Blog

It can be devastating to lose some or all issues in a domestic trial, and then appeal expecting the errors you allege to be corrected by reversal on appeal. Insult is added to injury if the Court of Appeals of Indiana affirms the trial court based on your legal arguments. In situations where this happens, the question is often posed: “Can the Court of Appeal’s decision be appealed?” The answer is yes. This blog covers appealing a decision handed down from the Court of Appeals of Indiana.¹

The first choice of four (4) choices is to seek rehearing in the Court of Appeals. Under the controlling appellate rule, rehearing may be sought from the following:

• A published opinion.
• A not-for-publication memorandum decision.
• An order dismissing an appeal.
• An order declining to authorize the filing of a successive petition for post-conviction relief.²

A Petition for Rehearing in the Court of Appeals must be filed within thirty days after the decision.³ While there are no particular limits on the types of arguments that can be made to the Court of Appeals for rehearing, a successful petition for a grant of rehearing would be to correct factual errors or the Court of Appeals misapplied the law. Simply asking the Court of Appeals to re-decide a case it just decided is unlikely to be successful. No brief in response to Petition for Rehearing is required, unless requested by the Court of Appeals.

The second choice to appeal a loss of an appeal, if rehearing is not successful in Court of Appeals of Indiana, is to file a Petition to Transfer to the Indiana Supreme Court. Under the controlling appellate rule, a Petition to Transfer may be sought from the following:

• A published opinion.
• A not-for-publication memorandum decision.
• Any amendment or modification of a published opinion or not-for-publication memorandum decision.
• An order dismissing an appeal.⁴

A Petition to Transfer must be filed no later than forty-five days after the adverse decision if rehearing was not sought.⁵ If rehearing was sought, the Petition to Transfer must be filed no later than thirty days after the Court of Appeals’ disposition of the Petition for Rehearing.⁶

While a party may file a Petition to Transfer to the Indiana Supreme Court for any reason, the Indiana Rules of Appellate Procedure set forth six (6) considerations the Court uses to screen cases in considering whether to grant transfer:

• Conflict in the Court of Appeals’ Decisions: The Supreme Court considers transfer when the Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important matter.
• Conflict with Supreme Court Decision: The Supreme Court considers transfer when the Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important matter.
• Conflict with Federal Appellate Decision: The Supreme Court considers transfer when the Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or United States Court of Appeals.
• Undecided Question of Law: The Supreme Court considers transfer when the Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.
• Precedent in Need of Reconsideration: The Supreme Court considers transfer when the Court of Appeals has correctly followed the ruling precedent of the Supreme Court, but such precedent is erroneous or in need of clarification of modification in some specific request.
• Significant Departure from Law or Practice: The of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.⁷

The Indiana Supreme Court can, and does, grant transfer for other reasons; it is the highest Court in the state, and its five (5) justices review the briefing and vote whether to grant transfer and decide the case. This is the second way to appeal an appellate decision. Thirdly, rehearing can be sought in any case the Supreme Court accepts transfer on and decides in an adverse way.

Ultimately, so long as the highest court of the state has denied taking the case or taken it and decided it in an adverse way to your legal interests, there is the right to seek certiorari to the United States Supreme Court so as the filing is timely. This fourth step exhausts the appellate process. The only other way an adverse decision can be attacked is if there was some fraud or other relief in the underlying trial court regarding proceedings regarding the case that rises to the level of challenge (such as for fraud) under Indiana Rule of Trial Procedure 60(B).⁸

Ciyou & Associates, P.C. have extensive experience with all types of appeals and domestic trial court matters. So, yes, a loss in the Court of Appeals can be appealed, theoretically all the way to the United States Supreme Court. This blog is written by attorneys at Ciyou & Associates for general educational purposes. The blog is not to be relied upon for any specific legal matter or issue. This blog does not constitute legal advice. It is an advertisement.

1. There are certain cases that proceed directly to the Indiana Supreme Court. This blog does not cover that small minority of cases.
2. Indiana Rule of Appellate Procedure 54(A).
3. Indiana Rule of Appellate Procedure 54(B).
4. Indiana Rule of Appellate Procedure 57(B).
5. Indiana Rule of Appellate Procedure 57(C).
6. Indiana Rule of Appellate Procedure 57(C).
7. Indiana Rule of Appellate Procedure 57(H).
8. In summary, as it is beyond the scope of this blog, Indiana Rule of Trial Rule 60(B) allows a challenge to any final judgment based on fraud, excusable neglect, or newly discovered evidence.