Opinion
24A-PL-8
06-14-2024
Thomas DeCola, Appellant v. Donald Wegner, Appellee
APPELLANT PRO SE Thomas DeCola North Judson, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Starke Circuit Court The Honorable Crystal A. Kocher, Special Judge Trial Court Cause No. 75C01-2206-PL-9
APPELLANT PRO SE Thomas DeCola North Judson, Indiana
MEMORANDUM DECISION
Brown, Judge
[¶1] Thomas DeCola appeals from the trial court's November 2, 2023 order denying his Verified Motion to Vacate Void Orders. Finding there was no final judgment, we dismiss the appeal and remand.
Facts and Procedural History
[¶2] On June 30, 2022, DeCola filed a "Verified Complaint for Quiet Title" under cause number 75C01-2206-PL-9 ("Cause No. 9"), the cause from which this appeal arises. On November 10, Magistrate Micah Cox issued a default judgment. On December 9, Magistrate Cox issued an "Order Vac[a]ting Default Judgment" stating the court received an order from Special Judge Welker in cause number 75C01-2201-PL-1 ("Cause No. 1") and "on its own motion vacates the Default Judgment for Quiet Title entered on November 10, 2022." Appellant's Appendix Volume II at 39. On January 12, 2023, at DeCola's request, Magistrate Cox issued an "Order of Recusal." Id. at 44. On February 6, 2023, DeCola filed a "Verified Motion to Take Judicial Notice" and a "Verified Motion to Vacate Void Orders," which stated that the order by Judge Welker was "ab initio void in law" and that the December 9th order by Magistrate Cox "is in fact rested upon the Order [by Judge Welker] and therefore ab initio void in law." Id. at 49, 54. In July 2023, Judge Crystal A.B. Kocher was appointed as special judge to hear the matter.
Judge Mary C. Welker issued an order dated December 7, 2022, in Cause No. 1.
[¶3] On November 2, 2023, the court issued an order stating:
The Court held hearing in this matter on August 25, 2023 .... [DeCola] appeared in person and pro se. [He] provided to this court summary argument. No evidence was presented. The Court finds as follows:
1. This cause concerns Property Number 75-04-36-100-016.00011 (012-00903-00).
2. [DeCola] filed a Verified Complaint for Quieting Title in this cause on June 30, 2022. This Cause was originally heard by Magistrate Micah Cox and Magistrate Cox entered a Quiet Title Judgment on November 10, 2022.
3. [DeCola] previously filed a Verified Complaint for Quieting Title on the same property . . . in [Cause No. 1].
* * * * *
11. The Court takes Judicial Notice of [Cause Nos. 1 and 9] and its contents, including all motions and orders.
12. The Court finds the following motions continue to be pending:
a. Verified Motion to Take Judicial Notice filed on February 6, 2023, requesting the Court [to] take judicial notice of the complaints filed against Judge Welker and Magistrate Cox;
b. Verified Motion to Vacate Void Orders filed February 6, 2023, wherein [DeCola] requests the Court [to] vacate its Order of December 9, 2023, Vacating the Quiet Title Judgment and correction of the Chronological Case Summary Entry entered January 12, 2023, which [DeCola] believes to be prejudicial.
13. Therefore, after considerations of all pending matters and after taking judicial notice of the Court's records, the Court finds [DeCola's] Verified Motion to take judicial notice of the complaints filed against Judge Welker and Magistrate Cox is granted;
14. The Court further finds the Verified Motion to Vacate Void Orders filed February 6, 2023, is hereby DENIED.
15. [DeCola] has attempted to litigate the same issue, and same property, in [Cause No. 9] as he did in [Cause No. 1]. It appears as though because the rulings [in Cause No. 1] were not in his favor, he attempted to litigate the same issue and property under [Cause No. 9]. This effectively amounts to forum shopping and cannot be allowed.Appellant's Appendix Volume II at 62-63. DeCola filed a "Motion to Correct Error," and the court denied the motion. Id. at 64.
The record does not include a transcript of the hearing.
Discussion
[¶4] An appellate court will typically hear an appeal only after a trial court has entered a final judgment. DeCola v. Norfolk S. Corp., 222 N.E.3d 938, 939 (Ind. 2023) (citing Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023)). Ind. Appellate Rule 2(H) provides that 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 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;
(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.
[¶5] In his notice of appeal, DeCola stated that the appeal was taken from a final order as defined by Ind. Appellate Rule 2(H)(4), identifies the order being appealed as the order signed on November 2, 2023, and states that a motion to correct error was denied. The court's November 2, 2023 order did not dispose of all claims as to all parties-DeCola's quiet title claim remains. Thus, the order was not a final judgment under Rule 2(H)(1). Further, although DeCola later filed a motion titled "Motion to Correct Error," that motion is more accurately characterized as a motion to reconsider the November 2nd order. See Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind.Ct.App. 2000) (treating a motion labeled a "Motion to Correct Error" filed before the entry of final judgment as a motion to reconsider), trans. denied; Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind.Ct.App. 1998) ("[M]otions to reconsider are properly made and ruled upon prior to the entry of final judgment") (citing Ind. Trial Rule 53.4(A)); Trial Rule 59(C) (providing that motions to correct error are to be filed "not later than thirty (30) days after the entry of a final judgment"). Thus, contrary to DeCola's assertion, a final judgment was not entered under Ind. Appellate Rule 2(H)(4). DeCola does not assert, and we cannot say, that the appealed order falls into any of the remaining categories of Ind. Appellate Rule 2(H).
As noted above, the court's November 2, 2023 order states that DeCola "attempted to litigate the same issue" which he raised in Cause No. 1. Appellant's Appendix Volume II at 63. In Cause No. 1, the court issued an order on December 7, 2022, which provided in part that the plaintiff, Argento, LLC, filed a complaint to quiet title, the Trial Rules require that a corporation be represented by an attorney, DeCola attempted to move forward without counsel, "DeCola cites he has filed for the exact same relief . . . in a new case, [Cause No. 9], which addresses the same property[] but with [DeCola] as the Plaintiff instead of Argento LLC," and "this Court will show this Cause closed." Id. at 38. The order in Cause No. 1 did not address the quiet title claim.
[¶6] Because the appealed order does not satisfy the definitions of a final judgment under Ind. Appellate Rule 2, we dismiss this appeal and remand for further proceedings. See DeCola, 222 N.E.3d at 939-940 (Indiana Supreme Court stating DeCola premised his appeal on entry of a final judgment, the trial court's order did not satisfy any of the definitions of a "final judgment" in Appellate Rule 2(H), "the order disposed of nothing" and "DeCola's quiet-title claim remains," and "[w]e raise the jurisdictional issue here to remind ourselves and our judicial colleagues of the importance of ensuring that courts exercise judicial power only where our jurisdiction is secure," and dismissing the appeal and remanding for further proceedings).
[¶7] Dismissed and remanded.
May, J., and Pyle, J., concur.