Cooper's Hawk Indianapolis, LLC v. Ray

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In this negligence action, The Supreme Court dismissed the appeal from the order of the trial court denying Defendant's motion for summary judgment, holding that the appeal was forfeited.

Plaintiff was injured when she slipped and fell in Defendant's restaurant. Plaintiff sued Defendant for negligence. After the trial court denied Defendant's motion for summary judgment, Defendant timely moved to certify the order for interlocutory appeal. The court of appeals accepted the interlocutory appeal, but Defendant did not timely file a notice of appeal. The court of appeals reversed the denial of the summary judgment motion without addressing the untimeliness of the notice of appeal. The Supreme Court granted transfer and dismissed the appeal, holding that the appeal was untimely and that there was no extraordinarily compelling reasons to restore the forfeited appeal.

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FILED Feb 09 2021, 11:46 am CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE Indiana Supreme Court Supreme Court Case No. 21S-CT-56 Cooper’s Hawk Indianapolis, LLC d/b/a Cooper’s Hawk Winery & Restaurant, Appellant-Defendant, –v– Katherine Ray, Appellee-Plaintiff. Decided: February 9, 2021 Appeal from the Marion Superior Court No. 49D01-1810-CT-42030 The Honorable Heather Welch, Judge On Petition to Transfer from the Indiana Court of Appeals No. 20A-CT-127 Per Curiam Opinion Chief Justice Rush and Justices David, Massa, Slaughter, and Goff concur. Per curiam. In February 2018, Katherine Ray was injured when she slipped and fell in Cooper’s Hawk Winery & Restaurant. Ray filed a negligence complaint against Cooper’s Hawk in October 2018. On November 18, 2019, the trial court denied Cooper’s Hawk’s motion for summary judgment, and Cooper’s Hawk timely moved to certify this order for interlocutory appeal. On January 6, 2020, the trial court certified its order. On February 12, the Court of Appeals accepted the interlocutory appeal, making any Notice of Appeal due on or before Thursday, February 27. See Ind. Appellate Rule 14(B)(3). Cooper’s Hawk did not file a Notice of Appeal until March 3, 2020. On March 20, Ray moved to dismiss the appeal on timeliness grounds. In its response, Cooper’s Hawk conceded that the Notice of Appeal was belated but argued that the appeal presents a substantial question of law and should be allowed to proceed. A divided Court of Appeals motions panel denied Ray’s motion to dismiss without explanation. In a split opinion, the Court of Appeals reversed the denial of the summary judgment motion. Cooper’s Hawk Indianapolis, LLC v. Ray, 150 N.E.3d 698 (Ind. Ct. App. 2020). Neither the majority nor the dissenting opinion addressed the untimeliness of the Notice of Appeal. We grant transfer, thereby vacating the Court of Appeals opinion. App. R. 58(A). Discussion and Decision Indiana Appellate Rule 9 prescribes the procedure for filing a party’s Notice of Appeal with the Clerk. Rule 9(A)(2) states that “[t]he initiation of interlocutory appeals is covered in Rule 14,” while the section of Rule 14 governing discretionary interlocutory appeals provides that “[t]he appellant shall file a Notice of Appeal … within fifteen (15) days of the Court of Appeals’ order accepting jurisdiction over the interlocutory appeal.” Ind. App. R. 14(B)(3). Rule 9(A)(5) states that “[u]nless the Notice Indiana Supreme Court | Case No. 21S-CT-56 | February 9, 2021 Page 2 of 4 of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C.R. 2.” (emphasis added). 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. In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 579 (Ind. 2017); In re Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014). To reinstate a forfeited appeal, an appellant must show that there are “extraordinarily compelling reasons why this forfeited right should be restored.” O.R., 16 N.E.3d at 971. In O.R.—a father’s challenge to the adoption of his child—these extraordinarily compelling reasons included “the constitutional dimensions of the parent-child relationship.” Id. at 972; see also D.J., 68 N.E.3d at 580; Robertson v. Robertson, 60 N.E.3d 1085, 1090 (Ind. Ct. App. 2016). The Court of Appeals also has reinstated a forfeited appeal upon finding that the trial court’s order was “manifestly unjust.” Cannon v. Caldwell, 74 N.E.3d 255, 259 (Ind. Ct. App. 2017). 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.” 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.1 Rush, C.J., and David, Massa, Slaughter, and Goff, JJ., concur. 1 Cooper’s Hawk’s “Motion to Strike Portions of Appellee’s Petition for Transfer” is denied. Indiana Supreme Court | Case No. 21S-CT-56 | February 9, 2021 Page 3 of 4 ATTORNEYS FOR APPELLANT Robert G. Sylvester Ronald A. Mingus Reminger Co., LPA Indianapolis, Indiana ATTORNEY FOR APPELLEE Kyle L. Christie Christie Farrell Lee & Bell, P.C. Indianapolis, Indiana ATTORNEY FOR AMICUS CURIAE, INDIANA TRIAL LAWYERS ASSOCIATION Ashley N. Hadler Garau Germano, P.C. Indianapolis, Indiana Indiana Supreme Court | Case No. 21S-CT-56 | February 9, 2021 Page 4 of 4

Primary Holding

In this negligence action, The Supreme Court dismissed the appeal from the trial court's order denying Defendant's motion for summary judgment, holding that the appeal was forfeited.

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