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Interlocutory Appeals

“My attorney advised me I might be able to seek and interlocutory appeal even though my case has not gone to trial. What is that and should I do it?”

Ciyou & Dixon, P.C. believes you, need a basic understanding of how trial and appellate courts operate to meaningfully consider use of this appellate remedy. For the most part, our legal system presupposes a trial court will make an accurate and timely decisions by its orders throughout any criminal or civil case. Orders make the case move toward trial. They are called interlocutory orders because they are not the final order deciding all issues in the case. However, there are some circumstances where an order of a trial court is in question and it makes sense to have the Court of Appeals of Indiana decide this issue before the bench or jury trial occurs.

This is where interlocutory appeals come into play. There are two types. The first type of interlocutory appeal allows a party to bring the order the trial court issued to the Court of Appeals as a matter of right. The trial might be stayed or continued while the litigant takes an interlocutory appeal. For example, if a party asks the trial court to change the venue (county) in which the case will be heard to obtain an untainted jury pool, denial of this request (the order denying it) may be taken to the Court of Appeals as a matter of right. There is also the right to seek a discretionary interlocutory appeal, but it does not proceed to the Court of Appeals of Indiana unless the trial court judge allows or certifies it to move forward. What is an Interlocutory Appeal?

A. Matter of Right.
Interlocutory appeals that a litigant may take as a matter of right are rare, highly technical, and somewhat hard to understand by their legalese. Nevertheless, they may be sought by the filing of a Notice of Appeal on orders the trial court enters that address any of the following:

  • For the payment of money.
  • To compel the execution of any documents.
  • To compel delivery of securities, and similar financial documents.
  • For the sale or delivery of possession of real estate.
  • Granting or refusing to grant a preliminary injunction.
  • Appointing a receiver.
  • For a writ of habeas corpus.
  • Transferring or refusing to venue.
  • Order issued by an Administrative Agency that by statute is required to be appealed as a mandatory interlocutory appeal

A good example of an interlocutory appeal as a matter of right would be if a trial court orders you to pay attorney’s fees to the other side during the proceeding. This is an interlocutory appeal as a matter of right. Once the Notice of Appeal is filed, and assuming the trial court stays the action (stops it, which it does not have to), the order in question is briefed just like a regular appeal and tracks the process of any other appeal. The only difference is the litigation in the trial court is not finished, and when it is, the final order that issues too may be appealed. Alternatively, a litigant does not have to take an appeal as a matter of right, but instead, may wait until the final order is issued. Appealed Interlocutory Order. Notice of Appeal of Interlocutory Order. Appellant’s Brief for Interlocutory Appeal.

B. Discretionary.
A more common and easy to understand interlocutory appeal is one that is discretionary in nature. Again, it is anticipated that any erroneous ruling made by a trial court during the litigation can be corrected on appeal after the trial is over and a final order issued. With a discretionary interlocutory appeal, the trial court has to certify the interlocutory order and the Court of Appeals has to accept the interlocutory appeal before it proceeds on appeal.

A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the interlocutory order is issued. The trial court may certify a belated interlocutory appeal for good cause also (if you miss the deadline but have a good reason for missing same). The motion for certification must contain identification of the interlocutory order sought to be certified. In addition, this motion must have a concise statement of the issues to be addressed in the interlocutory appeal and why the interlocutory appeal should be permitted.

To certify an interlocutory appeal, the appellant has to establish one of three bases for the trial court to grant same. The first is the appellant will suffer substantial expense, damage or injury if the order is erroneous and the determination of the error is withheld until after judgment. Second, the order involves a substantial question of law, the early disposition of which will promote a more orderly disposition of the case. Third, the remedy by appeal is inadequate. Request to Accept Interlocutory Appeal.

A good example of a discretionary interlocutory appeal would be where a trial court in a criminal case denies a request to suppress evidence. If the suppression would not allow the case to go forward if granted because of suppression of the evidence, this is a good type of order to seek an interlocutory appeal to address, as this would avoid a trial if the Court of Appeals of Indiana reverses the trial court’s denial of the suppression.

If the trial court certifies an interlocutory order, the Court of Appeals must then accept the interlocutory appeal. When this occurs, the party files a Notice of Appeal and the case tracks the appellate process like any other appeal. However, the Court of Appeals does not have to accept any certified discretionary interlocutory appeal. Effectively any order issued by a trial court may form the basis for a discretionary interlocutory appeal. However, the trial court must certify the order for a discretionary interlocutory appeal and the Court of Appeals must accept it.

At Ciyou & Dixon, P.C., we understand the difficulty presented when presented with understanding the concept of an interlocutory appeal as of right or a discretionary interlocutory appeal. To illustrate a discretionary interlocutory appeal, we use a case from our actual practice. Here are the facts: A serious violent felon was found to be in possession of a handgun. A suppression argument was made that the police obtained this evidence through an illegal search and seizure. For this reason, a motion to suppress the evidence (i.e., the handgun) was filed with the trial court. The trial court denied the suppression, but certified its order denying suppression at the request of the defendant, our client. This is because the law was unclear if a Terry stop search and seizure analysis applied to the case or the police officers needed to obtain a search warrant, which they did not. The Court of Appeals accepted this interlocutory order and reversed and ordered the handgun suppressed because the police officers had to have a search warrant. Had this case not unfolded this way, namely by an interlocutory appeal, the defendant could have been convicted, had to sit in jail pending appeal, only to later have his conviction overturned for the improper admission of evidence. This is the type of harm justifying the interlocutory appeal as required by the rule.

Ultimately, interlocutory appeals are rare, but are tools appellate lawyers may use for you in the right circumstances. Ciyou & Dixon, P.C. advocates are well versed in the appellate tools available to our clients to meet their needs and serve the interests of justice.

Is an interlocutory appeal proper or necessary in your case? If so, Ciyou & Dixon, P.C. advocates may be the right legal team to handle your interlocutory appeal.

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