Cheryl A. Pratt, Thomas Nevitt, and Kimberly J. Traxler v. Cynthia A. Gembala (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 1, 2019
• Docket: 19A-CT-1631
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 01 2019, 8:52 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Kevin W. Marshall Mark S.N. Chargualaf Hobart, Indiana Rodriguez, Chargualaf & Associates Merrillville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cheryl A. Pratt, Thomas Nevitt, November 1, 2019 and Kimberly J. Traxler, Court of Appeals Case No. Appellants-Defendants, 19A-CT-1631 Appeal from the Porter Superior v. Court The Honorable Jeffrey W. Clymer, Cynthia A. Gembala, Judge Appellee-Plaintiff. 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