Indiana Law Review A Year Of Transition in Appellate Practice Douglas E. Cressler* Introduction The year 2001 was a time of transition for the appellate lawyer in Indiana. An entirely new set ofRules ofAppellate Procedure went into effect, governing all appeals initiated on or after January 1 , 2001 . Most ofthe published opinions during the reporting period, having already been initiated under the former rules, were governed by those now-superseded rules. However, by the end of 2001, many ofthe pending appeals had been initiated under the newer rules, and some interpretative case law was being published. By the end of 2001, the Indiana Supreme Court began to experience the benefits of a change in the rules governing its jurisdiction. For the first time in its history, the court had almost complete discretionary control over its appellate docket. The court also adopted several noteworthy amendments to the new appellate rules. Finally, the year ended with the implementation of two innovative Internet applications ofparticular interest and benefit to the appellate practitioner. This Article examines recent developments in the area of state appellate procedure during this important transitional year.' I. A Few Words About the Not-So-New Rules The Rules ofAppellate Procedure that went into effect at the start ofthe year 2001 have been written about elsewhere, and there is no need to reexamine their genesis or significance in detail.^ However, at least a rudimentary overview of how and why the new rules came into being is warranted. The rules of procedure governing the appellate process in this state were rewritten and replaced after a significant effort by committees made up of members ofthe Indiana State Bar Association's Appellate Practice Section, by the Indiana Supreme Court Rules Committee, and by the Indiana Supreme Court itself.^ The new rules became effective for all appeals initiated on or after * Administrator, Indiana Supreme Court; Adjunct Professor, Indiana University School ofLaw—Indianapolis. B.S., with highest distinction, 1984, Purdue University—Indianapolis; J.D., magna cum laude, 1989, Indiana University School of Law—Indianapolis. 1 . This Article includes discussions of significant opinions handed down by the Indiana Court of Appeals before October 1, 2001, or by the Indiana Supreme Court before November 1, 2001, plus information concerning other important developments that occurred in 2001 . 2. See, e.g., Douglas E. Cressler & Paula F. Cardoza, A New Era Dawns in Appellate Procedure, 34 IND. L. REV. 741, 744-747 (2001); George T. Patton, Jr., Recent Developments in Indiana Appellate Procedure: NewAppellate Rules, a ConstitutionalAmendment, anda Proposal, 33IND.L.REV. 1275(2000). 3. See generally George T. Patton, Jr., Appellate Rules Proposal Before Rules Committee, Res Gestae, Apr. 1999, at 10, 10-11. 1134 INDIANA LAW REVIEW [Vol. 35:1 133 January 1, 2001.^ The goals of the complete revision included making the appellate process easier to understand, more streamlined, and more uniform in practice.^ Although there was considerable carryover of language and general operation, there were many substantive changes. The rules governing appellate procedure were reorganized and renumbered. Changes were made to the nomenclature of appeals work, in the timing for many aspects of taking an appeal, in motions practice, and in the procedures for seeking transfer to the Indiana Supreme Court. The greatest changes brought about by the new rules, however, were in how the record on appeal is prepared and presented to the appellate court. II. Rule AMENDMENTS As expected, the Indiana Supreme Court determined that a number ofminor amendments to the newly-promulgated Rules of Appellate Procedure were warranted after their first year in operation. The court's order, issued December 21, 2001, included changes to forty-seven different sections of the appellate rules.^ Although many of the changes were cosmetic, a few of the amendments provided important clarification and improvement to the operation of the appellate rules. The rule amendments were made effective April 1, 2002.^ A. The New "Addendum to Brief One amendment of particular interest to appellate practitioners was the addition of new Appellate Rule 46(H). That new provision states: H. Addendum to Brief. Any party or any entity granted amicus curiae status may elect to file a separately-bound Addendum to Brief. An Addendum to Brief is not required and is not recommended in most cases. An Addendum to Brief is a highly selective compilation of materials filed with a party's brief at the option ofthe submitting party. Note that only one copy of the Appendix is filed (see Rule 23(C)(5)), but an original and eight copies ofany Addendum to Briefmust be filed, in accordance with Rule 23(C)(3). If an Addendum to Brief is submitted, it must be filed and served at the time ofthe filing and service of the brief it accompanies. An Addendum to Brief may include, for example, copies ofkey documents from the Clerk's Record or Appendix (such as contracts), or exhibits (such as photographs or maps), or copies ofcritically important pages oftestimony from the Transcript, or full text copies of statutes, rules, regulations, etc. that would be helpful to the 4. See Order Amending Indiana Rules of Appellate Procedure (Ind. Feb. 4, 2000) (No. 94S00-0002-MS-77), available a/ http://www.in.gOv/judiciary/opinions/archive/l 1090001 .ad.html. 5. See Patton, supra note 2, at 1 275-76. 6. See Order Amending Indiana Rules ofAppellate Procedure WL IN ORDER 01 -24 (Dec. 21, 2001) (No. 94S00-0101-MS-67) [hereinafter Order]. 7. Id. 2002] APPELLATE PRACTICE 1135 Court on Appeal but which, for whatever reason, cannot be conveniently or fully reproduced in the body ofthe brief. An Addendum to Briefmay not exceed fifty (50) pages in length and should ordinarily be much shorter in length. The first document in the Addendum to Brief shall be a table ofcontents, and documents contained in the Addendum to Brief should be indexed or numbered in some manner that facilitates fmding the documents referred to therein, preferably with indexed tabs. The Addendum to Brief shall be bound in book form along the left margin, preferably in a manner that permits the volume to lie flat when opened. The Addendum to Brief shall have a cover that is the same color and similarly styled as the brief it accompanies (see Form App. 43-1 ), except that it shall be clearly identified as an Addendum to Brief. An Addendum to Brief may not contain argument.* The "addendum to brief is an appropriate new name for an old idea. The superseded rules permitted parties to accompany their briefs with a separately bound "appendix."^ The appendix could contain "significant parts ofthe record or other material deemed useful.'"^ Because a party would file an original and eight copies ofthe appendix along with the party's briefs," the old rule provided a useful vehicle for making certain that each judge or justice reviewing the appeal had ready access to key documents from the record. In a contract dispute, for example, the filing ofan appendix containing a complete copy ofthe contract at issue would ensure that all the members ofthe reviewing court could examine the whole contract without having to look for it elsewhere in the single set of bound volumes of the record of proceedings. When the new rules went into effect, however, the term "appendix" was appropriated to designate something that is now more properly thought of as being part ofthe appellate record than as a supplement to a brief. '^ The appendix is generally a bound compilation ofthe documents filed in the trial court. '^ Only one copy ofan appendix is filed,''* thus minimizing its value as an instrument for conveniently placing key documents in front ofeach reviewing judge or justice. Moreover, the appendix as currently defined generally would be too large and inclusive to serve the narrow, specific purpose of the old appendix rule. For example, in a criminal appeal, the appellant's appendix consists, inter alia, ofall the documents that had been filed with the clerk ofthe trial court. '^ Even in civil appeals, the appendix contains any "pleadings and other documents" filed in the 8. Id. (amending IND. Appellate Rule, 46 effective Apr. 1, 2002). 9. App.R. 8.2(A)(4) (repealed Jan. 1,2001). 10. Id 11. See APP.R. 9(B)( 1 ) (repealed Jan. 1 , 200 1 ). 12. 5eg App.R. 2(C). 13. See id. 14. APP.R. 23(C). 15. 5eg APP.R. 50(B)(1). 1136 INDIANA LAW REVIEW [Vol. 35:1 133 trial court that are "necessary for resolution of the issues raised on appeal.*"^ It was clear, therefore, that the old appendix was something very different from the new appendix, and that there was nothing in the new rules to take its place. The occasionally useful function previously performed by the old appendix was lost in the new rules, as initially adopted. The adoption of new Appellate Rule 46(H) corrects that omission by creating an "addendum to brief." The new rule also gives greater definition to the function than was ever provided in the past. As was the practice under the old rule,'^ parties file an original and eight copies ofeach addendum to briefat the time ofthe filing ofthe brief itself.'* The rule expressly states that an addendum should be a "highly selective compilation" of not more than fifty pages and "ordinarily . . . much shorter in length."'^ The rule expressly states that an addendum "is not required and is not recommended in most cases."^^ In other words, addenda should be very thin in physical dimension, and only filed in appeals where the reviewing court would be aided by having multiple copies of key documents available. The rule articulates examples ofthe types ofdocuments that may be included with an addendum and also details the required format.^' If record materials are included in an addendum, then citations to those materials in an appellate brief must include citation to both the record and the addendum.^^ This amendment heralds the return, with a new name, of a useful tool of appellate advocacy. B, Appendices The Indiana Supreme Court also adopted some important changes affecting the form and filing of appendices. As noted above, the appendix serves the function of providing the appellate court with a record ofthe filings made in the trial court.^^ A seemingly minor, but potentially significant, clarifying amendment was made to the rule governing the contents of the appellant's appendix. In both civil and criminal appeals, the applicable rule had required that the appendix include "any record material relied on in the brief"^"^ Because parties also rely on portions of the transcript in their briefs, the rule as initially adopted could have been read to require that copies of any portion of the transcript relied on in a brief be included in the appendix. Those same rules, as amended, now state that the appendix must include "any record material relied on in the brief unless the material is already included in 16. App.R. 50(A)(2)(f). 17. 5ee APP.R. 9(B)(1) (repealed Jan. 1,2001). 1 8. Order, supra note 6 (amending App.R. 23(C)(3)). 19. Id. (amending App.R. 46). 20. Id. 2 1 . See id. 22. Id. (amending App.R. 22(C)). 23. See supra note 1 2 and accompanying text. 24. App.R. 50(A)(2)(h), (B)(1)(e) (amended Apr. I, 2002). 2002] APPELLATE PRACTICE 1137 the Transcript. ^'^^ In other words, there is no need to include those sections of the transcript referenced in the brief in the appendix. So long as any record material relied on in the brief can be found in either the appendix or the transcript, then the rules have been satisfied. Another amendment affecting appendices was specifically directed to appellants in criminal cases. The rule governing required service ofdocuments, as now amended, provides that appendices filed in criminal appeals need not be copied and served on the Attorney General.^^ This amendment helps reduce unnecessary copying. The Attorney General has ready access to the filed appendices through the appellate court clerk's office. If there was any doubt about that availability, the rules as amended now expressly state that parties may have access to transcripts and appendices during the period that they are working on their briefs, subject to internal rules the appellate court clerk might use to ensure accountability and fairness.^^ C Transcripts, Exhibits, and the Duties ofthe Court Reporter The amended appellate rules clarify that preparation ofthe separately-bound volumes of exhibits from trial are part ofthe transcript preparation process and, thus, the responsibility ofthe court reporter.^' Also, the court reporter is required to prepare an index of exhibits, to "be placed at the front of the first volume of exhibits."^^ In addition, the rules require the court reporter to serve the parties with copies of any motions requesting additional time to file the transcript.^^ One of the appellate rules requires the court reporter to annotate each page of a transcript with information "where a witness's direct, cross, or redirect examination begins."^' Previously, those annotations had to be placed as headers at the top of the page, but the amendment now alternatively allows the annotations to be placed as footers at the bottom ofthe page.^^ The requirement that the court reporter format the transcript to an electronic disk has been changed to requiring "an electronically formatted medium (such as disk, CD- ROM, or zip drive)."" D. Duties ofthe Trial Court Clerk A criminal appellant will typically have appointed local counsel who will need access to the transcript while working on the appellant's brief. Accordingly, the rules state that the transcript in criminal appeals is generally not 25. Order, supra note 6 (amending App.R. 50(A)(2)(h), (BXlKe)). 26. Id. (amending App.R. 24(A)). 27. /flf. (amending App.R. 12(C)). 28. M(amendingAPP.R.2(K), 11(A)). 29. Id. (amending App.R. 29(A)). 30. Id (amending APP.R. 1 1(C)). 31. App.R. 28(A)(4). 32. Order, supra note 6 (amending APP.R. 28(A)(4)), 33. Id (amending App.R. 30(AK2)). 1138 INDIANA LAW REVIEW [Vol. 35:1133 transmitted by the trial court clerk to the appellate court clerk (in Indianapolis) until after the appellant's brief has been filed.^* A new amendment changes this rule in situations where the appellant is represented by the State Public Defender, rather than local counsel. Under the rule as amended, when a criminal appellant is represented by the State Public Defender, the transmission of the transcript by the trial court clerk to the appellate court clerk is to occur immediately on completion and certification of the transcript.^^ This amendment is one of administrative convenience because the offices of both the State Public Defender and the Attorney General are in Indianapolis. Thus, the transcript is sent immediately to the location where the interested attorneys are located. Moreover, an addition to the rules makes clear that any party may file a motion with the appellate court seeking an order directing "the trial court clerk to transmit the [t]ranscript at a different time than provided for in the rules."^^ The amendments also state that the copies ofthe chronological case summary accompanying the notice of completion of clerk's record "served on the parties need not be individually certified."^^ Further, only one original notice of completion of clerk's record and one original notice of completion oftranscript need be filed with the appellate court clerk.^* In addition, the trial court clerk is now required to serve the parties with any motions seeking an extension of time to assemble the record.^' E. Rehearing Practice The new amendments corrected an apparently unintentional change in rehearing practice associated with the rewriting of the rules. The superseded rules permitted a party an automatic extension of time within which to respond to a briefor other document served via mail or carrier by aparty.^^ However, the automatic extension did not apply to petitions that were responsive to filings made by the appellate court itself.'*' For example, a party filing a petition for rehearing or transfer following the issuance ofan opinion by the court ofappeals had to file the petition within the thirty days allotted by rule, without the benefit ofthe automatic extension rule."*^ However, the party responding to the petition was allowed the benefit of the automatic extension if service was by mail or courier.'*^ 34. See APP.R. 12(B) (amended Apr. 1, 2002). 35. Order, supra note 6 (amending APP.R. 1 2(B)). 36. Id. 37. Id. (amending APP.R, 10(C)). 38. Id (amending APP.R. 23(C)(6)). 39. M (amending APP.R. 10(E)). 40. APP.R. 12(D) (repealed Jan. 1, 2001). 41. See APP.R. 1 1 (repealed Jan. 1 , 200 1 ). 42. See id. 43. See APP.R. 12(D) (repealed Jan. I, 2001). 2002] APPELLATE PRACTICE 1139 When the new rules went into effect January 1 , 200 1 , they operated in much the same way, with one exception. The new rules contained a provision stating that the automatic extension rule did not apply to the filing ofa brief in response to a petition for rehearing/"* The new rules created an apparently unintended variance from traditional practice and a discrepancy between rehearing and transfer practice/^ The court amended the rule to comport with traditional practice and to make the transfer and rehearing rules uniform. The appellate rule governing the filing of a response to a petition for rehearing, as amended, now states in relevant part, "Rule 25(C), which provides a three-day extension for service by mail or third-party carrier, may extend the due date; however, no other extension of time shall be granted.'"*^ The amendments also clarify the form and content requirements for the petition for rehearing. Specifically, as amended, the rule expressly states that not all the content requirements of Appellate Rule 46(A) must be met, only some of them.^^ F. Petitions Seeking Review ofa Decision ofthe Indiana Tax Court The appellate rules, as adopted effective January 1, 2001, contained no provision expressly stating the content requirements for a petition seeking review of a decision of the Indiana Tax Court. As amended, the rules now include a content requirement, modeled along the lines of a petition to transfer."** The amended rule also makes clear that a petition for review is available when the tax court is sitting as an appellate court, reviewing a decision of a trial court with probate jurisdiction."*^ G. Other Miscellaneous Changes ofNote The rules now expressly codify what had been an unwritten rule since 1997, when the court first adopted word limit restrictions on brief size, as opposed to page restrictions.^^ Under the amended rules, a motion seeking leave to file an oversize brief or petition must express the total number oiwords desired for the oversize brief, not the number of pages.^' The rules now clarify the standard practice on the timing for filing a request for oral argument. The motion is due within seven days after any reply brief 44. See APP.R. 54(C) (amended Apr. 1, 2002). 45. See APP.R. 57(D) (permitting an automatic extension of time to file a response to a petition to transfer served by mail or carrier). 46. Order, supra note 6 (amending APP.R. 54(C)). 47. See id. (amending App.R. 54(F)). 48. See id. (amending App.R. 63(A)); see also APP.R. 57(G) (stating the form and content requirements for a petition to transfer). 49. Id. (amending App.R. 63(A)). 50. Compare App.R. 8.2(A)(4) (repealed Jan. I, 1997) (imposing page restrictions on brief length), w/Y/i App.R. 8.2(A)(4) (repealed Jan. 1, 1998) (word restrictions on brief length). 5 1 . Order, supra note 6 (amending App.R. 44(B)). 1.140 INDIANA LAW REVIEW [Vol. 35:1133 would be due before the court in which the motion is to be filed." In addition to being served on ail parties, the notice of appeal must now be filed with the clerk of the appellate court.^^ III. Developments IN THE Caselaw The courts issued a few cases of general significance during the reported period, regardless of which set of rules under which parties are operating. One of the few opinions to develop new law from the new rules, Johnson v. State,^^ is the first decision discussed below. A. Failure to Provide an Appendix Not Automatic Groundsfor Dismissal When an appeal is taken in a criminal proceeding under the new rules, documents that were filed with the trial court are to be assembled by the appellant into an "appendix" that is to be filed with the appellant's brief.^^ A criminal defendant, acting pro se, attempted to appeal a trial court order. He failed to submit an appendix with his brief, as required by the appellate rules. On motion from the State, the Indiana Court of Appeals dismissed the appeal for failing to comply with required appendix rule.^^ The Indiana Supreme Court granted transfer to clarify "a specific point of appellate procedure."^^ The court noted the compulsory nature ofthe appendix filing requirement, but stated that ordering compliance with the rule, rather than dismissing the appeal, is the "better practice for an appellate court to follow."^* The court found support for this view in the new rules, specifically Appellate Rule 49(B), which expressly states that "[a]ny party's failure to include any item in an Appendix shall not waive any issue or argument."^^ The court also noted that the rules permit the appellee to file its own appendix, "containing materials not found in the appellant's appendix," and permit either party to file a supplemental appendix.^^ Significantly, the court noted that Appellate Rule 49(B) represents a departure from prior case law under the old rules, wherein the appellate courts decided that issues were waived due to appellant's failure to provide an adequate 52. ^ee/cf. (amending App.R. 52(B)). 53. M (amending App.R. 9(A)(1)). 54. 756 N.E.2d 965 (Ind. 2001 ) [hereinafter Johnson II]. 55. ^-ee App.R. 49(A), 50(B). 56. Johnson v. State, 756 N.E.2d 508 (Ind. Ct. App.), vacated by 756 N.E.2d 965 (Ind. 2001). 57. yo/zAwo« //, 756 N.E.2d at 966-67. 58. Jd. The court did state, however, that if an appellant is given an opportunity to cure a problem with the appendix and inexcusably fails to do so, ''dismissal of the appeal . . . would be available as the needs ofJustice might dictate." Id. at 967. 59. Jd. (quoting APP.R. 49(B)). 60. Jd (citing APP.R. 50(A), 50(B)(2), 50(D)). 2002] APPELLATE PRACTICE 1141 record for appellate review.^' The new rules "signal[] a preference for an ameliorative approach toward failures by the parties to provide a complete record."^^ The appeal was reinstated and remanded to the court of appeals for further proceedings consistent with the court's opinion.^^ I It is important to note that if the appellant's appendix fails in a significant manner to include parts of the record necessary for appellate review, thereby requiring the appellee to submit his own appendix, there is recent authority for the proposition that the appellant might be compelled to pay the cost ofpreparing the filing.^ B. Two Out-of'the-Ordinary Applications ofthe **Law ofthe Case " Doctrine Two cases decided during the reporting period are noteworthy for their new interpretations of the law of the case doctrine. In one decision, the court of appeals found an unusual exception to the doctrine;^^ in the other, the court found the doctrine inapplicable.^ "The doctrine ofthe law ofthe case is a discretionary tool by which appellate courts decline to revisit legal issues already determined on appeal in the same case and on substantially the same facts."^^ The U.S. Supreme Court has held that there are exceptions to the rule, but they are lim ited to "extraordinary circumstances such as where the initial decision was 'clearly erroneous and would work a manifest injustice.'"^' In Turner v. State,^^ the Indiana Court of Appeals recognized one of those extraordinary circumstances in which the law ofthe case doctrine would not bar relitigation ofan issue previously decided by another panel ofthe court. Forrest Turner and co-defendant David McCarthy were tried together and both were convicted ofmurder and attempted murder.^° They separately appealed, and both claimed error in the failure of the trial court to give jury instructions on lesser- included offenses.^' In Turner's original appeal,^^ the court of appeals affirmed, finding "no 61 . Id (citing Lee v. State, 694 N.E.2d 7 19, 721 n.6 (Ind. 1998)). 62. Id 63. Id 64. See, e.g., Scott v. Crussen, 741 N.E.2d 743, 745 n.l (Ind. Ct. App.), trans, denied, 761 N.E.2d4!3 (Ind. 2001). 65. See Turner v. State, 75 1 N.E.2d 726 (Ind. Ct. App. 2001 ). 66. See Humphreys v. Day, 735 N.E.2d 837, 841 (Ind. Ct. App. 2000), trans, denied, 753 N.E.2d 16 (Ind. 2001). 67. Cutter v. State, 725 N.E.2d 401, 405 (Ind. 2000) (citing Christiansen v. Colt Indus. Operating Corp., 486 U.S. 800,817-18(1998); State v. Lewis, 543 N.E.2d 1 1 16, 1 1 18(Ind. 1989)). 68. See Christianson, 486 U.S. at 8 1 7 (quoting Arizona v. California, 460 U.S. 605, 61 8 n.8 (1983)). 69. 751 N.E.2d 726 (Ind. Ct. App. 2001). 70. Seeid2Xl2%'19. 71. Id 72. Tumerv. State, 691 N.E.2d 516 (Ind. Ct. App. 1998) (unpublished table decision), poj/ 1142 INDIANA LAW REVIEW [Vol. 35:1133 serious evidentiary dispute concerning the element of intent" and thus no error in refusing to give the lesser-included offense instructions on reckless homicide and criminal recklessness.^^ McCarthy, on the other hand, successfully obtained relief raising the same issues. In his direct appeaf^a different panel ofthe court of appeals concluded that the trial court should have given a reckless homicide instruction as a lesser-included offense of murder and a criminal recklessness instruction as a lesser-included offense to attempted murder.^^ McCarthy was ultimately retried with the new instructions, and the second jury convicted him ofreckless homicide and criminal recklessness rather than murder and attempted murder.^^ Turner, having been denied relief on appeal, also filed a petition for post- conviction relief, but his request for reliefwas denied.^^ On appeal ofthat denial, the court of appeals determined that the failure to give the instruction on the lesser-included offenses was error, and that the contrary decision ofthe original panel ofthat court was "clearly erroneous and would work manifest injustice."^* The denial ofpost-conviction relief was reversed, and the cause was presumably remanded for a new trial. The disparity ofthe outcomes between McCarthy and Turner was a factor considered by the court of appeals in determining that an inequity justifying extraordinary relief existed. ^^ In Humphreys v. Day^^ the court of appeals did not find an exception to the law of the doctrine. Instead, the court found the doctrine legally inapplicable under the circumstances presented.*' Although the appeal involved a somewhat complex interpretation of Medicaid regulations, the teachings of the case regarding the law of the case doctrine are straightforward. In an earlier appeal involving the same parties, the court of appeals had decided two questions of law.*^ One of the parties petitioned for transfer to the supreme court, and the petition was granted.*^ In its opinion, the supreme court adopted the holding of conviction reliefgranted^ 751 N.E.2d at 728-29. 73. Turner, 75 1 N.E.2d at 728-29. 74. McCarthy v. State, 703 N.E.2d 199 (Ind. Ct. App. 1998) (unpublished table decision). 75. Turner, 75 1 N.E.2d at 729. The court of appeals also held that the error in refusing the criminal recklessness instruction had been waved because McCarthy's counsel had not Joined in the request for such an instruction during trial. However, McCarthy successfully obtained relief in a post-conviction proceeding, successfully asserting that his trial counsel had been constitutionally ineffective for failing to join in the request. Id. at 729 n.l. 76. Mat 729. 77. Id 78. /(i. at 734. 79. ^ee /t/. at 729, 734. 80. 735 N.E.2d 837 (Ind. Ct. App. 2000), trans, denied, 753 N.E.2d 16 (Ind. 2001). 81. Mat 841. 82. See Sullivan v. Day, 661 N.E.2d 848 (Ind. Ct. App. 1996), vacated inpart by6S\ N.E.2d 713 (Ind. 1997). 83. 5ee//wmp;ire;/5, 735N.E.2dat840. 2002] APPELLATE PRACTICE 1143 the court of appeals on one issue (Issue X).** As to the second issue (Issue Y), which the court ofappeals had addressed sua sponte, the high court determined the parties should have been given the opportunity to develop a record and obtain a ruling from the trial court.*^ The court therefore vacated that part of the opinion addressing Issue Y and remanded the case to the trial court for further proceedings.*^ On remand, the trial court entered ajudgment on Issue Y, and the Humpheys V. Day appeal on that issue ensued.*^ One of the parties argued that the question had already been decided by the court of appeals in its earlier opinion and had therefore become the law of the case.** The court of appeals rejected this contention. The court noted in particular the application of an appellate rule providing generally that when the supreme court grants transfer, the opinion of the court of appeals is vacated except for those portions "expressly adopted" or "summarily affirmed."*^ The earlier holding of the court of appeals on Issue Y had been neither adopted nor summarily affirmed by the supreme court. Thus, the court ofappeals concluded that on this issue, "the previous opinion is not the law of the case because it is a nullity."^ C. Revisiting Motions Already Addressed in the Same Appeal The parties to an appeal will occasionally file substantive motions before an appeal has been fully briefed.^' Such motions are ruled on by a rotating panel of court of appeals' judges referred to as the "motions panel." The motions panel will almost certainly be composed of a different set of judges from those assigned to vote on and author the final opinion. No rule prevents the party whose pre-briefing motion is denied from raising the issue again in that party's brief on appeal. However, the question arises whether the authoring panel is bound by the earlier decision ofthe motions panel. This issue might be thought ofas a cousin to the law ofthe case doctrine.^^ Four opinions issued during the reporting period addressed this question. 84. Sullivan v. Day, 681 N.E.2d 713, 716 (Ind. 1997). 85. /^. at 716-17. 86. Id.dXlM. 87. 735 N.E.2d at 840-41. 88. Mat 841. 89. Id. The opinion references former App.R. 1 1(B)(3). That older rule was repealed on January 1, 2001 and was replaced by App.R. 58(A), which contains essentially the same language. 90. Id. 91. The most common example would probably be a motion to dismiss involuntarily an appeal due to alleged procedural or jurisdictional defects, filed pursuant to APP.R. 36(B). 92. The law of the case doctrine is generally thought of as applying to issues arising in subsequent appeals as opposed to issues arising twice within the same appeal. See supra note 67 and accompanying text; see also CNA Ins. Cos. v. Vellucci, 596 N.E.2d 926, 927 (Ind. Ct. App. 1992). 1144 INDIANA LAW REVIEW [Vol. 35:1 133 In Walker v. McTague,^^ the court refused to address an issue that had been raised earlier by motion, stating, "The Motions Panel issued an order allowing the case to proceed on its merits .... Therefore, we need not reconsider the procedural issue here . . . ."'* The appellate courts took similar stances in Mahone v. State^^ Snider v. State,^ and In re Estate ofMow?^ These opinions imply that the court of appeals either will not reconsider matters earlier decided by that court by order'* or that it should only do so "in the case of extraordinary circumstances."'^ However, there is ample precedent for courts overruling prior orders issued in the appeal.'^ As the court ofappeals has previously stated, "[B]ecause we could change our decision pursuant to a petition for rehearing, it would make no sense to refuse to do so at an earlier stage before we have expended further resources.'"^* In short, recent opinions have demonstrated an appropriate reluctance on the part of the court of appeals to overrule orders already decided by its rotating motions panels. Nevertheless, these decisions do not hold that the authoring court is absolutely precluded from reconsidering issues previously decided on a motion. Indeed, such a holding would be contrary to the court's traditional practice. If a party fails to obtain requested relief from a pre-briefmg motion to dismiss (assuming the motion has colorable merit), the best practice is to raise that issue again in that party's briefon the merits. Similarly, the issue should be available for a petition to transfer. Professionally responsible advocacy would dictate that the prior unsuccessful motion also be brought to the appellate court's attention. Z). Lost Appeal ofa Deemed Denied Motion to Correct Error Not Salvageable Through Alleged Cross-Error A motion to correct error is deemed denied ifnot ruled on within certain time limits. '^^ Thus, the clock for initiating an appeal begins to run once the motion to correct error is deemed denied. Any subsequent ruling on the motion after it has been denied by operation of rule is not necessarily void, but is considered 93. 737 N.E.2d 404 (Ind. Ct. App. 2000), trans, denied, 753 N.E.2d 8 (Ind. 2001). 94. /^. at406n.l. 95. See 742 N.E.2d 982, 985 n.3 (Ind. Ct. App.), trans, denied, 753 N.E.2d 1 1 (Ind. 2001). 96. See 753 N.E.2d 721, 724 n.2 (Ind. Ct. App.), trans, denied, 761 N.E.2d 421 (Ind. 2001). 97. 735 N.E.2d 240, 243 n.2 (Ind. Ct. App. 2000). 98. See supra notes 95-97 and accompanying text. 99. /