Over time, we have reviewed many cases for appeal where the party has been dissatisfied with the trial court’s decision and wishes to appeal. In almost all cases, to preserve the right to bring an appeal, it is begun or perfected by filing a Motion to Correct Errors or Notice of Appeal. If properly handled, these allow for an appeal to proceed. However, there are three rather common situations we observe where a party wishes to appeal but cannot because of where the case stands when we review it for appeal. These three mistakes are the focus of this blog. Avoid these if you wish to exercise your right to appeal to the Indiana Court of Appeals and/or the Indiana Supreme Court.
The first, and perhaps most common mistake, normally occurs just after an order is issued and a party or litigant believes the laws or facts were misapplied. In such cases, they file a Motion to Reconsider the trial court’s ruling, setting forth the alleged mistakes. However, while in rare situations these may be treated as Motions to Correct Error because of their substance, most of the time they are not. The trial court has no general duty to rule on these motions, and while the motion pends, the clock is running to timely file an appeal. So, at best, this approach to correcting an alleged error of the trial court is risky, and unless granted by the grace of the trial court, likely results in the time passing to bring an appeal. This means there is no ability to challenge the appeal.
The second situation occurs where a party does not believe the trial court properly considered the evidence and files a request to change the order under Trial Rule 60(B). This rule is normally one applied after the time runs to bring an appeal, but sometimes is brought where the party believes the trial court made a mistake with the evidence before it. However, this is not the proper application of this rule, which is generally limited to newly discovered evidence that is not already before the trial court or some type of fraud in the case or excusable neglect in not litigating the case correctly in the first place. The key is this rule anticipates new evidence and a hearing to receive it. This rule is not a substitute for a Motion to Correct Errors because a party believes a trial court did not properly rule and will cause the time to pass to bring a timely appeal.
The last situation is where a case (divorce or other civil litigation) does not decide all the issues. For the most part, if a court decides less than all the issues, such as custody in a divorce case, but not property division. The order is not a final appealable order. In divorce and other civil litigation, it is sometimes very difficult to determine if there are remaining issues that do not make for a final order, such as where a court decides a case, but allows a party to submit a certain piece of evidence afterward, such as an attorney fee affidavit, and rules on this evidence. In theory, there could be competing dates that make for a final order to start the thirty (30) day time ticking to take the steps to perfect an appeal, such as filing a Notice of Appeal or Motion to Correct Errors. If the order is not final as to all issues, it may be dismissed on appeal. Contrariwise, if an order is final but a party does not recognize and timely act, the appeal is forfeited.
Appeals are technical and involve very specific rules because of the number of judicial resources assigned to each appeal (3 judges instead of one). Thus, properly handling a case when the trial is over is key to preserving the right to take an appeal. A mistake, such as those common ones just noted, will waive your right to appeal. While belated (late) appeals may sometimes be allowed in criminal cases, missing the thirty (30) day deadline in a civil appeal forfeits the right to appeal and generally means the civil judgment cannot be challenged.
Dixon & Moseley, P.C. advocates handle appeals from all Indiana trial court to the Indiana Court of Appeals and/or Indiana Supreme Court. We hope this blog assist you in understanding how well-meaning litigants may miss their chance to appeal. The more you understand about the legal system, the better informed you will be as a litigant and the more helpful you will be to your trial or appellate counsel. This blog post is provided for general educational purposes and is not a solicitation for services or legal advice. It is an advertisement.