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by: Colin E. Flora
In this post, we delve into a nuanced issue of Indiana appellate procedure that will likely not draw interest to too many readers. Still, it is an important point to take away from a recent decision by the Indiana Court of Appeals and merits some attention. For our discussion, we look to the opinion on rehearing in Brewer v. PACCAR, Inc. At issue was the timeliness of an appeal filed after entry of a final judgment but while a motion to correct error was pending.
The issue was first raised in the case’s initial opinion. There, the court wrote:
Before turning to the merits, we note a procedural issue that PACCAR hints at but neither party explores. That is, it is possible that Angela’s notice of appeal was prematurely filed. PACCAR suggests that the trial court’s September 15, 2017 order only denied Angela’s request for a hearing on her motion to correct error and was not a ruling on the merits of that motion; the trial court never clarified whether its September 15, 2017 order was intended to be a final ruling on the motion to correct error. The time period for a deemed denial of the motion to correct error had not yet passed when Angela filed her notice of appeal on September 20, 2017.
Our supreme court has made clear that an appellate court “is not deprived of jurisdiction if the notice is untimely—meaning belated or premature.”The only two requirements for appellate jurisdiction are “(i) the trial court must have entered an appealable order, and (ii) the trial clerk must have entered the notice of completion of clerk’s record on the CCS.” Both requirements have been met here. An appellant who files a premature notice of appeal technically forfeits his or her right to appeal and it would not be erroneous to dismiss the appeal, but this court “has jurisdiction to disregard the forfeiture and resolve the merits.”At oral argument, counsel for PACCAR requested that this court resolve this case on the merits. In light of that request, we will do so.
An important aspect of Indiana appellate practice to understand is the impact of a motion to correct error on the deadline to initiate an appeal. The procedure for appealing a final judgment is covered by Indiana Appellate Rule 9. (Interlocutory appeals are governed by Appellate Rule 14). Under Rule 9(A)(1), a party has thirty days following the entry of a final judgment on the chronological case summary to file a notice of appeal with the court of appeals’ clerk. That deadline is, however, extended “if any party files a timely motion to correct error,” in which case the notice of appeal is to be filed within thirty (30) days after the court’s ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first.” As you can see, determining when a motion to correct error is denied is not as simple as waiting for the trial court to issue a ruling; instead, Trial Rule 53.3 can render the motion denied even without a party realizing, by a mere function of time. As the Court of Appeals explained:
A motion to correct error is deemed denied if it is not set for hearing within forty-five days, or if it is not ruled on within thirty days of a hearing, or if it is not ruled on within forty-five days after the motion was filed “if no hearing is required . . . .” Ind. Trial Rule 53.3(A). Additionally, Trial Rule 59(E) allows an opposing party fifteen days to respond to a motion to correct error. Opinions from our supreme court and this court have addressed the appellate effect of belated grants of motions to correct error after they have been deemed denied. That line of cases has not addressed the effect of filing a notice of appeal before a motion to correct error is either expressly or deemed denied.
And that brings us to the decision on petition for rehearing that was sought by PACCAR, which challenged the court’s statement that the notice of appeal was premature because the motion to correct error was still pending. The court rebuffed the challenge, writing:
In an argument that is relevant to the bar in general and not PACCAR in particular, PACCAR asserts that we should not have said that Brewer’s notice of appeal may have been premature because it was filed before the time limit for the trial court to rule on Brewer’s motion to correct error had passed. It contends that it is “not unusual” for a party to file both a motion to correct error and a notice of appeal simultaneously, “or for the same party to first file a Motion to Correct error, change its mind, and then file a Notice of Appeal before the thirty-day period expires.” It also notes Indiana Appellate Rule 37, which allows a party on appeal to move to stay appellate proceedings and remand to the trial court for a ruling on a pending motion to correct error.
We respectfully submit that, in the combined fifty-four years of appellate experience of the members of this panel, we were unaware of a common practice of parties filing motions to correct error and then “abandoning” the motion with the filing of a notice of appeal before the time limit for ruling on the motion to correct error had passed. With respect to Appellate Rule 37, its use is encouraged “‘to develop an evidentiary record for issues that with reasonable diligence could not have been discovered before the time for filing a motion to correct error or a notice of appeal has passed.’” It should not be used to resurrect a motion to correct error previously filed by the party seeking remand that did not require development of an additional evidentiary record and was more in the nature of asking the trial court to reconsider its judgment, such as in the present case.
Even if our trial and appellate rules do not expressly forbid the simultaneous filings of motions to correct error and notices of appeal by one party—or the filing of a notice of appeal before a motion to correct error has been ruled on or deemed denied—we believe it is inadvisable to do so. Or, at the very least, if a party files both a motion to correct error and a notice of appeal but decides to “abandon” the motion to correct error, the party should dismiss the motion to correct error so there is no potential confusion about whether the trial court or this court is being asked to decide the case. Leaving a motion to correct error pending after filing a notice of appeal risks judicial inefficiency and the possibility that the trial court will rule on the motion to correct error after an appeal has been initiated. Although this is not always a fatal complication, it is a complication nonetheless and can lead to convoluted procedural wrangling . . . . If such wrangling can be avoided, it is preferable to do so.
Indeed, in the present case, it appears that Brewer filed her notice of appeal only after believing the trial court had denied her motion to correct error; although, as noted in our original opinion, it is not entirely clear that the trial court had done so. This was not an instance of Brewer intentionally “abandoning” the motion to correct error. We believe that if a party files a motion to correct error, ideally it should either wait for a ruling on the motion (actually granted or denied or deemed denied) before initiating the process of an appeal, or it should dismiss the motion to correct error.
A look at the composition of the panel that made the ruling should reveal that the advice that it is inadvisable to file a notice of appeal while a motion to correct error is pending should be followed. The decision was authored by now-Senior Judge Michael Barnes on his penultimate day as a sitting judge on the bench. Judge Barnes was appointed to the Court of Appeals in May 2000. And, as luck would have it, his fellow panel members actually edged him out in seniority by a matter of months. Chief Judge Nancy Vaidik was appointed to the bench in February 2000 and Judge Paul Mathias, who is the presiding judge of the third district, was appointed in March of 2000. Given the seniority and experience of the panel, the words of wisdom should be taken to heart.
- Brewer v. PACCAR, Inc., 98 N.E.3d 83, on reh’g, 104 N.E.3d 625 (Ind. Ct. App. 2018) (Barnes, J.), trans. granted and opinion vacated, 124 N.E.3d 616 (Ind. 2019) (Rush, C.J.).
- Ind. Appellate Rule 9.
- Ind. Trial Rule 53.3.
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.