Appeal filed beyond 30-day limit must raise new facts

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In dismissing an interlocutory appeal as untimely, the Indiana Court of Appeals told the appellants they still have the ability to attack the trial court’s interlocutory orders.

James Kindred, Thomas Kindred and Sam Kindred filed a motion to dissolve a preliminary injunction six months after the Owen Circuit Court entered an order granting the injunction.

The trial court denied the Kindreds’ motion to dissolve as well as their motion to reconsider. Within 30-days of the denial, they filed a notice of appeal from the trial court’s interlocutory order.

On appeal, the defendants claim the motion to dissolve was not based on any new facts or circumstances that had arisen since the trial court’s entry of the preliminary order. Instead it was based on arguments that were available at the time the preliminary injunction was entered.

 “If a party fails to do so (to challenge a preliminary injunction order within 30 days), it may not thereafter seek to dissolve the preliminary injunction based upon grounds that were known or knowable at the time of the entry of the preliminary injunction, as this would simply be a belated, collateral attack on the trial court’s initial decision to enter or deny the injunction,” Judge Paul Mathias wrote in James Kindred, Thomas Kindred, and Sam Kindred v. Betty Townsend and Harmon Crone, 60A01-1304-PL-156. “To hold otherwise would allow limitless appeals based on the same facts tried and decided to enter or deny a preliminary injunction.”

In a footnote, the Court of Appeals pointed out to the Kindreds that their appeal may not be dead. Citing Bojrab v. Bojrab, 810 N.E.2d 1008, 1014 (Ind. 2004), the COA noted the Kindreds may attack the trial court’s interlocutory orders on appeal from the final judgment.



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  1. Freedom From Religion Foundation: If you really want to be free from religion, don't go to the Christmas Play or the Christmas Pageant or the Christmas Parade. Anything with "Christ" or Saint...fill in the blank...would be off limits to you. Then leave the rest of us ALONE!

  2. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

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  5. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon