“I want to appeal!” is a statement we hear often. However, many individual’s knowledge of appeals is very limited. Understanding the appeal process can be confusing, even for attorneys. Whether it be an appeal of a final order or an interlocutory appeal as of right, having a basic understanding of the beginning process of appeals will go a long way. This blog provides the three key questions you should ask yourself when considering taking an appeal.
Is this an appealable order? The first question you need to ask is whether you have an appealable order. You may be thinking to yourself, “but aren’t all orders appealable?” Unfortunately, and mostly the answer is “no”. In most cases, before you can begin the appeals process, you must have an appealable order. The importance of having an appealable order is that the Court of Appeals will not have jurisdiction to decide unless the order is appealable. There are two basic scenarios giving the Court of Appeals jurisdiction to this rule1 (meaning you will have an appealable order). First, you will have an appealable order if your order is considered to be a final judgment deciding all issues. Second, you will have an appealable order if your order is an interlocutory order that is of right or the trial court certifies the order.2 If your order meets either of these requirements, you have an appealable order. However, your inquiry is not done there.
Is my order final or interlocutory? The next question to ask is whether you have a final order or an interlocutory order. An order is final if: (1) it disposes of all claims as to all parties; (2) the trial court in writing expressly determines that there is no just reason for delay and in writing expressly directs the entry of judgment; (3) it is deemed final under trial rule 60(c); (4) it is a ruling on either a mandatory or permissive Motion to Correct Error; or (5) it is otherwise deemed final by law.3 If you have a final order, you will be able to appeal immediately. An interlocutory order, on the other hand, is one that disposes of some, but not all of the issues. In some circumstances, you will be allowed to appeal this interlocutory order as a matter of right, meaning you are entitled to an immediate appeal.4 An example of an interlocutory appeal as of right would be a court order directing you to pay a sum of money. In other circumstances, you may be able to appeal an interlocutory order at the discretion of the court, called discretionary interlocutory appeals. Whether you are able to obtain a discretionary interlocutory appeal is extremely fact-sensitive. What is important to remember and ask is whether you have a final order or an interlocutory order.
Is my appeal timely? A third question to ask is whether your appeal is timely. The timing of appeals is very important, and unfortunately, is something that many individuals miss out on. In order to preserve your right to appeal, remember a general rule that you must file your notice of appeal within 30 days of the court’s entry of your appealable order. For example, if the court enters a final order on March 1, you would have until March 31 to file your notice of appeal. If you file a late Notice of Appeal, your appeal is forfeited. There are exceptions and filings that can be made that toll the general thirty-day time limit, but those are fact-sensitive scenarios, and rare. What is important at this time is to remember that you have 30 days from the entry of an order to appeal, and failure to file a Notice of Appeal in those thirty days can constitute a waiver of your right to appeal.
Appeals are complex matters, and this area of law is extremely technical. The above information is general in nature, and know that there are exceptions to almost every rule. Obtaining skilled counsel is key to navigating the complex waters of appeals. This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle all types of appeals, civil or criminal, throughout Indiana, the Seventh Circuit, and the United States Supreme Court. This blog is intended for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- Ind. Rule. App. Procedure 5.
- Interlocutory orders are beyond the scope of this blog.
- Ind. Rule App. Procedure 2(H).
- Ind. Rule App. Procedure 14(A)