Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                             Dec 11 2013, 9:51 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                 ATTORNEY FOR APPELLEE:

THEODORE L. STACY                                       REBECCA H. FISCHER
Valparaiso, Indiana                                     Laderer & Fischer, P.C.
                                                        South Bend, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

KELLI ALVAREZ, f/k/a KELLI GALANOS,                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 46A03-1304-CC-155
                                                   )
HORIZON BANK, N.A.,                                )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE LAPORTE SUPERIOR COURT
                          The Honorable Jennifer L. Koethe, Judge
                              Cause No. 46D03-1205-CC-401


                                        December 11, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                      Case Summary

       Kelli J. Alvarez, f/k/a Kelli J. Galanos (“Alvarez”) appeals the trial court’s order

denying her motion to correct error challenging the trial court’s entry of summary judgment

in favor of Horizon Bank, N.A. (“Horizon”) on a promissory note, which order also provided

for an enlargement of time on Horizon’s motion for summary judgment on Alvarez’s

counterclaim.

       Concluding we lack subject matter jurisdiction to decide the appeal, we dismiss.

                              Facts and Procedural History

       Alvarez had been married to George Galanos (“Galanos”) until the entry of a decree

of dissolution of marriage on May 18, 2011. During the marriage, Alvarez and Galanos

owned a home in Muenster, Indiana (“the Muenster home”). In 2007, the couple received a

loan from Horizon, in exchange for which they granted a second mortgage on the Muenster

home. Alvarez signed a promissory note promising repayment of the loan to Horizon.

       Proceedings for the dissolution of Galanos’s and Alvarez’s marriage were conducted

in LaPorte Superior Court No. 2 (“Superior 2”). During the pendency of the dissolution

proceedings, Galanos filed for bankruptcy. During the bankruptcy proceedings, Horizon

agreed to the entry of an order stripping it of its lien against the Muenster residence, and

obtained an order from the bankruptcy court that lifted the automatic stay of debt collection

proceedings as to the corresponding promissory note. The lifting of the stay permitted

Horizon to pursue an action against Alvarez to collect the debt owed on the promissory note.

       On May 30, 2012, Horizon filed suit on the promissory note against Alvarez in


                                             2
LaPorte Superior Court No. 3 (“the trial court”). On August 16, 2012, Horizon filed its

motion for summary judgment.

       On August 24, 2012, Alvarez filed a motion to dismiss Horizon’s complaint for lack

of subject matter jurisdiction. In the motion, Alvarez argued that the promissory note

pertained to obligations set forth in the dissolution decree entered by Superior 2, and thus the

trial court lacked jurisdiction to adjudicate Horizon’s complaint on the promissory note. The

trial court denied this motion on November 1, 2012.

       On December 4, 2012, Alvarez answered Horizon’s complaint. In the answer,

Alvarez pleaded affirmative defenses and a counterclaim that alleged constructive fraud on

the part of Horizon acting in concert with Galanos. On December 20, 2012, Horizon filed a

motion to dismiss Alvarez’s counterclaim.

       On December 28, 2012, the trial court granted summary judgment to Horizon on its

complaint and designated this as a final judgment. On January 28, 2013, Alvarez filed a

motion to correct error. In her motion, Alvarez observed that the trial court had neither

dismissed nor otherwise adjudicated her counterclaim, and thus the court had inappropriately

granted Horizon’s motion to conduct proceedings supplemental to judgment. On January 30,

2013, the trial court granted Alvarez’s motion to correct error as to the initiation of

proceedings supplemental; the remainder of the contentions in Alvarez’s motion were

apparently left unresolved.

       On February 13, 2013, the trial court heard argument on Horizon’s motion to dismiss

Alvarez’s counterclaim, and continued the matter pending the submission of additional


                                               3
evidence.

         On March 27, 2013, the trial court denied the remaining claims in Alvarez’s motion to

correct error, including her challenge to the trial court’s entry of summary judgment on

Horizon’s complaint and its denial of her motion to dismiss for lack of subject matter

jurisdiction. The court also observed that, because both Alvarez and Horizon had designated

materials in support of their briefs as to Alvarez’s counterclaim, Horizon’s motion to dismiss

would be converted to one for summary judgment. The court gave both parties additional

time to designate evidentiary materials.

         On April 16, 2013, Horizon filed a brief in support of its motion for summary

judgment on Alvarez’s counterclaim. The record shows no entry reflecting Alvarez’s having

filed a responsive brief.

         On April 26, 2013, Alvarez filed a notice of appeal, which designated the appeal as

arising from the trial court’s entry of summary judgment and denial of the motion to correct

error.

                                  Discussion and Decision

         In her appeal, Alvarez challenges the trial court’s denial of her motion to dismiss

Horizon’s complaint and the court’s grant of Horizon’s motion for summary judgment as to

its claim on the promissory note. We resolve this appeal on a different matter: whether

Alvarez’s appeal is properly before this Court.

         Ordinarily, only final judgments may properly be appealed. Ind. Appellate Rule

9(A)(1). A final judgment is one that “disposes of all claims as to all parties,” App.R.


                                               4
2(H)(1), or falls within the other definitions of final judgment as defined in our appellate

rules. See App. R. 2(H)(2)-(5). Certain other classes of trial court orders are also subject to

appeal as a matter of right. App. R. 14(A). “Such appeals must be expressly authorized, and

that authorization is to be strictly construed.” In re Adoption of S.J., 967 N.E.2d 1063, 1066

(Ind. Ct. App. 2012). All other appeals are subject to discretionary review by this Court, a

requirement of which is the trial court’s certification of the order to be appealed. App. R.

14(B). Whether an appealed order meets these requirements is a question of subject matter

jurisdiction for this Court, and where the parties do not raise jurisdiction as an issue, we may

do so sua sponte. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003).

       Here, Alvarez purportedly appeals the trial court’s denial of her motion to correct

error as a final judgment. The trial court’s order denying Alvarez’s motion to correct error

ordered the proceedings continued, converted Horizon’s motion to dismiss the counterclaim

to one for summary judgment, and granted the parties additional time to designate evidence

and affidavits. Horizon submitted briefing in support of its motion; Alvarez filed a notice of

appeal.

       While Alvarez’s appeal from the trial court’s denial of the motion to correct error was

timely filed, we cannot conclude that the order her motion challenged—the summary

judgment order of December 28, 2012—is a final judgment, because Alvarez’s counterclaim,

which may determine the extent of Alvarez’s liability and Horizon’s entitlement to

compensation, remains unadjudicated. Thus, Alvarez’s appeal from the trial court’s denial of

her motion to correct error is interlocutory in nature, and does not fall within the classes of


                                               5
orders that may be appealed as of right under Appellate Rule 14(A). Nor has Alvarez

received trial court certification of that order as is required to take appeal on an interlocutory

order. See App. R. 14(B)(1).

          We therefore conclude that Alvarez’s appeal has not properly been perfected. This

Court accordingly lacks the subject matter jurisdiction necessary to review the appeal on its

merits.

          Dismissed.

BRADFORD, J., concurs.

MAY, J., concurs in result with separate opinion.




                                                6
                              IN THE
                    COURT OF APPEALS OF INDIANA

KELLI ALVAREZ, f/k/a KELLI GALANOS                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )    No. 46A03-1304-CC-155
                                                  )
HORIZON BANK, N.A.,                               )
                                                  )
       Appellee-Plaintiff.                        )
                                                  )

MAY, Judge, concurring in result with separate opinion


       I concur with the majority’s dismissal of Alvarez’s appeal, but would reach that result

by different reasoning, and I therefore write separately.

       On December 28, 2012, the trial court entered summary judgment against Alvarez on

Horizon’s claim that she owed money on a promissory note. The court ordered her to pay

Horizon “$190,644.96 together with accrued interest after May 11, 2012 to the date of

judgment at the rate of $38.71 per diem, together with accrued interest after the date of

judgment at the post judgment rate of 8% per annum.” (Appellant’s App. at 10.) My review

of the record leads me to conclude, as Alvarez has herself acknowledged: “That Court’s grant

of summary judgment to Horizon was not dispositive of all issues before the Court regarding


                                              7
Horizon’s claim as the Court’s order scheduling a hearing on Kelli’s counter complaint

demonstrates.” (Id. at 111.) Thus, the summary judgment granted to Horizon was not a final

order. See Indiana Appellate Rule 2(H) (defining a final judgment as one that “disposes of

all claims as to all parties”).

       Although the December 28 order was not a final judgment, Alvarez did have a right to

appeal that interlocutory order, because the court ordered her to pay money to Horizon. See

App. R. 14(A)(1) (party may file an interlocutory appeal from an order for the payment of

money). Appellate Rule 14 states such appeals must be made “within thirty days of that

order.” Alvarez did not file a notice of appeal within 30 days of that interlocutory order.

Instead, she filed what she entitled a “Motion to Correct Error.” (See App. at 110.)

       A motion to correct error may be filed “within thirty days of the court’s entry of a final

judgment.” Ind. Trial Rule 59(C). However, the December 28 order was not a final

judgment. Instead, her request for the court to review its December 28 order was a motion to

reconsider. See Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. 1998) (“motions to

reconsider are properly made and ruled upon prior to the entry of final judgment”).

       Nevertheless, a motion to reconsider “shall not delay the trial or any proceedings in

the case, or extend the time for any further required or permitted action, motion or

proceedings under these rules.” T.R. 53.4(A). Thus, the thirty-day period when Alvarez

could appeal the December 28 order was not tolled by the filing of her motion to reconsider.

See Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind. Ct. App 2009) (the filing of a

motion to reconsider does not toll the time period within which an appeal can be filed).


                                               8
      The notice of appeal that Alvarez filed April 26, 2013 was untimely, see App. R.

14(A) (interlocutory appeals must be filed within thirty days of notation of interlocutory

order in the Chronological Case Summary), which leaves us without jurisdiction to consider

an appeal. See Neu v. Gibson, 968 N.E.2d 262, 269 (Ind. Ct. App. 2012) (appellate court

does not have jurisdiction over appeals filed in an untimely manner), trans. denied.

Accordingly, I concur with the majority’s decision to dismiss Alvarez’s appeal.

      Concurring in Result.




                                            9
