## FOR PUBLICATION

ATTORNEY FOR APPELLANT S ATTORNEY FOR APPELLEE:

THOMAS AND SAM KINDRED :

MARILYN A. HARTMAN

SCOTT A. NORRICK HARTMAN LAW, P.C.,

Anderson, Indiana Bloomfield, Indiana

APPELLANT PRO SE:

JAMES H. KINDRED

Solsberry, Indiana



## IN THE

COURT OF APPEALS OF INDIANA

JAMES KINDRED, THOMAS KINDRED,

AND SAM KINDRED, )

)

Appellant s

- Respondent s

, )

)

vs. ) No. 60A01

- 1304

- PL

- 156

)

BETTY TOWNSEND and )

HARMON CRONE, )

)

Appellee

- Petitioner. )

APPEAL FROM THE OWEN CIRCUIT COURT

The Honorable Lori Thatcher

- Quillen, Judge

Cause No. 60C01

- 1003

- PL

- 123

February 25, 2014

OPINION

– FOR PUBLICATION

MATHIAS, Judge2 James Kindred, Thomas Kindred, and Sam Kindred (“the Kindreds ”) appeal the

interlocutory order of the Owen Circuit Court denying their motion to dissolve a

preliminary injunction requested by Betty Townsend (“Townsend”) and Harmon Crone

(“Crone”) (collectively “the Defendants”). Concluding that the Kindreds’ appeal is an

untimely attack on the trial court’s earlier order granting the preliminary injunction, we

dismiss.

Facts and Procedural History

The present case involves a dispute over the ownership of real property that was

part of the Estate of Lulu Townsend, who died in 1964. For some reason, the parcel of

real property at issue here was not included in the decree of final distribution of the

Estate, and the distribution decree was never challenged.

The Kindreds have lived on property adjacent to the disput ed property since 1975

and believed it belonged to them, as did the Kindreds’ predecessor in interest

. In 2006,

Townsend realized that she might be an heir to the Estate of Lulu Townsend and have an

ownership interest in the disputed property. In 2010, T ownsend executed a warranty

deed transferring her interest in the disputed property to Crone.

On April 14, 2010, the Kindreds filed a complaint against Townsend and Crone to

quiet title by adverse possession. On May 7, 2010, Crone filed a motion for a r estraining

order, and on June 1, 2010, Townsend similarly filed a request for a preliminary

injunction to prevent damage to the disputed property. The Kindreds filed a written3 objection, but the trial court, after conducting an evidentiary hearing on June 4, 2010,

entered an order granting the preliminary injunction. Neither party appealed this order. 1

Six months later, o n January 6, 2011, the Kindreds filed a motion to dissolve the

preliminary injunction, claiming that Townsend and Crone lacked standin g. The trial

court held an evidentiary hearing on the matter on March 13, 2013, and denied the

motion to dissolve. The Kindreds then filed a motion to reconsider on March 25, 2013,

which the trial court denied on March 28, 2013. The Kindreds then filed a notice of

appeal from this interlocutory order on April 8, 2013, initiating the instant appeal.

Discussion and Decision

The Kindreds admittedly appeal from a n interim

, interlocutory order. But t hey

claim the right to an interlocutory appeal under Indi ana Appellate Rule 14(A)(5). This

rule provides, “Appeals from the following interlocutory orders are taken as a matter of

right by filing a Notice of Appeal within thirty (30) days after the notation of the

interlocutory order in the Chronological Case S ummary:

. . . (5) Granting or refusing to

grant, dissolving or refusing to dissolve a preliminary injunction .” (emphasis added). At

first glance, then, it c ould appear that the Kindreds properly appealed the trial court’s

order denying their motion to diss olve the preliminary injunction by filing their notice of

1 In the meantime, in May 2010, the Kindreds had filed a motion for summary judgment. After thirty

days, the Kindreds moved for entry of judgment against Crone because he had not responded in time to

their summary judgment motion. The trial court accordingly entered judgment against Crone, finding that

Crone had not responded in time to the Kindreds ’ motion. Crone then filed a motion to correct error and

for relief from judgment. In January 2011, the court ordered the summary judgment against Crone be

entered as a final judgment and dismissed Crone ’ s motion to correct error, but then granted Crone's

motion for relief f rom judgment and vacated the judgment it had previously entered against Crone. The

Kindreds appealed this order, but we affirmed the trial court in a memorandum decision. See Kindred v.

Townsend

, No. 60A04

- 1101

- PL

- 42, 2011 WL6916511 (Ind. Ct. App. Dec. 30, 2011).4 appeal within thirty days of the trial court’s order denying their motion to dissolve the

preliminary injunction

.

But t he Defendants claim that the Kindreds’ motion to dissolve was not based on

an y new facts or circumstances that had arisen since the trial court’s entry of the

preliminary order; instead, it is based on grounds that the Defendants lack standing and

that the trial court lacked jurisdiction

— arguments that were available to the Kindred s at

the time the trial court entered its preliminary injunction. Thus, the Defendants argue that

the Kindreds should have presented these challenges in an appeal from the trial court’s

order entering the preliminary injunction, not its order denying the Kindreds’ motion to

dissolve the preliminary injunction months later. We agree.

Appellate Rule 14(A) provides for interlocutory appeals as of right from orders

granting (or refusing to grant) and dissolving (or refusing to dissolve) preliminary

injuncti ons. It also provides for certain time l imits for these appeals. Specifically, if a

party wishes to appeal an order granting or refusing to grant a preliminary injunction, that

party must file a notice of appeal within thirty days after the order is note d in the CCS. If

a party fails to do so, the right to bring such an interlocutory appeal is forfeited. See

Young v. Estate of Sweeney

, 808 N.E.2d 1217, 1221 (Ind. Ct. App. 2004) (holding that

interlocutory appeal was untimely where notice of appeal was f iled forty

- five days after

entry of interlocutory order); Haston v. State

, 695 N.E.2d 1042, 1044 (Ind. Ct. App.

1998) (holding that failure to timely perfect interlocutory appeal results in forfeiture of

opportunity to pursue the appeal). Thus, if a party desires to appeal the entry of a

preliminary injunction order, that party must file a notice of appeal within thirty days,5 which the Kindreds admittedly did not do in the present case. Thus, they have forfeited

any right to appeal the tr ial court’s preliminary injunction order.

The Kindreds claim, however, that they are not appealing the trial court’s order

granting the preliminary injunction; instead, they note that they are appealing the trial

court’s order denying their motion to dissolve the pr eliminary injunction. And Appellate

Rule 14(A)(5) provides for an interlocutory appeal as of right from orders denying a

motion to dissolve a preliminary injunction. However, if read broadly, this would permit

a party subject to a preliminary injunction to repeatedly bring motions to dissolve a

preliminary injunction and repeatedly appeal such denials. Indeed, if we were to read

Appellate Rule 1 4 (A)(5) this broadly, a party who forfeited the right to appeal from the

entry of the preliminary injunction co uld repeatedly resurrect their right to appeal by

simply filing a motion to dissolve the injunction. Likewise

, a party who forfeited the

right to appeal a denial of a motion to dissolve a preliminary injunction could resurrect

their appeal by filing a rep etitive motion to dissolve the injunction. This would render

the time limitations of Appellate Rule 14(A) meaningless.

We therefore read Appellate Rule 14(A)(5) to mean that a party who wishes to

challenge the entry of a preliminary injunction order (or the denial of a request for a

preliminary injunction) must initiate their appeal within thirty days of the trial court’s

order granting or denying the request for a preliminary injunction. I f a party fails to do

so, it may not thereafter seek to dissolve the preliminary injunction based upon grounds

that were known or knowable at the time of the entry of the preliminary injunction, as

this would simply be a belated

, collateral attack on the trial court’s initial decision to6 enter or deny the injunction. To hold o therwise would allow limitless appeals based on

the same facts tried and decided to enter or deny a preliminary injunction. On the other

hand, if a party moves to dissolve a preliminary injunction based upon a change in

circumstances since the en try of the injunction, and the trial court grants or denies this

motion, then the party has the right to appeal the trial court’s order dissolving or refusing

to dissolve the injunction. 2

This holding is consonant with the letter and spirit of repose and reliance in our

procedural rules. For example, Trial Rule 13(A) generally requires that a defendant must

include in his responsive pleading any counterclaim that arises out of the transaction or

occurrence that is the subject matter of the plaintiff’s cl aim

. See Hilliard v. Jacobs

, 927

N.E.2d 393, 401 (Ind. Ct. App. 2010), trans. denied ( citing Ind. T rial R ule 13(A)). Cf

.

Armstrong v. State

, 747 N.E.2d 1119, 1120 (Ind. 2001) (noting that equitable doctrine of

laches bars consideration of claims or right s of those who have neglected to do what

should have been done under circumstances permitting due diligence).

In the case before us, t he Kindreds based their motion to dissolve the preliminary

injunction on grounds that Townsend and Crone lacked standing, that the trial court

lacked jurisdiction, and that the Defendants had failed to present sufficient evidence to

2 We find Xantech Corp. v. Ramco Indus., Inc.

, 643 N.E.2d 918 (Ind. Ct. App. 1994), and Oxford Fin.

Grp., Ltd. v. Evans

, 795 N.E.2d 1135 (Ind. Ct. App. 2003), cases cited by the Kindreds, to be

distinguishable. In Xantech

, the appellee failed to file an appellate brief, and the issue of jurisdiction was

neither raised nor addressed. In Oxford Financial

, the appellee did challenge the propriety of the

interlocutory appeal by claiming that the trial court in that case had merely modified the pr eliminary

injunction, a situation which did not fall within the ambit of Appellate Rule 14(A)(5). This court

disagreed, and held that the trial court ’ s modification effectively dissolved the original injunction, thereby

allowing an interlocutory appeal. Oxford Financial

, 795 N.E.2d at 1141. Here, in contrast, the trial court

did not alter the original preliminary injunction order, and the Kindreds ’ current arguments are simply

collateral attacks on the merits of the entry of the preliminary injunction or der, which we conclude to be

untimely for purposes of an interlocutory appeal.7 support the entry of the injunctio n. Even if true, evidence concerning t hese alleged

defects should have been apparent and presented by the Kindreds at the time the trial

court entered the preliminary injunction. Thereafter

, the Kindreds failed to timely perfect

an interlocutory appeal f rom the trial court’s order entering the preliminary injunction.

Instead, some six months later, they filed a motion seeking to dissolve the preliminary

injunction based upon grounds that were known or knowable at the time of the entry of

the preliminary injunction. To allow them to appeal now would permit them to bypass

the time limits imposed by Appellate Rule 14(A)(5) and to resurrect their time

- barred

right to appeal simply by filing a motion (or motions) to dissolve.

Because the Kindreds did not pe rfect an interlocutory appeal within thirty days of

the trial court’s order entering the preliminary injunction, their right to appeal this order

has been forfeited. T hey cannot revive this right by filing a motion to dissolve the

preliminary injunction e ntered against them based on claims, evidence

, or alleged facts

that were available to them at the time the preliminary injunction was tried

. We therefore

dismiss this interlocutory appeal as untimely. 3

Dismissed.

BRADFORD, J., and PYLE, J., concur.

3 Our holding should not be taken to mean that the Kindreds have forever waived any issue with regard to

the trial court ’ s interlocutory order(s). To the contrary, our supre me court has held that “ [a] claimed error

in an interlocutory order is not waived for failure to take an interlocutory appeal but may be raised on

appeal from the final judgment. ” Bojrab v. Bojrab

, 810 N.E.2d 1008, 1014 (Ind. 2004) (citing Georgos v.

Jack son

, 790 N.E.2d 448, 452 (Ind. 2003)). Thus, the Kindreds may attack the trial court ’ s interlocutory

orders on appeal from the final judgment. See id

. But we hold that they have forfeited their right to an

interlocutory appeal by failing to timely appea l the trial court ’ s entry of the preliminary injunction.