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Missing the Deadline for Filing a Notice of Appeal in a Civil Case: Remedies?

lSince criminal cases involve the potential loss of freedom, there are trial and appellate provisions for a criminal case to be brought by a filing belated Notice of Appeal. In civil cases, Appellate Rule 9(A), it clearly states that “[u]nless the Notice of appeals is timely filed, the right to appeal shall be forfeited.”

Historically, attorneys and Indiana courts have treated this rule stemming from the 1970s as jurisdictional. This means that without a timely filing, the appellate courts could not entertain the appeal because they lacked the jurisdiction to do so. In a new appellate case,1 furthering the reasoning of the Indiana Supreme Court in 2014,2 the Indiana Court of Appeals refined this legal concept: a party’s forfeiture of the appeal does not equate to jurisdiction.

In other words, in extraordinary circumstances, the Indiana Court of Appeals can entertain and decide a forfeited appeal. This is the right of the appellate court and not that of a party.

A close reading of these cases indicates this is a very narrow exception and would likely have to deprive a party of a fundamental or substantial constitutional right and due process of law. However, in the complex world of law, Indiana’s Appellate Courts have shown the flexibility to carefully apply the appellate rules as expressly stated and revise their opinions consistent with the development of the law.

This case may provide a potential civil appellate with the right to have the Court of Appeals, notwithstanding missing the time to file a Notice of Appeal invoking the right to appeal, to exercise its jurisdiction over the case and decide an appeal. This case also demonstrates how inextricably linked the facts of a case tie in with rules and caselaw. This is the workspace of appellate attorneys and judges.

This blog post was written by attorneys at Ciyou & Dixon, P.C. who handles appeals of all types throughout the greater Indianapolis area and the State of Indiana to the Indiana Court of Appeals or Supreme Court. It is written for informational and general educational purposes only. It is not intended to be legal advice or a solicitation for services. It is advertising material.

  1. Robertson v. Robertson, 54A01-1509-DR-1374 (Indiana Court of Appeals, July 28, 2016).
  2. Adoption of O.R., 16 N.E.3d 965 (Ind.2014).

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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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