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

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
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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.
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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.
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Bailey, J., and May, J., concur.
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