INDIANA

APPELLATE PRACTICE

MANUAL

Prepared by the

Appellate Practice Section

of the

Indiana State Bar Association

INDIANA

APPELLATE PRACTICE

MANUAL

CONTRIBUTORS and EDITORS

2008 Edition

Darren A. Craig

Lucy R. Dollens

Carol Sparks Drake

R. Brock Jordan

Crystal Rowe

Timothy J. Vrana

Kent Zepick

2001 Edition

Paula F. Cardoza

Geoff Davis

Lynn M. Devine

Eileen Euzen

Michael R. Kohlhaas

Christopher A. Lafuse

Robert J. Palmer

Jon B. Laramore

George T. Patton, Jr.

R. Brock Jordan

1997 Edition

The Honorable Edward W. Najam

The Honorable Patricia A. Riley

Jon B. Laramore

Janet L. Parsanko

Greta M. Scodro

Nana M. Quay-Smith

Robert W. Wright

Sandra Boyd Williams

i

TABLE OF CONTENTS

Preface ………………………………………………………………………………………..….vi

Notes ………………………………………………………………………………………...…..vii

Electronic Access to Information, Rules, Procedures, and

Opinions of the Indiana Courts ……………………………………………………...….viii

I. Summary of Appellate Deadlines ………………………………………………………1

A. Computation of Deadlines – App. R. 25 ………………………………………….1

B. Deadlines for Appeals from Final Judgments, Orders,

and Rulings, and for Interlocutory Appeals of Right ……………………………..1

C. Deadlines for Discretionary Interlocutory Appeals ………………………………3

D. Extending and Shortening Deadlines – App. R. 14, 35 …………………………..4

II. Organization and Jurisdiction of the Indiana Appellate Courts ……………………..5

A. Structure and Location ……………………………………………………………5

B. Panel Composition and Case Assignment ………………………………………..6

C. Appellate Jurisdiction …………………………………………………………….7

III. Initiating an Appeal ……………………………………………………………………..8

A. The Notice of Appeal – App. R. 9 ………………………………………………..8

B. Initiating Preparation of the Record on Appeal - App. R. 9 ……………………...9

C. Joint Appeals – App. R. 9(C) ……………………………………………………10

D. Cross-Appeals – App. R. 9(D) …………………………………………………..11

E. Administrative Agency Appeals – App. R. 9(I) ………………………………...11

F. Confidential Documents and Information – App. R. 9(J) ……………………….11

G. Clerk’s Responsibilities – App. R. 10 …………………………………………...11

H. Duties of Court Reporter – App. R. 11, 28 ……………………………………...12

ii

I. Transmittal of the Record – App. R. 12 …………………………………………12

J. Preparation of Record in Administrative Agency

Cases – App. R. 13 ………………………………………………………………13

K. Interlocutory Appeals – App. R. 14 ……………………………………………..13

L. Expedited Appeals in Juvenile and CHINS Cases – App. R. 14.1 ……………...13

M. Appellant’s Case Summary – App. R. 15 ……………………………………….13

N. Appearances – App. R. 16 ……………………………………………………....15

O. Parties on Appeal – App. R. 17 ……………………………………………….....16

P. Appeal Bonds and Letters of Credit – App. R. 18 ……………………………....16

Q. Pre-appeal Conferences – App. R. 19 …………………………………………...17

R. Appellate Alternative Dispute Resolution – App. R. 20 ………………………...17

IV. Filing and Service ……………………………………………………………………...18

A. Filing – App. R. 23 ……………………………………………………………...18

B. Service of Documents – App. R. 24 …………………………………………….20

C. Computation of Time – App. R. 25 ……………………………………………..21

D. Transmission of Orders, Opinions, and Notices – App. R. 26 ………………….23

V. The Record on Appeal …………………………………………………………………24

A. Introduction and Summary – App. R. 27, 50 ……………………………………24

B. Contents of the Record – App. R. 22, 27 ………………………………………..24

C. Court Reporter’s Responsibilities – App. R. 11, 28 …………………………….24

D. Form of the Record – App. R. 28 – 30 ………………………………………….25

E. Statement of the Evidence – App. R. 31 ………………………………………..25

F. Correction of Record – App. R. 32 ……………………………………………..26

G. Agreed Statement – App. R. 33 …………………………………………………27

iii

VI. Motions Practice ………………………………………………………………………..28

A. Introduction – App. R. 34 ……………………………………………………….28

B. Time Limitation – App. R. 34 …………………………………………………...28

C. Contents – App. R. 34 …………………………………………………………...28

D. Facts Not of Record – App. R. 34 ……………………………………………….29

E. Form – App. R. 34, 43 …………………………………………………………..29

F. Length – App. R. 34, 44 ………………………………………………………...29

G. Oral Arguments on Motions – App. R. 34 ………………………………………30

H. Specific Motions – App. R. 35 – 42 ……………………………………………..30

1. Motion for Extension of Time – App. R. 35 …………………………….30

2. Motion to Dismiss – App. R. 36 …………………………………….......32

3. Motion to Remand – App. R. 37 ………………………………………...32

4. Motion to Consolidate Appeals – App. R. 38 …………………………...32

5. Motion to Stay – App. R. 39 …………………………………………….32

6. Motion to Proceed In Forma Pauperis – App. R. 40 ……………………32

7. Motion to Appear as Amicus Curiae – App. R. 41 ……………………...33

8. Motion to Strike – App. R. 42 …………………………………………..33

VII. Stays on Appeal ………………………………………………………………………...35

VIII. Briefs ……………………………………………………………………………………37

A. Briefs to the Indiana Court of Appeals or on

Direct Appeal to the Indiana Supreme Court – App. R. 43 – 46 ………………..37

B. Briefs of Amicus Curiae or Intervenor – App. R. 41, 43, 44, 46 ………………..44

C. Briefs Involving Cross-Appeals – App. R. 46 …………………………………..45

iv

D. Addendum to Brief – App. R. 23, 46 ……………………………………………45

IX. Appendix ………………………………………………………………………………..46

A. Civil Appeal – App. R. 49 – 51 …………………………………………………46

B. Criminal Appeal – App. R. 49 – 51 ……………………………………………..47

C. Other Required Elements – App. R. 50, 51 ……………………………………..48

X. Oral Argument …………………………………………………………………………49

A. Scheduling – App. R. 52, 53 …………………………………………………….49

B. Time Allotted and Order of Argument – App. R. 53 ……………………………49

C. Content of Argument – App. R. 53 ……………………………………………...50

D. Cross Appeals, Amicus Curiae, and Multiple Parties – App. R. 53 …………….50

E. Other Procedures – App. R. 53 ………………………………………………….50

XI. Interlocutory Appeals ………………………………………………………………….52

A. Introduction – App. R. 2, 14 …………………………………………………….52

B. Interlocutory Appeals of Right – App. R. 14 ……………………………………52

C. Discretionary Interlocutory Appeals – App. R. 14 ……………………………...54

D. Statutory Interlocutory Appeals – App. R. 14 …………………………………..56

E. Clerk’s Record and Transcript – App. R. 10, 11, 14 ……………………………56

F. Briefing – App. R. 14, 43 – 45 …………………………………………………..57

G. Shortening or Extending Time – App. R. 14, 35 ………………………………..57

H. Stay of Trial Court Proceedings – App. R. 14, 18, 39 …………………………..57

XII. Rehearing and Transfer ……………………………………………………………….58

A. Rehearing – App. R. 43, 44, 54, 55 ……………………………………………...58

B. Transfer – App. R. 43, 44, 46, 54, 56 – 58, 65 ………………………………….60

v

C. Obtaining Information About a Particular Case ………………………………...63

XIII. Court Procedures, Powers, and Decisions ……………………………………………64

A. Published and Not For Publication Memorandum

Decisions – App. R. 65 ………………………………………………………….64

B. Certification of Opinion – App. R. 65 …………………………………………..64

C. Relief Available On Appeal – App. R. 66 ………………………………………65

D. Damages Against Appellant – App. R. 66 ………………………………………66

E. Costs – App. R. 67 ………………………………………………………………66

XIV. Supreme Court Review of Indiana Tax Court Decisions ……………………………67

A. Rehearing – App. R. 54 ………………………………………………………….67

B. Petitions for Review – App. R. 43, 44, 63 ………………………………………67

C. Briefs in Opposition – App. R. 43, 44, 46, 63 …………………………………..67

D. Reply Briefs – App. R. 43, 44, 63 ……………………………………………….68

E. Criteria for Granting Review – App. R. 63 ……………………………………..68

F. Interlocutory Review – App. R. 14, 63 ………………………………………….68

G. Disposition of the Petition – App. R. 63 ………………………………………...68

H. Record on Appeal – App. R. 63 …………………………………………………69

XV. Original Actions ………………………………………………………………………..70

XVI. Frequently Used Contact Information ………………………………………………..71

XVII. Additional Resources …………………………………………………………………..72

XVIII. Checklist for Appellate/Tax Court Filings …………………………………………...73

vi

PREFACE

This manual is designed to provide a general introduction to the practice of law in

Indiana’s appellate courts. It is intended to help those lawyers who practice occasionally in the

appellate courts by providing basic “how to” information. Section XVII contains references to

additional, more detailed resources.

This manual has been produced by members of the Appellate Practice Section of the

Indiana State Bar Association. This manual is not an official publication of the courts and has no

official status. Because the manual is designed as a basic guide, it does not cover all aspects of

appellate practice.

Although this manual provides basic information, every practitioner handling an appeal

should read and study the Indiana Rules of Appellate Procedure. The rules are the primary guide

to practice in the Indiana Supreme Court and Indiana Court of Appeals. There is no substitute

for familiarity with the rules.

vii

NOTES

The printed edition of the Indiana Appellate Practice Manual is current to January 1,

2008. Up to date rules are always available on the website of the Indiana Courts:

http://www.in.gov/judiciary/.

We attempt to keep the online version of this manual as current and accurate as possible.

We would appreciate being advised of any errors or inconsistencies, and we welcome

suggestions for improvement. Any such suggestions should be sent by mail to Tim Vrana, P. O.

Box 527, Columbus IN 47202, or by e-mail to tim@timvrana.com. Requests for information or

procedural assistance should be directed to:

Clerk of the Supreme Court, Court of Appeals, and Tax Court,

317-232-1930;

Supreme Court Administrator, 317-232-2540;

Court of Appeals Administrator, 317-232-6906; or

Tax Court Administrator, 317-232-4694.

Throughout this manual, specific appellate rules are referred to by using the abbreviation

“App. R.” Please note that in appellate pleadings and briefs, pursuant to App. R. 22(B),

appellate rules are referenced initially by using “Ind. Appellate Rule X” and subsequently by

using “App. R. X.”

We have cited to a few unpublished cases. Although unpublished cases are now

available online, App. R. 65(D) has not changed. Unpublished decisions are still not regarded as

precedent and must not be cited to any court except by the parties to the case to establish res

judicata, collateral estoppel, or law of the case.

viii

ELECTRONIC ACCESS TO INFORMATION, RULES, PROCEDURES,

AND OPINIONS OF THE INDIANA COURTS

The websites of Indiana’s appellate courts provide a wealth of information to

practitioners, including:

• Access to the courts’ dockets

• Full texts of opinions (updated daily)

• Biographies of the judges and justices

• The Rules of Appellate Procedure

• The Rules of Professional Conduct

• Rules concerning attorney admission and discipline

• Calendars of oral arguments

• History of the courts

• How to view Indiana Supreme Court oral arguments online.

Access to the courts’ websites is free. Go to:

Tax Court: http://www.in.gov/judiciary/tax/

Court of Appeals: http://www.in.gov/judiciary/appeals/

Supreme Court: http://www.in.gov/judiciary/supreme/

Since September, 2001, the Indiana Supreme Court has webcast all of its oral arguments.

Oral arguments can be watched on the Internet as they occur. Past oral arguments can be viewed

as well.

1

I. SUMMARY OF APPELLATE DEADLINES

A. Computation of Deadlines – App. R. 25

1. How to Compute Deadlines (App. R. 25). The day of the act, event, or default

from which the designated period of time begins to run shall not be included. The last day

of the period is to be included unless it is a Saturday, a Sunday, a legal holiday, or a day

the clerk’s office is closed, in which case the period runs until the end of the next

business day.

2. Deadlines are Extended When Service is by Mail or Carrier (App. R. 25(C)).

When time periods are triggered by service, and motions, briefs or other papers are

served upon an opposing party or counsel by mail or with any properly bonded carrier,

the time period specified for the filing of any answers or briefs shall be automatically

extended by three days. However, this rule does not extend the time period for filing

documents when the deadline is not triggered by a party’s service of a document, such as

the appellant’s brief, a petition for rehearing, or a petition to transfer.

NOTE: Always refer to the most recent version of the Rules of Appellate Procedure to

be certain that a deadline has not been changed.

B. Deadlines for Appeals from Final Judgments, Orders, and Rulings, and for

Interlocutory Appeals of Right (No Certification Required) (*see page 3)

Document Deadline Appellate

Rule

Notice of Appeal: file in

trial court or with

Administrative Agency

30 days after appealable judgment, order, or

ruling; or 30 days after actual or deemed denial

of a motion to correct error.

9(A), 9(I),

14(A)

Payment of filing fee to

Clerk

When Notice of Appeal is filed. 9(E)

Request to stay enforcement

(not automatic)

Rules do not specify a deadline. It is good

practice to request a stay as soon as possible.

39; Trial Rule

62

Motion to shorten deadlines

(interlocutory appeals)

10 days after Notice of Appeal is filed. 14(G)(2)

Appellant’s Case Summary 30 days after Notice of Appeal for appeals from

final judgments.

15(B)

Responding Party’s

Appearance

30 days from Appellant’s Case Summary or

contemporaneously with first document filed by

responding party, whichever is first.

16(B)

Completion of Clerk’s

Record

Trial court clerk to complete assembly and

issue Notice of Completion of Clerk’s Record

within 30 days after Notice of Appeal is filed.

10(B), 10(C)

2

Motion for order compelling

trial court clerk to issue

Notice of Completion of

Clerk’s Record

15 days after the Notice of Completion of

Clerk’s Record was due to be issued.

10(F)

Filing of Transcript Court reporter shall file with trial court clerk

within 90 days after Notice of Appeal is filed.

11(A), 11(B)

Motion for order compelling

court reporter to file

Transcript

15 days after the Transcript was due to be filed. 11(D)

Trial court clerk’s Notice of

Completion of Transcript

Within 5 days after court reporter files

Transcript.

10(D)

Motion for order compelling

trial court clerk to issue

Notice of Completion of

Transcript

15 days after the Notice of Completion of

Transcript was due to be issued.

10(G)

Brief of Appellant 30 days after the trial court clerk or

Administrative Agency issues notice of

completion of Clerk’s Record if notice reports

that Transcript is complete or that no Transcript

was requested; in all other cases, 30 days after

date trial court clerk or Administrative Agency

issues its notice of completion of Transcript.

45(B)(1)

Appellant’s Appendix When appellant’s brief is filed. 49(A)

Brief of Appellee 30 days after service of appellant’s brief. 49(B)(2)

Appellee’s Appendix When appellee’s brief is filed. 49(A)

Reply Brief/Cross-

Appellee’s Brief

15 days after service of appellee’s brief, unless

it also serves as cross-appellee’s brief, in which

case, 30 days.

45(B)(3)

Cross Appellant’s Reply

Brief

15 days from service of cross-appellee’s brief. 45(B)(4)

Supplemental Appendix Any time until final reply brief is filed (leave of

court is required for later filing).

49(A)

Requests for Oral Argument No later than 7 days after the deadline for filing

any reply brief.

52(B)

Acknowledgement of order

setting oral argument

15 days after service of order setting oral

argument.

52(C)

Petition for Rehearing 30 days after Court of Appeals’ decision. No

extensions of time permitted.

54(B)

Response to Petition for

Rehearing

15 days after petition for rehearing filed or a

response requested by the Court. No extensions

of time permitted.

54(C)

Petition to Transfer 30 days after Court of Appeals’ disposition of

the petition for rehearing. If rehearing was not

sought, 30 days after the Court of Appeals’

decision. No extensions of time permitted.

57(C)

3

Reply to Petition to Transfer 20 days after petition to transfer served. No

extensions of time permitted.

57(D)

Reply to brief in response to

petition to transfer

10 days after brief in response is served. No

extensions of time permitted.

57(E)

Motion for extension of

time

At least 7 days before deadline, unless movant

becomes aware of facts later.

35(A)

Motion to file oversized

brief or petition

At least 15 days before the brief or petition is

due.

44(B)

Response to any motion 15 days after service of motion. 34(C)

Request for leave to reply to

a response to a motion

5 days after service of response. 34(D)

Motion for costs 60 days after final decision by Court of Appeals

or Supreme Court.

67(A)

Motion to publish decision Within 30 days of entry of the decision. 65(B)

* Certain appeals of orders concerning services, programs, or placement of children alleged to be

in need of services (CHINS) or delinquents have their own set of rules. See Tr.R. 59(K) and

App.R. 14.1.

C. Deadlines for Discretionary Interlocutory Appeals (Certification Required)

Document Deadline Appellate

Rule

Motion requesting trial court

to certify interlocutory order

Within 30 days of date of interlocutory order

unless trial court, for good cause, permits

belated motion.

14(B)(1)(a)

Request to stay proceedings

in the trial court (not

automatic)

Rule does not specify a deadline. It is good

practice to request a stay contemporaneously

with the request for certification.

39; Trial Rule

62

Response to motion to

certify

Within 15 days after service of motion. 14(B)(1)(d)

Ruling on motion to certify Motion deemed denied if court fails for 30 days

to set motion for hearing, fails to rule on motion

within 30 days after it was heard, or fails to rule

within 30 days after it was filed (if no hearing is

held).

14(B)(1)(e)

Motion requesting Court of

Appeals to accept

jurisdiction

Within 30 days of date of trial court’s

certification.

14(B)(2)(a),

14(C)(1)

Appellant’s Case Summary Same time as motion to Court of Appeals

requesting permission to file interlocutory

appeal.

15(B)

Motion to shorten deadlines 10 days after filing motion requesting Court of

Appeals to accept jurisdiction.

14(G)(2)

4

Response to motion to

accept jurisdiction

Within 15 days after service of motion. 14(B)(2)(d),

14(C)(4)

Notice of Appeal Within 15 days of Court of Appeals’ order

accepting jurisdiction.

14(B)(3),

14(C)(5)

Clerk’s Record and

Transcript

Clerk’s Record assembled in accordance with

Rule 10. Court Reporter files Transcript in

accordance with Rule 11. Same deadlines as

for other appeals.

14(E)

Briefing and other

procedures

Same deadlines as for other appeals. See table

in Part B, above.

34, 35, 45(B),

49, 52, 54, 57,

67

D. Extending and Shortening Deadlines – App. R. 14, 35

1. Extensions of Time. Motions to extend deadlines are covered by App. R. 35.

Motions must be timely filed, and the rules prohibit or limit extensions of time in some

circumstances. App. R. 14(G)(1), 14.1(E), 35(A), 35(C), 35(D).

2. Shortening Deadlines. In interlocutory appeals, the Court may shorten any

deadlines upon a motion by a party for good cause shown. A motion to shorten must be filed

within 10 days of filing either the Notice of Appeal (for interlocutory appeals of right) or the

motion to the Court of Appeals requesting permission to file an interlocutory appeal (for

discretionary appeals). App. R. 14(G)(2).

5

II. ORGANIZATION AND JURISDICTION OF THE

INDIANA APPELLATE COURTS

A. Structure and Location

1. Indiana Supreme Court. The Indiana Supreme Court is vested with the judicial

power of the state by the Indiana Constitution, Article 7, § 1. The Supreme Court consists of

five justices, one of whom is the Chief Justice of the State. The Chief Justice is selected by the

Indiana Judicial Nominating Commission for a term of five years and acts as the administrative

head of the court. The Chief Justice may resign from that position without resigning as a

member of the court. In his or her absence, the justice who is senior in length of service

exercises the Chief Justice’s duties.

To be eligible to serve on the Supreme Court, a person must be a citizen of the United

States and either (1) be admitted to practice in Indiana for not less than ten years or (2) have

served as a judge of a circuit, superior or criminal court of the state for not less than five years.

A vacancy on the court is filled by the Governor from a list of three nominees recommended to

the Governor by the Indiana Judicial Nominating Commission. A Supreme Court justice must

retire at age 75.

The courtroom of the Supreme Court is Room 317 in the Indiana State House. All of the

justices have chambers in the same building. The office of the Clerk is located in Room 217 of

the Indiana State House.

2. Indiana Court of Appeals. The Indiana Court of Appeals became a

constitutional court under a 1970 revision to the Indiana State Constitution. In 1971, the Indiana

General Assembly established three geographic districts of approximately equal population, with

three judges appointed from each district. On March 2, 1978, a fourth district was established,

and on January 1, 1991, a fifth district was added. The fourth and fifth districts consist of three-

judge panels, one judge from each of the original geographic districts. Thus, the present court

consists of fifteen judges. By statute, the Court of Appeals also employs senior judges, who

have retired from active service on the Court of Appeals but work part-time to supplement the

work of the 15 active judges.

The Court of Appeals judges elect a Chief Judge for a term of three years. Also, a

Presiding Judge is elected for each district. The Chief Judge and the Presiding Judges perform

the administrative duties of the court.

To be eligible to serve on the court, a person must have been admitted to the practice of

law in Indiana for a minimum of ten years or have served as a trial court judge for at least five

years. A Court of Appeals judge must retire at age 75.

The courtroom and all judges’ offices are located in Indianapolis. The courtroom and

eight judges’ chambers are located on the fourth floor of the State House. Seven judges’

6

chambers and the administrative offices are housed on the 12th

floor of the National City Center,

South Tower, 115 West Washington Street, Suite 1270, Indianapolis, Indiana 46204.

B. Panel Composition and Case Assignment

1. Indiana Supreme Court. When a petition to transfer is filed in a civil case, it is

first assigned to a staff attorney in the office of the court administrator. That staff attorney

reviews the record, the opinion rendered by the Court of Appeals, and the briefs submitted by the

parties. The staff attorney then prepares a memorandum to the court, summarizing the case. The

memorandum, the Court of Appeals’ decision, and all briefs filed with the Court of Appeals and

Supreme Court are distributed to the justices. Each justice reviews the case and casts a tentative

vote in writing. If any of the justices votes to grant transfer or to discuss the case, the full

conference discusses the case. If, at the end of the discussion, there are less than three votes to

grant transfer, transfer is denied. If there are three or more votes to grant transfer, transfer is

granted. The justice assigned to write the opinion is determined by consensus of those in the

majority.

The Supreme Court also has the discretionary authority to grant or deny transfer in

criminal cases (except when there is a sentence for life in prison or death, placing the appeal

within the Supreme Court’s mandatory jurisdiction.) Criminal cases are distributed directly to

each of the five justices. No initial review is prepared by the staff. The petition to transfer, all

briefs of the parties, and the opinion of the Court of Appeals are distributed directly to the

justices. Generally, the justices vote on these cases at conference the following week and grant

or deny transfer in the same manner as civil transfer cases.

Other cases, such as direct appeals, original actions, and attorney and judicial discipline

cases are assigned either on a rotating basis or by agreement among the members of the court in

the majority. These cases are also voted upon by each justice and discussed in conference.

2. Indiana Court of Appeals. The Indiana Court of Appeals sits in panels of three

judges constituted for four-month periods. At the end of each four-month rotation, the panels are

reshuffled randomly.

Each new case is assigned to a judge when it is fully briefed and ready for decision.

Senior judges also are assigned cases on a random basis.

Each panel of judges is expected to dispose of all of the cases assigned to its three

members during the four-month period the panel sits. In the first month of each four-month

period, cases are distributed that have been filed in the two previous months and assigned to any

of the three judges on a panel. In the second month of the four-month period, cases are

distributed that have been filed in the first and second months of the four-month period. In the

last two months of each four-month period, cases are accumulated for distribution during the

next four-month period.

The court also maintains a motions panel, comprised of three judges who sit for

staggered, three-month terms. The motions panel decides motions to dismiss, permissive

7

interlocutory appeal motions, motions for pre-appeal conferences, motions for stay, motions for

bond, motions to consolidate, and petitions for leave to file subsequent post-conviction petitions

(P-C.R. 1 § 12). Some other motions, including motions for expedited consideration, motions to

publish, motions for oral argument, and motions for leave to appear amicus curiae generally are

sent to the panel handling the case. Other motions, including motions for extension of time,

appellants’ motions to dismiss, motions to proceed in forma pauperis, and motions to file a

belated appeal (P-C.R. 1 § 3) are handled by the Chief Judge.

C. Appellate Jurisdiction

The jurisdiction of the Supreme Court and Court of Appeals is clearly set forth in

Appellate Rules 4 and 5.

1. Indiana Supreme Court. The Supreme Court’s mandatory jurisdiction extends

to criminal appeals in which a sentence of death or life imprisonment without parole is imposed

under Ind. Code § 35-50-2-9 and criminal appeals in post-conviction relief cases in which the

sentence was death. The mandatory jurisdiction also includes final judgments declaring a state

or federal statute unconstitutional in whole or in part, and appeals involving waiver of parental

consent to abortion or mandate of funds under Trial Rule 60.5(B) and App. R. 61. The Supreme

Court’s jurisdiction also extends to admission to the practice of law, attorney discipline,

supervision of judges and courts, and issuance of writs necessary or appropriate in aid of its

jurisdiction.

2. Indiana Court of Appeals. The Court of Appeals has jurisdiction over appeal of

all other final judgments, interlocutory orders as specified in Rule 14, actions in aid of its

jurisdiction, and to review final orders, rulings, decisions, and certified questions of

administrative agencies (the Workers’ Compensation Board, Indiana Civil Rights Commission,

Indiana Utility Regulatory Commission, or the Review Board of the Department of Workforce

Development.)

The appellate court acquires jurisdiction on the date the trial court clerk issues its Notice

of Completion of Clerk’s Record. App. R. 8. Before that, the appellate court, when necessary,

exercises limited jurisdiction in aid of its appellate jurisdiction, such as motions under App. R.

18 (appeal bonds and letters of credit) and 39 (stay).

8

III. INITIATING AN APPEAL

A. The Notice of Appeal – App. R. 9

1. Purpose. A party initiates an appeal by filing a “Notice of Appeal” with the trial

court clerk or Administrative Agency. The Notice of Appeal replaces the “Praecipe” that

initiated an appeal under the old rules.

2. Time for Filing. The Notice of Appeal must be filed within 30 days after (1) the

entry of a Final Judgment, if no timely motion to correct error is filed; (2) the trial court’s ruling

on a timely motion to correct error; or (3) a timely motion to correct error is deemed denied

under Trial Rule 53.3. App. R. 9(A). For interlocutory appeals, see App. R. 14(A), 14(B)(3),

14(C), and Chapter XI of this manual. If the appeal is from certain orders concerning children

alleged to be delinquent or in need of services (CHINS), the Department of child Services must

file a Notice of Expedited Appeal within five days of the trial court’s order. App. R. 14.1(B)(1).

The timely filing of a Notice of Appeal is critical because “the right to appeal shall be

forfeited” unless it is timely filed. App. R. 9(A)(5). The only exception allowed by the rules is

the ability of a criminal defendant to seek leave to take a belated appeal under P-C.R. 2. App. R.

9(A)(5).

Generally, the word “entry” in App. R. 9(A) refers to a judgment’s entry in a trial court’s

Record of Judgment and Orders (“RJO”). Smith v. Deem, 834 N.E.2d 1100, 1109 (Ind. Ct. App.

2005). But where there is a significant delay between the time the court enters an order and the

trial court clerk records that order in the RJO, a party must file a Notice of Appeal within 30 days

of receiving notice of the court’s order. Id. at 1110. Thus, the best practice is to file a Notice of

Appeal within thirty days of the date the court signed the order. In fact, a Notice of Appeal can

be filed even after a trial court makes an oral ruling that constitutes a final order. Schaefer v.

Kumar, 804 N.E.2d 184, 189-90 n.7 (Ind. Ct. App. 2004).

The premature filing of a Notice of Appeal is “simply a defect in form that is capable of

being cured,” and thus will not subject an appeal to mandatory dismissal, as will a late-filed

Notice of Appeal. Ivy v. State, 847 N.E.2d 963 (Ind. Ct. App. 2006).

3. Service. The Notice of Appeal must be served on all parties of record in the trial

court. It must also be served on the Attorney General in criminal appeals and in appeals from a

final judgment declaring a state statute unconstitutional in whole or in part. App. R. 9(A). A

copy of the Notice of Appeal must be sent to the Clerk with the filing fee. App. R. 9(E).

(“Clerk” is defined as the Clerk of the Supreme Court, Court of Appeals and Tax Court of

Indiana. App. R. 2(D).) Even if no filing fee is required, the appellant should still send a copy of

the Notice of Appeal to the Clerk.

4. Filing Fee. The appellant must pay the Clerk the $250 filing fee when the Notice

of Appeal is filed with the trial court clerk. The Clerk is not permitted to file any document until

9

the filing fee is paid. A copy of the Notice of Appeal must accompany the filing fee. If the

appellant is the State of Indiana, a governmental unit, or a person proceeding in forma pauperis,

no filing fee is required. App. R. 9(E). Procedures for seeking leave to proceed in forma

pauperis are found in App. R. 40.

5. Content of the Notice of Appeal. The Notice of Appeal fulfills several purposes.

It notifies the opposing parties and the Clerk that an appeal is going to be taken, it lets the trial

court clerk know that he or she must assemble the “Clerk’s Record,” and it lets the court reporter

know what transcripts must be prepared.

The Notice of Appeal must include:

• A designation of the appealed judgment or order and whether it is a final

judgment or interlocutory order.

• A designation of the court to which the appeal is taken – either the Supreme Court

or Court of Appeals. This designation will tell the Clerk how to docket the appeal

and will tell the trial court clerk and court reporter to which court they should

address motions for extension of time and various notices.

• A direction to the trial court clerk to assemble the Clerk’s Record. No special

instructions are required because the Clerk’s Record is defined in App. R. 2(E).

• A designation of all portions of the Transcript (defined in App. R. 2(K)) necessary

to present fairly and decide the issues on appeal. The designation should be as

specific as possible to inform the court reporter which proceedings to transcribe.

There are two limitations on the appellant’s choice of what to request: (1) if the

appellant intends to argue that a finding of fact or conclusion thereon is

unsupported by or contrary to the evidence, the Notice of Appeal must request a

transcript of all the evidence; and (2) in criminal appeals, the Notice of Appeal

must request a transcript of the entire trial or evidentiary hearing, unless the party

intends to limit the appeal to issues requiring no transcript at all.

App. R. 9(F); Form App. R. 9-1. The content of the Notice of Appeal for Administrative

Appeals/Reviews is similar to the Notice of Appeal from a trial court. App. R. 9(I); Form App.

R. 9-2. For certain appeals of CHINS and juvenile orders, see Form App. R. 14.1-1.

B. Initiating Preparation of the Record on Appeal – App. R. 9

1. The Record on Appeal. The “Record on Appeal” is defined as consisting of the

Clerk’s Record and all proceedings before the trial court or Administrative Agency, whether or

not transcribed or transmitted to the Court on Appeal. App. R. 2(L). The “Clerk’s Record” is

defined as consisting of the Chronological Case Summary (CCS) and all papers, pleadings,

documents, orders, judgments, and other materials filed in the trial court or Administrative

Agency or listed in the CCS. App. R. 2(E). Thus, the Record on Appeal is broadly defined,

consisting of practically everything that bears on what occurred in the trial court. The Record on

Appeal is much broader than what is actually sent to the Court on Appeal. App. R. 50.

10

2. The Appellant’s Designation. As discussed above, the appellant’s Notice of

Appeal must contain directions for the trial court clerk to assemble the Clerk’s Record and for

the court reporter to transcribe the proceedings that are necessary to present fairly and decide the

issues on appeal. App. R. 9(F)(4).

3. Supplemental Requests for Transcripts. Any party to the appeal may file with

the trial court clerk or the Administrative Agency a request that the court reporter transcribe

additional portions of the proceedings. Such a request may be made without leave of court.

App. R. 9(G).

The rules do not set forth specific procedures or deadlines for making supplemental

requests for transcripts. It seems advisable to follow the procedures for initial requests to the

extent possible. Thus, a party would designate the specific proceedings to be transcribed and

serve the request on the parties of record and the Clerk. Since no deadline is provided, the

requesting party may need to request the Court to set a deadline if preparation is unduly delayed.

4. Payment for Transcripts. When an appellant files a Notice of Appeal, the

appellant must make “satisfactory arrangements” with the court reporter for payment of the cost

of the parts of the Transcript the appellant requested. App. R. 9(H). The appellant must indicate

whether payment arrangements have been made with the court reporter on the Appellant’s Case

Summary. App. R. 15(C)(3)(c); Form App. R. 15-1, boxes 66 and 67.

Unless a court order requires otherwise, each party is responsible for paying all

transcription costs associated with the parts of the Transcript that the party requests. App. R.

9(H). Thus when any party makes a supplemental request for parts of the Transcript, that party

must make satisfactory arrangements with the court reporter for payment. Id. An indigent

criminal defendant is not required to pay for a transcript to take an appeal. Ind. Code § 33-40-8-

5; Wright v. State, 772 N.E. 2d 449, 461-62 (Ind. Ct. App. 2002).

5. Preparation of the Record on Appeal in Death Penalty Cases. On the same

day a trial court imposes a death sentence, the trial court is required to order the court reporter

and trial court clerk to begin immediate preparation of the Record on Appeal. This is intended to

expedite preparation of the Record on Appeal in those cases. It does not change the content

requirements of the Notice of Appeal or the procedures set forth in other rules.

C. Joint Appeals – App. R. 9(C)

If two or more persons are entitled to appeal from a single judgment or order, they may

proceed jointly by filing a joint Notice of Appeal. App. R. 9(C). A joint Notice of Appeal will

reduce paperwork and the possibility of confusion in preparing the Record on Appeal.

Parties filing a joint Notice of Appeal may then proceed on appeal as a single appellant.

App. R. 9(C). Thus, the parties filing a joint Notice of Appeal may file joint briefs and a joint

Appendix. App. R. 46(G), 50(E).

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The rules do not prohibit parties filing a joint Notice of Appeal from proceeding

separately on appeal and filing separate appellate briefs. App. R. 46(G). Conversely, parties

who file separate Notices of Appeal may file joint briefs. App. R. 46(G). Even if separate briefs

are filed, however, the parties must still file a joint appendix whenever practicable to avoid

duplication. App. R. 50(E).

D. Cross-Appeals – App. R. 9(D)

An appellee may cross-appeal without filing a Notice of Appeal by raising cross-appeal

issues in its appellee’s brief. Thus, a party who wishes to raise issues only if the opposing party

initiates an appeal need not file its own Notice of Appeal. But if the appellant fails to perfect its

appeal, the appellee forfeits its right to raise cross-appeal issues unless the appellee timely files

its own Notice of Appeal. App. R. 9(D).

E. Administrative Agency Appeals – App. R. 9(I)

Appeal from “Administrative Agencies,” defined as the Workers’ Compensation Board,

Indiana Civil Rights Commission, Indiana Utility Regulatory Commission, and Review Board of

the Department of Workforce Development (App. R. 2(A)), are taken directly to the Court of

Appeals, bypassing review by a trial court. The procedure for taking those appeals follows the

same procedures for civil appeals from trial courts, notwithstanding any statutes to the contrary.

App. R. 9(A)(3), 9(I). Thus, timing and other procedural matters set up by statute will not

control if they conflict with the rules. Citizens Industrial Group v. Heartland Gas Pipeline, LLC,

856 N.E.2d 734, 738 (Ind. Ct. App. 2006). No assignment of error is required, notwithstanding

any statute that purports to require one. App. R. 9(I).

F. Confidential Documents and Information – App. R. 9(G)

Documents containing information that Administrative Rule 9(G) excludes from public

access should be filed in the Court just as those documents were filed in the trial court pursuant

to T.R. 5(G). Pursuant to Administrative Rule 9(G)(4)(b), in cases in which a portion of the

record is excluded by statute or by rule, the parities and counsel must not disclose any

confidential matter in documents available to the public. They may refer to confidential matters

only in separate, confidential documents filed according to T.R. 5(G). Pursuant to

Administrative Rule 9(G)(4)(c), in cases in which a portion of the record is excluded by trial

court order, the appellant shall so note on the Appellant’s Case Summary and shall attach to the

Case Summary each such trial court order. In practical terms, this probably means that the

parties must file separate “for public access” and “confidential” briefs.

G. Clerk’s Responsibilities – App. R. 10

The trial court clerk or Administrative Agency is responsible for assembly of the clerk’s

record; that is, to gather all papers in the clerk’s file in a single location. The clerk’s record is the

“record maintained by the clerk of the trial court or the Administrative Agency and shall consist

of the Chronological Case Summary and all papers, pleadings, documents, orders, judgments,

and other materials filed in the trial court or Administrative Agency or listed in the CCS.” App.

12

R. 2(E). The rules require the clerk or Administrative Agency to assemble the clerk’s record

within 30 days of the filing of the Notice of Appeal and to notify the court reporter immediately

of the filing of the Notice of Appeal if a transcript is requested. App. R. 10(A), 10(B). In certain

juvenile and CHINS appeals, the completion of the transcript and the record is to take priority

over all other appeal transcripts and records, and must be filed within 10 business days of the

filing of the Notice of Appeal. App. R. 14.1(B). When the clerk’s record is completed, the clerk

or Administrative Agency is required to notify all parties by filing a Notice of Completion of

Clerk’s Record, including a certified copy of the CCS, and notice of whether the transcript is

complete. App. R. 10(C).

When the transcript is complete, the clerk or Administrative Agency is required to issue a

Notice of Completion of Transcript. App. R. 10(D). If the clerk or Administrative Agency fails

to issue a timely Notice of Completion of Clerk’s Record or Notice of Completion of Transcript,

the appellant must seek an order from the Court compelling the clerk or Administrative Agency

to issue the notice. An appellant’s failure to seek such an order within 15 days after the notices

were due subjects the appeal to dismissal. App. R. 10(F), 10(G).

H. Duties of Court Reporter – App. R. 11, 28

The court reporter is responsible for preparation, certification, and filing of all transcripts

requested in the Notice of Appeal and in any supplemental notices. App. R. 11(A). The reporter

has 90 days to file the Transcript and may seek an extension of time from the Court for

additional time. App. R. 11(B), 11(C). In certain juvenile and CHINS appeals, the completion

of the transcript and the record is to take priority over all other appeal transcripts and records,

and must be filed within 10 business days of the filing of the Notice of Appeal. App. R. 14.1(B).

All paper transcripts generated on a word processing system must be accompanied by a copy of

the transcript on a computer diskette. App. R. 28(C).

The transcript must be prepared as described in App. R. 28. See Sec. V(C) of the manual

for details. As with the clerk’s notice, if the court reporter fails to timely complete the transcript,

the appellant must seek an order from the Court compelling the court reporter to complete the

transcript. An appellant’s failure to seek such an order within 15 days after the transcript was

due subjects the appeal to dismissal. App. R. 11(D).

I. Transmittal of the Record – App. R. 12

The trial court clerk or Administrative Agency retains the record throughout the appeal.

App. R. 12(A), 12(D). Keeping the record with the court or agency from which the appeal is

taken facilitates access to the record for the attorneys working on the appeal, and those attorneys

may request copies of all or any portion of the record, subject to payment of usual and customary

copying charges. App. R. 12(A), 12(C).

In civil appeals, the Transcript remains with the trial court clerk or Administrative

Agency until briefing is complete, at which time the Transcript is transmitted to the Clerk of the

Supreme Court, Court of Appeals, and Tax Court. App. R. 12(B), 12(D). In all criminal appeals

except those where the appellant is represented by the State Public Defender, the Transcript is

13

transmitted to the Clerk after the appellant files his brief. App. R. 12(B). If the appellant is

represented by the State Public Defender, the trial court clerk must transmit the transcript to the

Clerk when the court reporter certifies the Transcript is complete. Id.

Again, the point of these rules is to facilitate access to the Transcript during briefing. In

many civil cases, the parties will be represented by attorneys who represented them at trial, so

keeping the Transcript with the trial court clerk enhances access for attorneys. In criminal

appeals, however, the state is represented by the Attorney General, located in Indianapolis, so

moving the transcript to Indianapolis after the appellant’s brief is filed enhances access for the

Attorney General’s office. Likewise, the State Public Defender is located in Indianapolis, so

moving the Transcript to Indianapolis upon completion of the Transcript enhances access for that

agency.

Parties may check out the Transcript during briefing and may move the Court to order the

transcript transmitted at a different time. Id.

The trial court clerk may obtain from the appellant reimbursement for the cost of

transmitting the Transcript to the Clerk. Id.

J. Preparation of Record in Administrative Agency Cases – App. R. 13

App. R. 10, 11, and 12 apply to cases taken directly to the Court of Appeals from final

orders, rulings, decisions, and certified questions of an Administrative Agency, notwithstanding

any statute to the contrary. App. R. 13.

K. Interlocutory Appeals – App. R. 14

The initiation of interlocutory appeals is covered by App. R. 14, and is discussed in

Chapter XI of this manual.

L. Expedited Appeals in Juvenile and CHINS cases – App. R. 14.1

Certain juvenile and CHINS appeals have their own set of rules, all of which are designed

to expedite disposition. All of the deadlines are shortened and many of the briefing requirements

are modified. See App. R. 14.1.

M. Appellant’s Case Summary – App. R. 15

1. Who Must File. Any party that has filed a Notice of Appeal must file an

Appellant’s Case Summary, which serves the function of an appearance in the appellate court.

App. R. 15(A); Form App. R. 15-1.

2. Time for Filing. In an appeal from a Final Judgment or interlocutory appeal

taken as of right, the Appellant’s Case Summary must be filed within 30 days of the filing of the

Notice of Appeal. In discretionary interlocutory appeals, including those from class action

14

certification orders, the Notice of Appeal must be filed with the motion requesting that the Court

of Appeals grant permission to file the appeal. App. R. 15(B).

3. Content. The Appellant’s Case Summary provides the Court with information

about the parties, the appealed judgment or order, Transcript preparation, and the appeal itself.

Party information includes the name and address of the appellant (additional information

is required if unrepresented) and the name, address, attorney number, phone number, fax

number, and e-mail address of counsel for the appellant. Trial information includes the title of

the case, the names of all parties, the trial court or Administrative Agency from which the appeal

is taken, the case number, the name of the trial judge, the date the case commenced, the date of

the judgment or order, whether the trial was by judge or jury, synopsis of the judgment and, as

applicable, sentence or administrative order, ruling or decision, and case type. It also includes

whether or not all, any part, or none of the court records were sealed or excluded from public

access by court order. Transcript information includes the Notice of Appeal filing date, whether

the Transcript has been ordered, payment arrangements with the court reporter, and the estimated

length and completion date for the Transcript. The appeal information includes a short statement

of the anticipated issues, prior and related appeal information, and whether oral argument, a pre-

appeal conference, or alternative dispute resolution is desired. App. R. 15(C); Form App. R. 15-

1. It must also include certification that counsel has reviewed, complied with, and will continue

to comply with Administrative Rule 9(G)(4) (confidential information.) Much of this information

may be provided by checking boxes on the sample form.

The Appellant’s Case Summary closes with a certification of whether the appeal does or

does not involve “issues relating to child custody, child visitation, paternity, termination of

parental rights, CHINS, adoption or any other issue entitled to priority by statute.” Form App. R.

15-1. This helps the Court implement the policy of expediting these kinds of cases. App. R.

35(D).

4. Attachments. The following must be attached to the Appellant’s Case Summary:

• In civil cases, a copy of the judgment or order appealed from, including

any findings of fact and conclusions of law;

• In criminal appeals, a copy of the judgment or order appealed from,

including any sentencing order in criminal cases;

• A copy of any motion to correct error filed in the trial court;

• A file-stamped copy of the Notice of Appeal, except in discretionary

interlocutory appeals;

• In Administrative Agency cases, a copy of the order, ruling, or decision

appealed from, including any order or ruling on any motion or request for

rehearing; and

• In appeals filed in forma pauperis, proof of appointment or proof of

indigence.

• A copy of all trial court entries relating to the sealing of any court records

excluded from public access.

15

App. R. 15(D).

5. Failure to File. While the failure to file an Appellant’s Case Summary will not

forfeit the right to appeal, the Clerk is not permitted to accept any other documents for filing

from an appellant until that appellant has filed its Appellant’s Case Summary. App. R. 15(E).

N. Appearances – App. R. 16

1. Appellants. An Appellant’s Case Summary serves as an appellant’s appearance.

No separate appearance is necessary. App. R. 16(A).

2. Responding Parties. Parties who do not file an Appellant’s Case Summary must

file an appearance with the Clerk within 30 days after the first Appellant’s Case Summary is

filed, or contemporaneously with the first document that the party files on appeal (whichever

comes first). The form must contain:

• The name and address of the appearing party, and if the appearing party is

not represented by counsel, the party’s telephone number, fax number, and

e-mail address, if any;

• The name and address, attorney number, telephone and fax numbers, and

e-mail address of counsel; and

• Whether the attorney requests service of orders and opinions by fax

pursuant to App. R. 26.

App. R. 16(B).

The Clerk enters an appearance for the Attorney General of Indiana in all criminal

appeals where the state is the appellee. App. R. 16(B).

3. Parties to Proceedings on Certified Questions. Parties to proceedings on

certified federal questions are required to file an appearance within 30 days of the Supreme

Court’s order granting the federal court’s request for an opinion, or with the first document filed

(whichever occurs first.) The information required is the same as that required of responding

parties. App. R. 16(C).

4. Amicus Curiae. A movant seeking permission to file an amicus brief must file an

appearance that contains the following information:

• Name and address of the movant;

• Name, address, attorney number, telephone number, fax number, and e-

mail address of attorney representing the movant;

• Whether movant sought amicus curiae status in proceedings before the

trial court of the Administrative Agency, and if so, whether the request

was granted; and

• Whether transmittal of orders and opinions by fax is requested.

16

App. R. 16(D). The appearance should be filed with the motion to file an amicus brief. Id.

5. On Transfer or Review. It is not necessary to file new appearances when a party

seeks transfer to the Supreme Court from the Court of Appeals or review by the Supreme Court

of a Tax Court decision. App. R. 16(F). New appearances are also unnecessary when the

Supreme Court grants transfer or review.

6. Correction of Information. If there is a change in the information provided in

the Appellant’s Case Summary or an appearance (e.g., a change of address), the party must

promptly advise the Clerk. This may be done by filing an amended appearance. App. R. 16(E).

An appellant need not file a new Appellant’s Case Summary, but may instead file a notice of

correction of the original Appellant’s Case Summary.

7. Withdrawal of Appearance. Counsel wishing to withdraw an appearance must

file a motion with the appellate court stating the reason leave to withdraw is sought. If new

counsel will appear for the client, the new attorney should file an appearance at the time old

counsel moves to withdraw, if possible. App. R. 16(G).

O. Parties on Appeal – App. R. 17

All parties of record in the trial court or Administrative Agency are parties on appeal.

App. R. 17(A). Therefore, a party to the proceedings in the trial court or Administrative Agency

may file a brief in the Court, even if the party lacks an interest that could be affected by the

outcome of the appeal. Autoexchange.com, Inc. v. Dreyer & Reinbold, Inc., 816 N.E.2d 40, 44

n.1 (Ind. Ct. App. 2004).

The death of a criminal defendant abates a criminal appeal. Otherwise, the death or

incompetence of a party does not cause an appeal to abate. Rather, successor parties may be

substituted for deceased or incompetent parties. App. R. 17(B). This may be accomplished by

filing a motion to substitute the successor party.

No motion is necessary when the substitution involves a public officer sued in his or her

official capacity. When that officer no longer holds the office, substitution of the successor is

automatic. The party should file a notice of the substitution to advise the Clerk, but the failure to

do so does not affect the party’s substantive rights. App. R. 17(C).

P. Appeal Bonds and Letters of Credit – App. R. 18

An appellant is not required to post an appeal bond to prosecute an appeal. The pendency

of an appeal, however, does not stay the enforcement of a final judgment or appealable

interlocutory order from a money judgment unless the appellant posts a bond or irrevocable letter

of credit approved by the trial court or Administrative Agency. The Court on Appeal may

reconsider the trial court’s or Administrative Agency’s decision to grant or deny a stay and may

set or modify the amount of the bond or letter of credit. The appellate court’s reconsideration is

not limited to determining whether the trial court or Administrative Agency abused its discretion,

and the appellate court may consider circumstances that did not exist when the trial court or

17

Administrative Agency made its decision. Naked City, Inc. v. State, 434 N.E.2d 576, 579 n.1

(Ind. Ct. App. 1982) (interpreting former App. R. 6(B)). See Trial Rule 62(D) and Chapter VII

of this manual for a more detailed description of the procedure for obtaining a stay from a trial

court.

When the Indiana Supreme Court grants transfer and thereby vacates the Court of

Appeals’ opinion, the transfer order does not also vacate orders concerning appeal bonds.

Marshall County Tax Awareness Committee v. Quivey, 780 N.E.2d 380, 386 (Ind. 2002).

Neither a trial court nor an appellate court may require a bond or letter of credit to stay

the enforcement of a judgment when an appeal is taken by a governmental organization or by a

court-appointed representative of a decedent’s estate, guardian, receiver, assignee for the benefit

of creditors, trustee, or other court-appointed representative.

Q. Pre-appeal Conferences – App. R. 19

The Court of Appeals may, upon the motion of a party or sua sponte, order a pre-appeal

conference to consider the following:

• The simplification and designation of the issues to be presented on appeal;

• Obtaining stipulations to avoid the preparation of unnecessary transcripts;

• The determination of what transcript from the trial court is necessary;

• Scheduling;

• Settlement; and

• Such other matters as may aid the disposition of the appeal.

App. R. 19(A). The Court of Appeals may impose sanctions on a party who fails to participate

in a court-ordered conference or whose attorney is unprepared for the conference. App. R.

19(B).

R. Appellate Alternative Dispute Resolution – App. R. 20

The Court on Appeal may, upon the motion of a party or sua sponte, conduct or order

alternative dispute resolution. App. R. 20. Formal appellate ADR remains relatively rare in

Indiana courts, in contrast to the federal courts of appeals that employ full-time mediators and

often requires parties on appeal to engage in pre-appeal mediation conferences. See Fed. R. App.

P. 33.

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IV. FILING AND SERVICE

A. Filing – App. R. 23

1. Time of Filing. Papers are deemed filed with the Clerk when they are either:

a. Personally delivered to the Clerk. The office of the Clerk of the Court is

located in Room 217 of the Indiana State House and is open for filing and other services from

8:00 a.m. to 5:00 p.m. every weekday, except state holidays.

b. “Rotunda Filed”. Rotunda filing is no longer available in its traditional

form. All documents that need filed with the Clerk’s office after business hours are now filed in

a post office style drop box on the east side of the State House using an existing second-floor

vestibule area. (The ground floor of the State House is called the second floor.) Rather than

submitting the documents to a security guard for time stamping, the person filing needs to

complete a form, attach it to the filing, and use a time stamp machine to mark the documents.

The container is large enough to accommodate larger filings. Documents may be deposited in

this box for filing after 5:00 p.m., and will be file-stamped as of the date they are deposited if it

is on a business day. However, documents deposited on a Saturday, Sunday, or holiday will be

file-stamped as of the next business day.

c. Post Office. Filings may be deposited in the United States Mail, postage

prepaid, properly addressed to the Clerk. Regular First-Class mail is acceptable. Murphy v.

Indiana Harbor Belt R. Co., 152 Ind. App. 455, 284 N.E.2d 84, 85 (1972)(When appellant’s

brief was deposited in the U.S. mail on the last day given for filing, “[t]here is no question that

the filing of Appellant’s brief with the Clerk of this Court was in accord with the rules and

timely.”) Lipinski v. Town of Chesterton, 256 Ind. 539, 270 N.E.2d 738, 739 (1971). (“[T]he

Appellate Court was in error when it held that the placing of the transcript in the United States

mail certified with return receipt requested did not constitute filing with the Clerk as of the date

of the mailing.”)

d. Commercial Carrier. Deposited with any third-party commercial carrier

for delivery to the Clerk within three calendar days, costs prepaid, properly addressed.

App. R. 23(A).

2. Record of Filing. Although not required by the rules, a party filing a document

by any method other than personal delivery to the Clerk may wish to keep documentation of the

filing. This could take any of several forms, including retaining a copy of a cover letter

requesting the Clerk to file the document.

3. Number of Copies. The number of copies that must be filed depends on the type

of document being filed. The following must be filed with the Clerk:

19

a. The original and one copy for:

• Appellant’s Case Summary;

• Appearance;

• Motion for Extension of Time

• Motion to Withdraw the Record

• Motion to Withdraw Appearance

• Motion to File an Oversize Document;

• Trial Court Authorization to proceed in forma pauperis or an

affidavit that the party was permitted to proceed in forma pauperis

in the trial court.

b. The original and eight copies for:

• Briefs;

• Addenda to Briefs;

• Petitions to Transfer;

• Petitions for Rehearing;

• Petitions for Review; or

• Notices of Additional Authorities.

c. One single copy of an Appendix. There is no “original” since an

appendix consists of copies of relevant documents. App. R. 50. Thus, file only

one appendix.

d. The original and five copies for:

• All types of motions other than those listed in a. above;

• All responses to motions;

• All replies to responses to motions;

• All documents supporting such motions, responses, and replies;

and

• All other types of documents filed with the Clerk.

App. R. 23(C).

If counsel wishes to receive a file-marked copy from the Clerk, one additional copy

should be provided along with a self-addressed, stamped envelope.

4. Received But Not Filed. When a timely-tendered document does not comply

with certain non-substantive appellate rule requirements, a standing order directs the Clerk to

stamp such noncompliant documents “received” as of the date they would have been “filed” but

for the defect(s). An example of a technical problem is a brief that does not contain a required

word count certification. App. R. 44(E). An example of a procedural problem is submission of a

document that cannot be filed without leave of the Court, such as a belated amicus brief. App. R.

20

41(D). After the Clerk stamps the documents as “received,” the standing order requires that a

Notice of Defect form be sent to the offending party and copies to other parties in the case. The

Notice of Defect form sets forth the non-substantive rules that have been violated and gives the

party a specific period of time to cure the defect.

If a party complies and cures the defect, the document is then deemed timely filed. The

Clerk is required to notify all parties of the date on which any received but not filed document is

subsequently deemed “filed.” App. R. 23(D). Any time limit for response or reply to that

document runs from the date the document is deemed filed. App. R. 23(D). Because received

documents are often deemed filed on the date originally tendered, parties should not assume that

their response time to such documents will be extended.

If a party fails to cure the defect, then the defective document is not filed and is returned

to the party.

5. Signature Required. Every motion, petition, brief, appendix, acknowledgement,

notice, response, reply, appearance, or appellant’s case summary must be signed by at least one

attorney of record in the attorney’s individual name. App. R. 23(E). The attorney’s name,

address, telephone number, and attorney number shall also be typed or printed legibly below the

signature. If a party or amicus is not represented by an attorney, then the party or amicus shall

sign such documents and type or print legibly the party or amicus’s name, address, and telephone

number. Id. The signing of the verification of accuracy required by App. R. 50(A)(2)(i) or 50

(B)(l)(f) satisfies this requirement for appendices.

B. Service of Documents – App. R. 24

1. Required Service. The Appellant’s Case Summary and appearances must be

served on all of the following:

• All parties to the appeal. This includes all parties of record in the trial

court or Administrative Agency proceeding, and the Attorney General in

Criminal Appeals, pursuant to App. R. 17;

• Any person seeking party status; and

• Any person required by statute to be served.

All other documents tendered to the Clerk for filing must be served on all of the

following:

• All parties who have filed an Appellant’s Case Summary or an

appearance, App. R. 15 or App. R. 16;

• The Attorney General, in criminal appeals. In criminal appeals only, any

Appendix and Supplemental Appendix need not be served on the Attorney

General. Crabtree v. Estate of Crabtree, 837 N.E.2d 135, 137 n.1 (Ind.

2005);

• Any persons seeking party status; and

• Any person required by statute to be served.

21

App. R. 24(A).

2. Time for Service. A party must serve a document no later than the date the

document is filed or received for filing by the Clerk. App. R. 24(B)

3. Manner and Date of Service. All documents will be deemed served when they

are:

• Personally delivered;

• Deposited in the United States Mail, postage prepaid, properly addressed

(regular first class mail is acceptable); or

• Deposited with any third-party commercial carrier for delivery within

three calendar days, costs prepaid, properly addressed.

App. R. 24(C). The means for service are the same as the means for filing, with the exception of

“rotunda filing.”

4. Certificate of Service. All documents tendered to the Clerk for filing must

certify that service has been made, list the parties served, and specify the date and means of

service. The certificate of service is to be placed at the end of the document rather than

separately filed. However, the separate filing of a certificate of service is not grounds for

rejecting a document for filing. The Clerk may permit documents to be filed without a certificate

of service but must require the party to file a separate certificate of service promptly. App. R.

24(D).

5. Failure to Comply with Service Requirements. The Court has the discretion to

dismiss an appeal if a party fails to comply with the service requirements. State ex rel. American

Reclamation & Refining Co. v. Klatte, 256 Ind. 566, 270 N.E.2d 872, 874 (1971) (“Parties to an

appeal are entitled to service of all papers filed pursuant to the prosecution of an appeal . . .”); In

re Estate of Belanger, 437 N.E.2d 90, 91 (Ind. Ct. App. 1982) (“Failure to serve all necessary

papers upon an opposing party may result in dismissal . . . although dismissal is not the sole

remedy available.”); State v. Monserrate, 442 N.E.2d 1095, 1097 (Ind. 1982) (“[N]on

compliance with the [service requirements] does not automatically require dismissal of the

appeal but is subject to the sound discretion of the appellate court”); State ex rel. Dillon v. Shepp,

165 Ind. App. 453, 332 N.E.2d 815, 816 (1975) (The Court dismissed the appeal because

appellee was not served with copies of the appellant’s petition for extension of time to file

transcript, petition for extension of time to file brief, or the brief.).

C. Computation of Time – App. R. 25

1. Non-Business and Business Days. A “non-business day” means a Saturday, a

Sunday, a legal holiday as defined by state statute, or a day the Office of the Clerk is closed

during regular business hours. A “business day” means all other days. App. R. 25(A).

22

The Governor announces when the state holidays will be observed each year.

Historically, they have been New Year’s Day, Martin Luther King, Jr., Day, Good Friday,

Primary Election Day, Memorial Day, Independence Day, Labor Day, Columbus Day, General

Election Day, Veterans Day, Thanksgiving Day, the day after Thanksgiving Day, Christmas

Day, and the day before or after Christmas Day. When a holiday falls on a weekend, the holiday

might be observed on the Friday before or the Monday after the holiday. If there is any doubt,

the Clerk’s office will be able to provide assistance.

2. Counting Days. In computing the period of time for taking an action, the day of

the triggering event is not included. For example, if the time for filing a response to a document

is triggered by service of the document, the date that the document is served is not counted.

Thus, day one of the count is the day after service. App. R. 25(B).

The last day of the prescribed period for taking an action is included unless it is a non-

business day, in which case the period runs until the end of the next business day. App. R.

25(B). Everette v. Everette, 841 N.E.2d 210, 212 n.2 (Ind. Ct. App. 2006) (the deadline for filing

the Notice of Appeal was extended two days to the following Monday because the original

deadline fell on a Saturday.) Thus, if the time period for filing a response is 30 days after service

of a document, the 30th

day after service is included if it is a business day. If the document is

tendered on the following day, it will be untimely. If the 30th

day falls on a Saturday or Sunday,

the filing will be timely if done on the next Monday (provided Monday is a business day).

When the time allowed to take an action is less than seven days from the triggering event,

all non-business days are excluded from the computation of the deadline. If the time allowed is

seven or more days, all days count. App. R. 25(B).

3. Extension of Time When Served by Mail or Carrier. When a document is

served by mail or a third-party commercial carrier, the time period for filing responsive or reply

documents is automatically extended for an additional three (3) days from the date of service.

App. R. 25(C).

Caution: The automatic three (3) day extension for filing a response or reply applies

only when the document is served by a party and service is the event that triggers the start of the

time period. Thus, there is no automatic extension of time for filing a Petition for Rehearing or a

Petition to Transfer, regardless of how service is made, because the triggering dates are when a

court renders a decision. App. R. 54(B), 57(C). Likewise, there is not an automatic extension of

time to file an appellant’s brief, since the triggering event is the date of notice issued by the trial

court clerk. App. R. 45(B)(1).

When determining when the three-day extension commences, begin counting from the

next day after the prescribed number of days, even if either or both of the days are non-business

days. If the last day of the extension falls on a non-business day, the deadline is the next

business day. For example, if a deadline is 30 days after service and the thirtieth day falls on a

Saturday, begin counting the three-day extension on Sunday. Do not skip to Monday to begin

the count. The last day of the three-day extension will be Tuesday (if it is a business day).

23

D. Transmission of Orders, Opinions, and Notices – App. R. 26

Effective January 1, 2010, the Clerk transmits orders, opinions, and notices by e-mail to

all represented parties. App. R. 26(A). Unrepresented parties will receive orders, opinions, and

notices by U.S. mail unless the party asks for transmission by e-mail or FAX. App. R. 26(B).

24

V. THE RECORD ON APPEAL

A. Introduction and Summary – App. R. 27, 50

A discussion of the Record on Appeal requires juxtaposition with the Appendix

requirement enumerated in App. R. 50. The Record on Appeal consists of the Clerk’s Record

and all proceedings before the trial court or Administrative Agency, whether or not transcribed

or transmitted to the Court on Appeal. App. R. 27. Davis v. State, 714 N.E.2d 717 (Ind. Ct.

App. 1999) (Jury instructions that were read into the record are considered part of the record on

appeal under App. R. 27.). The overall effect of Rule 27 is that all documents filed in the case

are included as part of the Record on Appeal even if they are unnecessary to the appeal and are

not presented to the appellate court in the Appendix (e.g., a motion for enlargement of time). On

the other hand, the purpose of the Appendix is to provide the appellate court with copies of only

those parts of the Record on Appeal that are necessary for the Court to decide the issues

presented. App. R. 50(A). In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 57

(Ind. Ct. App. 2005) (The appendix may not include material that was not presented to the trial

court.).

B. Contents of the Record – App. R. 22, 27

The record on appeal consists of the Clerk’s Record, and all proceedings before the trial

court or Administrative Agency, whether or not transcribed or transmitted to the Court on

Appeal. App. R. 27. When deciding a matter, the appellate court is in possession of the

Appendix, which is composed of the documents each party designated as necessary to decide the

case, as well as the Transcript of the hearings that were designated in the Notice of Appeal for

inclusion in the Transcript. Therefore, any record material cited in an appellate brief must be

reproduced in an Appendix, the Transcript, or exhibits. App. R. 22(C).

Any provision of the Appellate Rules regarding preparation of the Record on Appeal may

be enforced by order of the appellate court. App. R. 27.

C. Court Reporter’s Responsibilities – App. R. 11, 28

The court reporter is responsible for preparation, certification, and filing of all Transcripts

requested in the Notice of Appeal and in any supplemental notices. App. R. 11(A). The court

reporter has 90 days to file the Transcript, and may seek an extension of time from the Court on

Appeal for additional time. App. R. 11(B), (C). The court reporter is required to note in

boldface capital letters at the top or bottom of each page where a witness’s direct, cross, or

redirect examination begins. App. R. 28(A)(4). No other notations are required. App. R.

28(A)(4). All paper Transcripts generated on a word processing system must be accompanied by

a copy of the Transcript on an electronically formatted medium. App. R. 28(C).

It is standard practice in some areas of the state for reporters to omit voir dire and

opening and closing statements from the Transcript unless specifically requested in the Notice of

25

Appeal. Therefore, counsel should specifically request that the Transcript include voir dire,

opening statements, or closing statements if the issues raised on appeal relate to any of these

portions of the proceeding. Wright v. State, 772 N.E.2d 449, 462 (Ind. Ct. App. 2002) (The

Court denied a Motion to Compel the court reporter to transcribe portions of the proceedings that

were omitted because the appellant did not specifically request in the Notice of Appeal that the

omitted portions be included in the Transcript.).

As with the clerk’s notice, if the court reporter fails to complete the Transcript timely, the

appellant must seek an order from the Court on Appeal compelling the court reporter to complete

the Transcript. Failure to seek such an order within 15 days after such notice was due subjects

the appeal to dismissal. App. R. 11(D).

D. Form of the Record – App. R. 28 - 30

The form of the record is prescribed with some precision. The Transcript must be

prepared on 8½ x 11 inch white paper, the pages much be numbered at the bottom, and the lines

must be numbered along the side. App. R. 28(A)(1), (2). N.M. v. State, 791 N.E.2d 802, 804 n.2

(Ind. Ct. App. 2003) (The transcript of the initial hearing and the transcript of the hearing on the

motion for relief from judgment were incorrectly bound and numbered separately.) Each page of

the transcript except the last must contain 25 lines, and must have one inch margins on the top,

bottom, and right, and no more than one and one-half inch margin on the left side. App. R.

28(A)(3). Indented text shall be indented no more than two inches from the left edge. App. R.

28(A)(3). The typeface shall be no larger than 12 point type and line spacing no greater than

double-spacing. App. R. 28(A)(5). The court reporter also must include a separately bound

table of contents of the Transcript. App. R. 28(A)(8). In addition, documentary exhibits are

required to be included in a separately bound volume and an index of the contents of the separate

volumes shall be placed at the front of the first volume. App. R. 29(A). Non-documentary and

oversized exhibits are not to be sent to the Court but shall remain in the custody of the trial court

clerk. App. R. 29(B).

In addition or in lieu of a paper Transcript, and with approval of the trial court and all

parties on appeal, the court reporter may submit an electronically formatted Transcript. App. R.

30(A). The electronic Transcript must be paginated and the lines sequentially numbered. App.

R. 30(A)(2). Exhibits are to be arranged in numerical order and included in a separately bound

volume. App. R. 30(A)(4). The signature of the court reporter on the electronic medium shall

constitute the reporter’s certification. App. R. 30(A)(6).

E. Statement of the Evidence – App. R. 31

When no Transcript is available, a party or the party’s attorney may prepare a verified

statement of the evidence from the best available sources, including the party’s or the attorney’s

recollections. App. R. 31(A); Graddick v. Graddick, 779 N.E.2d 1209, 1211 (Ind. Ct. App.

2002) (“[T]he rule requires the appellant to prepare a statement of the evidence from the best

available source. Given that [appellant’s] trial counsel has an insufficient recollection of the

hearing, he is not the best available source. However, the rule specifically contemplates that

[appellant] could have prepared a statement from her own recollection.”). An incomplete

26

transcript may be permitted if it does not result in harmful error. Ben-Yisrayl v. State, 753

N.E.2d 649, 660 (Ind. 2001). The party preparing the statement of the evidence shall file and

attach it to a motion to certify the statement. App. R. 31(A). Houser v. State, 823 N.E.2d 693,

695-696 n.1. (Ind. 2005) (“We note that there is an incomplete transcript from the trial court in

this case due to equipment malfunction. Where the transcript record has been compromised, the

parties have jointly filed a Verified Statement of the Evidence.”); Bettencourt v. Ford, 822

N.E.2d 989, 997 n.1 (Ind. Ct. App. 2005) (“The hearings were not recorded; therefore, Mother

prepared a ‘verified statement of the evidence from the best available sources’ pursuant to Ind.

Appellate Rule 31.”); Baker v. State, 750 N.E.2d 781 (Ind. 2001) (Sidebar conversations between

a judge and counsel may be used to supplement the record after the statements are verified.);

Roberts v. State, 799 N.E.2d 549 (Ind. Ct. App. 2003) (Although recording equipment failed, the

affidavits of court reporter, public defender, prosecutor, and trial judge provide a sufficient

record to permit appellate review.). Any other party may prepare a response within 15 days.

App. R. 31(B). The trial court shall then certify a statement of evidence, holding a hearing if

necessary, and making any necessary modifications. App. R. 31(C). The certified statement of

evidence shall become part of the Clerk’s Record. App. R. 31(C).

If the statements or conduct of the trial court judge or administrative officer are in

controversy and the trial court judge or administrative officer refuses to certify the moving

party’s statement, the judge or officer shall file an affidavit setting forth his or her own

recollection of the disputed statement or conduct, and all statements of the evidence and

affidavits are made part of the Clerk’s Record. App. R. 31(D). Ratliff v. State, 741 N.E.2d 424,

427 n.1 (Ind. Ct. App. 2000) (It is not proper to include in the record an affidavit that concerns

matters outside the proceedings before the trial court.).

F. Correction of Record – App. R. 32

If there is a disagreement as to whether the Clerk’s Record or Transcript accurately

discloses what occurred, any party may move the trial court or Administrative Agency to resolve

the disagreement. App. R. 32(A); Higgins v. State, 783 N.E.2d 1180, 1184 (Ind. Ct. App. 2003)

(Appellate court can decide an appeal on its merits even if a criminal appellant fails to comply

with App. R. 32.). Counsel should note that the proper court to file the request to correct

depends upon whether the reply brief has been filed. The trial court retains the jurisdiction to

modify the Clerk’s Record or Transcript until the reply brief is due to be filed. App. R. 32(A);

Ringham v. State, 768 N.E.2d 893, 898 (Ind. 2002) (Trial court’s supplementation of the record

pursuant to App. R. 32 is sufficient to establish compliance with R. Trial P. 63(E) where the

papers appointing a judge pro tempore were not included in the record on appeal.). After that

time, the appellate court must grant leave to amend the Clerk’s Record or Transcript. App. R.

32(A); Franz v. State Farm Fire & Cas. Co., 754 N.E.2d 978, 980 n.3 (Ind. Ct. App. 2001) (The

trial court clerk overlooked the fact that some documents were double sided and only copied one

side. After the reply brief was filed, the Court of Appeals granted appellee’s request to correct

the Clerk’s Record on appeal pursuant to App. R. 32(A).) The trial court or Administrative

Agency must issue an order either confirming that the Clerk’s Record or Transcript is accurate,

or correcting the Clerk’s Record or Transcript to reflect what actually occurred. App. R.

32(A)(1), (2). Any corrected Transcript should so indicate on its cover. App. R. 32(B)(2).

27

G. Agreed Statement – App. R. 33

The parties may submit an agreed statement if they all agree that the appeal may be

resolved without reference to the Clerk’s Record or Transcript. App. R. 33(A). Nix v. State, 240

Ind. 392, 166 N.E.2d 326, 328 (1960) (The law looks favorably “upon agreed statements of fact

or evidence, since such an arrangement makes for the saving of both time and expense and

expedites legal proceedings.”). The statement “shall set forth only so many of the facts proved

or sought to be proved as are essential to a decision of the questions by the court on appeal.”

App. R. 33(B). The statement must include a copy of the judgment or order; a copy of the

Notice of Appeal with its filing date; a statement of how the issue arose in the trial court or

Administrative Agency; and the signatures of all parties and their attorneys. App. R. 33(B). The

agreed statement must be certified by the trial court judge or Administrative Agency as accurate

and adequate for resolution of the appeal. App. R. 33(C). The trial court or Administrative

Agency may amend or supplement the statement with the consent of all parties. App. R. 33(C).

The agreed statement of the record shall be part of the Clerk’s Record and the appellant shall

include it in the Appendix to the appellant’s brief. App. R. 33(D).

28

VI. MOTIONS PRACTICE

A. Introduction – App. R. 34

Any request for an order or for other relief must be made by the filing of a written motion

unless a statute or the appellate rules provide for some other form of application. App. R. 34(A).

A party may file a response to any motion. App. R. 34(C). The moving party may not file a

reply to a response without leave of Court. App. R. 34(D).

The following motions are subject to a decision from the Court without awaiting a

response: (1) to extend time; (2) to file an oversize petition, brief, or motion; (3) to withdraw an

appearance; (4) to substitute a party; and (5) to withdraw the record. App. R. 34(B). Although

the Court will not await a response before ruling on these motions, the Court will consider any

response filed before it rules. App. R. 34(B). A response filed after the ruling on the motion

will automatically be treated as a motion to reconsider. App. R. 34(B). In addition, any party

may file a motion to reconsider a decision on any of these five motions within 10 days after the

Court’s ruling on the motion. App. R. 34(B).

B. Time Limitation – App. R. 34

A response to any appellate motion must be filed within 15 days after the motion is

served. App. R. 34(C). (Three additional days are allowed when motion is served by mail. App.

R. 25(C).) If a party requests leave to file a reply, the reply must be filed with the motion for

leave and tendered within five days of service of the response. App. R. 34(D). (Again, three

additional days are allowed when the response is served by mail. App. R. 25(C).)

C. Contents – App. R. 34

Except for the five motions subject to decision without a response, a motion, response, or

reply must contain the following information:

1. Statement of Grounds. A statement setting forth the specific grounds upon

which the pleading is based;

2. Statement of Supporting Facts. A reference to specific facts supporting the

grounds for the pleading, including citation to the clerk’s record or transcript, or other supporting

material;

3. Statement of Supporting Law. Legal arguments and citation to authorities;

4. Other Required Matters. Any additional matters specifically required by

specific rules governing a particular motion; and

5. Request for Relief. A specific and clear statement of the precise relief sought.

29

App. R. 34 (E). The motion, response, or reply need not contain these specific headings, but

must contain the information. These five elements represent the minimum needed for a motion.

Effective advocacy usually requires doing more than the minimum.

D. Facts Not of Record – App. R. 34

If the motion, response, or reply is based on materials that have not been filed with the

Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, the motion, response, or

reply must be verified and/or accompanied by affidavits or certified copies of documents filed

with the trial court clerk or an Administrative Agency. App. R. 34(F).

E. Form – App. R. 34, 43

Motions, responses, and replies must comply with the requirements of Rule 43(B)-(G).

App. R. 34(G)(1). In general, motions, responses, and replies must:

(1) be on 8½ x 11 inch white paper;

(2) be typewritten, printed, or produced by a word processing system with text

on only one side of the paper;

(3) have Arial, Baskerville, Book Antiqua, Bookman, Bookman Old Style,

Century, Century Schoolbook, Courier, Courier New, CG Times,

Garamond, Georgia, New Baskerville, New Century Schoolbook, Palatino

or Times New Roman font;

(4) have 12-point or larger typeface in both body text and footnotes;

(5) be double-spaced, except for lengthy quotes and footnotes, both of which

must be single-spaced (single-spaced lines shall be separated by at least 4-

point spaces);

(6) have pages numbered at the bottom; and

(7) have at least one-inch margin from each of the four edges of the page.

App. R. 43(B)-(G).

F. Length – App. R. 34, 44

Unless otherwise provided by the Court, a motion or response may not exceed 10 pages

or 4,200 words in length. App. R. 34(G). Replies, when allowed by the Court, may not exceed

five pages or 2,100 words. App. R. 34(G). If the document exceeds the page limit, it must

contain a word-count certificate which appears at the end of the motion, response, or reply, and

30

before the certificate of service. App. R. 34(G). The certificate should comply with one of the

following forms: “I verify that this (motion, response, or reply) contains no more than

(applicable limit) words,” or “I verify that this (motion, response, or reply) contains (actual

number) words.” App. R. 44(F). The party filing the pleading may rely on the word count of the

word processing system used to prepare the motion, response, or reply. App. R. 44(F).

G. Oral Arguments on Motions – App. R. 34

By rule and in practice, oral arguments on motions are rare. App. R. 34(H).

H. Specific Motions – App. R. 35 - 42

The appellate rules set forth several specific motions for which additional requirements

must be met. These are motions:

• for an extension of time (App. R. 35)

• to dismiss (App. R. 36)

• to remand (App. R. 37)

• to consolidate appeals (App. R. 38)

• to stay (App. R. 39)

• to proceed in forma pauperis (App. R. 40)

• to appear as amicus curiae (App. R. 41)

• to strike (App. R. 42).

1. Motion for Extension of Time – App. R. 35

a. Time Limitation. A motion for an extension of time must be filed at least

seven days before the expiration of the time unless the moving party was not then aware of the

facts on which the motion is based. Motions for extension of time may not be filed after the time

for doing the act expires.

b. Contents. All motions for extension of time must be verified, and state:

(1) The date of the appealed judgment or order;

(2) The date any motion to correct error was ruled on or deemed

denied;

(3) The date the Notice of Appeal was filed;

(4) The time period that is sought to be extended, and the event which

triggered it;

(5) The date the act is to be done; how the date was established,

including, if relevant, the means of service; whether the current

31

due date is pursuant to a previous extension of time; and, if so,

whether final;

(6) The due date requested (which must be a business day as defined

by App. R. 25);

(7) The reason, in spite of the exercise of due diligence shown, for

requesting the extension of time including, but not limited to, the

following:

(a) Engagement in other litigation, provided such litigation is

identified by caption, number, and court;

(b) The matter under appeal is so complex that an adequate

brief cannot reasonably be prepared by the date the brief is

due; or

(c) Hardship to counsel will result unless an extension is

granted, in which event the nature of the hardship must be

set forth; and

(8) If the motion is filed within seven days before the expiration of

time, the reasons why counsel was unaware, seven days before the

extension of time, of the need for the extension.

Additionally, in criminal appeals, the motion must also state, if applicable:

(9) The date the trial court granted permission to file a belated Notice

of Appeal or a belated motion to correct error;

(10) The date of sentencing;

(11) The sentence imposed; and

(12) A concise statement of the status of the case, including whether the

defendant has been released on bond, or whether the defendant has

been incarcerated.

c. Proceedings in Which Extensions are Prohibited or Restricted.

Extensions of time will not be granted to file (a) a petition for rehearing; (b) a petition to transfer;

(c) any brief supporting or responding to such petitions; or (d) anything in appeals involving

termination of parental rights. App. R. 35(C). Extensions of time are not allowed in certain

juvenile and CHINS appeals. App. R. 14.1(E).

32

Motions for extensions of time in appeals involving worker’s compensation, issues of

child custody, support, visitation, paternity, adoption, and determination that a child is in need of

services will be granted only in extraordinary circumstances. App. R. 35(D)

d. Court of Appeals’ Policy on Extensions of Time. Do not assume that a

request for extension of time will be granted. Even if it is, the extension may be shorter than

requested.

2. Motion to Dismiss – App. R. 36. An appellant may voluntarily dismiss an

appeal upon terms agreed upon by all parties on appeal or fixed by the Court. An appellee may

at any time file a motion to dismiss an appeal for any reason provided by law, including lack of

jurisdiction. Motions to affirm are no longer recognized by the Court and have been abolished

by the rules.

3. Motion to Remand – App. R. 37. Any party may file a motion requesting that

the appeal be dismissed without prejudice or temporarily stayed and the case be remanded to the

trial court or Administrative Agency for further proceedings. Such motions must be verified and

establish that a remand will promote judicial economy or is otherwise necessary for the

administration of justice. The appellate court may dismiss the appeal without prejudice and

remand, or it may remand the case while retaining jurisdiction.

A common use of such a motion is when grounds for a Trial Rule 60 motion for relief

arise after an appeal is initiated.

4. Motion to Consolidate Appeals – App. R. 38. Whenever two or more actions

have been consolidated for trial or hearing in either the trial court or Administrative Agency, the

cases will remain consolidated on appeal. Any party may file a motion to sever the consolidated

appeal. A motion to sever must be filed within 30 days after the first notice of appeal is filed.

If there is more than one appeal from the same order or judgment, or if two or more

appeals involve a common question of law or fact, the Court on Appeal may order a

consolidation of appeals either upon its own motion, or upon the motion of any party.

5. Motion to Stay – App. R. 39. An appeal does not stay the effect or

enforceability of a judgment or order of a trial court or Administrative Agency unless the trial

court, Administrative Agency, or the Court on Appeals otherwise orders. Motions for Stay are

treated in detail in Chapter VII of this manual.

6. Motion to Proceed In Forma Pauperis – App. R. 40. A party who has been

permitted to proceed in the trial court in forma pauperis may proceed as such on appeal without

further authorization from any court. Any other party who desires to proceed on appeal in forma

pauperis must file a motion in the trial court for leave to so proceed, together with an affidavit

conforming to form App. R. 40-1. If the trial court grants the motion, the party may proceed

without further motion to the Court on Appeal. If the trial court denies the motion, the trial court

must state in a written order the reasons for the denial.

33

If the trial court denies authorization to proceed in forma pauperis, the party may file a

motion in the Court on Appeal for leave to so proceed. The motion must be filed within 30 days

of the service of the trial court’s order denying the motion. The motion must be accompanied

either by a copy of the affidavit filed in support of the party’s request in the trial court, or if no

such affidavit was filed or is no longer accurate, an affidavit conforming with form App. R. 40-1.

Additionally, the motion must include a copy of the order setting forth the trial court’s reasons

for denying the motion.

A party seeking to proceed in forma pauperis in an appeal from a decision of an

Administrative Agency must file a motion with the Court on Appeal for leave to so proceed

together with an affidavit conforming with form App. R. 40-1.

The party proceeding or seeking to proceed in forma pauperis must file the following

documents with the appellate court with the first document that party files in the Court:

(a) The trial court’s authorization to proceed in forma pauperis on appeal;

(b) An affidavit stating that the party was permitted to proceed in forma

pauperis in the trial court and that the trial court has made no certification

or finding revoking the authorization; or

(c) A motion to the appellate court to proceed in forma pauperis.

If the trial court enters an order either certifying or finding that a party is no longer to

proceed in forma pauperis after the appeal is initiated, the party shall promptly file the trial

court’s order with the Clerk of the Supreme Court, Court of Appeals, and Tax Court.

7. Motion to Appear as Amicus Curiae – App. R. 41. An entity may file a motion

to appear amicus curiae within the time allowed the party with whom the proposed amicus

curiae is substantively aligned to file its brief or petition. The motion must identify the interest

of the proposed amicus curiae and the party with whom the proposed amicus curiae is

substantively aligned. The motion must also state the reasons the amicus curiae would be

helpful to the Court.

An entity that has been granted amicus curiae status at the Court of Appeals or Tax Court

will be allowed to appear as amicus curiae at the Supreme Court in that case without an

additional motion.

The proposed amicus curiae must tender or file its amicus curiae brief within the time

allowed the party with whom the proposed amicus curiae is aligned. The Court may, however,

permit a belated brief upon a motion and a showing of good cause.

8. Motion to Strike – App. R. 42. A party may file a motion to strike from any

document any redundant, immaterial, impertinent, scandalous, or other inappropriate matter.

The motion must be made within the time to respond to the document, or if there is no response

permitted, within 30 days after the service of the document.

34

Caution: Indiana appellate courts have been willing to strike portions of briefs. See,

e.g., Thornton-Tomasetti Eng’rs v. Indianapolis-Marion County Pub. Library, 851 N.E.2d 1269,

1280 n.3 (Ind. Ct. App. 2006). On the other hand, the Seventh Circuit Court of Appeals has

made it clear that motions to strike are not authorized by its rule and are not welcome. Custom

Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725 (7th

Cir. 2006).

35

VII. STAYS ON APPEAL

Stays pending appeal are governed by Trial Rule 62, App. R. 18, App. R. 39, and App. R.

14(H). Various statutes also come into play on a request for stay. Criminal statutes include:

Ind. Code § 35-33-9-1; Ind. Code §35-33-9-2; Ind. Code § 35-33-9-3; Ind. Code § 35-33-9-4;

Ind. Code § 35-33-9-5; and Ind. Code § 35-33-9-6. Statutes governing stays in civil appeals

include: Ind. Code § 34-49-1-2; Ind. Code § 34-56-3-1; Ind. Code § 34-56-3-2; Ind. Code § 34-

49-2-1; Ind. Code § 34-49-2-2; and Ind. Code § 34-49-2-3.

A request for stay must initially be filed in the trial court, or the Administrative Agency if

the Administrative Agency has authority to grant the stay. App. R. 39(B). If the Administrative

Agency does not have the authority to grant a stay, application for stay may be made directly to

the appellate court. App. R. 39(B).

Trial Rule 62(B) gives the trial court discretion to stay the enforcement of a judgment

pending the filing and disposition of:

(1) A motion to correct error or to alter or amend a judgment pursuant to Trial Rule

59;

(2) A Trial Rule 50 motion for judgment on the evidence;

(3) A motion for amendment to the findings or for additional findings or for a new

trial or judgment pursuant to Trial Rule 52;

(4) A Trial Rule 60 motion for relief from judgment; or

(5) An appeal.

Additionally, the trial court has discretion under Trial Rule 62(C) to stay enforcement

when appeal is taken from an interlocutory or final judgment:

(1) Granting, denying, or dissolving an injunction;

(2) For an appointment of the receiver; or

(3) Granting specific relief other than the payment of money.

The trial court does not always have discretion in ruling on a motion for stay. Trial Rule

62(D)(1) states that the enforcement of a judgment or appealable interlocutory order will be

36

suspended during appeal upon the giving of an adequate appeal bond with approved sureties or a

letter of credit.

If the trial court or Administrative Agency denies a motion for stay, or if the

Administrative Agency does not have authority to grant a stay, a motion for stay pending appeal

may be filed in the Court on Appeal pursuant to Appellate Rule 39(B). The motion shall contain

certified or verified copies of:

(1) The judgment or order to be stayed;

(2) The order denying the motion for stay;

(3) Other parts of the clerk’s record or transcript that are relevant;

(4) A certificate of service from the movant’s attorney; and

(5) A verified statement from the movant’s attorney setting forth in detail why all

other parties should not be heard before the stay is granted.

App. R. 39(C).

A party may file a motion for an emergency stay without notice. The movant must

submit:

(1) An affidavit setting forth specific facts that clearly establish that immediate and

irreparable harm will result to the movant if the stay is not granted until all other

parties are heard;

(2) A verified statement from the movant’s attorney setting forth in detail (a) the

attorney’s efforts to give notice to the other parties, and (b) the reasons why

notice should not be required; and

(3) A proposed order setting forth the remedy requested.

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VIII. BRIEFS

A. Briefs to the Indiana Court of Appeals or on Direct Appeal to the Indiana Supreme

Court – App. R. 43 - 46

1. Types of Briefs Accepted. Indiana Appellate Rules 43, 44, 45, and 46 govern

preparation of appellate briefs. Only four types of briefs are allowed on appeal without leave of

court: the appellant’s brief, the appellee’s brief, the appellant’s reply brief, and the cross-

appellant’s reply brief. Other types of briefs, such as those of an amicus curiae or an intervenor,

may be filed with leave of court.

2. Bindings and Covers. Appellate briefs must be bound along the left margin.

Any binding process which permits the brief to lie flat when opened (e.g., spiral bound) is

preferred. App. R. 43(J).

Appellate briefs must also have an appropriate cover. App. R. 43(H). The brief should

have a front and back cover in the following colors:

Appellant’s Brief and Appendix: Blue

Appellee’s Brief and Appendix: Red

Any Reply Brief (except as provided below): Gray

Brief of Intervenor or Amicus Curiae: Green

Petition for Rehearing: White

Brief in Response to a Petition for Rehearing: White

Petition to Transfer or for Review: Orange

Brief in Response to a Petition Seeking

Transfer or Review: Yellow

Reply Brief to Brief in Response to a Petition

Seeking Transfer or Review: Tan

App. R. 43(H).

App. R. 43(I) requires that the cover should conform substantially to Form App. R. 43-1

in the Appellate Appendix.

3. Margins, Point Type, Spacing, and Font. Briefs are to be printed on 8½ x 11

inch white paper. App. R. 43(B). All four margins of the text of the document shall be at least

one inch from the edge of the page. App. R. 43(G).

Text in an appellate brief must appear on only one side of the paper. App. R. 43(C). The

typeface must be at least 12-point in both the body and the footnotes. App. R. 43(D). The font

must be Arial, Baskerville, Book Antiqua, Bookman, Bookman Old Style, Century, Century

Schoolbook, Courier, Courier New, CG Times, Garamond, Georgia, New Baskerville, New

Century Schoolbook, Palatino or Times New Roman. App. R. 43(D). Text in the body must be

double-spaced, except for lengthy quotations, which should be single spaced and indented App.

38

R. 43(E). Footnotes also should be single-spaced. App. R. 43(E). Single-spaced lines of print

must be separated by at least 4-point spaces. App. R. 43(E).

4. Electronic Format. App. R. 43(K) allows for, but does not require, the filing of

appellate briefs in electronic format. Apparently, very few appellate practitioners do so.

Although not filing in electronic format complies with the rules, sending a CD of your brief may

be helpful to the appellate judges on the case.

5. Citation Form. App. R. 22(A) requires that case citations in appellate briefs

follow the form set out in the current edition of A Uniform System of Citation (also known as the

Harvard Citator or Bluebook). All Indiana cases must be cited by giving the title of the case

followed by the volume and page of the regional and official reporter (where both exist), the

court of disposition, and the year of the opinion, e.g. Callender v. State, 193 Ind. 91, 138 N.E.

817 (1922); Moran v. State, 644 N.E.2d 536 (Ind. 1994).

If the case is not contained in the regional reporter, citation may be made to the official

reporter. Where both a regional and official citation exist and pinpoint citations are appropriate,

pinpoint citations to one of the reporters must be provided. Designations of dispositions of

petitions to transfer must be included, e.g., Smith v. State, 717 N.E.2d 127 (Ind. Ct. App. 1999),

trans. denied. App. R. 22(A).

App. R. 22(B) requires that citation to Indiana statutes, regulations, and court rules

comply with the following format for initial references and subsequent references:

Initial Reference Subsequent Reference

Ind. Code § 34-1-1-1 (20xx) I.C. § 34-1-1-1

34 Ind. Admin. Code 12-5-1 (2004) 34 I.A.C. 12-5-1

29 Ind. Reg. 11 (Oct. 1, 2005) 29 I.R. 11

Ind. Trial Rule 56 T.R. 56

Ind. Crim. Rule 4(B)(1) Crim. R. 4(B)(1)

Ind. Post-Conviction Rule 2(2)(b) P-C.R. 2(2)(b)

Ind. Appellate Rule 8 App. R. 8

Ind. Original Action Rule 3(A) Orig. Act. R. 3(A)

Ind. Child Support Rule 2 Child Supp. R. 2

Ind. Child Support Guideline 3(D) Child Supp. G. 3(D)

Ind. Small Claims Rule 8(A) S.C.R. 8(A)

Ind. Tax Court Rule 9 Tax Ct. R. 9

Ind. Administrative Rule 7(A) Admin. R. 7(A)

Ind. Judicial Conduct Canon 2(A) Jud. Canon 2(A)

Ind. Professional Conduct Rule 6.1 Prof. Cond. R. 6.1

Ind. Alternative Dispute Resolution Rule 2 A.D.R. 2

Ind. Admission and Discipline Rule 23(2)(a) Admis. Disc. R. 23(2)(a)

Ind. Evidence Rule 301 Evid. R. 301

Ind. Jury Rule 12 J.R. 12

39

Effective July 1, 2006, the Indiana Administrative Code and the Indiana Register are

published electronically by the Indiana Legislative Services Agency. For materials published in

the Indiana Administrative Code and Indiana Register prior to that date, use the citation forms set

forth above. For materials published after that date, reference to the appropriate URL is

necessary for a reader to locate the official versions of these materials. The following citation

format for initial references and subsequent references should be used for materials published in

the Indiana Administrative Code and Indiana Register on and after July 1, 2006:

Initial: 34 Ind. Admin. Code 12-5-1 (2006)

(see http://www.in.gov/legislative/iac/)

Subsequent: 34 I.A.C. 12-5-1

Initial: Ind. Reg. LSA Doc. No. 05-0065 (July 26, 2006)

(see http://www.in.gov/legislative/register/irtoc.htm)

Subsequent: I.R. 05-0065

Citations to County Local Court Rules adopted pursuant to Ind. Trial Rule 8 should be

cited by giving the county followed by the citation to the local rule, e.g., Adams LR01-TR3.1-1.

Any factual statement must be supported by citation to the page where it appears in an

Appendix, and if not contained in an Appendix, to the page it appears in the Transcript, e.g.,

Appellant’s App. p. 5; Answer, p. 10; Tr. p. 231-32. Any record material cited in an appellate

brief must be reproduced in an Appendix. App. R. 22(C).

References to parties by such designations as “appellant” and “appellee” should be

avoided. App. R. 22(D). Instead, parties must be referred to by their names or by descriptive

terms such as “the employee,” “the injured person,” “the taxpayer,” or “the school.” App. R.

22(D).

The following abbreviations may be used without explanation in citations and references:

App. (appendix), Br. (brief), CCS (chronological case summary), Ct. (court), Def. (defendant),

Hr. (hearing), Mem. (memorandum), Pet. (petitioner), Pl. (plaintiff), Supp. (supplemental), and

Tr. (transcript). App. R. 22(E). Other abbreviations may be used if an explanation is provided.

Counsel should be careful not to cite a Court of Appeals opinion as precedent if transfer

has been granted. If transfer has been granted, the decision of the Court of Appeals is vacated,

except any portion of the decision which is expressly adopted and incorporated by reference by

the Supreme Court. App. R. 58(A).

6. Length of Briefs. App. R. 44(D) provides that a brief or petition may not exceed

the following number of pages:

Appellant’s Brief: 30 pages

Appellee’s Brief: 30 pages

Reply Brief (except as provided below): 15 pages

Reply Brief with Cross-Appellee’s Brief: 30 pages

40

Brief of Intervenor or Amicus Curiae: 15 pages

Petition for Rehearing: 10 pages

Brief in Response to a Petition for Rehearing: 10 pages

Petition to Transfer: 10 pages

Brief in Response to a Petition Seeking

Transfer: 10 pages

Reply Brief to Brief in Response to a Petition

Seeking Transfer: 3 pages

Brief of Intervenor or Amicus Curiae on

Transfer or Rehearing: 10 pages

Petition for Review of a Tax Court decision: 30 pages

Brief in Response to a Petition for Review

of a Tax Court Decision: 30 pages

Reply Brief to Brief in Response to a Petition for

Review of a Tax Court Decision: 15 pages

App. R. 44(D). Briefs in certain CHINS and juvenile appeals are limited to 10 pages. App. R.

14.1(D)(2).

App. R. 44(E), however, provides that a brief or petition exceeding the page limit of App.

R. R. 44(D) may be filed if it does not exceed the following number of words:

Appellant’s Brief: 14,000 words

Appellee’s Brief: 14,000 words

Reply Brief (except as provided below): 7,000 words

Reply Brief with Cross-Appellee’s Brief: 14,000 words

Brief of Intervenor or Amicus Curiae: 7,000 words

Petition for Rehearing: 4,200 words

Brief in Response to a Petition for Rehearing: 4,200 words

Petition to Transfer: 4,200 words

Brief in Response to a Petition Seeking

Transfer: 4,200 words

Reply Brief to Brief in Response to a Petition

Seeking Transfer: 1,000 words

Brief of Intervenor or Amicus Curiae on

Transfer or Rehearing: 4,200 words

Petition for Review of a Tax Court decision: 14,000 words

Brief in Response to a Petition for Review

of a Tax Court Decision: 14,000 words

Reply Brief to Brief in Response to a Petition for

Review of a Tax Court Decision: 7,000 words

App. R. 44(E). Briefs in certain CHINS and juvenile appeals may exceed 10 pages if limited to

4,200 words. App. R. 14.1(D)(2).

41

Headings and footnotes count toward the word limitation. App. R. 44(C). The cover

information, table of contents, table of authorities, signature block, certificate of service, word

count certificate, and the appealed judgment or order of the trial court or Administrative Agency

do not count toward the word limitation. App. R. 44(C).

Any brief longer than the page limit must be accompanied by a verified statement of the

attorney or unrepresented party preparing the brief that the number of words in the brief does not

exceed the word limitation. App. R. 44(E). The following are acceptable word count

certifications: “I verify that this brief (or petition) contains no more than (applicable limit)

words,” and “I verify that this brief (or petition) contains (actual number) words.” App. R.

44(F). The certification must appear at the end of a brief before the certificate of service. App.

R. 44(F). The person may rely on the word count feature of the word processing program used

to prepare the brief. App. R. 44(F).

A motion requesting leave to file an oversized brief must be filed at least 15 days before

the brief is due. App. R. 44(B).

7. Arrangement and Content of Appellant’s Brief. App. R. 46(A) requires that an

appellant’s brief contain the following sections under separate headings and in the following

order:

a. Table of Contents. The table of contents must list each section of the

brief, including headings and subheadings of each section and the page on which they begin;

b. Table of Authorities. The table must list each case, statute, rule, and

other authority cited in the brief, with references to each page of the brief on which they are

cited;

c. Statement of Supreme Court Jurisdiction. This must be included if the

case is a direct appeal to the Indiana Supreme Court;

d. Statement of Issues. This statement must concisely and particularly

describe each issue presented for review;

e. Statement of the Case. The statement should briefly describe the nature

of the case, the course of proceedings below relevant to the issues, and the disposition of the case

below. Page references to the Record on Appeal or Appendix are required in accordance with

App. R. 22(C);

f. Statement of Facts. The statement should include the facts relevant to

the issues presented. The facts must be supported by page references to the Record on Appeal or

Appendix in accordance with App. R. 22(C). The facts should be stated in accordance with the

standard of review appropriate to the judgment or order being appealed. The statements must be

in a narrative form and not a witness by witness summary of the testimony. The statement of

facts should not include legal argument. First Nat’l Bank & Trust v. Indianapolis Pub. Hous.

Agency, 864 N.E.2d 340, 342 n.1 (Ind. Ct. App. 2007);

42

g. Summary of Argument. The summary should contain a succinct, clear,

and accurate statement of the arguments made in the body of the brief;

h. Argument. The argument must contain the contentions of the appellant

with respect to the issues presented, supported by cogent reasoning. A party waives an argument

for which it fails to develop cogent argument. Zoller v. Zoller, 858 N.E.2d 124, 127 (Ind. Ct.

App. 2006). Each contention must be supported by citations to authorities, statutes, and the

Appendix or parts of the Record on Appeal relied on, in accordance with App. R. 22. An

argument not supported with citation to authority is waived. Irish v. Woods, 864 N.E.2d 1117,

1121 n.5 (Ind. Ct. App. 2007).

The argument must include, for each issue, a concise statement of the applicable standard

of review. For each argument, there must be a statement as to how the issue was raised and

resolved below. This helps the Court determine whether the issue has been properly preserved.

If the admissibility of evidence is in dispute, citation in conformity with App. R. 22(C)

must be made to the pages of the Transcript where the evidence was identified, offered, and

received or rejected. When error is predicated on the giving or refusing of any jury instruction,

the instruction must be set out verbatim in the argument section of the brief, along with the

verbatim objections, if any. Ordinarily, an appellant waives the issue by failing to comply with

this rule. Dyer v. Doyle, 870 N.E.2d 573, 581 (Ind. Ct. App. 2007);

Arguments incorporated by reference will be considered waived. T-3 Martinsville, LLC

v. US Holding, LLC, 911 N.E.2d 100, 104 n.3 (Ind. Ct. App. 2009).

i. Conclusion. The conclusion must include a precise statement of relief

sought and the signature of the attorney or pro se party;

j. Appealed Judgment on Order. The brief must include a copy of any

written opinion, memorandum decision, or findings of fact and conclusion thereon relating to the

issues raised on appeal. When sentencing is at issue in a criminal appeal, the brief must contain

a copy of the sentencing order. Failure to include in the brief the decision appealed from is a

common deficiency. See, e.g., Armstrong v. Keene, 861 N.E.2d 1198, 1200 n.1 (Ind. Ct. App.

2007);

k. Word Count Certificate (if necessary). The word count certificate is

only necessary if the brief exceeds the applicable page limit. See App. R. 44(D), (E), (F); and

l. Certificate of Service. The certificate of service must be at the end of the

brief and should not be separately filed. See App. R. 24(D).

In certain juvenile and CHINS appeals, the appellant files a memorandum which need not

contain the sections required by App. R. 46(A). App. R. 14.1(D)(1).

43

8. Arrangement and Content of Appellee’s Brief. An appellee’s brief follows the

same format as that of the appellant’s brief, except that the appellee’s brief may omit the

statement of the issues, the statement of the case, and the statement of facts if the appellee agrees

with the statements in the appellant’s brief. If any of these statements is omitted, the brief must

state that the appellee agrees with the appellant’s statements. App. R. 46(B)(1). In certain

juvenile and CHINS appeals, the appellant files a memorandum which need not contain the

sections required by App. R. 46(B). App. R. 14.1(D)(1).

9. Appellant’s Reply Brief. No new issues may be raised in appellant’s reply brief.

App. R. 46(C).

10. Filing Deadlines. The appellant’s brief must be filed no later than 30 days after:

(1) the date the trial court clerk or Administrative Agency issues its notice of completion of

Clerk’s Record if the notice reports that the Transcript is complete or that no Transcript has been

requested; or (2) in all other cases, the date the trial court clerk or Administrative Agency issues

its notice of completion of the Transcript. App. R. 45(B)(1). In certain juvenile and CHINS

appeals, the DCS has only five days to file its memorandum. App. R. 14.1(D)(3).

The appellee’s brief must be filed no later than 30 days after service of the appellant’s

brief. App. R. 45(B)(2). In certain juvenile and CHINS appeals, the appellee has only five days

to file a responsive memorandum. App. R. 14.1(D)(4).

The appellant’s reply brief must be filed no later than 15 days after the service of the

appellee’s brief. App. R. 45(B)(3). However if it also serves as the cross-appellee’s brief, it

must be filed no later than 30 days after service of the appellee’s brief. Id. In certain juvenile

and CHINS appeals, no reply memorandum is allowed. App. R. 14.1(D)(4).

A cross-appellant’s reply brief must be filed no later than 15 days after service of the

appellant’s reply brief. App. R. 45(B)(4).

If the appellant’s brief, appellee’s brief, or the appellant’s reply/cross-appellee’s brief is

served on opposing counsel by mail, App. R. 25(C) provides that the party served has an

additional three days to file the responding brief.

If a brief is due on a Saturday, Sunday, a legal holiday as defined by statute, or a day the

Clerk’s office is closed, the brief is due on the first business day thereafter. App. R. 25.

11. Amendment of Briefs and Submission of Additional Authorities. On motions

for good cause, the Court may grant leave for a party to amend a brief or petition. App. R. 47.

The motion must describe the nature of and reason for the proposed amendment. The movant

must either tender sufficient copies of an amended brief or petition (the cover of which must

indicate that it is amended) with its motion or request permission to retrieve the original and all

copies of the brief or petition filed with the Clerk and substitute amended pages.

Additional authorities in support of any proposition set forth in the briefs may be filed by

either party after the party’s brief has been filed or after oral argument but before decision. The

44

Notice of Additional Authority must refer either to a page in the brief or to a point argued orally

to which the additional authority applies, along with a parenthetical or a single sentence

explaining the authority. App. R. 48. This rule is not to be used as a surrebuttal to oral argument

or to provide the Court with case law that could or should have been set forth in a party’s brief.

Raess v. Doescher, 857 N.E.2d 439 (Ind. Ct. App. 2006).

B. Briefs of Amicus Curiae or Intervenor – App. R. 41, 43, 44, 46

1. Leave of Court. A brief of an amicus curiae or an intervenor may be filed only

by leave or request of the Court. A motion requesting leave must identify the interest of the

proposed amicus curiae, the party with whom the proposed amicus curiae is substantively

aligned, and the reasons why an amicus curiae brief would be helpful to the Court. App. R.

41(A). This motion to appear amicus curiae must be filed within the time allowed the party with

whom the proposed amicus curiae is substantively aligned to file its brief. App. R. 41(B). The

brief of amicus is due at the same time as the brief from the party with whom amicus is

substantively aligned, App. R. 41(C), unless the Court permits the belated filing of an amicus

curiae brief on motion for good cause. App. R. 41(D). If the Court permits belated filing, it will

set a deadline for any opposing party to file a reply brief. App. R. 41(D).

2. Brief Cover. The cover of an amicus curiae brief or an intervenor’s brief is

green. App. R. 43(H).

3. Margins, Point Type and Spacing. The technical requirements for the

production of amicus curiae or intervenor briefs are the same as for other briefs and are set forth

in App. R. 43. See section (A)(3) of this chapter.

4. Citation Form. All briefs follow the same citation format set forth in App. R. 22.

See section (A)(4) of this chapter.

5. Content and Length of Briefs. An amicus curiae brief must include a table of

contents, table of authorities, a brief statement of the interest of the amicus curiae, summary of

argument, argument, conclusion, word count certificate (if necessary), and certificate of service.

App. R. 46(E)(1).

Before completing an amicus curiae brief, counsel for an amicus curiae must attempt to

ascertain the arguments that will be made in the brief of any party whose position the amicus

curiae is supporting to avoid repetition or restatement of those arguments made in the amicus

curiae brief. App. R. 46(E)(2).

App. R. 44(D) and (E) provide that the brief of an intervenor or amicus curiae may not

exceed the longer of either 15 pages or 7,000 words without leave of the court. Headings,

footnotes, and quotations count toward the 7,000 word limitation.

6. Filing Deadlines. An amicus curiae must file its brief within the time allowed

the party whose position the amicus brief will support. App. R. 41(C). On a motion for good

cause, the Court may grant leave for a later filing. App. R. 41(D).

45

C. Briefs Involving Cross-Appeals – App. R. 46

When both parties have filed a Notice of Appeal, the plaintiff in the lower court is

deemed the appellant for the purpose of App. R. 46(D), unless the parties otherwise agree or the

appellate court otherwise orders. App. R. 46(D)(1). When only one party has filed a Notice of

Appeal, that party is the appellant, even if another party raises issues on cross-appeal. App. R.

46(D)(1).

The appellee’s brief shall contain any contentions the appellee raises on cross-appeal as

to why the trial court or Administrative Agency committed reversible error. App. R. 46(D)(2).

The appellant’s reply brief shall address the arguments raised on cross-appeal. App. R. 46(D)(3).

The cross-appellant’s reply brief may only respond to that part of the appellant’s reply brief

addressing the appellee’s cross-appeal. App. R. 46(D)(4).

D. Addendum to Brief – App. R. 23, 46

Any party filing a brief may file an Addendum to Brief. App. R. 46(H). Although the

rule states that an addendum “is not recommended in most cases” (App. R. 46(H)), it is an

excellent location for a “highly selective compilation of materials” from the Appendix. An

Addendum has become a valuable tool because, although only one copy of the Appendix is filed,

an original and eight copies of any Addendum are filed. App. R. 23(C)(3) and 23(C)(5). As a

result, each appellate jurist on the case gets a copy of any Addendum, but they must share one

Appendix.

An addendum must be filed and served when the brief it accompanies is filed and served.

App. R. 46(H). It may not be longer than 50 pages, and should usually be much shorter. App. R.

46(H). The first document in the Addendum must be a Table of Contents. App. R. 46(H). An

Addendum shall not contain argument. App. R. 46(H).

46

IX. APPENDIX

An appellant must file an appendix in order to present the Court with copies of those

parts of the “record on appeal” that are “necessary” for the Court to decide the issues presented

on appeal. App. R. 50(A)(1). See Lenhardt Tool & Die Co., Inc. v. Lumpe, 703 N.E.2d 1079,

1084 (Ind. Ct. App. 1998), trans. denied (“It is the duty of an appellant to provide this court with

a record sufficient to enable us to review the claim of error.”).

The Rule provides that a party’s failure to include any item in an Appendix shall not

waive any issue or argument. App. R. 49(B). If, however, the failure to include such material

gives the court an insufficient basis upon which to review the substantive issues, the court may

dismiss the appeal or simply affirm the trial court’s ruling. See, Hughes v. King, 808 N.E.2d

146, 148 (Ind. Ct. App. 2004) (dismissing appeal from the grant of a summary judgment where

appellant failed to include all of the summary judgment motions, responses and designated

evidence in its appendix because the court found it had no basis upon which to review the

substantive issue on the merits); Yoquelet v. Marshall County, 811 N.E.2d 826, 830 (Ind. Ct.

App. 2004) (where appellant failed to include in its appendix the designated evidence, the court

affirmed the entry of summary judgment because it could not review the order and, therefore,

appellant had failed to prove the trial court erred or overcome the presumption of validity

attached to the entry of summary judgment); see also, Kelly v. Levandoski, 825 N.E.2d 850, 856

(Ind. Ct. App. 2005) (holding that it was insufficient for appellant to only include its own

summary judgment documents in appellant’s appendix; rather, appellant must include in its

appendix all documents relating to the disposition of the motion for summary judgment,

including any documents appellee filed with the trial court). In appeals from summary judgment

decisions, the appendix should include the designations of evidence that were filed with the trial

court. Tony v. Elkhart County, 918 N.E.2d 363, 365 n.1 (2009).

The appendix must be filed with the appellant’s brief. An appellee’s appendix, if any,

must be filed with the appellee’s brief. Any party may file a supplemental appendix without

leave of court at any time until the final reply brief is filed. App. R. 49.

A. Civil Appeal – App. R. 49 - 51

In a civil matter, the appellant’s appendix must contain copies of the following

documents:

(1) The CCS from the trial court or agency;

(2) The judgment or order being appealed, including any supporting opinion,

memorandum, or findings and conclusions;

(3) Any jury verdict;

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(4) The portion of the transcript that contains the rationale for the decision and any

colloquy related to the decision “if and to the extent the brief challenges any oral

ruling or statement of decision”;

(5) Any instruction not included in the appellant’s brief, and the complete transcript

of instructions where error is predicated on giving or refusing an instruction;

(6) In chronological order, pleadings and other documents from the clerk’s record

“that are necessary for the resolution of the issues on appeal”;

(7) Any other short excerpts from the record “that are important to a consideration of

the issues raised on appeal”;

(8) Any other record material relied on in the brief, unless already included in the

transcript; and

(9) A verification that materials in the appendix are accurate. The Rule suggests the

following form: “I verify under penalties of perjury that the documents in this

Appendix are accurate copies of parts of the Record on Appeal.”

App. R. 50(A)(2). The documents in the appendix should be arranged in the order listed above.

App. R. 51(B).

The appellee may file an appendix, which should include any documents the appellant

was required to file but failed to, and any additional items from the clerk’s record relevant to the

issues raised by the appellee’s brief or in a cross-appeal. App. R. 50(A)(3). The appellee’s

appendix should not contain any item already contained in the appellant’s appendix.

B. Criminal Appeal – App. R. 49 - 51

In a criminal appeal, the appellant’s appendix must contain the following items:

(1) The clerk’s record, including the CCS;

(2) The portion of the transcript that contains the rationale for the decision and any

colloquy related to the decision “if and to the extent the brief challenges any oral

ruling or statement of decision”;

(3) Any instruction not included in the appellant’s brief, and the transcript of the

instruction, when error is predicated on the giving or refusing to give an

instruction;

(4) In chronological order, any other short excerpts from the record “that are

important to a consideration of the issues raised on appeal”;

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(5) Any other record material relied on in the brief, unless already included in the

transcript; and

(6) a verification that materials in the appendix are accurate. The Rule suggests the

following form: “I verify under penalties of perjury that the documents in this

Appendix are accurate copies of parts of the Record on Appeal.”

App. R. 50(B)(1). The documents in the appendix should be arranged in the order listed above.

App. R. 51(B).

As with civil appeals, the appellee may file an appendix, which should include any

documents the appellant was required to file but failed to, and any additional items from the

clerk’s record relevant to the issues raised by the appellee’s brief or in a cross-appeal. App. R.

50 (B)(2). The appellee’s appendix should not contain any item already contained in the

appellant’s appendix.

C. Other Required Elements – App. R. 50, 51

A table of contents must be prepared for every appendix. App. R. 50(C). The table must

specifically identify each item, including the item’s filing date.

A supplemental appendix should not contain items found in any other appendix. App. R.

50(D). In cases where there are multiple parties (including cases consolidated for appeal), the

parties on each side, where possible, should file a joint appendix to avoid duplication. App. R.

50(E).

The documents should be copied on 8½ x 11 inch paper of normal weight on one side

only. App. R. 51(A). Color copies of exhibits that were originally in color are encouraged. Id.

The appendix must be numbered at the bottom in consecutive order, no matter how many

volumes, without obscuring the transcript page number, and bound separately from the brief.

App. R. 51(C), (D). See Everage v. Northern Indiana Public Service Co., 825 N.E.2d 941, 943

(Ind. Ct. App. 2005) (noting that while appellant’s organization of his appendix with tabs was

helpful, the pages of the appendix must still be numbered consecutively); Robinson v. State, 799

N.E.2d 1202, 1203 n.1 (Ind. Ct. App. 2003) (in noting that appellant improperly bound his

appendix within his appellant’s brief and failed to number its pages or include a separate table of

contents as required by rules, the court cautioned that even pro se litigants without legal training

are required to follow procedural rules) (quotation omitted). Each volume of the appendix must

contain no more than 250 pages, be bound on the left margin, and contain a table of contents for

the entire appendix. App. R. 50(D). Binding that permits the appendix to lie flat when opened is

preferred. Each volume should have front and back covers that are the same color as the brief of

the party filing the appendix and shall state the name of the party submitting it and the brief with

which it is submitted. App. R. 50(E).

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X. ORAL ARGUMENT

A. Scheduling – App. R. 52, 53

A party may request oral argument by filing a written motion. App. R. 52(A). A party’s

motion for oral argument must be filed no later than seven days after any reply brief would be

due. App. R. 52(B). The court has discretion to set oral argument on its own motion or on a

party’s motion. App. R. 52(A). The Court will refuse a request for oral argument when it

appears that there is no question for determination. See, e.g., McCloud v. Truax, 104 Ind. App.

383, 11 N.E.2d 517 (1937).

The clerk will notify the parties if and when oral argument is set. In a criminal appeal,

the clerk will also notify the prosecuting attorney. App. R. 52(A). Within 15 days of the service

of the order, parties must file an acknowledgement of the order setting oral argument. App. R.

52(C).

Most arguments are held in the State House in Indianapolis. The Court of Appeals

occasionally holds arguments outside the State House, typically in schools, universities, or trial

courts.

If a party fails to appear for oral argument, the Court may decide the case without that

party’s argument, decide the appeal without oral argument, or reschedule the argument. The

Court may also sanction the non-appearing party. App. R. 53(G).

In the scheduling order, the parties will learn which three Court of Appeals judges will

hear oral argument. The parties may also visit the Court of Appeals Website located at

www.in.gov/judiciary/appeals/ and click on the link for “oral argument calendar.” Selecting the

scheduled date on the calendar link will direct parties to a synopsis of the case, which includes

the scheduled panel members.

B. Time Allotted and Order of Argument – App. R. 53

The order scheduling oral argument will specify the amount of time allotted for each

side’s argument. Generally speaking, the parties receive twenty or thirty minutes per side. A

party may, for good cause, request more or less time in its motion for oral argument or by filing a

separate motion within 15 days of the order setting oral argument. App. R. 53(A). A party need

not use all of the time allotted, and the Court may terminate any argument if further argument is

unnecessary. App. R. 53(A). A party may not, however, exceed its allotted time without leave

of court. App. R. 53(A).

In both the Supreme Court and Court of Appeals, an electronic timer numerically

displays the remaining time allowed for each side’s argument. The timer also displays a series of

colored lights: a green light appears when the argument begins; a yellow light cautions that only

a few minutes remain; and a red light indicates that the allotted time has expired. During

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traveling oral arguments, the Bailiff may hold cue cards to warn counsel of the time elapsed. In

such cases, it is important to confer with the Bailiff prior to oral argument about the timing

procedures.

Unless the scheduling order indicates otherwise, the appellant shall begin the argument

and may reserve time for rebuttal. App. R. 53(B). If the party opening the argument intends to

reserve time for rebuttal, that party should inform the Court at the argument’s beginning how

much time is being reserved for rebuttal. Id.

C. Content of Argument – App. R. 53

Failure to argue a particular point does not constitute a waiver, so a party may be

selective in deciding which issues to argue orally. App. R. 53(B). However, counsel should read

scheduling orders carefully because they may direct parties to focus on particular issues during

the argument. Lawyers should be prepared for the judges to interrupt the argument with

questions. Further, counsel should not read at length from briefs, the Record on Appeal, or other

authorities. Id. In any appeal involving confidential information, counsel must conduct oral

argument in such a way that the confidential information will remain so. App. R. 53(H).

D. Cross Appeals, Amicus Curiae, and Multiple Parties – App. R. 53

Unless a court order provides otherwise, where both parties have filed a notice of appeal,

the plaintiff in the court below is considered the appellant for purposes of the oral argument.

App. R. 53(D). Otherwise, the party filing a notice of appeal will be deemed the appellant. Id.

An amicus curiae may participate in the oral argument without leave of court provided

that all of the parties with whom the amicus is substantively aligned consent. Absent such

agreement, the Court will grant the amicus curiae leave to participate in the oral argument only

upon a motion by the amicus curiae demonstrating extraordinary circumstances. App. R. 53(E).

In cases involving multiple appellants or appellees, the parties on each side must decide

how to share the time allotted to that side, unless the Court orders otherwise. Because the time is

shared, care should be taken to avoid duplication of argument. If more than one attorney per side

will participate in oral argument, the first attorney arguing for that side should announce that fact

and the intended allocation of time at the beginning of the argument. App. R. 53(C). The Court

will not separately time each attorney. Id.

E. Other Procedures – App. R. 53

Podiums used during oral argument may be equipped with a microphone. The Supreme

Court records oral arguments on audio tape for the Court’s review.

Physical objects or visual displays are not necessary and are rarely used at oral argument,

but their use is regulated by App. R. 53(F). A party intending to use a display – other than a

handout – should notify the appellate court’s administration office in advance of the day of the

argument. Counsel must provide any equipment needed for the visual displays. After the

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argument, the counsel presenting the exhibit will be responsible for the removal of such exhibits

from the courtroom and, if necessary, for return to the trial court clerk. App. R. 53(F).

Oral arguments are open to the public, although courtroom seating for spectators may be

limited. Many arguments are also Webcast for viewing by the Internet public.

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XI. INTERLOCUTORY APPEALS

A. Introduction – App. R. 2, 14

Generally, a litigant may appeal only a final judgment. Allstate Ins. Co. v. Fields, 842

N.E.2d 804, 806 (Ind. 2006). A judgment is final if:

(1) It disposes of all claims as to all parties;

(2) The trial court in writing expressly determines under Trial Rule 54(B) or Trial

Rule 56(C) that there is no just reason for delay, and in writing expressly directs

the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or

parties, or (ii) under Trial Rule 56(C) as to fewer than all issues, claims or parties;

(3) It is deemed final under Trial Rule 60(C);

(4) It is a ruling on either a mandatory or permissive Motion to Correct Error which

was timely filed under Trial Rule 59 or Criminal Rule 16; or

(5) It is otherwise deemed final by law.

App. R. 2(H).

In contrast to a final order, an “interlocutory order” is a provisional or interim order that

does not resolve a case, but instead resolves only a preliminary issue for the pendency of the

litigation (e.g., an order that property not be sold until such time as the court determines its

rightful owner).

App. R. 14 addresses the appeals of interlocutory orders. Interlocutory appeals are

divided into two classes: interlocutory appeals of right and discretionary interlocutory appeals.

Interlocutory appeals of right may be brought without specific approval by either the trial court

or the Court of Appeals. Discretionary interlocutory appeals, by comparison, must first be

certified by the trial court (unless taken from an order granting or denying class certification) and

then accepted for review by the Court of Appeals. As discussed below, whether a particular

interlocutory order is appealable of right or only at the Court’s discretion depends upon the

nature and subject matter of the interlocutory order at issue.

B. Interlocutory Appeals of Right – App. R. 14

1. Types of Interlocutory Appeals of Right. App. R. 14(A) offers an exhaustive

list of nine categories of interlocutory appeals of right. These are interlocutory orders:

(a) For the payment of money;

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(b) To compel the execution of any document;

(c) To compel the delivery or assignment of any securities, evidence of debt,

documents or things in action;

(d) For the sale or delivery of the possession of real property;

(e) Granting or refusing to grant, dissolving, or refusing to dissolve a

preliminary injunction;

(f) Appointing or refusing to appoint a receiver, or revoking or refusing to

revoke the appointment of a receiver;

(g) For a writ of habeas corpus not otherwise authorized to be taken directly

to the Supreme Court;

(h) Transferring or refusing to transfer a case under trial Rule 75 (Preferred

Venue); and

(i) Issued by an Administrative Agency that by statute is expressly required

to be appealed as a mandatory interlocutory appeal.

A party initiates an interlocutory appeal as of right by filing a Notice of Appeal with the

trial court clerk within 30 days of the entry of the interlocutory order. App. R. 14(A). See also

Initiating an Appeal, Chapter III.

2. Discovery Orders.

Discovery orders are ordinarily not appealable as of right. The Court of Appeals has

rejected the argument that a discovery order is appealable as of right under App. R. 14(A)(1)

because compliance with the order will result in a party spending money to comply with the

order. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 194 (Ind. Ct. App. 2004). The Court has

also rejected arguments that discovery orders compelling the production of documents for

inspection are appealable as of right under Rules 14(A)(2) or 14(A)(3). Rauch v. Finney, 829

N.E.2d 985, 986 (Ind. Ct. App. 2005); Scroghan, 802 N.E.2d at 194.

A discovery order is appealable as of right when the trial court imposes a monetary

sanction on a party for refusing to comply with the order because the sanction constitutes an

order for the payment of money. Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 322 (Ind. Ct.

App. 2006). The interlocutory review is not limited to the propriety of the monetary sanction,

but also encompasses the correctness of the order compelling discovery. Id.

3. No Waiver of Issues Subject to Interlocutory Appeals of Right.

Former Appellate Rule 4(B) stated, “appeal from interlocutory orders shall be taken to

the Court of Appeals in the following cases . . .” (emphasis added). Consequently, case law

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interpreting that rule held that a litigant’s failure to take an interlocutory appeal of right

precluded the litigant from later challenging the interlocutory order on appeal from a final

judgment. Crowley v. Crowley, 708 N.E.2d 42, 50 (Ind. Ct. App. 1999).

The current App. R. 14(A) lacks the mandatory “shall,” and the Indiana Supreme Court

has held that “there is no requirement that an interlocutory appeal be taken, and [litigants] may

elect to wait until the end of litigation to raise the issue on appeal from a final judgment.”

Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind. 2003); see also Bojrab v. Bojrab, 810 N.E.2d

1008, 1014 (Ind. 2004) (“[E]ven though an interlocutory order may be appealable as of right . . .

there is no requirement that an interlocutory appeal be taken.”).

C. Discretionary Interlocutory Appeals – App. R. 14

An interlocutory order may be appealable even if it is not an interlocutory appeal of right

(i.e., the order does not fit within the nine types of orders listed in App. R. 14(A)). An

interlocutory order that is not appealable of right may be appealed if (1) the trial court agrees to

certify the issue for interlocutory appeal, and (2) the Court of Appeals jurisdiction of the appeal.

App. R. 14(B). The only exception is an interlocutory appeal from an order granting or denying

class action certification, which, as of January 1, 2008, does not require trial court certification.

App. R. 14(C).

1. Certification by Trial Court.

a. Time for Filing Motion Requesting Certification with the Trial Court.

“A motion requesting certification of an interlocutory order must be filed

in the trial court within thirty (30) days of the date of the interlocutory

order unless the trial court, for good cause, permits a belated motion.”

App. R. 14(B)(1)(a). There may be times when the need for taking an

interlocutory appeal is not apparent within thirty days of the order. The

rules permit a party to seek leave to file a belated motion for certification

in such cases.

b. Content of Motion. A motion requesting certification should have three

parts: “(i) An identification of the interlocutory order sought to be

certified; (ii) A concise statement of the issues to be addressed in the

interlocutory appeal; and (iii) The reasons why an interlocutory appeal

should be permitted.” App. R. 14(B)(1)(b). For the last component,

litigants are encouraged to provide explanations that incorporate the facts

of the particular case.

c. Grounds for Granting an Interlocutory Appeal. Under App. R.

14(B)(1)(c), the grounds upon which the trial court and Court of Appeals

may grant an interlocutory appeal include, but are not necessarily limited

to:

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(1) 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;

(2) The order involves a substantial question of law, the early

determination of which will promote a more orderly disposition of

the case; or

(3) The remedy by appeal is otherwise inadequate.

d. Response to Motion. An adverse party may oppose a motion to certify an

order for interlocutory review by filing a response within 15 days after

service of the motion, computing time in accordance with Trial Rule 6.

App. R. 14(B)(1)(d). As a practical matter, a party may lose the right to

object to certification if the trial court grants the motion to certify before

the end of the fifteen days provided for a response.

e. Ruling on Motion by Trial Court. A request for certification may be

either expressly denied by the trial court or deemed denied. If the trial

court fails for 30 days to set the motion for hearing, or fails to rule on the

motion within 30 days after it was heard, or fails to rule on the motion

within 30 days after it was filed if no hearing was set, the motion is

deemed denied. App. R. 14(B)(1)(e).

2. Acceptance by Court of Appeals. If the trial court certifies the interlocutory

appeal, the decision whether to accept a discretionary interlocutory appeal on its merits still

remains with the Court of Appeals. App. R. 14(B)(2).

a. Time for Filing Motion with Court of Appeals. The motion requesting

that the Court of Appeals accept jurisdiction of an interlocutory appeal

must be filed within 30 days of the date of the trial court’s certification.

App. R. 14(B)(2)(a).

b. Content of Motion and Attachments. The motion requesting that the

Court of Appeals accept jurisdiction of a discretionary interlocutory

appeal must state:

(1) The date of the interlocutory order;

(2) The date the motion for certification was filed in the trial court;

(3) The date the trial court certified its interlocutory order; and

(4) The reasons the Court of Appeals should accept this interlocutory

appeal.

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App. R. 14(B)(2)(b). Again, the applicant for a discretionary interlocutory

appeal is encouraged to offer specific reasons that a particular case should

be accepted for appeal rather than simply reciting the general reasons

listed in App. R. 14(B)(1)(c).

c. Attachments to Motion. In addition, the party seeking an interlocutory

appeal must attach to its motion: (1) a copy of the trial court’s certification

of the interlocutory order and (2) a copy of the interlocutory order. App.

R. 14(B)(2)(c). Litigants may also want to attach other pertinent

documents. The Court of Appeals will have available to it only those

documents supplied to it by the parties.

d. Response to Motion. Any response to a motion requesting the Court of

Appeals to accept jurisdiction must be filed within 15 days after service of

the motion. App. R. 14(B)(2)(d).

If the Court of Appeals declines to accept the appeal, this is not an adverse decision from

which a petition to transfer can be taken. App. R. 57(B). But if the Court of Appeals refuses to

accept jurisdiction over an interlocutory appeal, the party seeking review may petition the Court

for rehearing. Bridgestone Americas Holding v. Mayberry, 854 N.E.2d 355, 359 (Ind. Ct. App.

2006). Although successive motions for discretionary interlocutory appeal are disfavored, a

second motions panel has discretion to accept jurisdiction over an appeal the first motions panel

rejected for interlocutory review. Id. at 359-60.

3. Filing of Notice of Appeal. If the Court of Appeals accepts jurisdiction, the

appellant must file a Notice of Appeal with the trial court clerk within 15 days of the Court of

Appeals’ order accepting jurisdiction. The appellant must also pay the filing fee at this time.

App. R. 14(B)(3).

D. Statutory Interlocutory Appeals – App. R. 14

“Other interlocutory appeals may be taken only as provided by statute.” App. R. 14(D).

Therefore, interlocutory appeals are also permitted where the right is conferred by statute(e.g.,

the State’s right to appeal certain rulings in a criminal action, Ind. Code § 35-38-4-2). The rules

do not explicitly specify the procedures to follow in taking statutory interlocutory appeals of

right, and the rules for discretionary interlocutory appeals presumably apply to discretionary

statutory interlocutory appeals.

E. Clerk’s Record and Transcript – App. R. 10, 11, 14

“The Clerk’s Record shall be assembled in accordance with Rule 10 [Duties of Trial

Court Clerk or Administrative Agency]. The court reporter shall file the Transcript in

accordance with Rule 11 [Duties of Court Reporter].” App. R. 14(D). Thus, the time periods for

preparation of the record on appeal are the same as for appeals from final judgments. Extensions

of time are disfavored in interlocutory appeals. App. R. 10(E), 11(C). For additional discussion,

see Initiating an Appeal, Chapter III.

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F. Briefing – App. R. 14, 43 - 45

“Briefing in interlocutory appeals shall be governed by Rules 43 [form] and 44

[content].” App. R. 14(E). The interlocutory appeal briefing schedule is the same as for appeals

from final judgments. App. R. 45(A). Therefore, the Appellant’s Brief is due not later than 30

days after the trial clerk issues a notice that the Transcript is completed, the Appellee’s Brief is

due not later than 30 days after service of the Appellant’s Brief, and the Appellant’s Reply Brief

is due not later than 15 days after service of the Appellee’s Brief. For additional discussion, see

Summary of Appellate Deadlines, Chapter I of this manual, and Briefs, Chapter VIII of this

manual.

G. Shortening or Extending Time – App. R. 14, 35

Extensions of time of any sort in an interlocutory appeal are disfavored and will be

granted only upon a showing of good cause. Any motion for an extension must comply with

Rule 35 (Motion for Extension of Time). App. R. 14(G)(1).

“The Court of Appeals, upon motion by a party and for good cause, may shorten any time

period. A motion to shorten time shall be filed within ten (10) days of the filing of either the

Notice of Appeal with the trial court clerk or the motion to the Court of Appeals requesting

permission to file an interlocutory appeal.” App. R. 14(G)(2).

H. Stay of Trial Court Proceedings – App. R. 14, 18, 39

An interlocutory appeal does not stay proceedings in the trial court unless the trial court

or a judge of the Court of Appeals so orders. The order staying proceedings may be conditioned

upon the furnishing of a bond or security protecting the appellee against loss incurred by the

interlocutory appeal. App. R. 14(H). For further discussion, see Stays on Appeal, Chapter VII

of this manual.

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XII. REHEARING AND TRANSFER

Rehearing and transfer are two ways to obtain additional review of Indiana appellate

decisions, both civil and criminal. A petition for rehearing asks the appellate court that has

already decided a case to reconsider its decision. A petition to transfer asks the Supreme Court

to review a Court of Appeals decision. An unsuccessful litigant before the Court of Appeals may

file a petition for rehearing, or may bypass the petition for rehearing and directly file a petition to

transfer with the Supreme Court. The appellate courts may deny both types of petitions without

issuing an opinion.

A. Rehearing – App. R. 43, 44, 54, 55

The rules combine the petition for rehearing and supporting brief in one document called

the “petition for rehearing.” No brief in response to a petition for rehearing is required unless

requested by the appellate court, except that the attorney general is required to file a response

brief in a criminal case where the sentence is death. App. R. 54(C). Reply briefs are prohibited.

App. R. 54(D). Rehearing is rarely granted.

1. Dispositions Subject to Rehearing. A party may seek rehearing from a

published opinion, a not-for-publication memorandum decision, an order dismissing an appeal,

and an order declining to authorize the filing of a successive petition for post-conviction relief. A

party may not seek rehearing from an order denying transfer. App. R. 54(A). Also, the rules do

not provide for filing a petition for rehearing asking an appellate court to reconsider its decision

on a prior petition for rehearing. Petitions for rehearing are not allowed in certain juvenile and

CHINS appeals. App. R. 14.1(F).

2. Filing Fee. There is no filing fee for a petition for rehearing.

3. Filing Deadlines. A party must file a petition for rehearing no later than 30 days

after the appellate court issues a decision. App. R. 54(B). An opposing party must file any

response brief no later than 15 days after the filing of the petition for rehearing. App. R. 54(C).

The three-day extension for service by mail under App. R. 25(C) does not extend the due date for

filing the petition for rehearing, but may extend the due date for a response brief. No extensions

of time will be granted. App. R. 54(B), (C).

4. Length. A petition for rehearing and response brief are each limited to the longer

of 10 pages or 4,200 words. App. R. 44(D), (E). For items excluded from the length limits and

acceptable word count certifications, see App. R. 44(C), (F). See also Chapter VIII (Briefs) of

this manual.

5. Cover and Form. The front and back covers of the petition for rehearing and

response brief are white and should substantially comply with Form 43-1. App. R. 43(H), (I).

The form of the petition and brief, such as typeface, spacing and margins, must comply with

App. R. 43. See Chapter VIII (Briefs) of this manual.

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6. Content. The petition for rehearing should state concisely the reasons the party

believes rehearing is necessary. App. R. 54(E). The petition for rehearing and any response

brief must include a table of contents, table of authorities, statement of issues, argument,

conclusion, word count certificate if necessary, and certificate of service. App. R. 54(F). See

Chapter VIII (Briefs) of this manual.

7. Brief of Amicus Curiae or Intervenor. With leave of court, an amicus curiae or

intervenor may file a brief on rehearing. Time limits and other restrictions apply. See Chapter

VIII, Part B (Briefs) of this manual.

8. Appendices. Parties need not file additional appendices. The appendices

previously filed are available on rehearing for appellate court review. A party wishing to file a

supplemental appendix must seek leave of court. App. R. 49(A).

9. Disposition of a Petition for Rehearing. On petition for rehearing, the appellate

court may:

(a) Deny a petition with or without an opinion. The Court denies most

petitions by order without explanation.

(b) Dismiss a petition if the party does not comply with the rules as to time,

filing, or content.

(c) Grant a petition in whole or in part, usually with an opinion. The granting

of a petition vacates those parts of the previous decision specified in the

rehearing decision.

There are no time limits within which an appellate court must decide a petition for

rehearing. The Court of Appeals and Supreme Court attempt to decide cases as expeditiously as

possible, and give expedited consideration to appeals involving child custody, adoption,

termination of parental rights, and other child-related issues. App. R. 21(A). The clerk sends

notice of the appellate court’s decision to each party or attorney of record on appeal.

If a party seeks rehearing in the Court of Appeals, the same panel that decided the case

originally usually rules on the petition for rehearing. Note that for rehearing petitions filed in the

Court of Appeals, the date the Court of Appeals rules on the petition starts the time running to

seek transfer to the Supreme Court. App. R. 57(C).

10. Transfer and Rehearing Sought by Different Parties. App. R. 55 states that if

one party seeks rehearing in the Court of Appeals and another party seeks transfer to the

Supreme Court, briefing proceeds on rehearing under App. R. 54 and briefing also proceeds on

transfer under App. R. 57. The deadlines for filing any petitions and briefs on rehearing and

transfer do not change. Once the Court of Appeals disposes of the petition for rehearing, a party

may seek transfer from that disposition. App. R. 55.

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B. Transfer – App. R. 43, 44, 46, 54, 56 – 58, 65

The rules combine the petition to transfer and supporting brief in one document called the

“petition to transfer.” An opposing party may file a response brief. The party petitioning for

transfer may file a reply brief. App. R. 57.

1. Dispositions Subject to Transfer. A petition to transfer requests that the

Supreme Court review a decision issued by the Court of Appeals. A party may seek transfer

from a Court of Appeals published opinion, an unpublished memorandum decision, an

amendment or modification to an opinion or memorandum decision, and from an order

dismissing an appeal. A party may not seek transfer from any other Court of Appeals’ order,

including an order denying a motion for interlocutory appeal under App. R. 14(B). App. R.

57(B).

2. Court’s Considerations in Granting Transfer. Whether to grant transfer is

within the Court’s discretion. The principal considerations governing the Court’s decision are

whether the case involves: (1) a conflict in Court of Appeals’ decisions; (2) a conflict with a

Supreme Court decision; (3) a conflict with a U.S. Supreme Court or federal appellate court

decision on a federal question; (4) an undecided question of law or a matter of great public

importance; (5) precedent in need of reconsideration; or (6) a significant departure from accepted

law or practice. App. R. 57(H). If the Court grants transfer, it acquires jurisdiction over all

issues as if the case were originally filed in the Supreme Court. App. R. 58(A).

3. Emergency Transfer. A party may file a verified motion asking the Supreme

Court to take jurisdiction of a case prior to a Court of Appeals’ decision. The party must make

the request under oath and show that the appeal involves a substantial question of law of great

public importance and that an emergency exists requiring speedy determination. If the party paid

a filing fee in the Court of Appeals, no additional filing fee is required. App. R. 56(A).

Whether to grant emergency transfer is within the Court’s discretion. Requests for

emergency transfer are infrequently made and even less frequently granted. If the Supreme

Court denies the motion, the Court of Appeals decides the appeal in the normal course, and the

party who receives an adverse decision may then file a regular petition to transfer. While the

emergency petition is pending, parties should continue to meet other appellate deadlines.

4. Filing Fee. A $125 filing fee is due when a party files the petition to transfer. No

fee is required in a case filed by a party in forma pauperis or on behalf of a state or governmental

unit. App. R. 56(B).

5. Filing Deadlines. A party must file a petition to transfer no later than 30 days

after the Court of Appeals’ disposition, or if rehearing was sought, 30 days after its ruling on the

petition for rehearing. The three-day extension for service by mail in App. R. 25(C) does not

apply to the petition to transfer no matter how the Court of Appeals’ decision is served on a party

or when the party receives it. No extensions of time for filing the petition to transfer will be

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granted. App. R. 57(C). In certain juvenile and CHINS appeals, a petition to transfer must be

filed no later than five business days after the Court of Appeals’ decision. App. R. 14.1(H).

An opposing party must file any response brief no later than 20 days after service of the

petition to transfer. App. R. 57(D). The party seeking transfer must file any reply brief no later

than 10 days after service of the response brief. App. R. 57(E). The three-day extension for

service by mail in App. R. 25(C) applies to both response and reply briefs, but no other

extensions of time will be granted. App. R. 57(D), (E).

6. Length. The petition to transfer and brief in response are each limited to the

longer of 10 pages or 4,200 words without leave of court. App. R. 44(D), (E). Any motion

requesting leave to file an oversized petition or brief must be filed at least 15 days before the

petition or brief is due. App. R. 44(B). The length of the reply brief is limited to the longer of

three pages or 1,000 words. For items excluded from the length limits and acceptable word

count certifications, see App. R. 44(C), (F). See also Chapter VIII (Briefs) of this manual.

7. Cover and Form. The front and back covers of the petition to transfer are

orange. The covers of the response briefs are yellow. The covers of the reply briefs are tan. The

covers should substantially comply with Form 43-1. App. R. 43(H), (I). Covers should bear the

Court of Appeals case number. Only if transfer is granted will a Supreme Court case number be

assigned. The form of the petition and briefs, such as typeface, spacing and margins, must

comply with App. R. 43. See Chapter VIII (Briefs) of this manual.

8. Content of Petition to Transfer. The petition to transfer must concisely set forth

the following:

a. Question Presented on Transfer. The first page of the petition following

the cover must contain a brief statement identifying the important issue or

issues warranting transfer. The statement must not be argumentative. The

first page of the petition should contain only this statement. App. R.

57(G)(1). This rule means what it says. Do not put a second copy of the

cover page or a table of contents here.

b. Table of Contents. Following the first page is a table of contents

complying with App. R. 46(A)(1). App. R. 57(G)(2).

c. Background and Prior Treatment of Issue on Transfer. The petition

must next contain a brief statement of the procedural and substantive facts,

including how any Administrative Agency and lower courts, including the

Court of Appeals, decided the issue. The statement should show that the

issue designated on transfer was raised below and properly preserved for

appeal. If extensive procedural or factual background is necessary, a party

may reference the appellate briefs. App. R. 57(G)(3).

d. Argument. Petitioner should explain why the Supreme Court should

grant transfer. App. R. 57(G)(4).

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e. Conclusion. A short and plain statement of the relief requested. App. R.

57(G)(5).

f. Word Count Certificate. The certification, if one is necessary, should

comply with App. R. 44(F). App. R. 57(G)(6).

g. Certificate of Service. This should comply with App. R. 24(D). App. R.

57(G)(7).

9. Brief in Response. An opposing party may file a response brief. App. R. 57(D).

The rules provide no specific requirements for the contents of a response brief other than a word

count certification, if necessary. It may, however, be helpful to include at least a statement of

issues, table of contents, argument, and conclusion. The brief may contain argument regarding

why the Court should deny transfer and may raise different grounds for granting transfer. A

cross-petition to transfer is not required.

10. Reply Brief. The party petitioning for transfer may file a reply brief. App. R.

57(E). The rules provide no specific requirements for the content of a reply brief other than a

word count certification, where required. The reply brief should simply be responsive to

arguments or issues raised in the brief in response to the petition to transfer.

11. Brief of Amicus Curiae or Intervenor. An amicus curiae or intervenor may file

a brief on transfer with leave of Court. Time limits and other restrictions apply. See Chapter

VII, Part B (Briefs) of this manual.

12. Documents Filed in the Court of Appeals. When a case is transmitted to the

Supreme Court for consideration of a petition to transfer, the petition, briefs, appendices, and

transcripts filed in the Court of Appeals are automatically provided to the Supreme Court. No

additional steps by the parties are required to present these items to the Supreme Court.

13. Disposition on Transfer. The Supreme Court may dispose of a petition to

transfer in several ways. The clerk will send notice of the disposition to each party or attorney of

record.

(a) The court may deny a petition. The only legal effect of a denial of transfer

is to terminate the litigation between the parties in the Supreme Court.

App. R. 58(B). Denial is usually by order. The Court denies most

petitions. A party may not seek rehearing from an order denying transfer.

App. R. 54(A).

(b) If the Supreme Court is evenly divided on whether to grant or deny a

petition to transfer, transfer is deemed denied. If the Court is evenly

divided after granting transfer, the Court of Appeals’ decision is

reinstated. App. R. 58(C).

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(c) The Court may dismiss a petition to transfer for failure to comply with the

applicable rules as to form, filing, or content.

(d) The Court may grant a petition to transfer. The Court often issues an

order announcing that it has granted transfer and hands down an opinion at

a later date, after holding oral argument. The order granting transfer

vacates the Court of Appeals’ decision so that it is no longer valid

authority, except to the extent the Supreme Court expressly adopts or

summarily affirms the decision. App. R. 58(A).

Consult App. R. 65(E) for the effect of the Supreme Court’s transfer disposition on

certification of a Court of Appeals’ opinion or unpublished decision.

14. Length of Time for Court’s Decision. There are no time limits within which the

Supreme Court must decide a petition to transfer. The Court gives expedited consideration to

cases involving child custody, termination of parental rights, and other child-related issues.

C. Obtaining Information About a Particular Case.

The Clerk sends copies of all orders, opinions, and unpublished decisions to pro se parties

and attorneys of record. Recent published opinions of the Court of Appeals and Supreme Court

are available on the Internet at:

www.state.in.us/judiciary/opinions

West Group publishes a table that lists each case in which the Court of Appeals or Supreme

Court granted or denied rehearing or transfer. At least two on-line computer services, Lexis

Auto-Cite and Westlaw KeyCite, also make this information available. If you have other

questions about the status of a particular case, you may call the Clerk’s office (see Chapter XVI).

It is helpful if you have the appellate case number or the exact name of a party when you call.

64

XIII. COURT PROCEDURES, POWERS, AND DECISIONS

A. Published and Not For Publication Memorandum Decisions – App. R. 65

All Supreme Court opinions are published. Court of Appeals opinions, however, are only

published if the case: (1) establishes, modifies, or clarifies a rule of law; (2) criticizes existing

law; or (3) involves a legal or factual issue of unique interest or substantial public importance.

App. R. 65(A). West’s Northeastern Reporter is the official reporter of the Supreme Court and

Court of Appeals. App. R. 65(C).

Other Court of Appeals cases are decided by not-for-publication memorandum decisions.

App. R. 65(A). A judge who dissents from a not-for-publication decision may designate the

dissent for publication if one of the three criteria for publication is met.

Within thirty days of entry of the decision, a party may move the Court to publish a not-

for-publication memorandum decision. App. R. 65(B). Ultimately, the three judge panel that

decided the appeal will also decide whether the case should be published.

Unless later designated for publication, a not-for-publication memorandum decision shall

not be regarded as precedent and shall not be cited to any court except by the parties to the case

to establish res judicata, collateral estoppel, or law of the case. App. R. 65(D). As a point of

caution, unpublished memorandum decisions now appear on legal research software, such as

Lexis and Westlaw, and may contain Northeastern Reporter citations. Therefore, counsel must

make certain that the cases upon which it relies are published.

There is a split within the Court of Appeals on whether unpublished federal decisions

issued before January 1, 2007, may be cited. In Developmental Servs. Alternatives, Inc. v.

Indiana Family & Soc. Servs., 915 N.E.2d 169, 189 n.21 (Ind. Ct. App. 2009), the Court refused

to consider an unpublished opinion from the D.C. Circuit Court on the basis that D.C. Circuit

Court local rules implied that citations to unpublished opinions issued before January 1, 2007,

are prohibited. Less than two weeks later, the Court of Appeals cited 1990 and 1995

unpublished federal decisions in Perdue v. Murphy, 915 N.E.2d 498, 510 n.17 (Ind. Ct. App.

2009), and stated that “[w]hile the Indiana Rules of Appellate Procedure prohibit citation to

memorandum decisions issued by this court, they do not prohibit citation to unpublished

opinions issued by federal courts.”

B. Certification of Opinion – App. R. 65

The Court of Appeals is an intermediate appellate court. As such, its decisions are

subject to review by the Indiana Supreme Court. Court of Appeals decisions are not “certified”

as final until the Indiana Supreme Court denies transfer or the time for rehearing and transfer has

elapsed. App. R. 65(E). Opinions are also certified when the Supreme Court, upon granting

transfer, affirms the ruling of the Court of Appeals. At the time the opinion or memorandum

decision is handed down, the Clerk will serve uncertified copies of any opinion or not-for-

65

publication memorandum decision by a court on appeal to all counsel of record, unrepresented

parties, and the trial court. The trial court, Administrative Agency, and parties cannot take any

action in reliance upon the opinion or memorandum decision until the opinion or decision is

certified. Pflederer v. Kesslerwood Lake Ass’n, Inc., 878 N.E.2d 510, 513 n.4 (Ind. Ct. App.

2007).

C. Relief Available On Appeal – App. R. 66

The Court on review will not dismiss a case, as of right, because the case was not finally

disposed of in the trial court or Administrative Agency as to all issues and parties. App. R.

66(B). However, if the Court discovers that such a situation exists it may in its discretion

suspend consideration until disposition is made of such issues or it may pass upon such

adjudicated issues as are severable without prejudice to parties who may be aggrieved by

subsequent proceedings in the trial court or Administrative Agency. Id.

Both the Indiana Supreme Court and the Indiana Court of Appeals may, with respect to

some or all of the parties or issues, in whole or in part:

(1) Affirm the decision of the trial court or Administrative Agency;

(2) Reverse the decision of the trial court or Administrative Agency;

(3) Order a new trial or hearing;

(4) If damages are excessive or inadequate, order entry of judgment of

damages in the amount supported by the evidence;

(5) If damages are excessive or inadequate, order a new trial or hearing

subject to additur or remittitur;

(6) Order entry of Final Judgment;

(7) Order correction of a Judgment Order;

(8) Order findings or a judgment be modified under Trial Rule 52(B);

(9) Make any relief granted subject to conditions; and

(10) Grant any other appropriate relief.

App. R. 66(C). However, no error or defect in any ruling or order or in anything done or omitted

by the trial court or by any other parties, is ground for granting relief or reversal on appeal where

its probable impact – in light of all the evidence of the case – is sufficiently minor so as not to

affect a substantial right of the parties. This rule is commonly referred to as the harmless error

analysis. App. R. 66(A).

66

The Court will direct that final judgment be entered or that error be corrected without a

new trial or hearing unless this relief is impractical or unfair to any of the parties or is otherwise

improper. App. R. 66(D). If a new trial is necessary, it will be limited to those parties and issues

affected by the error unless that would be impractical or unfair.

D. Damages Against Appellant – App. R. 66

The Court may assess damages if an appeal, petition, motion, or response is frivolous or

in bad faith. App. R. 66(D). These damages shall be in the Court’s discretion and may include

attorneys’ fees. A strong showing is required to justify an award of appellate damages, and the

sanction is not imposed to punish lack of merit unless a party’s contentions and arguments are

utterly devoid of all plausibility. See, e.g., Kuehl v. Hoyle, 746 N.E.2d 104, 110 (Ind. Ct. App.

2001). If such damages are entered, the Court will remand the case for execution. Any

execution issued by the Court on appeal shall be the same as those issued by other courts of

record and shall be returnable in the same manner. App. R. 66(F).

E. Costs – App. R. 67

Upon a motion by any party within 60 days after the final decision of the Court of

Appeals or Supreme Court, the Clerk shall tax costs. App. R. 67(A). A decision from the

Indiana Court of Appeals is not final until certified. See, e.g., Rogers Group, Inc. v. Diamond

Builders, LLC, 833 N.E.2d 475 (Ind. Ct. App. 2005). These costs include: (1) the filing fee

(including any fee paid to seek transfer or review); (2) the cost of preparing the record on appeal,

including the transcript and appendices; and (3) postage expenses for service of all documents

filed with the Clerk. The Court in its discretion may include additional items as permitted by

law. However, each party shall bear the cost of preparing its own brief.

When a judgment or order is affirmed in whole, the Appellee is entitled to recover costs.

App. R. 67(C). When a judgment has been reversed in whole, the Appellant will recover costs in

the Court on Appeal and in the trial court or Administrative Agency as provided by law. In other

cases, the recovery of costs will be decided in the Court’s discretion. An award of costs under

this rule is discretionary and may be ordered when an appeal is “permeated with meritlessness,

bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Commercial Coin Laundry

Systems v. Enneking, 766 N.E.2d 433, 442 (Ind. Ct. App. 2002) (citing Orr v. Turco Mfg. Co.

Inc., 512 N.E.2d 151, 152 (Ind. 1987)).

Costs against any governmental organization, its officers and agencies, shall be imposed

only to the extent permitted by law. App. R. 67(C). When the Supreme Court Justices

participating in an appeal are equally divided, neither party will be awarded costs. App. R.

67(D).

67

XIV. SUPREME COURT REVIEW OF INDIANA

TAX COURT DECISIONS

App. R. 63 and Indiana Code § 33-26-6-7(d) give the Supreme Court sole authority to

review decisions of the Indiana Tax Court. The formal aspects of review of Tax Court decisions,

such as form and length of filings, are handled very much like petitions to transfer under App. R.

56 and 57.

A. Rehearing – App. R. 54

Rehearing of Tax Court decisions is governed by App. R. 54. See Chapter XII

(Rehearing and Transfer) of this manual. Rehearing is not a prerequisite to seeking Supreme

Court review of Tax Court decisions, but when rehearing is sought, the time limit for seeking

Supreme Court review runs from the date of the decision on the rehearing petition.

B. Petitions for Review – App. R. 43, 44, 63

Review is available from the Tax Court’s final judgments (App. R. 63(A)) and

interlocutory orders (App. R. 63(H)). A party initiates a petition for review by filing a Notice of

Intent to Petition for Review no later than 30 days after the Tax Court’s judgment or order,

except that if rehearing has been sought, the petition is due 30 days after the decision on the

petition for rehearing. App. R. 63(C), (H). This time is not extended for mailing, and it may not

be extended for any other reason. App. R. 63(C). The Petition for Review is due 30 days after

the Clerk issues a Notice of Completion of the Transcript, or 30 days after the notice that the

Clerk’s Record is complete if there is no transcript. App. R. 63(E).

Petitions for Review are subject to the same page limits, cover color rules, and formal

requirements as petitions to transfer. Thus, they are limited to 4,200 words or 10 pages, and

have orange covers. App. R. 43(H), 44(D), 44(E).

The arrangements and contents of a Petition to Review are governed by App. R. 46, per

App. R. 63(I). In addition, immediately before the Argument section, the petitioner must include

a separate section entitled “Reasons for Granting Review.” No separate brief in support of the

Petition is filed.

At the time the petition is filed, the petitioner must pay a $125 filing fee. App. R. 63(P).

Governmental units and parties in forma pauperis are exempt from this fee. Id.

C. Briefs in Opposition – App. R. 43, 44, 46, 63

A party opposing review may file a brief in response no more than 30 days after the

petition for review is served. App. R. 63(F). This time is extended by three days if the petition

for review is served by mail. App. R. 25(C).

68

The brief in response is limited to 10 pages or 4,200 words. App. R. 44(D), (E). The

response brief must have a yellow cover. App. R. 43(H).

Per App. R. 63(I), the arrangement and contents of the response brief are governed by

App. R. 46. In addition, immediately before the Argument section, the respondent must include

a separate section entitled “Reasons for Denying Review.”

D. Reply Briefs – App. R. 43, 44, 63

The petitioning party may file a reply brief no later than 15 days after the brief in

response is served. App. R. 63(G). This time is extended by three days if the brief in response is

served by mail. App. R. 25(C). The reply brief is limited to three pages or 1,000 words. App.

R. 44(D), (E). The brief must have a tan cover. App. R. 43(H).

E. Criteria for Granting Review – App. R. 63

The criteria for granting review are very similar to the criteria for granting transfer. App.

R. 63(M). The rules state that granting review is a matter of judicial discretion governed by six

primary considerations: (1) whether the Tax Court’s decision conflicts with another decision of

the Tax Court or Court of Appeals on the same important issue; (2) whether the Tax Court’s

decision conflicts with a Supreme Court decision on an important issue; (3) whether the Tax

Court’s decision addresses an important question of law or case of great public importance that

the Supreme Court should address; (4) whether the Tax Court has correctly followed precedent,

but the precedent should be changed or clarified; (5) whether the Tax Court has decided an

important federal law question in a way that conflicts with the U.S. Supreme Court or a federal

appellate court; and (6) whether the Tax Court “has so significantly departed from accepted law

or practice” to warrant the Supreme Court’s action. Id. The rule specifically states that parties

may discuss the fiscal impact of the Tax Court’s decision on taxpayers or government. App. R.

63(J).

F. Interlocutory Review – App. R. 14, 63

Interlocutory orders of the Tax Court also are subject to review by the Supreme Court.

App. R. 14(B), the rule governing discretionary interlocutory appeals, governs interlocutory

appeals from the Tax Court to the Supreme Court. App. R. 63(H). Thus, the interlocutory order

must be certified by the Tax Court and the interlocutory appeal must be accepted by the Supreme

Court. App. R. 14(B). The requirements for motions and the deadlines in Rule 14(B) apply. No

Appellant’s Case Summary or Notice of Appeal is to be filed after the Supreme Court accepts

jurisdiction, however. App. R. 63(H).

G. Disposition of the Petition – App. R. 63

Denial of review has no legal effect except to terminate the litigation between the parties

in the Supreme Court. App. R. 63(N). If the Supreme Court is evenly divided, review is deemed

denied. App. R. 63(R).

69

H. Record on Appeal – App. R. 63

In petitions for review, the Clerk of the Supreme Court, Court of Appeals, and Tax Court

takes on the role of the trial court clerk in other appeals. App. R. 63(D). The Clerk assembles

the Clerk’s Record in accordance with App. R. 10, and the Court Reporter prepares and files the

transcript in accordance with App. R. 11. App. R. 63(D).

70

XV. ORIGINAL ACTIONS

The Supreme Court has exclusive jurisdiction over original actions for writs of

mandamus and prohibition. Such writs are available only where the trial court is violating an

absolute duty to act or to refrain from acting.

Original actions are viewed with disfavor and may not be used as substitutes for appeals.

The specific procedures for applying for such writs are set out in Indiana Original Action

Rules 1 through 6.

71

XVI. FREQUENTLY USED CONTACT INFORMATION

Clerk of the Supreme Court, Indiana Tax Court

Court of Appeals and Tax Court Court Administrator

217 State House 115 W. Washington St., Suite 1160

200 W. Washington St. Indianapolis, IN 46204

Indianapolis, IN 46204 317-232-4694 Phone

317-232-1930 Phone 317-232-0644 Fax

317-232-8365 Fax http://www.in.gov/judiciary/tax

http://www.in.gov/judiciary/cofc

Indiana Supreme Court Office of the Attorney General of Indiana

Division of Court Administration Indiana Govt. Center South, 5th

Floor

200 W. Washington St., Room 315 302 W. Washington St.

Indianapolis, IN 46204 Indianapolis, IN 46204

317-232-2540 Phone 317-232-6201 Phone

317-232-8372 Fax 317-232-7979 Fax

http://www.in.gov/judiciary/supreme/ http://www.in.gov/attorneygeneral/

Indiana Court of Appeals Indiana State Public Defender’s Office

Court Administrator One N. Capitol Ave., Suite 800

115 W Washington St., Suite 1270 Indianapolis, IN 46204

Indianapolis, IN 46204 317-232-2475 Phone

317-232-6906 Phone 317-232-2307 Fax

http://www.in.gov/judiciary/appeals/ http://www.in.gov/judiciary/defender/

72

XVII. ADDITIONAL RESOURCES

The Bluebook: A Uniform System of Citation, (18th

Ed. 2005), Harvard Law Review Association

Indiana Continuing Legal Education Forum, Appellate Practice, (annually)

Indiana Rules of Appellate Procedure, http://www.state.in.us/judiciary/rules/appellate/

Indiana Rule of Procedure for Original Actions: Writs of Mandate and Prohibition,

http://www.in.gov/judiciary/rules/orig_act/orig_act.doc

John R. Maley, Indiana Practice Library, Appellate Manual for Indiana Lawyers, 3d

Ed., 2001

Opinions of the Indiana Supreme Court, Indiana Court of Appeals, and Indiana Tax Court,

http://www.state.in.us/judiciary/opinions

George T. Patton, Jr., 24 Indiana Practice – Appellate Practice, 3d

Ed., 2001

Kenneth M. Stroud, 4A – Indiana Rules of Appellate Procedure (2d

Ed. 1990)

73

XVIII. CHECKLIST FOR APPELLATE/TAX COURT FILINGS

On the next page is the list of the items contained on the Notice of Defect form used by

the Clerk’s Case Managers as they review filings. This is a handy checklist to use when

finalizing documents for filings. If you have any questions, feel free to call the Clerk’s office.

74

Checklist of Appellate/Tax Court Filings

� An insufficient number of copies has been tendered, see Indiana appellate Rule 23(C);

� The document lacks a certificate of service or the certificate of service is insufficient, see App. Rs. 24,

57(G)(7);

� The document lacks a necessary word count certificate, see App. Rs. 34(G)(2), 44(E) & (F), 54 (E), 57

(G)(6);

� The document lacks a required signature and/or identifying information, see App. Rx. 23(E), 46(A)(9);

46(B);

� One or more “form” violations exist with regard to one or more of the following:

� Paper type, see App. R. 43(B);

� Document production, see App. Rs. 43(C) and/or 51(A);

� Print size, see App. R. 43(D);

� Spacing, see App. R. 43(E);

� Page numbering, see App. Rs. 43(F) and/or 50(C);

� Margins, see App. Rs. 43(G) and/or 51(A);

� Cover color, see App. Rs. 43(H) and/or 51(E);

� Cover content, see App. Rs. 43(I) and/or 51(E);

� Binding, see App. Rs. 43(J) and/or 51(D);

� The document lacks a required Table of Contents or Table of Authorities, see App. Rs. 46(A)(1) & (2),

46 (B), 46(E)(1), 50(A)(2), 50(B)(1), 50(C), 57 (G)(2);

� You are proceeding in forma pauperis, the document being filed is the first document you are filing in

the case, and you have failed to file the material required by App. R. 40(C);

� The document is an Appellant’s Case Summary and is:

� incomplete, lacking:

• party information required by Appellate Rule 15(C)(1)( );

• trial information required by Appellate Rule 15(C)(2)( );

• transcript information required by Appellate Rule 15(C)(3)( );

• appeal information required by Appellate Rule 15(C)(4)( );

� missing attachments required by Appellate Rule 15(D)( );

NOTE: Per Appellate Rule 15(E), any documents timely submitted for filing by an appellant before a

defective ACS has been corrected will be filed on the date the ACS is corrected and such documents shall

be deemed timely filed. If the defective ACS is not corrected within the time specified herein, then the

defective ACS and all other documents submitted by the appellant will be returned unfiled.

� The document is an appendix and does not contain a verification of accuracy, see App. Rs. 50(A)(2)(i),

50(B)(1)(f);

� The document is an Appellant’s Brief and does not contain the trial court’s written opinion,

memorandum of decision, or findings of fact and conclusions relating to the issue(s) raised on appeal,

see App. R. 46(A)(10);

� The document is an Appellant’s Brief in a criminal appeal in which the sentence is at issue and does

not contain a copy of the sentencing order, see App. R. 46(A)(10);

� The document is a motion requesting that the Court of Appeals accept jurisdiction over an

interlocutory appeal from an order granting or denying class action certification and does not contain

a copy of the trial court’s order granting or denying class action certification, see App. R. 14(C)(3);

� The document is a Petition To Transfer and does not contain a brief statement, set out by itself on the

first page after the cover, identifying the issue, question, or precedent warranting transfer, see App. $.

57(G)(1); and/or

� The document is a Petition for Review or brief in response thereto and does not contain a brief section

entitled Reasons for Granting or Denying Review, set out by itself immediately before the Argument

section, explaining why review should or should not be granted, see App. R. 63(I).