February 12, 2021
by: Colin E. Flora
This week, we take a quick peek at an aspect of Indiana appellate procedure that is easy to overlook but can completely short circuit an appeal. As we’ve discussed, there are two basic types of appeals in Indiana: appeals from final judgments and interlocutory appeals. For today, we focus on the procedure for bringing an interlocutory appeal. Those procedures are embodied in Indiana Appellate Rule 14. Rule 14(A) governs a discreet set of interlocutory appeals as a matter of right, meaning that the party pursuing the appeal can automatically file its notice of appeal and proceed in the same manner as though the appeal followed a final judgment. Rules 14(B) & (C) both apply to forms of discretionary interlocutory appeals. And that is what we focus on today.
Under Rule 14(B), in order to pursue an interlocutory appeal, a party must first obtain certification for an appeal from the trial court. That must be requested in thirty days unless good cause can be shown for belated certification. Once the order has been certified, the party has thirty days to file a motion with the Indiana Court of Appeals to accept the appeal. In both stages of the appeal, either court can deny the appeal, which is why these are “discretionary” appeals. Rule 14(C), applying to orders granting or denying class certification, works in the same way as Rule 14(B), except that it bypasses needing the trial court to certify the order for an appeal.
All of that procedure is pretty easy to process. Where an appellant can get itself in trouble is by missing the next step in the process. Once the court of appeals accepts the appeal, there is still one more jurisdictional step: filing the notice of appeal. In appeals from final judgments or interlocutory appeals as a matter of right, the notice of appeal is what begins the appellate process. But, in discretionary appeals, it is the final step in opening the doors to the appellate court. And it’s that step we focus on today.
In June 2020, the Indiana Court of Appeals issued a divided opinion in Cooper’s Hawk Indianapolis, LLC v. Ray. The majority reversed the trial court and entered summary judgment in favor of the defendant. The dissent, which I think was better reasoned, would have affirmed the trial court’s denial. But, tucked away on the docket, was that the motion’s panel had denied a motion to dismiss the appeal. Although the panel was divided, it did not provide an explanation of its reasoning. Transfer was sought to the Indiana Supreme Court and it, unlike the majority of the motions panel, had no trouble finding that the appeal should have been dismissed.
If you’ve been keeping track, then you can probably guess why dismissal was the result. After the appeal was accepted by the court of appeals, the appellant waited too long to file its notice of appeal. Rule 14(B)(3) requires the notice to be filed within fifteen (15) days of the order accepting the appeal. Under Appellate Rule 9(A)(5), “[u]nless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C.R. 2.”
That the notice of appeal was untimely did not, however, end the Indiana Supreme Court’s inquiry:
In its “Response to Appellee’s Motion to Dismiss Appeal,” Cooper’s Hawk argued that the Court of Appeals should accept the appeal despite its untimeliness because “the legal issue on appeal involve[s] a substantial question of law, the early determination of which would promote a more orderly disposition of the case.” But this merely restates one of the three Appellate Rule 14(B)(1)(c) grounds for granting a discretionary interlocutory appeal; to overcome the forfeiture Rule 9(A)(5) requires, much more is needed.
Finding no grounds to overcome Rule 9(A)(5), the Indiana Supreme Court granted transfer and dismissed the appeal. The result of grant of transfer is, under Appellate Rule 58(A), that the split decision from the Court of Appeals has been vacated.
Join us again next time for further discussion of developments in the law.
- Cooper’s Hawk Indianapolis, LLC v. Ray, 150 N.E.3d 698 (Ind. Ct. App. 2020) (Brown, J.; Kirsch, J., dissenting), trans. granted, opinion vacated, and appeal dismissed, —N.E.3d—, No. 21S-CT-56 (Ind. 2021) (per curiam).
- In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) (Rucker, J.).
- Cannon v. Caldwell, 74 N.E.3d 255 (Ind. Ct. App. 2017) (Crone, J.).
- Colin E. Flora, Indiana Court of Appeals Addresses Right to Appeal Denial of Motion to Dissolve a Preliminary Injunction, Hoosier Litig. Blog (Feb. 28, 2014).
*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, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.