MEMORANDUM DECISION                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Jan 23 2018, 7:58 am

this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
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court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Justin B. Mills                                          Mickey K. Weber
Marengo, Indiana                                         Jeffersonville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steve Webb,                                              January 23, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         10A01-1604-MI-822
        v.                                               Appeal from the Clark Circuit
                                                         Court
Ronald “Ron” Ellis,                                      The Honorable Andrew Adams,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         10C01-1511-MI-205




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018           Page 1 of 12
                                Case Summary and Issues
[1]   Joshua Rodriquez, Ronald Ellis, and Steve Webb were among six candidates

      for three at-large seats on the Jeffersonville City Council, finishing in third,

      fourth, and fifth place, respectively. After Webb filed for a recount, and a

      recount commission was appointed, the commission declared Webb the third-

      place finisher and certified the results. Rodriquez appealed the commission’s

      certification and the trial court reversed, appointed a second commission, and

      ordered a second recount. Webb appeals, raising three issues for our review.

      However, Rodriquez has filed a motion to dismiss this appeal, raising the issue

      of whether Webb appeals from a final judgment.1 Concluding the order

      reversing the commission’s certification is not a final, appealable order, and that

      Webb failed to have the order certified for a discretionary interlocutory appeal,

      we dismiss.



                             Facts and Procedural History
[2]   The City of Jeffersonville, Indiana, is governed, partially, by a nine-member

      city council, consisting of six district seats and three at-large seats. On

      November 3, 2015, the City of Jeffersonville conducted an election wherein six

      candidates, including Rodriquez, Ellis, and Webb, competed for the three at-




      1
        While this appeal was pending, Rodriquez died. Ellis, also a party to the underlying recount action, was
      elected by the Clark County Democratic Party to serve as Rodriquez’s successor. Ellis was sworn into office
      on April 10, 2017, and currently serves as a member of the Jeffersonville City Council. Ellis has been
      substituted as a party to this appeal in place of Rodriquez.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018          Page 2 of 12
      large seats on the Jeffersonville City Council. According to the Clark County

      Clerk’s Summary Report of Election on November 13, 2015, results were as

      follows:


              1. Matt Owen (R):                  5,672

              2. Nathan Samuel (D):              5,524

              3. Joshua Rodriquez (D): 5,090

              4. Ron Ellis (D):                  5,076

              5. Steve Webb (R):                 5,072

              6. Steve Cooley (R):               4,730

      Appealed Order at 1, ¶ 5. Almost 900 absentee ballots cast in the county’s

      election were improperly printed and were therefore unreadable by a machine

      counter. However, less than three hundred of the improperly printed ballots

      were cast in Jeffersonville and thus included the election for Jeffersonville City

      Council.


[3]   On election day, the Clark County Election Board determined that the

      improperly printed ballots should be remade. Indiana Code section 3-11.5-6-12

      provides that all duplicate cards must be clearly labeled “duplicate” and “bear a

      serial number that shall be recorded on the damaged or defective card.” The

      ballots were remade by a team composed of Susan Popp, the Clerk of the Clark

      County Circuit Court, and Jack Coffman, a Clark County Commissioner.

      Although the remade ballots were marked “duplicate” they were not assigned

      serial numbers.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018   Page 3 of 12
[4]   Webb, placing only eighteen votes behind the third-place finisher, Rodriquez,

      timely filed a petition for recount and election contest. On December 8, 2015,

      the court appointed John Perkins (D), Anthony Wadsworth (R), and Nick

      Mobley,2 to serve as the recount commissioners and Susan Clark to serve as the

      recount manager. The recount began on December 14, and the counters

      completed recounting four precincts before seeking further guidance from the

      recount commission.


[5]   On December 16, the recount commission submitted a “Recount Order” to the

      trial court and determined that the four precincts that had already been counted

      should not be recounted. The recount commission, assisted by vote counters

      chosen by the candidates and approved by the recount commission, conducted

      a hand-recount of the remaining precincts. The remade ballots were not

      counted. Instead, counters were provided with the original ballots from which

      to determine the voter’s intent.


[6]   After the recount was concluded, the recount commission conducted a hearing

      on December 21 to permit the parties the opportunity to present argument on

      challenged ballots as well as issues pertaining to the recount itself. After the

      hearing, the recount commission calculated the total votes in a private meeting

      before announcing Rodriquez was the third-place finisher. Rodriquez requested




      2
        Indiana Code section 3-12-6-16 provides that a recount commission must consist of three members, one
      from each major political party qualified to vote in the county in which the election is being recounted, and a
      machine mechanic, familiar with the ballot card voting systems or electronic voting systems used in the
      election.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018             Page 4 of 12
      that the commission certify its proclamation; Webb objected to certification,

      citing Indiana’s Open Door law, and asked that the votes be calculated

      publicly.3 The recount commission agreed and read each candidate’s precinct

      vote total aloud before calculating their total number of votes. Upon public

      recount, Webb placed in third, Rodriquez in fourth, and the commission filed

      its “Certification of Election Recount By Recount Commission” with a

      handwritten indication that John Perkins declined to certify the results. The

      recount commission certified the following results:


              3. Steve Webb (R):                 5,039

              4. Joshua Rodriquez (D): 4,966

              5. Ron Ellis (D):                  4,955

      Appealed Order at 3, ¶ 17. Rodriquez appealed the election’s certification to

      the trial court.


[7]   The trial court scheduled a hearing on February 11, 2016. Prior to the hearing,

      Rodriquez sent Webb interrogatories to which Webb objected, claiming that

      new evidence could not be presented at the appeal hearing. Webb filed a

      motion in limine to that effect, seeking the prohibition of new evidence on

      appeal. The trial court denied Webb’s motion in limine and Webb filed a




      3
       Indiana Code section 3-12-6-21(d) provides, “The proceedings of the recount commission shall be
      performed in public under IC 5-14-1.5 (the Open Door Law).”

      Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018        Page 5 of 12
      motion requesting the trial court certify the issue for interlocutory appeal. The

      trial court denied the request.


[8]   At the hearing on February 11, Rodriquez called witnesses over Webb’s

      objections. Ginger Neal, a counter in the recount process, testified that she had

      not received any “training” from the recount commission but stated that the

      commission’s members were present throughout the entire count process. Id. at

      2, ¶ 13. When presented with tally sheets for explanation, Neal admitted that

      the tally sheets were marked by her and the other counters and that they were

      confusing. Neal testified that she disagreed with the finding of the Recount

      Commission but understood how the Commission could have reached its

      conclusion. Another counter, Nicole Yates, provided similar testimony, stating

      that she had not received training and that she disagreed with the finding of the

      Recount Commission but understood how it could have reached a different

      conclusion than she did.


[9]   The trial court entered its findings of fact and conclusions of law on March 24,

      2016. The court concluded that Rodriquez had presented evidence to support

      his claim that “procedural defects by the recount commission that affected the

      outcome of the recount[,]” and that the commission had failed to comply with

      several applicable statutes. Appealed Order at 4, ¶¶ 6, 7, and 11. The trial

      court therefore granted Rodriquez’s appeal but did not announce a remedy,

      instead scheduling a hearing for April 11. At the hearing, the trial court

      appointed a second recount commission to perform another recount set to begin

      April 16.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018   Page 6 of 12
[10]   On April 13, Webb filed a “Notice of Appeal,” a “Motion to Stay Proceedings

       Pending Disposition of Matters on Appeal,” and a “Motion for Hearing.” The

       trial court set a hearing for April 15. Rodriquez filed a motion to be seated until

       the recount was concluded. At the hearing on April 15, Webb filed six

       additional motions and made an oral motion for an interlocutory appeal. The

       trial court ruled as follows:


               (1) The court denied Webb’s “Motion to Stay Proceedings
                   Pending Disposition of Matters on Appeal”


               (2) The court denied Webb’s oral “Motion for Interlocutory
                   Appeal”


               (3) The court granted Rodriquez’s “Motion to Seat Rodriquez
                   Until Recount Concluded”


               (4) The court granted Webb’s “Motion for Change of Venue from
                   the Judge and Findings of Facts and Conclusions of Law”


               (5) The court granted Webb’s “Motion for Findings of Fact and
                   Conclusions of Law”


               (6) The court noted on the record Webb’s “Objection to Second
                   Recount,” “Court’s Appointment of a 2nd Recount
                   Commission,” “Motion for Hearing Before 2nd Recount
                   Commission Re: Procedure,” “Notice of Appeal of Denial of
                   Request for Stay of Proceedings and Request for Expedited
                   Transcript of Proceedings,” but left those issues for the
                   assigned judge.


       Appellant’s Appendix, Volume 2 at 26. Webb now appeals.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018   Page 7 of 12
                                     Discussion and Decision                                4




                                               I. Final Judgment
[11]   “The authority of the Indiana Supreme Court and Court of Appeals to exercise

       appellate jurisdiction is generally limited to appeals from final judgments.”

       Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind. 2006). Succinctly stated, a

       judgment is a final judgment if it ends the particular case and leaves nothing for

       future determination. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003).

       Whether an order is a final judgment governs our subject matter jurisdiction

       and it can be raised at any time by any party or sua sponte by the court itself.

       Id. We have the duty to determine whether we have jurisdiction over an appeal

       before proceeding to determine the rights of the parties on the merits. Allstate

       Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied.

       Pursuant to Indiana Appellate Rule 5, this court has jurisdiction over appeals

       from final judgments of trial courts and only those interlocutory orders from

       trial courts that are brought in accordance with Indiana Appellate Rule 14.

       Indiana Appellate Rule 2(H) provides, in relevant part:


                A judgment is a final judgment if:


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




       4
        We direct Ellis to Indiana Rule of Appellate Procedure 46(A)(2), which provides that the Table of
       Authorities “shall list each case, statute, rule, and other authority cited in the brief, with references to each
       page on which it is cited. The authorities shall be listed alphabetically or numerically, as applicable.”

       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018                 Page 8 of 12
                         (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 issues, claims or parties;


[12]   Here, Webb’s notice of appeal purports to appeal from a final judgment. The

       appealed orders now before us include the trial court’s Order Granting Appeal

       of Respondent dating from March 24, which granted Rodriquez’s appeal from

       the recount commission to the trial court, alleging that the recount

       commission’s procedure was defective and in error, and the Order Denying

       Appeal of Petitioner dating from April 11, which denied Webb’s appeal of the

       recount commission’s “refusal to not count” certain absentee ballots. Appealed

       Order at 6. As the result of granting Rodriquez’s appeal, the trial court

       conducted a subsequent hearing in which it announced that a second recount

       would be conducted and it appointed a second recount commission. Webb

       then filed his notice of appeal indicating his intention to appeal to this court.


[13]   The trial court, however, concluded that its order was not a final, appealable

       judgment.5 Appellant’s App., Vol. 2 at 27. Specifically, the court concluded:


                (d) That due to the fact that the Court granted [Rodriquez’s]
                appeal of the recount, the issues that were presented to the court




       5
        We note that we are not bound by a trial court’s determination regarding final judgment, see Troyer v. Troyer,
       686 N.E.2d 421, 425 (Ind. Ct. App. 1997), and that subject matter jurisdiction is a pure question of law that
       we review de novo, M-Plan, Inc. v. Comprehensive Health Ins. Ass’n, 809 N.E.2d 834, 837 (Ind. 2004).

       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018            Page 9 of 12
               upon [Webb’s] Petition for recount were still at issue and not
               finalized or completed by the recount process or the Court . . . .


               ***


               (g) In this particular case, this Court finds that the Petition for
               Recount has not been completed, that a final judgment has not
               been entered and issues as to all parties still exist, that the
               “Notice of Appeal” filed by [Webb] to the Court of Appeals is a
               nullity and the Court’s order vacating the recount commission’s
               findings was in essence or similar to an interlocutory appeal
               before this trial court in accordance with I.C. 3-12-6-22.5 and the
               Rules of Appellate Procedure.


       Id. We agree with the trial court’s conclusion and view White v. Indiana

       Democratic Party controls the issue now before us. 946 N.E.2d 1171 (Ind. 2011).

       There, a trial court directed the Indiana Recount Commission to take final

       action on an election contest. Before an evidentiary hearing could be

       conducted, however, both White and the Commission filed notices of appeal to

       this court. Id. at 1172. Our supreme court granted emergency transfer and

       dismissed the appeal, concluding “that the trial court has not entered a final

       judgment.” Id. (citing Georgos, 790 N.E.2d at 451 (“a final judgment ‘disposes

       of all issues as to all parties thereby ending the particular case’”)).


[14]   Here, a recount, following proper procedures as determined by the trial court,

       has yet to be conducted. See Georgos, 790 N.E.2d at 451 (“The trial court’s grant

       of the Motion to Enforce was not a final judgment because it did not end the

       case.”). Similar to the denial of a motion for summary judgment, here, no


       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018   Page 10 of 12
       rights have been foreclosed by the trial court’s rulings. Rather, the recount

       merely places the parties’ rights in abeyance pending ultimate determination by

       the second recount commission. See Cardiology Assoc. of Northwest Indiana, P.C.

       v. Collins, 804 N.E.2d 151, 154-55 (Ind. Ct. App. 2004). Accordingly, we

       conclude that no final, appealable judgment has been entered in the case now

       before us.


                         II. Discretionary Interlocutory Appeal
[15]   Because the trial court’s orders did not constitute a final judgment, and are

       therefore interlocutory, Webb’s only option for appellate review was to seek a

       discretionary interlocutory appeal pursuant to Indiana Appellate Rule 14(B).6

       In order to do so, Webb was required to obtain certification from the trial court

       and then this court is at liberty to accept—or deny—the appeal. Id. During the

       course of litigation, the trial court denied certification of two interlocutory

       appeals sought by Webb, a matter soundly within the trial court’s discretion.

       Shelby v. State, 986 N.E.2d 345, 357-58 (Ind. Ct. App. 2013), trans. denied.

       Because Webb failed to obtain the trial court’s certification of its orders for

       purposes of a discretionary interlocutory appeal, he may not proceed pursuant

       to Indiana Appellate Rule 14(B).




       6
         We note that the order presented here does not qualify as any of the nine interlocutory orders appealable by
       right. See Ind. App. Rule 14(A).

       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018           Page 11 of 12
[16]   We have previously explained that “dismissal for lack of subject matter

       jurisdiction takes precedence over the determination of and action upon other

       substantive and procedural rights of the parties.” Cardiology Assoc. of Northwest

       Indiana, P.C., 804 N.E.2d at 153. Concluding that the issue before us is not a

       final, appealable judgment, and that Webb did not obtain certification to pursue

       a discretionary interlocutory appeal, we therefore lack jurisdiction over this

       appeal. Id. at 155.



                                               Conclusion
[17]   As our supreme court recently emphasized, “in the overwhelming majority of

       cases, the proper course for an appellate court to take where it finds appellate

       jurisdiction lacking is simply to dismiss the appeal.” Town of Ellettsville v.

       DeSpirito, 87 N.E.3d 9, 12 (Ind. 2017). Accordingly, we dismiss this appeal and

       remand to the trial court for further proceedings.


[18]   Appeal dismissed and cause remanded.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-MI-822 | January 23, 2018   Page 12 of 12
