Court of Appeals of Indiana | Memorandum Decision 45A04-1608-SC-1816 | March 17, 2017 Page 1 of 5

MEMORANDUM DECISION

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 establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Douglas M. Grimes

Douglas M. Grimes, PC

Gary, Indiana

ATTORNEY FOR APPELLEE

Eric Oden Clark

Munster, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sally Witherspoon,

Appellant-Defendant,

v.

Tawanna Brown,

Appellee-Plaintiff.

March 17, 2017

Court of Appeals Case No.

45A04-1608-SC-1816

Appeal from the Lake Superior 

Court

The Honorable Elizabeth F. 

Tavitas, Judge

Trial Court Cause No.

45D03-1605-SC-5

Robb, Judge.
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Case Summary and Issue

[1] Sally Witherspoon brings this interlocutory appeal following the trial court’s 

order granting immediate possession of her property and residence to Tawanna 

Brown. Witherspoon raises two arguments on appeal which we consolidate 

and restate as whether there was an improper delay in granting her motion to 

stay proceedings such that she was prejudiced. Concluding her appeal is 

untimely, we dismiss.

Facts and Procedural History

[2] On May 1, 2015, Brown purchased property located at 1708 Central Drive in 

Gary, Indiana, at a tax sale. At the time, the property was in Witherspoon’s 

possession. On February 23, 2016, Brown filed a Notice of Claim in the Lake 

Superior Court seeking immediate possession of the property and damages.1

[3] Following a hearing on August 5, 2016, the trial court granted Brown’s motion, 

ordered immediate possession of the property delivered to her, and scheduled a 

hearing on damages for September 27, 2016. On August 10, 2016, 

Witherspoon filed a notice appeal and a motion to stay proceedings pending 

 

1 On March 28, 2016, Witherspoon’s neighbor, Marion Williams, filed a motion to intervene alleging a large 

portion of Witherspoon’s house encroaches upon his property. The trial court granted his motion to 

intervene. Witherspoon’s brief argues the trial court’s alleged improper delay in granting her motion to stay 

proceedings also prejudiced Williams. Although they share the same attorney, only Witherspoon’s name is 

listed on the notice of appeal. Therefore, it is clear Witherspoon does not have standing on appeal to seek 

relief for any injury to Williams. See Campbell v. El Dee Apartments, 701 N.E.2d 616, 621 (Ind. Ct. App. 1998) 

(noting the rule of standing “bars litigants from asserting the right or legal interests of others in order to 

obtain relief from injury themselves”).
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appeal. Witherspoon voluntarily vacated the premises on August 15, 2016. On 

August 17, 2016, the trial court granted Witherspoon’s motion to stay 

proceedings pending appeal. Witherspoon now brings this interlocutory 

appeal.

Discussion and Decision

[4] Indiana Rule of Appellate Procedure 14(A) provides:

Appeals from the following interlocutory orders are taken as a 

matter of right by conventionally filing a Notice of Appeal with 

the Clerk within thirty (30) days after the notation of the 

interlocutory order in the Chronological Case Summary:

* * *

(4) For the sale or delivery of the possession of real 

property . . . .

Following the trial court’s order directing immediate possession of the property 

be delivered to Brown, Witherspoon filed a notice of appeal invoking this

appellate rule. However, in pursuing this appeal, Witherspoon changed course 

and does not challenge the trial court’s order granting immediate possession to 

Brown or allege how it was error to do so. Instead, Witherspoon challenges the 

trial court’s granting of her own motion to stay proceedings on the grounds the 

trial court granted it two days too late to benefit her since she had already 

vacated the premises. A motion to stay proceedings is not listed in the 

enumerated grounds for interlocutory appeals as a matter of right under Indiana 

Rule of Appellate Procedure 14(A), nor has Witherspoon sought the trial 
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court’s certification of its order granting her motion to stay as a discretionary 

interlocutory appeal under Appellate Rule 14(B). See In re A.D., 737 N.E.2d 

1214, 1216 (Ind. Ct. App. 2000) (addressing an appeal from an order granting a 

motion to stay proceedings that was certified for interlocutory appeal). 

Therefore, Witherspoon’s notice of appeal is untimely. See In re D.J. v. Ind. 

Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017) (noting an “untimely” 

notice of appeal can be belated or premature).

[5] The untimely filing of a notice of appeal results in a forfeiture of the right to 

appeal. Ind. Appellate Rule 9(A)(5). However, as our supreme court has 

recently stated, “[f]orfeiture and jurisdiction are not the same.” In re D.J., 68 

N.E.3d at 579 (alteration in original) (citation omitted). Forfeiture refers to the 

loss of a right, privilege, or property, while jurisdiction refers to a court’s power 

to decide a case. Id. “[A]n untimely notice of appeal does not divest a 

reviewing court of jurisdiction.” Id. Therefore, although her appeal is 

untimely, we may elect to decide the merits of Witherspoon’s appeal. See 

generally id. at 578-80.

[6] We elect to dismiss Witherspoon’s untimely appeal. Upon review, it is clear it 

is not the type of case that warrants deviation from the appellate rules. See id. at 

579-80 (noting the cases in which reviewing courts have deviated from the 

appellate rules include cases involving “weighty parental interest[s]” or 

constitutional rights). Further, it is not entirely clear what Witherspoon seeks 

to accomplish by challenging the trial court’s order granting her own motion to 

stay proceedings, as she has already voluntarily vacated the premises.
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Conclusion

[7] Although Witherspoon properly filed a notice of appeal following the trial 

court’s order granting immediate possession of her property and residence to 

Brown, her brief on appeal does not challenge that order. Instead, Witherspoon 

challenges the trial court’s grant of her subsequent motion to stay proceedings. 

An order granting a motion to stay proceedings is not appealable as a matter of 

right and Witherspoon has not asked the trial court to certify its order granting 

a stay as a discretionary interlocutory appeal. Therefore, Witherspoon’s appeal 

is untimely and we dismiss.

[8] Dismissed.

Kirsch, J., and Barnes, J., concur.