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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowDespite a motions panel allowing a belated appeal in an employment dispute, a different panel of the Court of Appeals of Indiana dismissed the appeal as forfeited, finding no “extraordinarily compelling” reasons to restore it.
In Syndicate Claim Services, Inc. v. Jill Trimmel, 21A-PL-1231, plaintiff Jill Trimmel sued Syndicate Claim Services Inc. for breach of contract and violations of Indiana’s Wage Payment Act based on Syndicate’s alleged failure to pay Trimmel the commissions and profit shares she was owed. Syndicate moved for partial summary judgment as to the Wage Payment Act issue, but the Marion Superior Court denied that motion and certified its order for interlocutory appeal.
However, Syndicate filed its notice of appeal one week late because its lead counsel had been on vacation when the appellate court had accepted jurisdiction. During that vacation, the lawyer’s elderly father — who was under the lawyer’s care — broke his arm. The attorney’s co-counsel also overlooked the deadline, and the COA calendaring system had been “malfunctioning” at the same time.
Thus, Syndicate moved to file a belated notice of interlocutory appeal, but Trimmel moved to dismiss the appeal on timeliness grounds. A Court of Appeals motions panel initially granted Syndicate’s request for a belated appeal, but the COA on Wednesday changed course and dismissed.
“We are generally reluctant to do so,” Judge Derek Molter wrote, “but earlier this year our Supreme Court concluded that interlocutory appeals like this one should be dismissed, so we exercise our discretion to revisit the decision of the motions panel here.” Molter cited Cooper’s Hawk, LLC v. Ray, 162 N.E.3d 1097, 1098 (Ind. 2021) (per curiam).
Writing that Syndicate had 15 days to file its notice of appeal after the COA accepted jurisdiction of the interlocutory appeal, Molter said failure to meet the 15-day deadline resulted in forfeiture. The only way to restore a forfeited appeal is to demonstrate “extraordinarily compelling reasons” to do so — reasons Molter said were not present in this case.
“This is a dispute about employment compensation, so there is no fundamental liberty interest at stake,” he wrote. “… There is also no suggestion that this appeal seeks review of an order that is manifestly unjust, and the interlocutory nature of the summary judgment order means it remains subject to reconsideration by the trial court and available for appellate review following a final judgment. … Lastly, there is no argument that a calendaring oversight or any other aspect of the appealed order qualifies as an extraordinarily compelling reason to restore an appeal.
“… There are certainly ways to eliminate this procedural pitfall,” Molter continued. “For example, rather than requiring appellants in an interlocutory appeal to file a notice of appeal after we accept jurisdiction, appellants could be required to tender the notice of appeal with their motion to accept jurisdiction, and our order granting the motion could direct the clerk to file that notice so that there is no further action required of the appellant.
“But that would require a change in the Appellate Rules, and we lack authority to mandate those changes,” the COA concluded.”
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