Does a Trial Court Ever Maintain Jurisdiction with an Appeal Pending?
February 29, 2008 by Joe Merrick
The Indiana Court of Appeals has found numerous instances of trial courts continuing to act in a case even when the Court of Appeals or the Supreme Court of Indiana has taken jurisdiction over an appeal in that case. This article will discuss the very limited circumstances under which the trial court may act while an appeal is pending and the consequences that follow from a trial court acting without jurisdiction due to a pending appeal.
When May a Trial Court Continue to Act?
Pursuant to Indiana Appellate Rule 8, appellate courts acquire jurisdiction over a matter when the Notice of Completion of Clerk’s Record (“NCR”) has been filed. See Ind. Appellate Rule 8. In previous versions of the Appellate Rules, the Court on Appeal acquired jurisdiction when the record of proceedings was filed.
Indiana’s appellate courts have had many opportunities to apply Appellate Rule 8 and its predecessors, and a standard has evolved. At times, Indiana’s appellate courts sharply circumscribed trial courts’ jurisdiction while appeals were pending. In one older case, the Indiana Supreme Court concluded that once the record of proceedings was filed, the trial court was deprived of “any further jurisdiction over the action.” See Bright v. State, 259 Ind. 495, 496, 289 N.E.2d 128, 129 (Ind. 1972) (emphasis added).
But more recently, a shift away from language barring any jurisdiction began with Donahue v. Watson, 413 N.E.2d 974 (Ind. Ct. App. 1980), reh’g den. In that case, a trial court had granted the appellees’ request for attorney’s fees after the record of proceedings had been filed for an appeal from the trial court’s judgment. See id. at 975. Although the Court of Appeals repeated the rule that once “appellate jurisdiction is acquired, the trial court is deprived of any further jurisdiction in the action,” the Court nevertheless concluded that the attorney’s fee issue was an “ancillary matter” that the trial court had impliedly reserved to be addressed after the entry of judgment. See id. at 975-76. Because the attorney’s fee issue was ancillary to the judgment, the trial court retained limited jurisdiction over the case to dispose of those claims left unresolved by the first judgment. See id. Subsequent opinions also hinted that the trial court might have the authority to act in a case on matters so long as those matters are not the subject of a pending appeal. See Schumacher v. Radiomaha, Inc., 619 N.E.2d 271, 273 (Ind. 1993) and Coulson v. Ind. & Mich. Elec. Co., 471 N.E.2d 278, 279 (Ind. 1984).
The rejection of an absolute bar to trial court action while an appeal is pending in that case culminated in Bradley v. State, 649 N.E.2d 100 (Ind. 1995). In Bradley, the appellant had been denied bail and sought interlocutory review as a matter of right. See id. at 106. While the interlocutory appeal was pending, the trial court tried the appellant on the criminal charges. See id. at 106. The Indiana Supreme Court determined that even when an appellate court acquires jurisdiction, the trial court may retain jurisdiction to perform tasks that do not “intermeddle with the subject-matter of the appeal.” See id.
Thus, the current standard is that a trial court may continue to act in a case after the NCR is filed so long as those actions do not “intermeddle” with the subject of the appeal.
What Is “Intermeddling?”
Unfortunately, there is no definitive statement of what actions intermeddle, or interfere, with a pending appeal. It is safe to say that a trial court’s modification or vacatur of the order that is the subject of the appeal is not appropriate once an appellate court acquires jurisdiction, and such trial court action is void. See Schumacher, 619 N.E.2d at 273; Coulson, 471 N.E.2d at 279; Southwood v. Carlson, 704 N.E.2d 163, 165-166 (Ind. Ct. App. 1999) (vacating a trial court’s grant of a motion for relief from judgment because the trial court lacked jurisdiction); Bartley v. Bartley, 712 N.E.2d 537, 547 (Ind. Ct. App. 1999) (determining that a trial court order that “clarified” the order on appeal was void for lack of jurisdiction). But, a trial court order that has only an indirect relationship to the order that is the subject of the appeal may be void. See In re Hickman, 811 N.E.2d 843, 849-850 (Ind. Ct. App. 2004), reh’g den., trans. den. (determining that an order rescinding a stock transfer was implicitly and necessarily related to the guardianship order that was the subject of the appeal, and that the stock transfer order was therefore void).
On the other hand, post-judgment proceedings for attorney’s fees at the trial level have been deemed appropriate. See Donahue, 413 N.E.2d at 976. Furthermore, contempt proceedings arising out of the judgment may apparently continue. See Meade, 671 N.E.2d at 1180. Finally, the trial court may still tax costs, correct the record, or enforce a judgment while an appeal is pending. See Bradley, 649 N.E.2d at 106. Because the resolution of these jurisdictional issues is case-specific, however, it is advisable for a trial court to exercise caution when it continues to act in a case after an appellate court has acquired jurisdiction pursuant to Indiana Appellate Rule 8.
What are the Consequences of Trial Court Action in the Absence of Jurisdiction?
Although there is no bright-line rule to delineate when a trial court is acting without jurisdiction due to a pending appeal, it is clear that when a trial court lacks jurisdiction, the trial court’s actions are void. See In re Hickman, 811 N.E.2d at 852-853 (vacating the trial court’s order rescinding a stock transfer). Unfortunately, acting without jurisdiction has resulted in a significant waste of the trial court and the parties’ time and resources. See Powers v. State, 579 N.E.2d 81, 84 (Ind. Ct. App. 1991), trans. den. (reversing the trial court’s judgment after retrial because the first appeal was still pending, and remanding for a new trial). Such appellate court decisions reinforce the suggestion that the trial court should be cautious of proceeding after an appellate court acquires jurisdiction.
Indiana’s appellate courts have identified certain circumstances under which the trial court may continue to act after an appellate court acquires jurisdiction pursuant to Indiana Appellate Rule 8. Nevertheless, if the trial court is found to have acted without jurisdiction, those actions will be void.