Interlocutory Appeals and Appellate Jurisdiction

In re Indiana Newspapers v. Miller (Ind. Ct. App. Jan 18, 2012)

- Originally publish January 18, 2012

This published order on rehearing is the latest decision from the Court of Appeals regarding the Indianapolis Star’s attempt to appeal a discovery order issued by the Marion Superior Court. The order follows the published order from December 7, 2012, which dismissed the Star’s appeal.

The Court’s opinion is particularly important to me on a personal level because the Court’s opinion cites a recently-published article I wrote, Appealing Orders Before a Case Ends: Dos, Don’ts and Modest Proposals, 56 Res Gestae, Dec. 2012. This article discusses the rules regarding interlocutory appeals, offers practice pointers for lawyers or parties contemplating an interlocutory appeal, and suggests some minor revisions to Indiana’s rules regarding interlocutory appeals.

The Court’s opinion is also important because it thoroughly explains appellate jurisdiction over interlocutory orders and clarifies several of the finer points regarding appeals of such orders. Three of the Court’s conclusions are particularly important and interesting.

1. The Court explained that parties may not use petitions for rehearing to advance new arguments. A party may use a petition for rehearing to accomplish various purposes, including pointing out a perceived error in an opinion, asking the Court to reconsider a conclusion, or clarifying an argument already made. But a party may not raise issues or arguments in a petition for rehearing that the party did not raise in the initial brief or motion.

2. The Court then recognized that lack of appellate jurisdiction can be raised at any point, cannot be waived, and can be raised by the Court sua sponte. Because appellate courts have a duty to examine jurisdiction at any and all stages of the proceedings, the Court explained that the arguments regarding such as law of the case and waiver do not apply to the jurisdictional issue.

3. The Court then addressed the Star’s argument regarding the Indiana Constitution’s provision guaranteeing parties the right to an appeal. The Court explained that although the Constitution does guarantee a party the ability to appeal an order, the Constitution does not guarantee the right to appeal an order at any time; in other words, the legislature and the courts can establish rules for appeals. Although it can often be frustrating to wait for an appeal to be ripe, a contrary rule would result in a substantial delay at the trial courts, and would likely overload the Court of Appeals’ docket.

In sum, this decision serves as an excellent resource on appellate jurisdiction over interlocutory appeals. Any lawyer considering appealing an interlocutory order would be well served by reviewing this decision.

Barrett McNagny LLP

Legal Disclaimer

The information contained in the Barrett McNagny LLP website is for informational purposes only and should not be considered legal advice on any subject matter. Furthermore, the information contained on our website may not reflect the most current legal developments. You should not act upon this information without consulting legal counsel.

Your transmission and receipt of information on the Barrett McNagny LLP website, or sending an e-mail to one of our attorneys or staff, will not create an attorney-client relationship between you and Barrett McNagny LLP. If you need legal advice and want to establish an attorney-client relationship with Barrett McNagny LLP, please contact one of our attorneys by telephone, email, or other means of communication, and allow the attorney to confirm that the firm does not represent other persons or entities involved in the matter and that the firm is willing to accept representation. Until such confirmation is provided by one of our attorneys, you should not transmit information to us that you consider confidential. If you do provide information to us, and no attorney-client relationship is established, the information will not be considered confidential or privileged, and our receipt of such information will not preclude us from representing another client in a matter adverse to you.

Any links to other websites are not intended to be referrals or endorsements of those sites.

Privacy Policy

Terms of Use

ADA Compliance

Transparency Cover Rule: Machine-Readable Files

Contact Us
My name is
and I am a(n)
seeking legal counsel in the area of 
me at
as soon as you can.

Thank you for contacting us!

A representative will be in touch with you shortly.

An attorney-client relationship will NOT be formed merely by sending an email to Barrett McNagny, LLP or to any of its attorneys. Please do not send any information specific to your legal needs until you obtain approval from a Barrett McNagny, LLP attorney, as the content of such email will not be considered confidential or privileged. By sending us an email, you confirm your understanding of this notification. If you agree, you may use the e-mail links on this page to contact an attorney.