In all civil cases, an appeal of a final order as to all issues has to be perfected within thirty (30) days of issuance. This creates two (2) significant issues for some litigants. The first is they may not receive their final order from their counsel contemporaneously with its issuance (i.e., their trial counsel may not send it upon receipt). Second, there are only a small number of attorneys who handle appeals; and you would have to select appellate counsel who has the time to handle the appeal relative to the rest of their appellate work. This noted, this blog covers what occurs if you fail to timely perfect your appeal.
The place to start with any legal issue is the controlling law. As noted, and appeal is perfected by timely filing a Notice of Appeal under Indiana Rule of Appellate Procedure 9(A)(1): “A party initiates an appeal by filing a Notice of Appeal with the Clerk . . .within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary. However, if a party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion is noted in the Chronological Case summary or thirty (30) days after the motion is deemed denied . . . .”
While Motions to Correct Error are useful in a number of cases, trial counsel (who may not handle appeals) may file a Motion to Correct Error to try to correct what he or she believes is an error in the decision. There is logic to this approach because if granted, it may avoid an appeal. For the most part, Motions to Correct Error are very tricky to calendar, and if the trial court does not take certain action on the Motion to Correct Error, it is deemed denied. This starts your time to appeal running. Thus, it is critical that the date a Motion to Correct Error is deemed denied is docketed. This denial, again, may happen as a matter of law (there may not be an order denying a Motion to Correct Error) to indicate the time begins to run to file a Notice of Appeal; this is a way potential appellant’s miss their deadline to file a Notice of Appeal.
That said, under Indiana Rule of Appellate Procedure 9(A)(5), unless the Notice of Appeal is timely filed [within thirty (30) days of the final judgement on all issues], the appeal . . .is forfeited. This means the Court of Appeals will not decide your appeal as you have forfeited this right. It is at this point that a close review of the rule and caselaw is necessary. Missing the deadline to file the timely file the Notice of Appeal forfeits the appeal. This noted, forfeiture of the right to appeal a final order by failure to file the Notice of Appeal within thirty (30) days of the order does not deprive the Court of Appeals of jurisdiction to consider any appeal.
In rare circumstances in civil appeals, the Court of Appeals has taken and decided appeals when the Notice of Appeal was not timely filed. Thus, the untimely filing of a Notice of Appeal is not a jurisdictional defect depriving the Court of Appeals of authority to entertain the appeal. This noted, in order to have any chance to have the Court of Appeals accept an untimely appeal, it requires extraordinary circumstances.
Operationally, to have the right to file an untimely Notice of Appeal, your appellate counsel would have to file a Motion to Accept a Belated Appeal and have it granted by the motions panel of the Court of Appeals in order to proceed with a forfeited appeal. Again, it cannot be stressed enough that these are rarely granted and you should not rely on this rule unless you have to do so.
This blog was written by attorneys at Ciyou & Associates who handle appeals from all of Indiana’s ninety (92) counties. It is written for general educational purposes. It is not to be relied upon in for any specific legal matter or issues. This blog is in legal advice. It is an advertisement.