James H. Kindred, Individually and on behalf of the Minor Child B.K. v. The Indiana Department of Child Services

FILED
May 27 2020, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS JANIE ATTORNEYS FOR APPELLEE
GIVENS, M.G., AND S.G. SUELLA FERRAND
Scott A. Norrick John R. McKay
Anderson, Indiana Samantha Paul
Hickam & Lorenz, P.C.
ATTORNEY FOR APPELLANT B.K.
Spencer, Indiana
Christopher Gilley
Anderson, Indiana
ATTORNEY FOR APPELLEE MINDY
HUGHES
APPELLANT PRO SE
Megan J. Schueler
James H. Kindred Ferguson Law
Solsberry, Indiana Bloomington, Indiana
ATTORNEY FOR APPELLEE
ESTACHIA EBERLE
Jeremy M. Dilts
Carson LLP
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020 Page 1 of 11
James H. Kindred, Individually May 27, 2020
and on behalf of the Minor Child Court of Appeals Case No.
B.K., and Janie Givens, 19A-PL-2428
Individually and on the behalf of Appeal from the Owen Circuit
the Minor Children M.G. and Court
S.G., The Honorable Erik Allen, Special
Appellants-Petitioners, Judge
Trial Court Cause No.
v. 60C02-1803-PL-115
The Indiana Department of
Child Services, Charlotte
Church, Stacy Zehr, Laura Fair,
Sonja Seymour, Rebel Rich,
Troy Givens,1 Bradley Givens,
Estachia Eberle, Suella Ferrand,
and Mindy Hughes,
Appellees-Defendants
May, Judge.
[1] James H. Kindred (“Kindred”), individually and on behalf of child B.K., and
Janie Givens (“Janie”), individually and on the behalf of children M.G. and
S.G., (collectively, “Appellants”) appeal the trial court’s May 23, 2019, order
1
This appeal concerns the trial court’s denial of Appellants’ motions with regards to Bradley Givens,
Estachia Eberle, Suella Ferrand, and Mindy Hughes. However, a party of record at trial is a party on appeal
and thus we include the names of the other defendants here. See Indiana Appellate Rule 17(A) (“A party of
record in the trial court . . . shall be a party on appeal.”).
Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020 Page 2 of 11
addressing several different pending motions in this case. Appellants present
multiple issues for our review, though we sua sponte conclude the order before
us is not a final judgment, despite the trial court’s certification of it as such.
Accordingly, we dismiss Appellants’ appeal and remand for further
proceedings.
Facts and Procedural History 2
[2] On March 22, 2018, Kindred filed a lawsuit under case number 60C02-1803-
PL-115 (“PL-115”) claiming defamation per se against Charlotte Church
(“Church”), an employee at the Department of Child Services (“DCS”), 3 and
Rebel Rich (“Rich”), who is the adult child of Janie’s ex-husband, Troy.
Kindred also filed a motion for change of judge with his initial pleading. On
April 9, 2018, Kindred amended his complaint to join Janie, M.G. and S.G., 4
and B.K. 5 as plaintiffs. His amended complaint also added defendants DCS;
2
Appellants filed an appendix with nine volumes of information in this case. While we appreciate the
thoroughness of counsel in presenting the record, Appellants’ citations thereto in their brief and reply briefs
are frequently incorrect. With such a large record, the incorrect citations to the record have significantly
hindered this court’s review of this matter. In addition, Appellants included information outside the record
pertaining to a third case filed by Kindred, 60C02-1810-PL-482. We remind counsel that the record on
appeal should include only those documents relevant to the proceedings and within the trial court’s record for
the case before us. See Ind. App. R. 50(A)(1) (appendix should contain “those parts of the record on appeal
that are necessary for the Court to decide the issues presented”); and see Ind. App. R. 27 (the “record on
appeal” consists of the clerk’s record and all proceedings before the trial court in the matter before us). We
admonish counsel to be more diligent in the preparation of the appellate record in the future.
3
All DCS employees were represented by DCS counsel throughout all of the proceedings.
4
M.G. and S.G. were minors, and Janie was named as a plaintiff on their behalf. The record suggests that
M.G. is Janie’s granddaughter and S.G. is Janie’s daughter.
5
B.K. was a minor, and Kindred acted on his behalf.
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Laura Fair (“Fair”), a DCS employee; Sonja Seymour (“Seymour”), a DCS
employee; and Troy Givens (“Troy”), Janie’s ex-husband.
[3] On September 26, 2018, the trial court in PL-115 consolidated 60C02-1803-PL-
205, a case Kindred filed in May 2018 against some of the same defendants,
into PL-115. In its order, the trial court required all future pleadings to be filed
under PL-115. On September 28, 2018, Kindred filed an objection to the trial
court’s order of consolidation and a motion for leave to amend the PL-115
complaint, which was denied on October 2, 2018.
[4] Appellants filed an amended complaint on October 26, 2018, and added
defendants Mindy Hughes (“Hughes”), Kindred’s ex-wife; Estachia Eberle
(“Eberle”), Hughes’ daughter; Bradley Givens (“Bradey”), Janie’s son; and
Sheila Ferrand 6 (“Ferrand”), Kindred’s niece. The amended complaint alleged
the defendants, either individually or in concert, violated Appellants’ rights
under 42 U.S.C. section 1983 and 18 U.S.C. section 241; committed several
conspiracies, false reporting, false arrest and imprisonment, intentional
infliction of emotional distress, false light, and defamation per se; and violated
Appellants’ “fundamental right to familial right to association and privacy[.]”
(Appellants’ App. Vol. VIII at 93) (formatting omitted). On December 3, 2018,
Appellants filed individual motions for default judgment against Bradley,
6
Ferrand is also referred to as Sheila Kindred in some pleadings.
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Hughes, Eberle, and Ferrand. On the same day, Appellants filed a motion for
judgment on the pleadings.
[5] On February 15, 2019, the trial court issued an order denying all pending
motions to dismiss filed by several parties in the interim and various motions
unrelated to this appeal. Regarding Appellants’ motions for judgment on the
pleadings and motions for default judgment, the trial court decided:
Plaintiffs’ Joint Motion for Judgment on the Pleadings and any
Plaintiffs’ Motion for Entry of Default Judgement are hereby
denied as to separate Defendants Indiana Department of Child
Services, Charlotte Church, Stacy Zehr, Laura Fair, Sonja
Seymour, and Fawn Miller, in both their individual and official
capacities. The Joint Motion for Judgment on the Pleadings if
[sic] further denied as to separate Defendants Rebel Rich and
Troy Givens. Each of these Defendants to now given to and
including March 15, 2019 to answer or otherwise respond to
Plaintiffs’ Joinder of Defendant Party’s, [sic] Amended
Complaint with Supplemental Claims filed October 26, 2018.
The Joint Motion for Judgment on the Pleadings as it relates to
the remaining Defendants and Plaintiffs’ Motions for Default
Judgment related to Brad Givens, Mindy Hughes, Suella
Ferrand, and Estachia Eberle are now set for hearing on March
15, 2019 at 10:30 a.m. These Defendants are advised that a final
judgment may be entered against them.
(Id. Vol. VI at 207.)
[6] On March 15, 2019, the trial court held a hearing as scheduled in its February
15, 2019, order. Appellants, DCS and its named defendant employees, Rich,
Troy, Eberle, Ferrand, Bradley, and Hughes all appeared. The trial court heard
Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020 Page 5 of 11
argument on the pending motion for judgment on the pleadings and default
judgment and took those matters under advisement. The trial court scheduled a
final pre-trial hearing for January 10, 2020, and a five-day jury trial to begin on
February 3, 2020.
[7] On May 23, 2019, the trial court issued the order before us in this appeal.
Therein, the trial court ordered:
1. The Motion for Judgment on the Pleadings has previously
been denied as to certain Defendants, and the Court now denies
the Plaintiffs’ Motion for Judgment on the Pleadings as it related
to all Defendant [sic], including separate Defendants Hughes,
Eberle, Bradley Givens, and Ferrand.
2. The Court concludes that under the circumstances of this case
that the matters shall be resolved on their merits as opposed to a
default. The Plaintiffs’ pending Motions for Default Judgment
filed December 3, 2018 and the Plaintiffs’ Motions for Default
Judgment filed on May 13, 2019,[ 7] are all hereby denied.
3. Plaintiffs’ Joint Motion to Strike Belated Answer of
Defendant Ferrand is hereby denied, and separate Defendant
Suella Ferrand’s Answer filed on May 3, 2019 is hereby
permitted and hereby accepted by the Court.
4. Attorney Megan J. Schueler, . . . is hereby appointed to
represent separate Defendant Mindy Hughes.
7
The defendants against whom Plaintiffs sought default judgment from in this motion is unclear from the
record before us.
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5. Attorney John Richards, . . . is hereby appointed to represent
separate Defendant Bradley Givens.
6. Plaintiffs’ Joint Motion to Strike Belated Answer of
Defendants Hughes and Eberle is hereby denied. The general
denials filed by Defendants Hughes and Eberle are permitted by
the Court, subject to amendment upon appearance of counsel.
7. The Court is seeking to appoint counsel to represent separate
Defendant Estachia Eberle. The Court will establish a time
frame for filing or amending an Answer for such Defendant upon
counsel being appointed. A separate order will be issued.
*****
9. Attorneys Schueler and Richards shall promptly enter their
Appearance and they shall have 30 days from the date of entry of
their Appearance to file an Answer or otherwise respond to
Plaintiffs’ Complaint.
(Id. Vol. V at 138-9) (emphasis in original) (footnote added).
[8] On May 24, 2019, Appellants filed a motion to certify the May 23 order for
interlocutory appeal or, in the alternative, declare the May 23 order as a final
judgment under Indiana Trial Rule 54. The parties continued to conduct
discovery and filed various additional motions in the interim. On October 4,
2019, the trial court denied Appellants’ motion to certify the May 23 order for
interlocutory appeal but granted Appellants’ request to declare its May 23 order
a final judgment under Indiana Trial Rule 54, stating, “[t]he Court hereby
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orders that there is no reason for delay and the May 23, 2019 order is a final
judgment on the matters addressed therein.” (Appellants’ App. Vol. II at 193.)
Discussion and Decision
[9] Subject matter jurisdiction concerns a court’s ability to hear and decide a case
based upon the class of cases to which it belongs. Warrick County v. Weber, 714
N.E.2d 685, 687 (Ind. Ct. App. 1999). Whether we have subject matter
jurisdiction is an issue we should raise sua sponte if the parties do not. Id. As we
have previously explained, “dismissal for lack of subject matter jurisdiction
takes precedence over the determination of and action upon other substantive
and procedural rights of the parties.” Id. (quoting Gorman v. Northeastern
REMC, 594 N.E.2d 843, 845 (Ind. Ct. App. 1992), decision clarified on denial of
reh’g 597 N.E.2d 366, trans. denied). Jurisdiction is a question of law that we
review de novo. Id.[10] Pursuant to Indiana Appellate Rule 5, our court has jurisdiction over appeals
from “Final Judgments of Circuit, Superior, Probate, and County Courts[.]”
Indiana Appellate Rule 2(H)(2) declares, in relevant part, that a judgment is
considered a final judgment when “(2) the trial court in writing expressly
determines under Trial Rule 54(B) . . . that there is no just reason for delay and
in writing expressly directs the entry of judgment . . . under Trial Rule 54(B) as
to fewer than all the claims or parties[.]” Indiana Trial Rule 54(B) states, in
relevant part:
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(B) Judgment Upon Multiple Claims or Involving Multiple
Parties. When more than one [1] claim for relief is presented in
an action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the court
may direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an
express direction for the entry of judgment. . . . A judgment as to
one or more but fewer than all of the claims or parties is final
when the court in writing expressly determines that there is no
just reason for delay, and in writing expressly directs entry of
judgment, and an appeal may be taken upon this or other issues
resolved by the judgment[.]
(Emphasis in original.)
[11] Here, as noted in the facts, the trial court expressly determined there was “no
reason for delay,” (Appellants’ App. Vol. II at 193), and declared the May 23,
2019, order a final judgment. However, we are not bound by the trial court’s
certification of the order as final. Troyer v. Troyer, 686 N.E.2d 421, 425 (Ind. Ct.
App. 1997). We review the trial court’s decision to certify an order as a final
judgment for an abuse of discretion. Ramco Industries, Inc. v. C & E Corp., 773
N.E.2d 284, 288 (Ind. Ct. App. 2002). To be properly certifiable as a final
judgment, the trial court’s order must “possess the requisite degree of finality,
and must dispose of at least a single substantive claim.” Id.[12] Appellants’ October 26, 2018, amended complaint alleged all named
defendants either individually or in concert violated Appellants’ rights under 42
U.S.C. section 1983 and 18 U.S.C. section 241; committed several conspiracies,
false reporting, false arrest and imprisonment, intentional infliction of
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emotional distress, false light, and defamation per se; and violated Appellants’
“fundamental right to familial right to association and privacy[.]” (Appellants’
App. Vol. VIII at 93) (formatting omitted). The trial court’s May 23, 2019,
order addressed Appellants’ motion for default judgement, motion for judgment
on the pleadings, motion to strike, and motion to quash and requests by
Hughes, Eberle, and Bradley for counsel. In denying all of Appellants’
motions, the trial court concluded, “that under the circumstances of this case
that the matters shall be resolved on their merits as opposed to default.” (Id.
Vol. V at 138.) Also in its order, the trial court appointed counsel for Hughes
and Bradley, and ordered that counsel to file answers to the October 26, 2018,
amended complaint within thirty days of the May 23, 2019. The trial court
indicated it was seeking to appoint Eberle counsel and would appoint counsel
and establish a time frame for that counsel to file an answer on Eberle’s behalf
in a future order.
[13] The directions for future action set forth by the trial court in its May 23, 2019,
order signals the order “places the parties’ rights in abeyance pending ultimate
decision by the trier of fact.” Cardiology Assocs. of Nw. Ind., P.C. v. Collins, 804
N.E.2d 151, 154 (Ind. Ct. App. 2004). Further, the order does not dispose of
any of the many substantive claims in this case. Therefore, the trial court
abused its discretion when it declared its May 23, 2019, order to be a final
judgment because the order did not possess the requisite degree of finality or
dispose of any of the substantive claims set forth in Appellants’ October 26,
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2018, amended complaint. 8 See Hoesman v. Sheffler, 886 N.E.2d 622, 635 (Ind.
Ct. App. 2008) (trial court’s order denying of the Hoesmans’ motion to amend
and motion to consolidate was not a final judgment despite the trial court’s
certification thereof under Indiana Trial Rule 54 because order did not dispose
of any claims as to any parties). 9
Conclusion
[14] We conclude the trial court abused its discretion when it certified its May 23,
2019, order as a final judgment for the purposes of this appeal. Therefore, as
the order is not final and the trial court denied Appellants’ motion to certify the
order for interlocutory appeal, we do not have jurisdiction over these
proceedings. Accordingly, we dismiss and remand for further proceedings.
[15] Dismissed and remanded.
Crone, J., and Pyle, J., concur.
8
Under Indiana Appellate Rule 2(H), another way we would have jurisdiction over the matter would be if
we accepted it as a permissive interlocutory appeal. As the trial court denied Appellants’ motion to certify its
May 23, 2019, order as an interlocutory appeal, we cannot assert jurisdiction under that portion of the rule.
9
We acknowledge that our Indiana Supreme Court has held that we may consider an untimely appeal on its
merits at our discretion. See In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 579 (Ind. 2017) (appellate
court can consider case on its merits despite the fact that the order presented for review was not a final
judgment). Considering the complicated and sensitive nature of the claims herein, we decline to do so.
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