What is an Interlocutory Appeal?

Many people in Indiana have a general idea of what it means to appeal a decision. The popularity of legal TV shows, true crime shows streamed to our laptops and tablets, and news stories about the reversal of criminal convictions based on DNA evidence or a new United States Supreme Court case all touch on the idea of an “appeal.” We’ve already broadly covered the basics of an appeal in our blog post “What Does It Mean to File an Appeal?” This blog post focuses on a more specific type of appeal – an interlocutory appeal. Read on below to learn what an interlocutory appeal is, some of the issues surrounding interlocutory appeals, and when an interlocutory appeal may be appropriate in your case.

There are typically two kinds of appeals. Generally speaking, there are two kinds of appeals – appeals after a final order, and interlocutory appeals. Appeals after a final order are relatively straight forward. After a final order and/or final judgment, meaning a ruling that disposes of all issues before the trial court as to all parties in the lawsuit, one may take an appeal. An interlocutory means that a final order has not been issued but one of the parties wants an appeal anyway. The party wanting to proceed with an interlocutory appeal usually (read on to see why we say “usually”) needs to get permission from the trial court and the Indiana Court of Appeals to do this. Typically, the trial court proceeding is stayed (a fancy word for “paused”) while the appeal proceeds.¹ A scenario for an interlocutory appeal may be an issue that is decided early on in the trial court that will likely affect the rest of the proceedings, and we discuss a few examples below.

How an interlocutory appeal is started. Usually, a party starts an interlocutory appeal process by filing what is called a motion for certification of an interlocutory order. This is filed with the trial court, and if it’s granted, the Indiana Court of Appeals has to accept jurisdiction over the appeal. The motion for certification needs to be filed within thirty (30) days of the order.² The grounds for granting an interlocutory appeal include the following:

• If the appellant (the party asking for the appeal) will suffer substantial expense, damage or injury if the order is wrong and it is not corrected until the case is over.
• The order involves a substantial question of law, that if answered early on in the case, will help promote the further resolution of the case.
• A remedy by appealing after a final order is somehow inadequate.

So, in its simplest sense, an appellant seeking certification of an interlocutory order needs to show the trial court that the resolution of the issue would be much better resolved earlier than later. If a trial court certifies the order, then the appellant has to file a motion with the Indiana Court of Appeals asking it to accept jurisdiction. An appellant has thirty (30) days after the certification order to file this motion.³

Some examples of when an interlocutory order may be appropriate. After reading the section above, you may be wondering what are some common examples of issues that are appropriate for an interlocutory appeal. Below are just a few:

• An order in a divorce case finding that a pre-nuptial agreement is enforceable or unenforceable.
• An order in a class action lawsuit that certifies or denies certification of a class.
• An order denying a well-reasoned motion to dismiss or a motion for judgment on the pleadings.
• An order denying a well-reasoned motion for summary judgment or motion for declaratory judgment.

The basic theme of these examples is that the party seeking the appeal is going to have a much different road going forward depending on these interlocutory orders, which may include having to spend an extraordinary amount of money in legal fees taking a case to trial when it should have been resolved long beforehand.

Some interlocutory orders can be appealed automatically. Playing off of the theme that an interlocutory order is usually based on the fact that it is an issue that really cannot wait, the Indiana Rules of Appellate Procedure provide that some interlocutory orders can be automatically appealed by right. In these circumstances, an appellant just files a notice of appeal within thirty (30) days of the interlocutory order. The following interlocutory orders are the ones that are appealable by right under Ind. R. App. 14(A):

• For the payment of money.
• To compel the execution of a document.
• To compel the delivery or assignment of any securities, evidence of debt, documents or things in action.
• For the sale or delivery of the possession of real property.
• Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction.
• Appointing or refusing to appoint a receiver, or revoking or refusing to revoke the appointment of a receiver.
• For a writ of habeas corpus not otherwise authorized to be taken directly to the Indiana Supreme Court.
• Transferring or refusing to transfer a case under Trial Rule 75.
• Issued by an administrative agency that by statute is expressly required to be appealed as a mandatory interlocutory appeal.

As stated in our blog post “What Does It Mean to File an Appeal?”, appeals can be very complex, both legally and administratively in terms of complying with the Indiana Rules of Appellate Procedure. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana and understand the issues surrounding one wishing to appeal an unfavorable trial court ruling. This blog post is written by Ciyou & Dixon, P.C. attorneys and is not intended as specific legal advice or a solicitation for services. It is an advertisement.

1. However, this is not automatic. See Ind. App. R. 14(H).
2. Ind. App. R. 14(B).
3. Id.