Cheryl A. Pratt, Thomas Nevitt, and Kimberly J. Traxler v. Cynthia A. Gembala (mem. dec.)
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Nov 01 2019, 8:52 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Kevin W. Marshall Hobart, Indiana Mark S.N. Chargualaf Rodriguez, Chargualaf & Associates Merrillville, Indiana IN THE COURT OF APPEALS OF INDIANA Cheryl A. Pratt, Thomas Nevitt, and Kimberly J. Traxler, Appellants-Defendants, v. Cynthia A. Gembala, Appellee-Plaintiff. November 1, 2019 Court of Appeals Case No. 19A-CT-1631 Appeal from the Porter Superior Court The Honorable Jeffrey W. Clymer, Judge Trial Court Cause No. 64D02-1710-CT-9685 Najam, Judge. Statement of the Case [1] Cheryl Pratt appeals the trial court’s denial of her motion for summary judgment on her counterclaim to quiet title against Cynthia Gembala. Pratt Court of Appeals of Indiana | Memorandum Decision 19A-CT-1631 | November 1, 2019 Page 1 of 4 presents two issues for our review. 1 However, because we lack jurisdiction over this discretionary interlocutory appeal, we do not reach the merits of her appeal. Accordingly, we dismiss. Facts and Procedural History [2] On October 13, 2017, Gembala filed a complaint alleging fraud and other claims and seeking “immediate possession” of real property in Porter County. Appellants’ App. Vol. 2 at 19. Pratt filed a counterclaim and sought to quiet title on the real property. On April 30, 2019, Pratt moved for summary judgment. The trial court denied Pratt’s motion. This appeal ensued. Discussion and Decision [3] “‘It is the duty of this Court to determine whether we have jurisdiction before proceeding to determine the rights of the parties on the merits.’” DuSablon v. Jackson County Bank, ___ N.E.3d ___, No. 18A-MI-2259, 2019 WL 4582946, at *5 (Ind. Ct. App. Sept. 23, 2019) (quoting Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied). Jurisdiction is a question of law we review de novo. Id. An appeal from an interlocutory order is not allowed unless specific authority is granted by the Indiana Constitution, statutes, or the rules of court. Moser v. Moser, 838 N.E.2d 532, 534 (Ind. Ct. App. 2005), trans. denied. Moreover, any such express authorization for an 1 Thomas Nevitt and Kimberly Traxler, named defendants below, do not participate in this appeal. Court of Appeals of Indiana | Memorandum Decision 19A-CT-1631 | November 1, 2019 Page 2 of 4 interlocutory appeal is “strictly construed.” Id. (quoting Schwedland v. Bachman, 512 N.E.2d 445, 449 (Ind. Ct. App. 1987)). [4] On October 11, 2019, we issued an Order to Show Cause why this appeal should not be dismissed for lack of jurisdiction. In his response, Pratt avers that he is appealing from an interlocutory appeal as a matter of right under Indiana Appellate Rule 14(A)(4), which provides that an appeal from an interlocutory order “[f]or the sale or delivery of the possession of real property” may be taken as a matter of right. However, the trial court did not order the sale or delivery of the possession of real property in the order from which Pratt appeals. Rather, the trial court denied Pratt’s summary judgment motion seeking to quiet title in real property. Accordingly, “the trial court’s order effectively continued the status quo, having found disputed material issues of fact” precluding summary judgment on Pratt’s counterclaim. See Moser, 838 N.E.2d at 535. [5] In sum, Pratt’s interlocutory appeal cannot be taken as a matter of right because the trial court’s order did not order the sale or delivery of the possession of real property. And Pratt did not seek certification of this discretionary interlocutory appeal. This Court is, therefore, without subject matter jurisdiction to consider the merits of Pratt’s appeal. See id. (dismissing appeal from denial of summary judgment motion seeking immediate possession of real property for lack of jurisdiction). [6] Dismissed. Court of Appeals of Indiana | Memorandum Decision 19A-CT-1631 | November 1, 2019 Page 3 of 4 Bailey, J., and May, J., concur. Court of Appeals of Indiana | Memorandum Decision 19A-CT-1631 | November 1, 2019 Page 4 of 4
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