Baker v. Pickering

Citation178 N.E.3d 347
Decision Date02 November 2021
Docket NumberCourt of Appeals Case No. 21A-MI-354
Parties Mark BAKER, Appellant-Plaintiff, v. Adam PICKERING, Kathleen Pickering, Lauren Flanagan, and Kesslerwood East Lake Association, Inc., Appellees-Defendants
CourtCourt of Appeals of Indiana

Attorney for Appellant: Christopher J. McElwee, Monday McElwee Albright, Indianapolis, Indiana

Attorney for Appellees Adam Pickering and Kathleen Pickering: Terrence J. Sorg, Brooks Koch & Sorg, Fishers, Indiana

Attorneys for Appellee Kesslerwood East Lake Association, Inc.: Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, Indiana, Michael E. Brown, Kightlinger & Gray, LLP, Indianapolis, Indiana

May, Judge.

[1] Mark Baker appeals following the trial court's denial of his "Motion for Relief from Order." (App. Vol. III at 84.) In response, the Kesslerwood East Lake Association, Inc., ("the Association") argues Baker's appeal is not properly before us because the trial court's denial of Baker's motion was not a final order.1 We agree and therefore dismiss his appeal for want of subject matter jurisdiction.

Facts and Procedural History

[2] Mark Baker lives next door to Adam and Kathleen Pickering in Indianapolis, and both properties border Lake Kesslerwood ("the Lake"). By virtue of the location of their properties, they are all members of the Association. The Association is a not-for-profit entity whose objective is to protect and maintain the Lake. Members of the Association are required to sign and adhere to a Declaration of Covenants and Restrictions ("Declaration"). This Declaration outlines certain rules regarding the placement and maintenance of piers. It also includes an article meant to govern disputes between members of the Association, which states:

Section 2. Enforcement. The Association, any Owner, the Declarant or Developer shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Attorneys’ fees and costs of any such actions to enforce, or enjoin or restrain the violation or attempted violation of, this Declaration, or to recover damages for the breach or violation hereof, shall be assessed against and payable by any persons violating the terms hereof.
* * * * *
Section 4. Arbitration. In the event of any dispute arising among the Members which cannot be decided by the Board of Directors or the Architectural Review Board, as appropriate, under the provisions of this Declaration, each party to the dispute having an individual and distinctly opposing position shall choose one (1) arbitrator and such arbitrators shall choose one (1) additional arbitrator and the decision by the three (3) arbitrators, made by a majority of all the arbitrators, shall be binding on each of the disputing parties.

(App. Vol. II at 41-42.)

[3] The Pickerings constructed a dock extending from the shoreline into the Lake. On June 11, 2020, Baker filed a complaint in Marion Superior Court against the Pickerings alleging the dock violated the terms of the Declaration and interfered with Baker's right to access the area around the Lake. The complaint sought compensatory damages as well as declaratory and injunctive relief.

[4] The Pickerings filed an answer, counterclaim, and third-party complaint on August 10, 2020. The Pickerings denied the material allegations of Baker's complaint but asserted Baker failed to name Lauren Flanagan (the owner of an adjoining property) and the Association as indispensable parties pursuant to Indiana Trial Rule 19(A). Their counterclaim accused Baker of being the party in breach of the Declaration, and it asserted claims of intentional infliction of emotional distress, trespass, and abuse of process. The Pickerings’ third-party complaint was filed against the Association. It alleged the Association approved their plans for the dock and, therefore, the Association has a duty to indemnify the Pickerings if Baker is entitled to any relief. Further, the Pickerings filed a motion to compel arbitration and stay proceedings pending arbitration based on the Declaration's arbitration clause.2

[5] Baker filed an answer to the Pickerings’ counterclaim on September 30, 2020. Baker sought and was granted leave to amend his complaint to add the Association and Flanagan as additional defendants. He further filed an objection to the Pickerings’ motion to compel arbitration in which he argued the arbitration provision in the Declaration did not apply to this dispute. On December 4, 2020, the trial court held a hearing on the motion to compel arbitration, and the trial court allowed the parties to submit post-hearing briefs. On January 5, 2021, the trial court granted the motion to compel arbitration.

[6] On February 4, 2021, Baker filed a "Motion for Relief from Order," ostensibly pursuant to Indiana Trial Rule 60(B). Both the Association and the Pickerings opposed Baker's motion, and the trial court denied it on February 8, 2021. On March 2, 2021, Baker filed a notice of appeal. Baker asserted in his notice of appeal that he was appealing from a final judgment. On March 25, 2021, the Pickerings and the Association filed a joint motion to dismiss Baker's appeal on the basis that the notice of appeal was untimely and improper. Baker asserted his filing of the notice of appeal was timely because it was filed less than thirty days after the trial court denied his "Motion for Relief from Order." On April 15, 2021, the motions panel of this Court voted to deny the joint motion to dismiss. The parties then proceeded to briefing before this panel.

Discussion and Decision

[7] In its briefing before this panel, the Association reasserts that Baker's appeal should be dismissed. We retain inherent authority to revisit the motions panel decision while the appeal remains pending, Core v. State , 122 N.E.3d 974, 977 (Ind. Ct. App. 2019), and we choose to do so in this case. "Subject matter jurisdiction concerns a court's ability to hear and decide a case based on the class of cases to which it belongs ... [and] ‘dismissal for lack of subject matter jurisdiction takes precedence over the determination of and action upon other substantive and procedural rights of the parties.’ " Young v. Est. of Sweeney , 808 N.E.2d 1217, 1219 (Ind. Ct. App. 2004) (quoting Warrick Cnty. v. Weber , 714 N.E.2d 685, 687 (Ind. Ct. App. 1999) ). The presence of subject matter jurisdiction is a legal determination that we evaluate de novo. Id. If we lack subject matter jurisdiction, then we must dismiss the appeal. See Snyder v. Snyder , 62 N.E.3d 455, 459 (Ind. Ct. App. 2016) (dismissing Husband's appeal because we lacked jurisdiction). While the Association has reasserted its claim that Baker's appeal should be dismissed, Baker chose not to file a reply brief. When a party fails to respond to issues raised by another party on appeal, we review the issues for prima facie error. R.L. Turner Corp. v. Wressell , 44 N.E.3d 26, 42 (Ind. Ct. App. 2015), trans. denied. "Prima facie means at first sight, on first appearance, or on the face of it." Id. (internal quotation marks omitted).

I. Final Order

[8] Indiana Appellate Rule 5 grants us jurisdiction over most appeals from final judgments. Appellate Rule 2(H) defines what constitutes a final judgment:

A judgment is a final judgment if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no 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;
(3) it is deemed final under Trial Rule 60(C) ;
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16 ; or
(5) it is otherwise deemed final by law.

[9] The Association argues the order compelling arbitration "does not dispose of all claims as to all parties and does not contain the ‘magic language’ of Indiana Trial Rule 54(B) .... Therefore, it is not deemed ‘final’ under Indiana Appellate Rules 2(H)(1) or 2(H)(2)." (Association Appellee's Br. at 19.) In the joint verified motion to dismiss Baker's appeal, the Association and the Pickerings stated: "In Indiana, it is well settled that [a]n order compelling arbitration is a final, appealable order if severable from other claims in the lawsuit.’ " (Appellees’ Joint Motion to Dismiss at 4 (quoting Angell Enterprises, Inc. v. Abram & Hawkins Excavating Co. , 643 N.E.2d 362, 364 (Ind. Ct. App. 1994) ). However, in the Association's Appellee's Brief, the Association revisits the language it quoted from Angell Enterprises , and the Association asserts "when this language is tracked back through the case law, it appears to derive solely from circumstances where the order compelling arbitration was converted into a final judgment by use of the ‘magic language’ of Indiana Trial Rule 54(B)." (Association's Appellee's Br. at 22 n.5.)

[10] In Angell Enterprises , we analyzed whether a party's failure to appeal a trial court's order submitting the parties’ respective crossclaims under Indiana Code section 32-8-3-9 (the Owner's Liability Statute) to arbitration meant the party could not later argue before the trial court that the arbitrator exceeded his authority by fashioning an award that included compensation for damages incurred in excess of the Owner's Liability Statute claims. 643 N.E.2d at 364. We explained:

An order compelling arbitration is a final, appealable order if severable from other claims in the lawsuit. Albright v. Edward D. Jones & Co. (1991), Ind. App., 571 N.E.2d 1329, 1331, cert. denied , 506 U.S.
...

To continue reading

Request your trial
1 cases
  • Smith v. Smith-Young
    • United States
    • Indiana Appellate Court
    • 5 Abril 2023
    ... ... This court retains the inherent ... authority to revisit decisions of the motions panel, and we ... choose to do so in this case. Baker v. Pickering , ... 178 N.E.3d 347, 350 (Ind.Ct.App. 2021), trans ... denied ... [ 6 ] The constitutional right to a trial by ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT