MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Nov 21 2019, 9:03 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE,
John A. Kraft                                            CITY OF MADISON; CITY OF
Young, Lind, Endres & Kraft                              MADISON HISTORIC DISTRICT
New Albany, Indiana                                      BOARD OF REVIEW; AND
                                                         CAMILLE B. FIFE, IN HER
                                                         CAPACITY AS PRESERVATION
                                                         PLANNER FOR THE OFFICE OF
                                                         HISTORIC PRESERVATION OF
                                                         THE CITY OF MADISON AND AN
                                                         EMPLOYEE OF THE CITY OF
                                                         MADISON
                                                         William Joseph Jenner
                                                         Jenner & Pattison
                                                         Madison, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Thomas L. Imes, Maryanne W.                              November 21, 2019
Imes, and St. Anne 420N, LLC,                            Court of Appeals Case No.
Appellants-Plaintiffs,                                   19A-PL-821
                                                         Appeal from the Jefferson Circuit
        v.                                               Court
                                                         The Honorable W. Gregory Coy,
City of Madison; City of                                 Special Judge
Madison Historic District Board                          Trial Court Cause No.
of Review; The Westerly Group,                           39C01-1305-PL-466
Inc.; Camille B. Fife; Camille B.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019             Page 1 of 14
      Fife in her capacity as
      Preservation Planner of the
      Office of Historic Preservation of
      the City of Madison and an
      Employee of Madison, IN; Duke
      Energy Indiana, LLC; and
      Camille B. Fife, as an Agent and
      Employee of the Westerly
      Group, Inc.,
      Appellees-Defendants.



      Pyle, Judge.


                                       Statement of the Case
[1]   This underlying case stems from a statutorily created, private-right-of-action

      lawsuit brought by landowners in the historic district of Madison, Indiana

      against various defendants regarding a Madison historic ordinance. Appellants-

      Plaintiffs, Thomas L. Imes (“Thomas”), Maryanne W. Imes (“Maryanne”)

      (collectively, “the Imeses”), and St. Anne 420N, LLC (“St. Anne”) appeal the

      trial court’s grant of summary judgment to Appellee-Defendants, City of

      Madison (“the City”), City of Madison Historic District Board of Review

      (“Historic Board”), Camille B. Fife (“Fife”) in her capacity as Preservation




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 2 of 14
      Planner of the Office of Historic Preservation of the City and as an employee of

      the City.1


[2]   In this appeal, the Imeses and St. Anne attempt to challenge the trial court’s

      order granting summary judgment to some, but not all, of the defendants in this

      underlying case on some, but not all, of the claims raised in the complaint. We

      sua sponte conclude that because the trial court’s order was neither a final

      judgment nor an appealable interlocutory order, the Imeses and St. Anne have

      filed a premature appeal. We decline to disregard this premature appeal, and

      we dismiss the appeal without prejudice to their right to file an appeal once a

      final judgment has been entered or the order has been certified for an

      interlocutory appeal.


[3]   We dismiss.


                                                      Issue
                   Whether the Imeses and St. Anne have prematurely appealed
                   because the trial court’s order granting summary judgment was
                   neither a final judgment nor an appealable interlocutory order.




      1
       The trial court also granted summary judgment to the City, Historic Board, and Fife on claims brought by
      Plaintiff, Joe Hammond (“Hammond”). Additionally, the trial court granted summary judgment in favor of
      Defendant, Duke Energy (“Duke Energy”), in relation to a claim filed against it by Hammond. Hammond
      does not appeal the trial court’s grant of summary judgment to any of these defendants.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019              Page 3 of 14
                                                         Facts
[4]   The Imeses own real estate at 419 Broadway in Madison, Indiana (“the Imeses

      Property”). St. Anne is a limited liability company, and the Imeses are the sole

      members. St. Anne owns real estate at 420 Broadway in Madison, Indiana

      (“the St. Anne Property”). The Imeses Property and the St. Anne Property are

      located in the historic district of Madison, Indiana.


[5]   In 1982, the City adopted an historic preservation ordinance (“the Historic

      Preservation Ordinance”). Section 151.45 of this ordinance established the

      Historic Board to oversee and apply the provisions of the Historic Preservation

      Ordinance. This section also provided that the Historic Board was to hold

      monthly meetings to review applications for certificates of appropriateness

      (COA)2 and that the board “shall adopt rules for the transaction of its business

      and consideration of applications not inconsistent herewith which shall provide

      for the time and place of regular meetings and for the calling of special

      meetings.” (Appellees’ App. Vol. 2 at 118).


[6]   In 2009, the City’s Common Council adopted an ordinance, Ordinance No.

      2009-13 (“the 2009 Ordinance”), which amended Section 151.30 of the Historic

      Preservation Ordinance to read as follows:




      2
        A certificate of appropriateness is “[a] document issued by the [Historic Board] allowing an applicant to
      proceed with a proposed alteration, demolition, or new construction in the Madison Historic District,
      following a determination of the proposal’s suitability according to applicable criteria.” (Appellees’ App.
      Vol. 2 at 107).

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019                   Page 4 of 14
        § 151.30 CONSIDERATIONS OF BOARD.

        It is not the intent of this chapter to discourage new construction
        or other development, nor to limit it to any one period of
        architectural style, but to preserve the integrity of the historic
        buildings and to insure the compatibility of any new work
        constructed in the historic district. In making its decisions, the
        Board shall consider the effects of proposed alterations or
        construction on both the individual structure involved and on the
        neighborhood surrounding the structure. The Board shall also
        consider the Madison Residential Design Review Guidelines,
        contained in Appendix A, and the Madison Commercial Design
        Review Guidelines, contained in Appendix B. The Board may
        amend the Guidelines from time to time subject to approval by the
        Common Council.

(App. Vol. 2 at 214) (emphasis added). The Madison Residential Design

Review Guidelines (“Residential Guidelines”) contained instructions for

providing notice of a hearing when a person applies for a COA. Specifically,

the Residential Guidelines provided as follows:


        (5) Notification. Before meeting with the [Historic Board],
        written notice of such hearing shall be mailed by the applicant by
        certified mail with return receipt requested at least ten (10) days
        before the day of the hearing. These letters must be mailed to
        each person who owns an interest in the real estate adjoining the
        property including owners of real estate at corners, across streets,
        alleys or easements, as well as others who may share a common
        boundary and all other persons who in the opinion of the
        Building Inspector have an interest in the outcome of the COA
        application.

(App. Vol. 2 at 220). Apparently, the Historic Board posted the 2009

Ordinance and the Residential Guidelines on their website.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 5 of 14
[7]    In August 2011, the Historic Board amended its rules of procedure and the

       notice procedures for seeking a COA to the following:


               (5) Notification. Before the regular [Historic Board] meeting,
               applicants shall post signs obtained from the Preservation
               Planner, which announce the date, time, and location of the
               meeting and the applicant’s proposed changes as published in the
               appropriate legal notice. The sign(s) shall also contain language
               which specifies that the meeting is open to all residents of
               Madison who wish to attend. Signs shall be posted at the
               property for 15 days immediately prior to the meeting and must
               be visible from all adjoining public streets and alleys. A fee of
               $2.00 per sign will be charged the applicant at the time of filing.

       (Appellees’ App. Vol. 2 at 45). At that time, Fife was the Preservation Planner

       for the Historic Board.


[8]    In February 2013, Donald Weist (“Weist”), a resident in Madison’s historic

       district, filed an application for a COA to add a covered porch onto his house

       (“Weist COA application”). Weist posted signs announcing the Historic Board

       meeting and followed the amended notice procedure. On February 25, 2013,

       the Historic Board approved the Weist COA application.


[9]    At some point thereafter, the Imeses contacted Fife to tell her that they had not

       received written notice of the Weist COA application and to inform her that the

       City’s website still contained the certified mail notice procedure. Fife then

       changed the website to reflect the amended notice procedure.


[10]   In May 2013, the Imeses filed an initial complaint, pursuant to INDIANA CODE

       § 36-7-11-21 or the historic preservation statute, against the Historic Board and

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 6 of 14
       Fife in her capacity as Preservation Planner. INDIANA CODE § 36-7-11-21

       creates a “private right of action” for an “interested party”3 “to enforce and

       prevent violation of a provision of this chapter or an ordinance adopted by a

       unit under this chapter[.]” I.C. § 36-7-11-21(b). The crux of their complaint

       was that the Historic Board had engaged in an “illegal” action by changing the

       notice procedure without the approval of the City’s Common Council and that

       Fife had engaged in an “illegal” action by changing the website. (App. Vol. 2 at

       44, 46). The Imeses sought to enjoin the Historic Board and Fife from

       following and enforcing the amended notice procedure and to instead require

       them to follow the notice procedures set forth in the 2009 Ordinance and to

       change the website to reflect the 2009 Ordinance. The Imeses also sought

       attorney fees pursuant to INDIANA CODE § 36-7-11-21(f).4


[11]   Thereafter, the Imeses filed additional amended complaints. In January 2017,

       the Imeses—with St. Anne and Hammond added as additional plaintiffs—filed

       a third amended complaint against multiple defendants, including the

       following: the City; the Westerly Group, Inc. (“the Westerly Group”); the

       Historic Board; Fife, individually, in her capacity as Preservation Planner, as an

       employee of the City and the Historic Board, and as an employee of the




       3
        An “interested party” includes “[a]n owner or occupant owning or occupying property located in a historic
       district established by an ordinance adopted under this chapter.” I.C. § 36-7-11-21(a)(5).
       4
         This subsection provides that “[a]n interested party who obtains a favorable judgment in an action under
       this section may recover reasonable attorney’s fees and court costs from the person against who judgment
       was rendered.” I.C. § 36-7-11-21(f).

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019                 Page 7 of 14
       Westerly Group; and Duke Energy. This third amended complaint contained

       five counts against various defendants.


[12]   All the plaintiffs filed Counts 1 and 2 against all the defendants listed above

       except Duke Energy. In Count 1, the plaintiffs again raised a claim pursuant to

       INDIANA CODE § 36-7-11-21, challenging the amended notice procedure and

       the change to the website and seeking to require the City, the Westerly Group,

       the Historic Board, and Fife (individually, in her capacity as Preservation

       Planner, as an employee of the City and the Historic Board, and as an

       employee of the Westerly Group) to follow the notice procedures set forth in

       the 2009 Ordinance.


[13]   In Count 2, the plaintiffs raised claims and sought treble damages pursuant to

       INDIANA CODE § 34-24-3-1, also referred to as the Crime Victims Statute,

       which allows for a person who “suffers a pecuniary loss as a result of a violation

       of IC § 35-43” or other offenses to “bring a civil action against the person who

       caused the loss[.]” I.C. § 34-24-3-1. Specifically, the Imeses, St. Anne, and

       Hammond alleged that the City, the Westerly Group, the Historic Board, and

       Fife (individually, in her capacity as Preservation Planner, as an employee of

       the City and the Historic Board, and as an employee of the Westerly Group)

       had violated various chapters of INDIANA CODE § 35-43 by committing

       counterfeiting, forgery, criminal conversion, and computer trespass. See IND.

       CODE §§ I.C. § 35-43-5-2(a); 35-43-5-2(d); 35-43-4-3(a); and 35-43-2-3(b),

       respectively.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 8 of 14
[14]   The remaining three counts were not brought by all the plaintiffs. The claim in

       Count 3 of the third amended complaint was raised by Hammond against Duke

       Energy, and this claim related to the potential placement of a utility pole on

       Hammond’s property. The claim in Count 4 was raised by the Imeses against

       the Westerly Group, the City, the Historic Board, and Fife (individually, in her

       capacity as Preservation Planner, as an employee of the City and the Historic

       Board, and as an employee of the Westerly Group). In Count 4, the Imeses

       alleged that these defendants had “malicious[ly] misrepresent[ed]” facts

       regarding the reason for the potential placement of the utility pole on

       Hammond’s property, and they also alleged that these defendants’ actions of

       enforcing the amended notice procedure had denied them notice and the

       opportunity to be heard at the hearing on the Weist COA application, resulting

       in a violation of their rights under the 14th Amendment of the U.S.

       Constitution and Article 1, § 12 of the Indiana Constitution. (App. Vol. 2 at

       77).5 Finally, Count 5 of the third amended complaint was brought by the

       Imeses and St. Anne against the City. In this count, they alleged that: (1) the

       City had retaliated against them by issuing an invalid stop-work order for the

       St. Anne Property; and (2) a member of the City’s P.A.C.E. Review




       5
        We note that the chronological case summary shows that Count 4 of the Imeses’ second amended
       complaint was dismissed under Indiana Trial Rule 12(B)(6) for failure to state a claim in September 2016.
       There is, however, no indication in the record that any of the five counts contained in the third amended
       complaint, which is the relevant version of complaint in this case, were ever dismissed.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019                Page 9 of 14
       Committee6 had made remarks about the Imeses during a hearing and that

       these remarks had slandered and defamed them.


[15]   The defendants were represented by different attorneys. The City, the Historic

       Board, and Fife (in her capacity as Preservation Planner and as an employee of

       the City and the Historic Board) were represented by one attorney, Duke was

       represented by a second attorney, and the Westerly Group and Fife (as an

       employee of the Westerly Group) were represented by a third attorney.


[16]   In January 2019, some of the defendants filed for summary judgment on some

       of the five claims raised in the third amended complaint. Specifically, Duke

       Energy filed a motion for summary judgment7 against Hammond on Count 3,

       and the City, the Historic Board, and Fife (in her capacity as Preservation

       Planner and as an employee of the City and the Historic Board) filed a motion

       for summary judgment against the Imeses, St. Anne, and Hammond on Counts

       1, 2, and 5. In regard to the summary judgment motion filed by the City, the

       Historic Board, and Fife, they argued that they were entitled to governmental

       immunity under the Indiana Tort Claims Act and that the plaintiffs were unable

       to prove the elements of the alleged offenses under various chapters of INDIANA




       6
           P.A.C.E. is an acronym for Preservation and Community Enhancement.
       7
           Duke Energy’s summary judgment motion is not contained in the Appendix.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 10 of 14
       CODE § 35-43. Their summary judgment motion did not seek summary

       judgment on Count 4.8


[17]   The trial court held a summary judgment hearing in March 2019. Thereafter,

       the trial court granted both the summary judgment motion filed by Duke

       Energy against Hammond and the summary judgment motion filed by the City,

       the Historic Board, and Fife (in her capacity as Preservation Planner and as an

       employee of the City and the Historic Board) against the Imeses, St. Anne, and

       Hammond. Notably, the trial court’s order did not grant summary judgment to

       the Westerly Group or Fife (as an employee of the Westerly Group), nor did

       the order contain the “magic language” of Indiana Trial Rule 56(C), indicating

       that there was no just reason for delay and expressly directing entry of judgment

       as to less than all issues, claims, or parties. The Imeses and St. Anne, but not

       Hammond, then filed a notice of appeal.


                                                     Decision
[18]   The Imeses and St. Anne argue that the trial court erred by granting summary

       judgment to the City, Historic Board, and Fife.


[19]   We, however, decline to review their challenge at this juncture because the trial

       court’s order that they attempt to appeal was neither a final judgment nor an

       appealable interlocutory order. See In re Adoption of S.J., 967 N.E.2d 1063,



       8
         The record on appeals does not indicate that Count 4 of the third amended complaint was dismissed. Nor
       does the record indicated that the Westerly Group and Fife (as an employee of the Westerly Group) ever filed
       a summary judgment motion or were ever dismissed from the action.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019              Page 11 of 14
       1065-66 (Ind. Ct. App. 2012). As set forth in Indiana Appellate Rule 2(H), a

       judgment is a “final judgment” if:


               (1) it disposes of all claims as to all parties; [or]

               (2) the trial court in writing expressly determines under Trial Rule
               54(B) or Trial Rule 56(C) that there is no just reason for delay
               and in writing expressly directs the entry of judgment (i) under
               Trial Rule 54(B) as to fewer than all the claims or parties, or (ii)
               under Trial Rule 56(C) as to fewer than all the claims or parties[.]


       Ind. Appellate Rule 2(H) (emphasis added). “[I]f a trial court’s summary

       judgment order is not final as to all issues, claims, and parties, the

       order must include the “magic language” set forth in Trial Rule 56(C) to be

       considered final.” Indy Auto Man, LLC v. Keown & Kratz, LLC, 84 N.E.3d 718,

       721 (Ind. Ct. App. 2017) (emphasis in original). “Otherwise, a summary

       judgment order disposing of fewer than all claims as to all parties remains

       interlocutory in nature.” Id. (citing Martin v. Amoco Oil Co., 696 N.E.2d 383,

       385 (Ind. 1998), cert. denied). If an order is not a final judgment, then an

       appellant may appeal the order only if it is an appealable interlocutory order.

       See Adoption of S.J., 967 N.E.2d at 1066.


[20]   In D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574 (Ind. 2017), our supreme court

       discussed the procedural implications of an appellant who files a “premature”

       or untimely notice of appeal from a judgment that is not a final judgment. D.J.,

       68 N.E.3d at 578. The D.J. Court applied the rational from In re Adoption of

       O.R., 16 N.E.3d 965 (Ind. 2014), which applied to an untimely notice of appeal

       that was “belated,” and held that a “reviewing court is not deprived of
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 12 of 14
       jurisdiction if the notice is untimely—meaning belated or premature.” Id. The

       Court discussed the distinction between “jurisdiction” and “forfeiture” and

       explained that an appellant’s untimely notice of appeal results in the forfeiture

       of the appellant’s right to appeal, not the divestiture of an appellate court’s

       appellate jurisdiction. Id. at 579. The D.J. Court further explained that when

       an appellant has forfeited his right to appeal, our appellate courts retain

       “jurisdiction to disregard the forfeiture and resolve the merits” of the untimely

       appeal. Id. The Court, however, emphasized that “it is never error for an

       appellate court to dismiss an untimely appeal[.]” Id.


[21]   Here, the trial court’s order at issue was not a final judgment under Appellate

       Rule 2(H) nor was it an appealable interlocutory order. The trial court’s order

       was not a “final judgment” under Appellate Rule 2(H)(1) because it did not

       dispose of all claims as to all parties and because the trial court did not include

       the “magic language” required to meet the “bright line” rule under Indiana

       Trial Rule 56(C). See Indy Auto Man, 84 N.E.3d at 721 (explaining that the trial

       court’s summary judgment order was not final where it did not dispose of all

       issues as to all parties and did not include the “magic language” from

       Trial Rule 56(C) that would have converted the non-final order into a final

       order). Additionally, the trial court’s summary judgment order at issue here is

       not an appealable interlocutory order as of right under Appellate Rule 14(A)

       because it does not fall within one of the categories of Rule 14(A) nor is it a

       discretionary interlocutory appealable order under Appellate Rule 14(B)

       because the Imeses and St. Anne neither requested the trial court to certify the


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 13 of 14
       interlocutory order nor sought permission from our Court to accept the

       interlocutory appeal. See Adoption of S.J., 967 N.E.2d at 1066; see also App. R.

       14. Because the trial court’s order is not a final appealable order or an

       appealable interlocutory order, the Imeses’ and St. Anne’s attempt to appeal the

       non-final order is untimely—in this case, premature. See D.J., 68 N.E.3d at 578-

       79. We decline to disregard this premature appeal, especially here, where the

       trial court has not yet issued a final order. See Manley v. Zoeller, 77 N.E.3d 1227,

       1231 (Ind. Ct. App. 2017) (“We do not believe the D.J. opinion should be taken

       as an invitation to open the floodgates to premature appeals from non-final

       judgments.”). Accordingly, we dismiss this appeal without prejudice to their

       right to file an appeal once a final judgment has been entered or the order has

       been certified for an interlocutory appeal. See Indy Auto Man, 84 N.E.3d at 722

       (dismissing the appellant’s appeal without prejudice where the summary

       judgment order being appeal was not a final judgment).


[22]   Dismissed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-821 | November 21, 2019   Page 14 of 14
