                                                                        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.


      Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020                                  Page 3 of 11
      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.


      Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020            Page 4 of 11
      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.

      Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020                               Page 6 of 11
              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




      Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020            Page 7 of 11
       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:



       Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020          Page 8 of 11
               (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
       Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020            Page 9 of 11
       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,




       Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020            Page 10 of 11
       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.

       Court of Appeals of Indiana | Opinion 19A-PL-2428 | May 27, 2020                                     Page 11 of 11
