and issue raised in second motion for new trial); Jackson, 471 Mass. at 268-269, 28 N.E.3d 437 (no objection at trial, and "issue also was not raised in his first motion for a new trial that preceded sentencing"); Wall, 469 Mass. at 672, 15 N.E.3d 708 (no objection at trial, "[n]or was it raised in the defendant's first motion for a new trial").

We now turn to the nucleus of the defendant's argument, that despite his counsel's failure to contemporaneously object to the improperly closed court room, his claim was not procedurally waived because the defendant and his counsel were factually unaware of the closure when it occurred at trial. We have considered and rejected substantially similar arguments on a number of occasions. See Jackson, 471 Mass. at 269, 28 N.E.3d 437 ; Commonwealth v. Fritz, 472 Mass. 341, 346, 34 N.E.3d 705 (2015) ; Wall, 469 Mass. at 672-673 & n.24, 15 N.E.3d 708. For the reasons underpinning our doctrine of procedural waiver discussed supra, we have held that a defendant procedurally waives a court room closure claim by failing to contemporaneously object to the closure, regardless of whether the defendant or counsel was factually aware that the court room was closed. See Jackson, supra ; Fritz, supra ; Wall, supra. In Jackson, supra, where the defendant and his counsel were unaware that the court room had been closed, this court specifically rejected the argument that the defendant's claim "cannot be procedurally waived when neither counsel nor the defendant knew of the occasion for objection." We concluded that the defendant's attempt to shield his claim from the doctrine of procedural waiver was at odds with our decision in Wall, supra, because the "right to a public trial may be procedurally waived whenever a litigant fails to make a timely objection," regardless of whether counsel or the defendant perceived the court room closure when it occurred. Jackson, supra, quoting Wall, supra at 672, 15 N.E.3d 708. This rationale applies with equal force where counsel was unaware of the occasion for objection because he or she did not realize that the defendant's Sixth Amendment right to a public trial extended to jury empanelment. See Fritz, supra.

The defendant attempts to distinguish his case from Jackson, 471 Mass. at 269, 28 N.E.3d 437, and Wall, 469 Mass. at 672-673 & n.24, 15 N.E.3d 708, because he raised the court room closure claim in his first motion for a new trial while his direct appeal was pending. Yet, as we previously emphasized, "the important distinction is not whether the claim was made in the direct appeal or in the motion for new trial, but rather whether the court room closure issue was preserved at trial." Kolenovic, 478 Mass. at 203 n.13, 84 N.E.3d 781. Furthermore, our determination that the defendant in Jackson, supra at 265-266, 269, 28 N.E.3d 437, procedurally waived his claim was predicated on his failure to timely object at trial, not because he first moved for a mistrial and motion for a new trial prior to sentencing without raising the closed court room issue, and then subsequently raised the issue in his first motion for a new trial postsentencing. The defendant in Jackson, like the defendant in this case, was apparently unaware of the court room closure prior to filing his first postsentencing motion for a new trial. Id. at 268-269, 28 N.E.3d 437. In both cases, the dispositive inquiry is whether the defendant objected to the closure at trial, and not a hypertechnical analysis of the precise procedural posture in which the claim is first raised posttrial. See id.

For purposes of determining whether the defendant's claim was properly preserved at trial, it is also legally irrelevant that he now presents the claim as a Sixth Amendment violation rather than a claim that his counsel provided ineffective assistance by failing to perceive and object to the closure. Regardless of the reason for counsel's failure to lodge a contemporaneous objection to the closure, the trial judge is deprived of the opportunity to evaluate the claim "at a time when the violation could have been remedied." See Cohen (No. 1), 456 Mass. at 118 n.35, 921 N.E.2d 906. Accordingly, we conclude that the defendant's failure to contemporaneously object to the court room closure constituted a procedural waiver of his claim.

Where a procedurally waived Sixth Amendment public trial claim is raised in a motion for a new trial, a reviewing court analyzes the claimed error to determine whether the error, if any, created a "substantial risk of a miscarriage of justice." LaChance, 469 Mass. at 857, 17 N.E.3d 1101. See Commonwealth v. Hill, 432 Mass. 704, 710 n.14, 739 N.E.2d 670 (2000). The substantial risk of a miscarriage of justice standard applies even where the defendant, in a capital case, files a postconviction motion for a new trial while the defendant's direct appeal is pending in this court. See Hill, supra. Only where the motion for a new trial is denied, and that denial is consolidated with the defendant's direct appeal, does this court review the totality of the defendant's case to determine whether there is a "substantial likelihood of a miscarriage of justice" under G. L. c. 278, § 33E. See Celester, 473 Mass. at 560, 45 N.E.3d 539 ; Jackson, 471 Mass. at 269, 28 N.E.3d 437. Accordingly, we reverse the grant of the defendant's motion for a new trial and remand the case to the Superior Court for the motion judge to determine whether the improper court room closure created a substantial risk of a miscarriage of justice.

So ordered.

BUDD, J. (concurring).

I agree that the defendant has procedurally waived, or inadvertently forfeited, his court room closure claim. However, a criminal defendant should not be considered to have automatically forfeited such a claim by failing to object contemporaneously to the closure when neither he nor his defense counsel (nor the judge) knew or had reason to know of it. In my view, this question is primarily governed by principles expressed in the Massachusetts Rules of Criminal Procedure, and I would conclude instead that the defendant forfeited his court room closure claim because we presume that he had the opportunity to discover this claim and bring it to a court's attention in a more timely fashion with the exercise of reasonable diligence.

1. Massachusetts Rules of Criminal Procedure and procedural waiver. Under Mass. R. Crim. P. 22, 378 Mass. 892 (1979), and Mass R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), there are at least two ways that a claim can be procedurally waived. First, rule 22 generally requires objections at trial in order to preserve claims of error. If a claim is not objected to at trial, it is waived. See Mass. R. Crim. P. 22. However, the rule also states in pertinent part:

"if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him."

Id.

Additionally, a defendant may procedurally waive a preserved claim of error posttrial if he or she fails to raise it in his or her first motion for a new trial. Rule 30 (b) permits a "trial judge upon motion" to "grant a new trial at any time if it appears justice may not have been done." However, the rule also calls for the waiver of any claims that may be brought under rule 30 but are not raised in the defendant's first motion for a new trial:

"All grounds for relief claimed by defendant under [provisions of rule 30 ] shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion."

Mass. R. Crim. P. 30 (c) (2).

These rules are consistent with the principle that a "right may be forfeited in criminal as well as civil cases by the failure to make a timely assertion of the right before a tribunal having jurisdiction to determine it."

Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

2. Procedural waiver in court room closure cases. In cases in which defense counsel had an opportunity to object at trial because he or she knew or had reason to know of the court room closure and failed to object, we have concluded, consistently with rule 22, that the defendant's public trial right was waived because the claim was not timely preserved (i.e., at trial). See Commonwealth v. Kolenovic, 478 Mass. 189, 203 n.14, 84 N.E.3d 781 (2017) ; Commonwealth v. Vargas, 475 Mass. 338, 357, 57 N.E.3d 920 (2016) ; Commonwealth v. Lang, 473 Mass. 1, 9, 38 N.E.3d 262 (2015) ; Commonwealth v. Fritz, 472 Mass. 341, 346, 34 N.E.3d 705 (2015) ; Commonwealth v. LaChance, 469 Mass. 854, 855-856, 17 N.E.3d 1101 (2014), cert. denied, --- U.S. ----, 136 S.Ct. 317, 193 L.Ed.2d 227 (2015) ; Commonwealth v. Alebord, 467 Mass. 106, 108, 4 N.E.3d 248, cert. denied, --- U.S. ----, 134 S.Ct. 2830, 189 L.Ed.2d 793 (2014) ; Commonwealth v. Morganti, 467 Mass. 96, 102, 4 N.E.3d 241, cert. denied, --- U.S. ----, 135 S.Ct. 356, 190 L.Ed.2d 251 (2014) ; Commonwealth v. Lavoie, 464 Mass. 83, 87-89, 981 N.E.2d 192, cert. denied, 569 U.S. 981, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013). See also Weaver v. Massachusetts, --- U.S. ----, 137 S.Ct. 1899, 1906, 198 L.Ed.2d 420 (2017) ; Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960) (court room closure claim waived where "[c]ounsel was present throughout, and it is not claimed that he was not fully aware of the exclusion of the general public"). In each case, we held the claim to be untimely, regardless of whether it was presented in a motion for a new trial or in a direct appeal, because the defendant had been aware of the closure and had failed to object to it at the time of the closure. See Mass. R. Crim. P. 22.

However, the question whether a claim was preserved at trial cannot fairly be asked in a situation in which a defendant did not have an opportunity to object contemporaneously with the closure. See id. We have considered at least two public trial cases where the defendant first raised a public trial right claim after the trial had concluded and defense counsel was unaware of the closure at the time of trial. See Commonwealth v. Jackson, 471 Mass. 262, 269, 28 N.E.3d 437 (2015), cert. denied, --- U.S. ----, 136 S.Ct. 1158, 194 L.Ed.2d 187 (2016) ; Commonwealth v. Wall, 469 Mass. 652, 672-673, 15 N.E.3d 708 (2014). In both cases, we looked to indications of timeliness based on the circumstances presented in each case. For example, in Wall, the defendant's claim was untimely not merely because he did not raise it at trial (when he was unaware of the exclusion), but because he also failed to raise the claim until his second motion for a new trial, filed "almost four years after he filed his first ... and over seven years after his conviction." Wall, supra at 672, 15 N.E.3d 708. Importantly, we did not say that the objection needed to be contemporaneous with the error.

In Jackson, 471 Mass. at 269, 28 N.E.3d 437, relying on Wall, we concluded that although neither the defendant nor his counsel knew of the court room closure at the time of trial, the defendant's public trial claim was untimely where he did not raise the issue until four years after his convictions in a second motion for a new trial. Here again, we did not hold that the objection had to be contemporaneous in order to be timely where the defendant had no actual or constructive knowledge of the closure. See id. See also Commonwealth v. Celester, 473 Mass. 553, 560, 578, 45 N.E.3d 539 (2016) (claim procedurally waived when defendant first raised public trial claim eighteen years after trial).

It is true that, thus far, we have not deemed timely a closed court room claim brought posttrial where the defendant was unaware of the error at trial. However, we so concluded only after a review of the circumstances in each case. See Jackson, 471 Mass. at 269, 28 N.E.3d 437 ; Wall, 469 Mass. at 673, 15 N.E.3d 708. Rather than holding that the defendants' claims were untimely because they failed to make a contemporaneous objection at trial, we concluded that, on the facts presented, the claims were waived because the defendant in each case waited so long between the violation of his public trial right and bringing the claim to the attention of a court that it would be unreasonable to believe that he could not have discovered the violation earlier with the exercise of due diligence. See Reporters' Notes to Rule 30 (c) (2), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1775 (LexisNexis 2016)

(rule of waiver "not intended to foreclose from future consideration grounds which were not known and could not have been found out with the exercise of due diligence" [emphasis added] ). Cf. Commonwealth v. Grace, 397 Mass. 303, 308-309, 491 N.E.2d 246 (1986) (question is "whether the defendant met his burden of showing that reasonable diligence would not have produced" testimony of allegedly newly discovered witnesses at earlier time).

Today, the court takes the holdings of Wall and Jackson a significant step further and, for the first time, equates a timely objection with a contemporaneous one, "including where counsel was unaware of the court room closure." Ante at ----, 102 N.E.3d at 361. This goes further than I believe is necessary or prudent, see, e.g., SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324, 330, 85 N.E.3d 50 (2017) ("it is canonical that courts should, where possible, avoid unnecessary constitutional decisions"), and is inconsistent with rule 22. The rules of a court have the force of law and are as binding on a court as are statutes. Commonwealth v. Brown, 395 Mass. 604, 606, 481 N.E.2d 469 (1985) ("Requiring courts to abide by their own rules is supported by the fundamental principle of justice that the law must treat persons similarly situated uniformly").

3. Due process concerns. In addition, I believe that the court's ruling is inconsistent with minimum standards of due process. "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' " Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), quoting Baldwin v. Hale, 1 Wall. 223, 233, 68 U.S. 223, 17 L.Ed. 531 (1863).

The court focuses on the fact that where, as here, a court officer acted alone and without notice to the judge or the parties, the judge is at a disadvantage because he or she did not have an opportunity to correct the error at the time it occurred. However, the more troubling issue is that a defendant, who has no opportunity to bring the closure to the court's attention, suffers the consequences of the error. Today's ruling has the effect of barring defendants from asserting their constitutional rights in a timely way through no fault of their own.

4. The instant case. In this case, the defendant waited nearly fourteen years between the initial trial and bringing the court room closure to the attention of a court. Although the motion judge found that neither he nor his counsel had notice of the closure at the time of trial, we must presume that the defendant had the opportunity to discover this claim and bring it to a court's attention in a more timely fashion with the exercise of reasonable diligence. Even considering the lack of knowledge of the court room closure at the time of trial, I do not consider a nearly fourteen-year span a "timely assertion of the right." Puckett, 556 U.S. at 134, 129 S.Ct. 1423, quoting Yakus, 321 U.S. at 444, 64 S.Ct. 660. See Jackson, 471 Mass. at 269, 28 N.E.3d 437, quoting Wall, 469 Mass. at 672, 15 N.E.3d 708 (requiring "timely objection" to error).

Therefore, I would conclude that the defendant has forfeited his public jury trial claim, but would leave for another day what might constitute a timely objection.

      Our cases analyzing whether a defendant has properly preserved a claimed violation of the public trial right under the Sixth Amendment to the United States Constitution have almost uniformly referred to the defendant's failure to preserve the claimed error at trial as a "procedural waiver." Unlike a waiver of a right, which ordinarily must be knowing, intelligent, and voluntary, a procedural waiver more closely resembles a forfeiture. See Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 894 n.2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (waiver is "the intentional relinquishment or abandonment of a known right or privilege," which is more exacting than forfeiture and "merely one means by which a forfeiture may occur"). Significantly, the defendant does not procedurally waive or forfeit the right to raise the claimed error in this context; however, by failing to object to the closure at trial, the defendant forfeits or procedurally waives the presumption of prejudice that attaches to preserved and meritorious claims of structural error.

      The concurrence suggests that the procedural waiver of the defendant's claim was triggered by his delay in raising the issue after trial, not his failure to raise the issue at trial. The cases analyzing procedural waiver (or forfeiture) focus on the defendant's failure to object at trial, not the lapse in time between the defendant's convictions and when he first raised the issue. See Commonwealth v. Jackson, 471 Mass. 262, 268-269, 28 N.E.3d 437 (2015), cert. denied, --- U.S. ----, 136 S.Ct. 1158, 194 L.Ed.2d 187 (2016) ; Commonwealth v. Wall, 469 Mass. 652, 672-673, 15 N.E.3d 708 (2014). See also Weaver v. Massachusetts, --- U.S. ----, 137 S.Ct. 1899, 1912, 198 L.Ed.2d 420 (2017) (whether claim is preserved depends on issue being timely raised at trial, not when or in what posture it was later raised). Our cases have, however, emphasized the conclusiveness of a procedural waiver by commenting that in addition to a failure to raise the issue at trial, there was also a delay in raising the issue in a first, or subsequent, motion for a new trial, but the delay in raising the claim after trial is not the dispositive issue. See Jackson, supra ("defendant did not raise an objection when the court room was closed .... The issue also was not raised in his first motion for a new trial that preceded sentencing"); Wall, supra at 672, 15 N.E.3d 708 (issue not raised at trial, "[n]or was it raised in the defendant's first motion for a new trial" and his second motion for new trial was filed "almost four years after he filed his first motion for a new trial, and over seven years after his conviction").

      Based on the circumstances of this case, we need not determine how the standard articulated by the United States Supreme Court in Weaver, 137 S.Ct. at 1910, for unpreserved claims compares to the substantial risk of a miscarriage of justice standard. However, we emphasize that the Massachusetts Declaration of Rights cannot provide less protection for defendants than the Federal Constitution. See Commonwealth v. LaChance, 469 Mass. 854, 858, 17 N.E.3d 1101 (2014), cert. denied, --- U.S. ----, 136 S.Ct. 317, 193 L.Ed.2d 227 (2015) (we interpret substantial risk of miscarriage of justice standard as being essentially same as prejudice requirement for claim of ineffective assistance of counsel).

      During sentencing, the judge dismissed the defendant's conviction of armed robbery, which was the felony underlying the conviction of felony-murder.

      The motion judge credited testimony that, in 1998, it was a regular practice in the Superior Court in Suffolk County to close the court room during jury selection, but no evidence was presented as to whether this custom was in practice at the time of the defendant's trial in 2002.

      The motion judge did, however, determine that because defense counsel did not know whether it was a custom and practice in Suffolk County to close court rooms during jury empanelment, he did not have constructive notice of the closure in that limited sense.

      In Jackson, 471 Mass. at 265-266, 28 N.E.3d 437, prior to sentencing, the defendant orally moved for a new trial and for a mistrial when it was learned that one of the jurors was not a United States citizen. Both motions were denied.

      We have observed that "where the defendant's Sixth Amendment right to a public trial has been subject to procedural waiver, the defendant after conviction may still make a collateral attack on the issue based on ineffective assistance of counsel for failure to object to the court room closure." Commonwealth v. Vargas, 475 Mass. 338, 357, 57 N.E.3d 920 (2016). In the context of reviewing a procedurally waived claim that is appropriately advanced as a claim of ineffective assistance of counsel due to counsel's failure to contemporaneously object to the closure at trial, the United States Supreme Court announced in Weaver, 137 S.Ct. at 1911, that "prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or ... that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair." Id., citing Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("when a court is evaluating an ineffective-assistance claim, the ultimate inquiry must concentrate on 'the fundamental fairness of the proceeding' "). Although the defendant has not raised a claim of ineffective assistance of counsel, we have interpreted the substantial risk of a miscarriage of justice standard as being essentially the same as the prejudice requirement where the defendant raises an ineffective assistance of counsel claim due to counsel's failure to object to the court room closure. LaChance, 469 Mass. at 858, 17 N.E.3d 1101, citing Commonwealth v. Azar, 435 Mass. 675, 686-687, 760 N.E.2d 1224 (2002). However, as discussed in note 3, supra, this court has not had occasion to analyze whether the standard articulated in Weaver, supra, is more or less protective than the substantial risk of a miscarriage of justice standard.

      The motion judge heard and received testimonial evidence regarding whether the defendant or his counsel waived any objection to court room closure. The motion judge credited defense counsel's testimony that if he knew that the defendant's family members had been barred from the court room during jury selection in this case, he would have asked that they be admitted, but probably would not have made an objection. The court's opinion does not rest on defense counsel's testimony that he would not have objected at trial had he known about the court room closure, and I assume without deciding that his later testimony has no legal significance.

      The court places great emphasis on a footnote in Commonwealth v. Kolenovic, 478 Mass. 189, 203 n.13, 84 N.E.3d 781 (2017), where we said that "the important distinction is not whether the claim was made in the direct appeal or in the motion for new trial, but rather whether the court room closure issue was preserved at trial." However, in that case, defense counsel was aware of the court room closure at trial. See id. at 203 n.14, 84 N.E.3d 781.

      The court cites Weaver for the notion that a "contemporaneous objection is indispensable for purposes of preserving the claimed error on appeal because when the alleged error is raised contemporaneously with the closure, 'the trial court can either order the court room opened or explain the reasons for keeping it closed.' " Ante at ---- , 102 N.E.3d at 361, quoting Weaver v. Massachusetts, --- U.S. ----, 137 S.Ct. 1899, 1912, 198 L.Ed.2d 420 (2017). However, the United States Supreme Court makes clear that there defense counsel was aware of the closure: "In this case petitioner's mother told defense counsel about the closure at some point during jury selection. But counsel 'believed that a courtroom closure for [jury selection] was constitutional.' ... As a result, he 'did not discuss the matter' with petitioner, or tell him 'that his right to a public trial included the [jury voir dire],' or object to the closure." Id. at 1906.

      One hundred eighty-five years ago, this court explained how a defendant must have actual or constructive knowledge of the error in order for the defendant to be able to waive a claim of error by not objecting: "[I]f the ground of exception is known and not seasonably taken, by implication of law, it is waived" (emphasis added). Cady v. Norton, 14 Pick. 236, 237, 31 Mass. 236 (1833).

      It is unclear from the facts of a third case, Commonwealth v. Celester, 473 Mass. 553, 560, 45 N.E.3d 539 (2016), whether defense counsel had actual or constructive notice of the court room closure.

      A more fitting articulation of the question might be, as the Supreme Court has said, whether the defendant has made a "timely assertion of the right before a tribunal having jurisdiction to determine it." Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

      In addition, there are important constitutional and policy reasons to ensure that a judge is, in fact, aware of, and in control of, what takes place in his or her court room. Consider, for example, Riley v. Deeds, 56 F.3d 1117, 1121 (9th Cir. 1995). In that case, a jury requested that a certain witness's testimony be reread. Id. at 1119. The trial court judge could not be located, and in his absence, a law clerk convened the court. Id. On appeal, the court considered the implications of the law clerk's actions, which were independent and in absence of the judge. Id. at 1121. Where there is an "abdication of judicial control over the process ... there [is] no opportunity to make any meaningful objection." Id. In the same manner, when an agent of the court, a court officer, makes a decision independent of the judge to close a court room without actual or constructive notice to defense counsel (and the judge), "there is a breakdown in the construct of the trial," id. at 1120, in a manner where we cannot say the defendant "acquiesced." See Commonwealth v. Alphas, 430 Mass. 8, 24, 712 N.E.2d 575 (1999) (Fried, J., concurring).

      A determination whether a claim under the Sixth Amendment to the United States Constitution that was raised after the trial because the defendant was unaware of the closure at the time of trial was timely brought would depend upon a review of the circumstances of the closure, including whether the defendant or counsel should have known of the closure, the length of time between the trial and when the claim was brought, and when and how the closure was discovered, among other factors.