You Can Cite Unpublished Opinions To Indiana Courts, Just Not Indiana Unpublished Opinions

The Indiana Court of Appeals’ recent decision in Wertz v. Asset Acceptance, LLC, ___ N.E.3d ___ (Ind. Ct. App. March 21, 2014), dealt with an issue of first impression: whether an out-of-state business is required to obtain a license to collect on a debt assigned to the business. The answer is “No,” and if you want to know why, then you can read the opinion. The reason I find it interesting is because of a footnote—a footnote that deals with unpublished opinions.

When Asset Acceptance brought a collection action against Wertz, he defended himself by asserting that the Indiana Uniform Consumer credit Code required that Asset Acceptance be licensed to engage in collections actions in Indiana. The trial court dismissed these allegations under Trial Rule 12(B)(6) and Wertz appealed.

As it turns out, Wertz’s counsel made the same argument in a couple of federal cases, both of which turned out equally badly; last year those courts dismissed the claims, too. Wertz cited neither of these cases in his appellate brief, possibly because they were unreported district court decisions. At footnote 13, the Court said that this was a mistake, because there is no Rule preventing Indiana courts from reviewing unpublished decisions from other jurisdictions.

Although Sheetz is unpublished, that does not foreclose this court’s consideration of it. While not-for-publication memorandum decisions of the Indiana Court of Appeals “shall not be regarded as precedent and shall not be cited to any court” absent certain exceptions, App. R. 65(D), that is not true in the federal court system, see Fed. R. App. P. 32.1; see also id. cmt. (“a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value . . . .”). Indiana Appellate Rule 65(D) applies only to not-for-publication memorandum decisions of the Indiana Court of Appeals. See App. R. 65(D).

The Court found the reasoning in these district court opinions to be persuasive, and it reached the same conclusion.

I know that Indiana’s practitioners have debated whether unpublished decisions from other jurisdictions may be cited to Indiana’s courts. And it appears that the issue has roundly been answered in the affirmative.


    App. R. 65 does not prohibit attorneys from citing unpublished opinions from other jurisdictions in Indiana cases.

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