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How to Obtain a Stay of a Trial Court’s Final Order Pending Appeal

How to Obtain a Stay of a Trial Court’s Final Order Pending Appeal

Sometimes litigants are shocked and upset by a final order of a trial court in civil litigation and want to stay or “stop” it pending an appeal. In general civil cases, a party has to first ask for this stay in the trial court1 and present the reasons for a stay as set out in the trial rules. In essence, these rules require that for a stay to be considered, it must demonstrate that if the party prevails on appeal, the implications of enforcement of the final order would be unable to be corrected later. The trial court then decides. Stays are the focus of this blog.

If the trial court grants a stay, it orders a “bond” to be posted; this is a sum of money to account for harm if the appeal is denied. If the trial court denies issuing a stay, the litigant may then seek a stay in the Court of Appeals.2

Filing first in the trial court and a denial of a stay is required to proceed asking for a stay in the Court of Appeals, unless there is a basis in law or fact to first file it in the Court of Appeals (very rare); this process requires a showing to the Court of Appeals that this Court should deviate from its rules of appellate procedure.3

With domestic cases, a “bond” or money is normally not sufficient to address any potential harm that would occur related to children if a given final order is enforced and then reversed on appeal. For this reason, the motion to stay in the trial court and/or Court of Appeals must show some significant, material harm to the children’s best interests to have statistically significant chance of being granted.

However, trial courts and the Court of Appeals do grant stays in general civil and domestic cases. It just takes the right case and appropriate motions.

Ultimately, stays are very technical and must comply with the trial rules and appellate rules to be considered. With this, the key is showing some harm will occur that will not be able to be remedied if the case is reversed on appeal. This takes a careful and detailed consideration of the facts with the evidence in the trial court that will be presented on appeal as well as the controlling law.

Stays are rarely filed and granted, but again, this remedy does exist under the trial rules and appellate rules. These rules exist to balance the need for a judgment to be final against the potential for reversal on appeal and no remedy existing based on a future reversal. This is the takeaway from this blog, and is a key legal right available to every litigant. Is this your case?

This blog is written by attorneys at Ciyou & Dixon, P.C. who handle appeals from certain interlocutory orders and final orders from all Indiana trial courts, as well as seek stays directed by clients in the right cases. This blog is intended to provide the reader with general information about stays of orders in trial courts and on appeal. This blog is not intended to provide specific legal advice or be a solicitation of services. It is an advertisement.

  1. Indiana Rule of Trial Procedure 62.
  2. Indiana Rule of Appellate Procedure 39.
  3. Indiana Rule of Appellate Procedure 1.

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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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