Most people think of an appeal as something that happens after a case is finished. The trial is over, the judge has entered a final ruling, and the losing side asks a higher court to take another look. That’s how it works most of the time, and if you want to understand the general process, we’ve written about how appeals work in Indiana in a separate post.
But sometimes a judge makes a ruling in the middle of a case that changes everything. Maybe the court orders you to hand over possession of real property while the lawsuit is still going on. Maybe a preliminary injunction shuts down part of your business operations before anyone has had a full trial on the merits. Maybe the judge makes an evidentiary ruling that effectively guts your case months before you ever get to a courtroom. In situations like these, waiting until the case is over to appeal might not make practical sense, because by the time a final judgment comes down, the damage from the earlier ruling may already be done.
Indiana law recognizes this problem, and it provides a mechanism for appealing certain orders before the case reaches a final judgment. These are called interlocutory appeals, and while they’re more complex than a standard appeal from a final order, they can be a powerful tool in the right situation.
Two paths to an interlocutory appeal
In Indiana, there are two general types of interlocutory orders that can be appealed: those that are appealable by right and those that require permission from both the trial court and the Court of Appeals. The distinction matters a great deal, because the process and the likelihood of actually getting your appeal heard are very different depending on which category your situation falls into.
Indiana Appellate Rule 14(A) identifies nine types of interlocutory orders that are appealable by right. If a trial court issues one of these orders, you can file a Notice of Appeal and proceed the same way you would after a final judgment, without needing anyone’s permission. The categories include orders for the payment of money, orders compelling the execution of a document, orders for the sale or delivery of possession of real property, and orders granting or refusing to grant a preliminary injunction, among others. The Notice of Appeal must be filed within thirty days after the interlocutory order is noted in the trial court’s Chronological Case Summary.
These categories tend to involve situations where waiting would cause real, immediate harm. If a court orders you to turn over property or pay a sum of money while the case is still pending, that’s the kind of ruling that can’t easily be undone later. The same goes for injunctions, where a court is either forcing you to do something or prohibiting you from doing something before anyone has had a full hearing on the underlying dispute. If a trial court issues an order that falls within one of Rule 14(A)’s categories, a party can appeal it in the same general way as a final judgment by filing a notice of appeal, paying the filing fee, and proceeding through the briefing process.
For everything else, the path is harder. An appeal may be taken from other interlocutory orders if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal. This is a two-step gatekeeping process, and either court can say no. The motion asking the trial court to certify the order must be filed within thirty days after the order is noted on the Chronological Case Summary. If the trial court agrees to certify, you then have thirty days to file a motion asking the Court of Appeals to accept jurisdiction. If the Court of Appeals grants that motion, you still have to file a Notice of Appeal within fifteen days of that order.
That’s a lot of steps, a lot of deadlines, and a lot of opportunities for things to go sideways. The Indiana Supreme Court has made clear that missing even the final step, the fifteen-day window to file the Notice of Appeal after the Court of Appeals accepts jurisdiction, can result in forfeiture of the appeal. These deadlines are enforced strictly, and the courts have shown very little appetite for excuses.
When a discretionary interlocutory appeal makes sense
Because discretionary interlocutory appeals require permission from two courts and involve additional time and expense, they are generally reserved for very important or potentially case-changing orders. The Indiana rules lay out several grounds for granting certification, and they generally boil down to situations where waiting until after a final judgment would be inadequate. The grounds include situations where the appellant will suffer substantial expense, damage, or injury if the order is erroneous and correction is withheld until after judgment, or where the order involves a substantial question of law that, if resolved early, would help move the litigation forward. I
Think about a business owner in Indianapolis or Carmel who gets hit with a ruling early in the case that exposes them to massive liability on a legal theory they believe is flat-out wrong. If the judge applied the wrong legal standard or misinterpreted a statute, and that ruling is going to shape the entire rest of the case, it might make sense to try to get the Court of Appeals to weigh in now rather than litigating for another year or more under a legal framework that may be flawed. That’s the sweet spot for a discretionary interlocutory appeal, a ruling that’s both legally questionable and practically significant enough that the additional procedural hurdles are worth clearing.
On the other hand, if the ruling is a close call on the facts, or if the issue is one the appellate court can address just as effectively after a final judgment, a discretionary interlocutory appeal may not be the right move. Both the trial court and the Court of Appeals have discretion to deny the request, and they regularly do. Going through the certification process takes time and money, and if the appeal isn’t accepted, you’re right back where you started.
This is exactly the kind of strategic assessment that benefits from the involvement of an appellate attorney early in the process, ideally as soon as the problematic order comes down. A good appellate lawyer can evaluate whether the order falls within one of the categories that are appealable by right, assess the strength of the legal arguments for a discretionary appeal, and help you weigh the costs and benefits of pursuing one. If you’re not sure where to start, we’ve written about finding the right appellate attorney in Indianapolis.
What happens to the trial court case while the appeal is pending
One question that comes up a lot in this context is whether the trial court case keeps moving forward while the interlocutory appeal plays out. An interlocutory appeal does not automatically stay proceedings in the trial court unless the trial court or a judge of the Court of Appeals orders otherwise. Indiana Court Rules So unless someone asks for and gets a stay, the case at the trial level can keep rolling along while the appeal is being briefed and decided.
Whether to seek a stay depends on the circumstances. If the interlocutory order you’re appealing is one that will shape the rest of the litigation, there may be a strong argument for pausing the trial proceedings until the appellate court has weighed in. Otherwise, you could end up litigating through a full trial under a ruling that the Court of Appeals later reverses, which wastes time and money for everyone. But getting a stay is not automatic, and it requires a separate request to the court.
The 30-day clock applies here, too
Just like with appeals from final judgments, the deadlines in interlocutory appeals are strict and start running immediately. For orders that are appealable by right, you have 30 days to file a Notice of Appeal. For discretionary appeals, you have 30 days to ask the trial court to certify the order. If you miss either of those windows, you’re likely out of luck.
That means the time to talk to an appellate lawyer is right away, not a few weeks from now. The procedural rules governing interlocutory appeals are more complicated than those for standard appeals, with more steps and more deadlines, and the margin for error is slim. We’ve broken down the general timeline and cost of Indiana appeals in a separate post, though interlocutory appeals can move somewhat faster than appeals from final judgments, with the Indiana Court of Appeals sometimes issuing decisions in approximately two to three months after briefing is complete.
If a trial court in Indianapolis, Fishers, Carmel, Noblesville, or anywhere else in Indiana has entered a mid-case ruling that you believe is legally wrong and that could cause real harm if left in place, don’t assume you have to wait until the case is over to do something about it. Fugate Gangstad Lowe’s Anne Lowe handles interlocutory and final appeals in civil, criminal, and family law matters across Indiana and offers a free initial consultation. Call 317-829-6797 or reach out through our contact form.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. For legal advice tailored to your situation, please contact our firm directly.