Supreme Court dismisses restaurant negligence appeal on timeliness grounds

A trial court order denying judgment to a restaurant sued for negligence has been reinstated, with the Indiana Supreme Court finding no reason to allow the restaurant’s forfeited appeal of the order to proceed.

The state justices on Tuesday granted transfer and dismissed the appeal in Cooper’s Hawk Indianapolis, LLC, d/b/a Cooper’s Hawk Winery & Restaurant v. Katherine Ray, 21S-CT-56.

Katherine Ray sued Cooper’s Hawk in October 2018 after she slipped and fell on what she said was a puddle outside the women’s restroom. The floor at the northside establishment was ceramic tile, and Ray brought claims of negligence in a personal injury suit against the restaurant.

The Marion Superior Court denied Cooper’s Hawk’s motion for summary judgment and likewise denied its motion to correct error. A majority of the Indiana Court of Appeals, however, entered judgment for the restaurant, writing that neither Ray nor restaurant employees had noticed water accumulation before the accident.

But in dismissing the appeal, the Indiana Supreme Court pointed to a procedural issue: Any notice of appeal was due on or before Feb. 27, 2020, but Cooper’s Hawk did not file its notice until March 3.

Ray moved to dismiss the appeal in March 2020, but a COA motions panel denied the motion to dismiss without explanation. The subsequent June opinion from the lower appellate court did not address the timeliness issue.

“Although it is never error for an appellate court to dismiss an untimely appeal, the forfeiture of the right to appeal on timeliness grounds does not deprive the appellate court of jurisdiction to hear the appeal,” the justices wrote in a per curiam opinion, citing In re D.J. v. Ind. Dep’t of Child Services, 68 N.E.3d 574, 579 (Ind. 2017), and In re Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014). “To reinstate a forfeited appeal, an appellant must show there are ‘extraordinarily compelling reasons why this forfeited right should be restored.’ O.R., 16 N.E.3d at 971.

“… In its ‘Response to Appellee’s Motion to Dismiss Appeal,’ Cooper’s Hawk argued that the Court of Appeals should accept the appeal despite its untimeliness because ‘the legal issue on appeal involve[s] a substantial question of law, the early determination of which would promote a more orderly disposition of the case,’” the justices continued. “But this merely restates one of the three Appellate Rule 14(B)(1)(c) grounds for granting a discretionary interlocutory appeal; to overcome the forfeiture Rule 9(A)(5) requires, much more is needed.

“Having granted transfer, and finding no extraordinarily compelling reasons to restore the forfeited appeal, we dismiss the appeal and remand to the trial court for further proceedings.”

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