MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 15 2017, 8:50 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                                   ATTORNEYS FOR APPELLEE
Douglas M. Grimes                                        Nicholas A. Snow
Gary, Indiana                                            Jewell Harris, Jr.
                                                         Crown Point, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marion Williams,                                         December 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1705-PL-1125
        v.                                               Appeal from the Lake Superior
                                                         Court
Roosevelt Allen, Jr., Gerry J.                           The Honorable William E. Davis,
Scheub, and Michael C. Repay,                            Judge
as Lake County Commissioners,                            Trial Court Cause No.
and John Petalas as Lake County                          45D05-1408-PL-91
Treasurer.
Appellees-Plaintiffs.



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017            Page 1 of 10
                                        Statement of the Case
[1]   This is the second interlocutory appeal where Marion Williams (“Williams”)

      has attempted to appeal from a discretionary interlocutory order without

      obtaining certification from the trial court or permission from this Court. Here,

      Williams attempts to appeal the trial court’s interlocutory order, which granted

      a motion to take judicial notice filed by Roosevelt Allen, Jr., Gerry J. Scheub,

      and Michael C. Repay, as Lake County Commissioners, and John Petalas as

      Lake County Treasurer (collectively, “Lake County”). Because the trial court’s

      order was neither a final judgment nor an appealable interlocutory order,

      Williams has forfeited his right to appeal. We decline to disregard this

      forfeiture on this premature appeal, and we dismiss the appeal.


[2]   We dismiss.


                                                       Issue
              Whether Williams has forfeited his right to this appeal.

                                                      Facts1
[3]   Because of our disposition of this appeal and the limited facts contained in the

      record on appeal, we will not delve into detailed facts regarding the underlying




      1
       We note that, contrary to Indiana Appellate Rule 50, Williams has failed to file an Appellant’s Appendix.
      Lake County has provided our Court with an Appellee’s Appendix that contains only the chronological case
      summary and the interlocutory order on appeal.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017       Page 2 of 10
      case. In June 2014, Lake County filed a complaint against Williams2 and

      sought to collect delinquent real estate taxes from him on multiple properties

      pursuant to INDIANA CODE § 6-1.1-22-10.


[4]   As this case proceeded, Williams filed multiple motions for change of venue,

      the second of which he sought to appeal after it was denied. Our Court,

      however, dismissed his attempted appeal in February 2016 because Williams

      did not seek certification of the discretionary interlocutory order that he sought

      to appeal. See Williams v. Allen, No. 45A05-1503-PL-134, *5 (Ind. Ct. App. Feb.

      10, 2016), trans. denied.


[5]   On January 17, 2017, the trial court held a bench trial. At the beginning of the

      trial, Williams made a request for findings of fact and conclusions of law under

      Trial Rule 52(A). Lake County presented testimony from a supervisor from the

      Lake County Treasurer’s Office that Williams owed a total of $545,427.24 in

      delinquent real estate taxes, and it introduced an exhibit containing documents

      from the treasurer’s office showing that Williams owed that amount. Williams

      did not present any evidence.3 The trial court took the matter under advisement

      and instructed the parties to submit proposed findings and conclusions.




      2
       Lake County also filed the complaint against Jason Williams and Kellie Williams but dismissed these two
      defendants in February 2016.
      3
        After the parties had rested, the trial court asked the supervisor about the distinction between records from
      the recorder’s office versus the treasurer’s office as the official record of ownership.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017            Page 3 of 10
[6]   Thereafter, on February 17, 2017, when Lake County filed its proposed findings

      and conclusions, it also filed a motion, pursuant to Indiana Evidence Rule 201,

      for the trial court to take “judicial notice of existing public records regarding the

      ownership of a number of properties by [Williams].” (Tr. Vol. 2 at 66). 4 On

      February 28, 2017, the trial court entered an order, notifying the parties that it

      was “withhold[ing] judgment on the case[,]” setting a hearing on Lake

      County’s judicial notice motion, and giving Williams a chance to respond to

      the motion before the hearing. (Appellees’ App. 16).


[7]   On April 6, 2017, the trial court held a hearing on the judicial notice motion.

      Thereafter, on April 25, 2017, the trial court entered an order granting Lake

      County’s motion to take judicial notice of the public records (“interlocutory

      order”). The trial court’s order provided as follows:


               Parties appear by counsel . . . for [a] hearing on [Lake County’s]
               Motion for Judicial Notice of Facts. Argument was heard. The
               Court sustains the motion and will take judicial notice of the
               facts contained in the public records submitted. As these facts
               were made known to the Court and [Williams] after [Williams]
               rested his case without submitting any testimony or evidence[,]
               [t]he Court now reopens the evidence in this matter sua sponte to
               allow [Williams] to respond to these newly received facts. This
               case is scheduled for the presentation of further [evidence] on
               August 18, 2017 at 9:30 a.m.




      4
       Lake County’s judicial notice motion is not in the record on appeal nor are the public records for which it
      sought the trial court to take judicial notice.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017          Page 4 of 10
       (Appellees’ App. 30).5 On May 22, 2017, Williams filed a notice of appeal and

       asserted that he was appealing an interlocutory order as of right under Indiana

       Appellate Rule 14(A)(1), which is for “the payment of money[.]” Ind. App. R.

       14(A)(1).


                                                       Decision
[8]    Williams challenges that the trial court’s interlocutory order granting Lake

       County’s motion to take judicial notice of public records. He makes no

       argument regarding the substance or effect of the order. Instead, Williams

       contends that the trial court’s entry of the interlocutory order was “clearly

       erroneous” because the trial court “never complied” with his Trial Rule 52(A)

       request for findings and conclusions that he made during the January 2017

       bench trial. (Williams’ Br. 8).


[9]    We, however, decline to review Williams’ challenge at this juncture because the

       trial court’s order was neither a final judgment nor an appealable interlocutory

       order. See In re Adoption of S.J., 967 N.E.2d 1063, 1065-66 (Ind. Ct. App. 2012).


[10]   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) . . . that there is no just reason for delay
                         and in writing expressly directs the entry of judgment . . .


       5
        The trial court later rescheduled the hearing for the presentation of further evidence and ultimately held that
       hearing September 1, 2017.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017           Page 5 of 10
                       under Trial Rule 54(B) as to fewer than all the claims or
                       parties . . . .


       Ind. Appellate Rule 2(H). 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. “An interlocutory order is one made

       before a final hearing on the merits and requires something to be done or

       observed but does not determine the entire controversy.” Id. (internal quotation

       marks and citation omitted). “Non-final orders that are appealable right

       away—on an interlocutory basis—include those recited in Appellate Rule 14.”

       In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017).


[11]   In D.J., 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 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



       Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017   Page 6 of 10
       the untimely appeal. Id. The Court, however, emphasized that “it is never

       error for an appellate court to dismiss an untimely appeal[.]” Id.6


[12]   With this procedural framework in mind, we now turn to Williams’ attempt to

       appeal the trial court’s order that was neither a final judgment nor an

       appealable interlocutory order. We find Adoption of S.J. to be instructional. In

       that case, our Court sua sponte dismissed an appeal from a trial court’s order,

       which determined that the appellant-father’s consent to adoption was not

       required under INDIANA CODE § 31-19-9-8(a)(11), because the challenged order

       was neither a final judgment nor an appealable interlocutory order.

       Specifically, we held that an “order concluding that Father’s consent to the

       adoption was not required [wa]s not a final judgment within the meaning of

       Appellate Rule 2(H)(1) because it left the question of whether the adoption

       petition would be granted for future determination.” Id. See Ind. App. R.

       2(H)(1) (explaining that a “judgment is a final judgment if . . . it disposes of all

       claims as to all parties”). We also concluded that the order at issue was not a

       final judgment within the meaning of Appellate Rule 2(H)(2) because it did not

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




       6
         Indeed, the D.J. Court found no error in our Court’s lower decision to dismiss D.J.’s appeal; it only
       disagreed with the stated reason being lack of jurisdiction instead of forfeiture of the right to appeal. D.J., 68
       N.E.3d at 576. Ultimately, however, the D.J. Court, after applying some of the considerations discussed in
       O.R., disregarded the appellants’ forfeiture and reviewed the merits of their appeal, which challenged the non-
       final CHINS determination and not the final dispositional order. The final dispositional order, however, had
       been entered after the appellants filed their notice of appeal and before the trial court clerk had issued the
       notice of completion of clerk’s record, which is the event upon which our appellate court acquired
       jurisdiction. See App. R. 8.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017             Page 7 of 10
       Indiana Trial Rule 54(B). See Adoption of S.J., 967 N.E.2d at 1065-66. See also

       Ind. App. R. 2(H)(2) (explaining that a “judgment is a final judgment if . . . 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 . . . .”).

       Finally, our Court explained in Adoption of S.J. that the order at issue was not an

       appealable interlocutory order because it was neither an interlocutory order as

       of right under Appellate Rule 14(A) nor a discretionary interlocutory order

       under Appellate Rule 14(B). The order was not appealable under Appellate

       Rule 14(A) because none of the specific grounds set forth in Rule 14(A) applied,

       and it was not appealable under Appellate Rule 14(B) because the trial court

       had not certified the order and our Court had not accepted interlocutory

       jurisdiction over the appeal. See Adoption of S.J., 967 N.E.2d at 1066.

       Accordingly, we dismissed the appellant-father’s appeal.7 Id.


[13]   Here, as in Adoption of S.J., the trial court’s order at issue was not a final

       judgment under Appellate Rule 2(H) nor was it an appealable interlocutory



       7
         We acknowledge that our Court phrased the reason for the dismissal of the appeal in Adoption of S.J. as a
       lack of appellate jurisdiction over the order at issue rather than phrasing it as the appellant-father’s forfeiture
       of the appeal due to an untimely or premature appeal. Adoption of S.J. was issued five years before the D.J.
       Court’s recent explanation that the procedural result of an untimely or premature notice of appeal should be
       phrased in terms of a party’s forfeiture of the right to appeal instead of our appellate court’s lack of
       jurisdiction. Until our supreme court issued its opinion in D.J., “it was understood that the lack of a final
       appealable order impacted an appellate court’s ‘jurisdiction’ to entertain an appeal and that dismissal of the
       appeal was required in such situations.” Manley v. Zoeller, 77 N.E.3d 1227, 1230 (Ind. Ct. App. 2017). See
       Ramsey v. Moore, 959 N.E.2d 246, 253 (Ind. 2012) (determining that part of a trial court’s order was not a final
       appealable judgment under Appellate Rule 2(H) and dismissing the “appeal for lack of subject matter
       jurisdiction”). Therefore, while the reason for the dismissal in Adoption of S.J. would now be considered mal-
       phrased, we, nevertheless, find the analysis and reasoning of the case applicable.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017              Page 8 of 10
       order. The trial court’s order—which granted Lake County’s motion to take

       judicial notice and re-opened the proceedings—was not a “final judgment”

       under Appellate Rule 2(H)(1) because it did not dispose of all claims as to all

       parties and left the question of whether he was liable for delinquent property

       taxes for a future determination. The trial court’s order was also not a “final

       judgment” under Appellate Rule 2(H)(2) because the trial court did not include

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

       Trial Rule 54(B). See Adoption of S.J., 967 N.E.2d at 1065-66. See also Ramsey v.

       Moore, 959 N.E.2d 246, 253 (Ind. 2012) (determining that part of a trial court’s

       order that did not contain the “magic language” of Trial Rule 54(B) was not a

       final appealable judgment under Appellate Rule 2(H)(2)).


[14]   Additionally, contrary to Williams’ assertion in his notice of appeal, the trial

       court’s order is not an appealable interlocutory as of right under Appellate Rule

       14(A)(1) for “the payment of money” because the trial court’s interlocutory

       order did not require Williams to pay any money. Nor does the order fall

       within one of the other categories of Rule 14(A). Moreover, the trial court’s

       order is not a discretionary interlocutory appealable order under Appellate Rule

       14(B) because Williams neither requested the trial court to certify the

       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, Williams’ attempt to appeal the non-final order

       is untimely—in this case, premature—and results in the forfeiture of this appeal.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017   Page 9 of 10
       See D.J., 68 N.E.3d at 578-79. See also Adoption of S.J., 967 N.E.2d at 1065-

       66. We decline to disregard Williams’ forfeiture, especially here, where the trial

       court had not issued a final order at the time he attempted to appeal the trial

       court’s discretionary interlocutory order. See Manley, 77 N.E.3d at 1231 (“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.”).8


[15]   Dismissed.


       Kirsch, J., and Bailey, J., concur.




       8
         We do, however, note that the chronological case summary in the Appellees’ Appendix indicates that the
       trial court entered findings of fact and conclusions of law and entered a judgment in favor of Lake County on
       September 26, 2017, which is during the pendency of this appeal.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1705-PL-1125 | December 15, 2017        Page 10 of 10
