Robb, J.
Case Summary and Issues
Cullen Finnerty, Neal Anderson, and Andrew Solonoski Jr. each played college football, albeit at different times and for different universities. Jennifer Finnerty, individually and as Personal Representative of the Estate of Cullen Finnerty (“Finnerty”); Carol Anderson, individually and as Personal Representative of the Estate of Neal Anderson (“Anderson”); and Maura Solonoski, individually and as Attorney-in-Fact for Andrew Solonoski Jr. (“Solonoski”) (collectively, “Athletes”), each filed a lawsuit against the National Collegiate Athletic Association (“NCAA”) alleging, broadly speaking that the NCAA knew about the harmful effects of concussion-related injuries, failed to warn its athletes about those effects and/or concealed from its athletes its knowledge of those effects, and failed to implement reasonable concussion-management protocols to protect its athletes.
These three cases were consolidated for purposes of pre-trial discovery and the Athletes sought to take the depositions of Mark Emmert, Donald Remy, and Dr. Brian Hainline, three senior NCAA executives (collectively, “Executives”). The NCAA moved for a protective order quashing those depositions. The trial court granted the protective order in part and denied it in part. The NCAA sought to certify the order for interlocutory appeal, but the motion was deemed denied by the operation of Appellate Rule 14(B)(1)(e). Subsequently, the NCAA moved for a second protective order, which the trial court denied and immediately certified for interlocutory appeal.
The NCAA raises the sole issue of whether Indiana should adopt the “apex deposition doctrine,” which would bar taking the deposition of high-ranking executives absent a showing they have “unique personal knowledge” of relevant facts. Brief of Defendant-Appellant at 33. The Athletes raise the issue of whether the NCAA’s second motion for protective order was a repetitive motion/motion to reconsider affecting the timeliness of this appeal. Concluding the NCAA forfeited its right to appeal the trial court’s order denying in part its motion for protective order and there are no extraordinarily compelling reasons to restore that right, we dismiss.
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We begin by addressing the Athletes’ argument that we do not have jurisdiction to hear this interlocutory appeal. Our supreme court has held, “[A]lthough a party forfeits its right to appeal based on an untimely filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to entertain the appeal.” In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). “Instead, the timely filing of a Notice of Appeal is jurisdictional only in the sense that it is a Rule-required prerequisite to the initiation of an appeal in the Court of Appeals.” Id. Therefore, although we do have jurisdiction to entertain the appeal, we first examine whether the NCAA has forfeited its right to appeal.
Indiana Appellate Rule 14(B) describes the procedure for appealing an interlocutory order that is not appealable by right:
An appeal may be taken from other interlocutory orders if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal.
(1) Certification by the Trial Court. The trial court, in its discretion, upon motion by a party, may certify an interlocutory order to allow an immediate appeal.
(a) Time for Filing Motion. A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion. . . .
* * * (e) Ruling on Motion by the Trial Court. In the event the trial court fails for thirty (30) days to set the motion for hearing or fails to rule on the motion within thirty (30) days after it was heard or thirty (30) days after it was filed, if no hearing is set, the motion requesting certification of an interlocutory order shall be deemed denied.
The trial court entered an order denying the NCAA’s first motion for protective order in December 2019 and the NCAA filed a motion to certify that order within thirty days. The NCAA now concedes that, despite the conversation to the contrary at the March 2, 2020 hearing and the trial court’s grant of the motion to certify on the same day, the motion to certify was deemed denied when the trial court did not rule on it within thirty days of filing and the trial court could not revive the motion by belatedly granting it. See Reply Brief of Defendant-Appellant at 8 n.2; see also App. R. 14(B)(1)(e); Wise v. State, 997 N.E.2d 411, 413 (Ind. Ct. App. 2013) (holding that a deemed denied motion to certify cannot be resuscitated by the trial court belatedly granting it). Thus, the deadline to appeal the trial court’s December 2019 order on the NCAA’s first motion for protective order has long since come and gone.
In April 2020, the NCAA filed another motion for protective order, again seeking to quash the depositions of the Executives because the Executives lack personal knowledge, the Athletes can glean the same information from lower-level executives, and the Athletes’ purpose in seeking the Executives’ depositions is harassment. The Athletes argued below and argue again on appeal that the NCAA’s second motion for a protective order is repetitive of its first motion for protective order and/or a motion to reconsider the trial court’s December 2019 order and that the trial court’s May 2020 order on the second motion does not reset or extend the original deadline for an interlocutory appeal of the trial court’s denial of a protective order…
Trial Rule 53.4(A) states that a repetitive motion or a motion to reconsider “shall not . . . extend the time for any further required or permitted action, motion, or proceedings under these rules.” This rule is intended to prevent a party from delaying compliance with a trial court’s order by filing repetitive motions….
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In requesting the immediate certification of a denial of this second motion “for the reasons the NCAA has previously explained[,]” and “for the same reasons” the trial court certified its ruling on the initial motion for protective order, the NCAA basically conceded that it simply wanted to get “interlocutory appellate consideration of the apex doctrine” and needed a fresh order to do so as its time to appeal the December 2019 order had passed. Id., Vol. XI at 92; see Appendix of Appellees, Vol. 2 at 93 (trial court noting in an order denying the Athletes’ motion to supplement the record on appeal that “[o]n April 16, 2020, the NCAA filed a Second Motion for Protective Order to Quash the Depositions again of Hainline, Emmert and Remy, which was the same as the Motion filed on October 8, 2019. On May 12, 2020, the Court Denied the [NCAA’s] Motion to Quash for the second time[.]”) (emphasis added). The trial court did not have a hearing on the NCAA’s second motion, deciding the issue on the parties’ briefs and exhibits alone, and simply denied the motion without elaboration or explanation, presumably leaving the earlier order unchanged. In other words, the NCAA’s second motion and the trial court’s May 2020 order were merely repeating the earlier process in a new timeframe.
Having missed or foregone the opportunity to ask the Court of Appeals to accept jurisdiction after its first motion for protective order was denied, the NCAA’s second motion is nothing more than a motion for the trial court to reconsider its earlier ruling seeking a renewed opportunity to bring this issue to the appellate courts. Pursuant to Trial Rule 53.4(A) and Appellate Rule 14(B)(1), the NCAA’s time for seeking an interlocutory appeal of the trial court’s ruling on its motion for protective order has long since passed, and the NCAA has forfeited its right to appeal.
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Conclusion
The NCAA’s repetitive motion for a protective order/motion to reconsider did not extend the time for an interlocutory appeal of the trial court’s denial and this appeal is therefore untimely. Finding no extraordinarily compelling reasons to consider the merits of the appeal, we dismiss.
Dismissed.
Bailey, J., concurs.
Tavitas, J., dissents with separate opinion
Tavitas, Judge, dissenting.
I respectfully dissent. I conclude that the NCAA’s interlocutory appeal was proper, and I would not dismiss. Accordingly, I would address whether the trial court abused its discretion by denying the NCAA’s second motion for a protective order.
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First, I am not convinced that the second motion for a protective order was repetitive in the context of Trial Rule 53.4(A)…
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I would not dismiss this interlocutory appeal and would, instead, address the NCAA’s argument that the trial court abused its discretion by denying the NCAA’s second motion for a protective order. The majority dismisses the appeal but addresses the merits in dicta. In light of the majority’s dismissal of this appeal, I decline to issue an advisory opinion on the merits. For the foregoing reasons, I respectfully dissent.