Sometimes Form Is Substance – Appellate Rules Can Be Complex and Difficult to Navigate

By: Justin O. Sorrell – RBE Partner

Anyone who has wrestled with Indiana’s Appellate Rules will know they are highly technical. And anybody who has been involved with the appellate process in Indiana will know those rules generally are strictly enforced. Strict enforcement of Indiana’s Appellate Rules leads to a more efficient administration of justice and greater predictability for parties and litigants, but it also can create pitfalls for the unwary.

For example, Indiana Appellate Rule 9(A) generally requires that a party seeking an appeal from an appealable order file a Notice of Appeal within thirty (30) days after entry of the order. A party that fails to timely file the Notice of Appeal forfeits the right to appeal the trial court’s order. Discretionary interlocutory appeals are even more fraught for practitioners and parties alike. This type of appeal generally follows an order issued in the middle of a lawsuit, such as a discovery order or the denial of a motion for summary judgment. Under Indiana Appellate Rule 14, a party first must ask the trial court to certify its order for an interlocutory appeal. Then, the party must ask the Indiana Court of Appeals to accept jurisdiction over the interlocutory appeal. As the name implies, the trial court and the Court of Appeals have discretion to grant or deny these requests. If the trial court certifies an order for an interlocutory appeal and the Court of Appeals (by decision of its motions panel) accepts jurisdiction, the appealing party then has 15 days to file a Notice of Appeal.

A recent line of appellate decisions demonstrates the strict nature of these deadlines. On February 9, 2021, the Indiana Supreme Court issued an order in Cooper’s Hawk Indianapolis, LLC v. Ray, 162 N.E.3d 1097 (Ind. 2021). In Cooper’s Hawk, the trial court denied the defendant’s motion for summary judgment. The trial court certified its order for interlocutory appeal, and the Court of Appeals accepted jurisdiction. The defendant filed its Notice of Appeal five days late, and the plaintiff filed a motion to dismiss the appeal on timeliness grounds. The defendant argued the belated appeal should be allowed to proceed because it presents a substantial question of law. The Court of Appeals’ motions panel denied the motion to dismiss, allowing the appeal to proceed. The Court of Appeals subsequently reversed the trial court’s denial of the defendant’s motion for summary judgment. The plaintiff sought transfer, which the Indiana Supreme Court granted, vacating the Court of Appeals’ decision. On transfer, the Supreme Court observed that, even after an appellant has forfeited the right to appeal, an Indiana appellate court nevertheless may choose to accept jurisdiction and thus address the merits of the appeal. However, the Court emphasized that for an appellant’s untimely—and thus forfeited—appeal to be reinstated, the appellant must show there are “extraordinarily compelling reasons why this forfeited right should be restored” or the trial court’s order must be “manifestly unjust.” The Court concluded there were no extraordinarily compelling reasons to restore the defendant’s forfeited appeal, and the Court thus dismissed the appeal and remanded the matter to the trial court for further proceedings.

Similarly, in Syndicate Claim Servs. v. Trimmel, 21A-PL-1231, issued on December 8, 2021, the trial court denied the defendant’s motion for partial summary judgment on one of the plaintiff’s claims. Upon the defendant’s motion, the trial court certified its order for interlocutory appeal, and the Court of Appeals accepted jurisdiction. However, the defendant filed its Notice of Appeal one week late and filed a “Verified Motion to Accept Belated Notice of Appeal for Interlocutory Appeal.” The plaintiff moved to dismiss the defendant’s appeal on timeliness grounds. The Court of Appeals’ motions panel denied the plaintiff’s motion to dismiss and granted the defendant’s motion for a belated appeal. The Court of Appeals observed that, while Indiana law does not provide ample guidance regarding what constitute “extraordinarily compelling reasons” for an appellate court to accept jurisdiction over a forfeited appeal, cases restoring appeals tend to fall into two categories: (1) cases involving fundamental liberty interests, such as the right to maintain a parent-child relationship or the right to bail; and (2) cases involving “obvious injustice,” such as a trial court’s clear violation of child support guidelines. The Court of Appeals noted that Cooper’s Hawk did not fit into either category, and there were no other extraordinarily compelling reasons to restore the forfeited appeal in that case; thus, the Supreme Court concluded the appeal should be dismissed. Similarly, following the Supreme Court’s guidance, the Court of Appeals concluded that the trial court’s decision did not fit into either category, and there were no other extraordinarily compelling reasons to restore it. The Court of Appeals thus concluded the defendant forfeited its right to interlocutory appeal of the trial court’s order and dismissed the appeal. (Note: As of January 18, 2022, the Chronological Case Summary for this appellate matter indicates that the defendant filed a Petition for Rehearing on January 10, 2022, which asks the Court of Appeals to reconsider its decision. That Petition remains pending, and no Petition for Transfer has yet been filed.)

These cases make clear the importance of keeping a close eye on appellate deadlines and emphasize the highly technical nature of appellate practice.

Justin Sorrell is an experienced appellate advocate, having served as a judicial clerk for the Honorable L. Mark Bailey of the Court of Appeals of Indiana and having litigated several appeals. It is highly recommended that parties and their trial counsel seek experienced appellate counsel to increase efficiency and effectiveness.

Justin O. Sorrell

Justin O. Sorrell


Author Justin Sorrell

Author Justin Sorrell is an experienced litigator who represents and advises business clients in many types of disputes in federal and state courts across Indiana. He regularly defends employers in lawsuits including wage and retaliation claims, trade secret and confidentiality claims, non-competition and non-solicitation covenants, and breach of contract claims. Additionally, Justin has experience in defending claims involving construction-related commercial property damage, products liability, insurance coverage, collections, and appeals, and he has served as local counsel in federal and state courts across Indiana. He defends employers before the Indiana Worker’s Compensation Board, and has experience in other business-related areas, including bank loan transactions, loan work-outs, and bankruptcy. He also has significant experience in discovery of electronically-stored information (“ESI”), and advises clients on how to maximize value and minimize expense. 

He is a problem-solver, and seeks creative solutions to his clients’ issues while emphasizing the business impact of litigation choices to help guide his clients’ decision-making. When an amicable resolution is not possible, he aggressively and diligently pursues his clients’ interests.

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Posted on February 3, 2022 by Justin O. Sorrell