Sally Witherspoon v. Tawanna Brown (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Mar 17 2017, 8:42 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Douglas M. Grimes Eric Oden Clark
Douglas M. Grimes, PC Munster, Indiana
Gary, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sally Witherspoon, March 17, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1608-SC-1816
v. Appeal from the Lake Superior
Court
Tawanna Brown, The Honorable Elizabeth F.
Appellee-Plaintiff. Tavitas, Judge
Trial Court Cause No.
45D03-1605-SC-5
Robb, Judge.
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Case Summary and Issue
[1] Sally Witherspoon brings this interlocutory appeal following the trial court’s
order granting immediate possession of her property and residence to Tawanna
Brown. Witherspoon raises two arguments on appeal which we consolidate
and restate as whether there was an improper delay in granting her motion to
stay proceedings such that she was prejudiced. Concluding her appeal is
untimely, we dismiss.
Facts and Procedural History
[2] On May 1, 2015, Brown purchased property located at 1708 Central Drive in
Gary, Indiana, at a tax sale. At the time, the property was in Witherspoon’s
possession. On February 23, 2016, Brown filed a Notice of Claim in the Lake
Superior Court seeking immediate possession of the property and damages.1
[3] Following a hearing on August 5, 2016, the trial court granted Brown’s motion,
ordered immediate possession of the property delivered to her, and scheduled a
hearing on damages for September 27, 2016. On August 10, 2016,
Witherspoon filed a notice appeal and a motion to stay proceedings pending
1
On March 28, 2016, Witherspoon’s neighbor, Marion Williams, filed a motion to intervene alleging a large
portion of Witherspoon’s house encroaches upon his property. The trial court granted his motion to
intervene. Witherspoon’s brief argues the trial court’s alleged improper delay in granting her motion to stay
proceedings also prejudiced Williams. Although they share the same attorney, only Witherspoon’s name is
listed on the notice of appeal. Therefore, it is clear Witherspoon does not have standing on appeal to seek
relief for any injury to Williams. See Campbell v. El Dee Apartments, 701 N.E.2d 616, 621 (Ind. Ct. App. 1998)
(noting the rule of standing “bars litigants from asserting the right or legal interests of others in order to
obtain relief from injury themselves”).
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appeal. Witherspoon voluntarily vacated the premises on August 15, 2016. On
August 17, 2016, the trial court granted Witherspoon’s motion to stay
proceedings pending appeal. Witherspoon now brings this interlocutory
appeal.
Discussion and Decision
[4] Indiana Rule of Appellate Procedure 14(A) provides:
Appeals from the following interlocutory orders are taken as a
matter of right by conventionally filing a Notice of Appeal with
the Clerk within thirty (30) days after the notation of the
interlocutory order in the Chronological Case Summary:
***
(4) For the sale or delivery of the possession of real
property . . . .
Following the trial court’s order directing immediate possession of the property
be delivered to Brown, Witherspoon filed a notice of appeal invoking this
appellate rule. However, in pursuing this appeal, Witherspoon changed course
and does not challenge the trial court’s order granting immediate possession to
Brown or allege how it was error to do so. Instead, Witherspoon challenges the
trial court’s granting of her own motion to stay proceedings on the grounds the
trial court granted it two days too late to benefit her since she had already
vacated the premises. A motion to stay proceedings is not listed in the
enumerated grounds for interlocutory appeals as a matter of right under Indiana
Rule of Appellate Procedure 14(A), nor has Witherspoon sought the trial
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court’s certification of its order granting her motion to stay as a discretionary
interlocutory appeal under Appellate Rule 14(B). See In re A.D., 737 N.E.2d
1214, 1216 (Ind. Ct. App. 2000) (addressing an appeal from an order granting a
motion to stay proceedings that was certified for interlocutory appeal).
Therefore, Witherspoon’s notice of appeal is untimely. See In re D.J. v. Ind.
Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017) (noting an “untimely”
notice of appeal can be belated or premature).
[5] The untimely filing of a notice of appeal results in a forfeiture of the right to
appeal. Ind. Appellate Rule 9(A)(5). However, as our supreme court has
recently stated, “[f]orfeiture and jurisdiction are not the same.” In re D.J., 68
N.E.3d at 579 (alteration in original) (citation omitted). Forfeiture refers to the
loss of a right, privilege, or property, while jurisdiction refers to a court’s power
to decide a case. Id. “[A]n untimely notice of appeal does not divest a
reviewing court of jurisdiction.” Id. Therefore, although her appeal is
untimely, we may elect to decide the merits of Witherspoon’s appeal. See
generally id. at 578-80.
[6] We elect to dismiss Witherspoon’s untimely appeal. Upon review, it is clear it
is not the type of case that warrants deviation from the appellate rules. See id. at
579-80 (noting the cases in which reviewing courts have deviated from the
appellate rules include cases involving “weighty parental interest[s]” or
constitutional rights). Further, it is not entirely clear what Witherspoon seeks
to accomplish by challenging the trial court’s order granting her own motion to
stay proceedings, as she has already voluntarily vacated the premises.
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Conclusion
[7] Although Witherspoon properly filed a notice of appeal following the trial
court’s order granting immediate possession of her property and residence to
Brown, her brief on appeal does not challenge that order. Instead, Witherspoon
challenges the trial court’s grant of her subsequent motion to stay proceedings.
An order granting a motion to stay proceedings is not appealable as a matter of
right and Witherspoon has not asked the trial court to certify its order granting
a stay as a discretionary interlocutory appeal. Therefore, Witherspoon’s appeal
is untimely and we dismiss.
[8] Dismissed.
Kirsch, J., and Barnes, J., concur.
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