Final Appealable Orders
Final Appealable Orders
The place to start when considering an appeal is to ensure you have a final appealable order. In many cases, there will be numerous orders issued during the pendency of a case. Most all of these orders are what are called interlocutory orders and are not final orders that can be appealed. However, certain interlocutory orders can be appealed as a matter of right or in the discretion of the trial court and Court of Appeals of Indiana. A final order has a right to appeal. This is the order that decides or disposes of all of the issues in the case. Final Orders Only Please: Why Most Orders of Trial Court Cannot Be Appealed.
In today’s complex world, civil trials are generally tried to the bench (before the judge) and may occur over non-consecutive days. There are very few civil jury trials conducted in Indiana annually because they are so costly. That said, many times a trial court will enter orders to maintain the status quo or make changes while the case pends and to move it along until it all gets heard and the court issues a final order.
At Ciyou & Dixon, P.C., we observe many orders just in domestic cases with child-related components. In fact, there may be numerous orders issued before the final trial and divorce decree is entered. There may be a preliminary custody order, child support order, and/or order for a custody evaluation, to name a few. The problem this creates for appeal is these orders are interlocutory in nature, and not ordinarily appealable. However, if it is the final order on all issues, the clock starts ticking to perfect an appeal within thirty (30) days. This sounds straight forward and easier to determine than it actually is in practice. Final Appealable Order.
For example, in a child custody modification case, the Firm received an order from the trial court with language indicating the child custody modification was denied but the custody case would continue to a trial, at a later date. This language presents a trick-box. The language appears to be final as to the child custody action pending before the court, but because it also indicates it will be heard in the future, could indicate it is an interlocutory order and not a final order that can be appealed.
In cases like this, it may be necessary to have trial and appellate counsel both review the order to ensure the trial portion is handled correctly (custody is decided or will be litigated), while at the same time, protecting the right to appeal. This is the litigant’s duty, not that of an over-booked court. This is why the appellate and trial rules exists. In other words, a motion, called a Motion to Correct Error, may have to be filed to address such a contradiction in the noted order. There are other ways such situations can be addressed, if the Motion to Correct Error is not the right tool. But it must be addressed or you risk forfeiting your appeal (or not getting your custody case heard). As a last resort, appellate counsel may have to file a Notice of Appeal to protect your right to appeal until this is sorted out in the trial court or on appeal.
Once an order is a final order and you seek to appeal some or all parts of the order, you must determine if your trial counsel will handle the appeal. If not, the time is limited to locate and retain an appellate attorney. As a general rule, the appeal begins by filing a Notice of Appeal within 30 days of the final judgment. In criminal cases, this is 30 days after sentencing. Failure to timely file the Notice of Appeal within this time forfeits the right to appeal. However, in criminal cases, a trial court may allow a belated Notice of Appeal to be filed or the defendant may challenge the conviction by post-conviction relief. Neither is optimal. A timely appeal should always be the first course of action to challenge any civil final order or conviction and sentencing. Notice of Appeal.
Assuming the Notice of Appeal is timely filed, the court clerk will prepare the clerk’s record, which is a copy of the chronological case summary (an index of what has been filed) and the court reporter will prepare the transcript (a word for word typed transcript of the testimony) and exhibits for the appeal, which is called the record. In addition, an appellant prepares an Appendix of other necessary papers, pleadings, and motions filed in the court that are relied upon in the briefing. Ultimately, this will form the basis of the materials to make the argument to the Court of Appeals that a reversible error occurred. This is done in the Appellant’s Brief and analyzes why the case should be reversed.
Appeals are rule driven and easy to forfeit or otherwise impair for failure to properly follow the Indiana Rules of Appellate Procedure, such as not timely filing a Notice of Appeal within thirty (30) days of a final order. You also subject your appeal to dismissal if the order you are appealing is not a final appealable order. This is the complex world of appeals in which Ciyou & Dixon, P.C. attorneys spend their professional time in and thrive. If you, have an appeal looming on the horizon based on current litigation, perhaps we should be your counsel.
Proven & experienced attorneys successfully advocating & resolving complex cases for over 25 years