JKK LLC v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] This appeal stems from an underlying case in which the State of Indiana (“the State”) filed a complaint for appropriation of real estate against Kelei JKK, LLC (“Kelei”). In this appeal, Kelei attempts to challenge the trial court's order denying Kelei's motion for change of venue under Indiana Trial Rule 76. The State argues, and we agree, that the trial court's order was neither a final judgment nor an appealable interlocutory order. Accordingly, we dismiss Kelei's appeal without prejudice to its right to file an appeal once a final judgment has been entered or the order has been certified for an interlocutory appeal.

[2] We dismiss.

Issue

Whether we should dismiss Kelei's appeal because the trial court's order denying the Trial Rule 76 motion for change of venue was neither a final judgment nor an appealable interlocutory order.

Facts

[3] Because of our disposition of this appeal, we will not delve into detailed facts regarding the underlying case. On January 28, 2025, the State filed a complaint for appropriation of real estate against Kelei as the owner of real estate along U.S. 31 that the State sought to appropriate. The State also filed the complaint against Hamilton County (“the County”) and noted that the County “may hold an interest” in the real estate. (App. Vol. 2 at 11).

[4] On February 27, 2025, Kelei filed a motion for change of venue under Trial Rule 76. In its motion, Kelei stated that it sought the change of venue because the County was a party in the case.

[5] Thereafter, on March 3, 2025, the County filed a disclaimer of interest and a motion to be dismissed as a defendant in the case. That same day, the trial court granted the County's motion and dismissed the County as a party.

[6] The following day, on March 4, the State filed a response in opposition to Kelei's motion for change of venue. The State asserted that Kelei's basis for a change of venue no longer existed and that Kelei's motion was moot.

[7] That same day, Kelei filed a reply to the State's response and argued that, upon Kelei's filing of its motion for change of venue, the trial court had been required to grant Kelei's motion and had been divested of jurisdiction to rule on the County's motion to dismiss. In its reply, Kelei also argued that the State's response in opposition to Kelei's motion for change of venue was frivolous and groundless, and Kelei sought sanctions against the State.

[8] On March 4, 2025, the trial court denied Kelei's Trial Rule 76 motion for change of venue. Kelei now attempts to appeal the trial court's order denying that Trial Rule 76 motion. In its notice of appeal, Kelei asserted that it is appealing an interlocutory order as of right under Indiana Appellate Rule 14(A) or 14(D). Kelei did not specify which subsection of Appellate Rule 14(A) was applicable to its appeal. Nor did Kelei specify what statute would provide for such an interlocutory appeal.

Decision

[9] Kelei appeals the trial court's order denying Kelei's Trial Rule 76 motion for change of venue. We, however, decline to review Kelei's challenge at this juncture because the trial court's order that Kelei attempts to appeal was neither a final judgment nor an appealable interlocutory order. “It is the duty of this Court to determine whether we have jurisdiction before proceeding to determine the rights of the parties on the merits.” Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied.

[10] As set forth in Indiana Appellate Rule 2(H), a judgment is a “final judgment” if:

(1) it disposes of all claims as to all parties; [or]

(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[.]

Ind. Appellate Rule 2(H).

[11] If an order is not a final judgment, then an appellant may appeal the order only if it is an appealable interlocutory order. See In re Adoption of S.J., 967 N.E.2d 1063, 1066 (Ind. Ct. App. 2012). “An interlocutory order is one made before a final hearing on the merits and requires something to be done or observed but does not determine the entire controversy.” Id. (cleaned up). “Non-final orders that are appealable right away—on an interlocutory basis—include those recited in Appellate Rule 14.” In re D.J. v. Ind. Dep't of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017).

[12] Here, the trial court's order at issue was not a final judgment under Appellate Rule 2(H) nor was it an appealable interlocutory order. The trial court's order—which denied Kelei's Trial Rule 76 motion for change of venue—was not a “final judgment” under Appellate Rule 2(H)(1) because it did not dispose of all claims as to all parties. The trial court's order was also not a “final judgment” under Appellate Rule 2(H)(2) because the trial court did not include the “magic language” required to meet the “bright line” rule under Indiana Trial Rule 54(B). See Adoption of S.J., 967 N.E.2d at 1065-66. See also Ramsey v. Moore, 959 N.E.2d 246, 253 (Ind. 2012) (determining that part of a trial court's order that did not contain the “magic language” of Trial Rule 54(B) was not a final appealable judgment under Appellate Rule 2(H)(2)).

[13] Additionally, contrary to Kelei's assertion, the trial court's order is not an appealable interlocutory order as of right under Appellate Rule 14(A). In its notice of appeal, Kelei did not specify which subsection of Appellate Rule 14(A) is applicable to its appeal of the trial court's order. Initially, it appeared that Kelei may have been relying upon Appellate Rule 14(A)(8), which is for “[t]ransferring or refusing to transfer a case under Trial Rule 75[.]” See Ind. App. R. 14(A)(8). However, Kelei's motion for change of venue was filed under Trial Rule 76, not Trial Rule 75. Therefore, Kelei's appeal from the trial court's ruling on Kelei's Trial Rule 76 motion is not an interlocutory appeal as of right. See Trojnar v. Trojnar, 698 N.E.2d 301, 302-03 (Ind. 1998) (explaining that a ruling on a Trial Rule 76 motion was not included in the list of interlocutory appeals as of right because it was not the equivalent of a Trial Rule 75 ruling).

[14] Additionally, in Kelei's reply brief, when responding to the State's argument that Kelei's appeal was not an interlocutory appeal as of right, Kelei still did not specify which subsection of Appellate Rule 14(A) is applicable to its appeal. Instead, Kelei asserted that the State had failed to show that Kelei's appeal from the trial court's denial of Kelei's motion was not an interlocutory appeal as of right. Such an argument is misplaced because it is incumbent upon Kelei, as the appellant, to show how Kelei's appeal of the trial court's denial of Kelei's Trial Rule 76 motion was an interlocutory appeal as of right. Because a trial court's ruling on a Trial Rule 76 motion for a change of venue is not one of the enumerated categories of interlocutory orders that are appealable as of right under Appellate Rule 14(A), Kelei's appeal is not an interlocutory appeal as of right.

[15] Moreover, the trial court's order is not a discretionary interlocutory appealable order under Appellate Rule 14(B) because Kelei neither requested the trial court to certify its order for interlocutory appeal nor sought permission from our Court to accept the interlocutory appeal. See Adoption of S.J., 967 N.E.2d at 1066. See also App. R. 14; Baker v. Pickering, 178 N.E.3d 347, 354 (Ind. Ct. App. 2021) (explaining that our Court does not have appellate jurisdiction under Appellate Rule 14(B) where the appellant did not follow the procedure outlined in Rule 14(B)), reh'g denied, trans. denied.

[16] Nor has Kelei shown that the trial court's order is appealable as an interlocutory appeal under Appellate Rule 14(D), which provides that “[o]ther interlocutory appeals may be taken only as provided by statute.” App. R. 14(D). Our Court has explained that it is an appellant's “obligation to direct us to any statute the [appellant] believes empowers us with jurisdiction in accordance with Appellate Rule 14(D).” Baker, 178 N.E.3d at 354. Additionally, our Court explained that we will “ ‘not undertake [an appellant's] burden of searching the Indiana Code to establish that such a statute exists.’ ” Id. (quoting Young v. Estate of Sweeney, 808 N.E.2d 1217, 1220 (Ind. Ct. App. 2004)).

[17] Because the trial court's order is not a final appealable order or an appealable interlocutory order, we dismiss this appeal for lack of appellate jurisdiction. See Town of Ellettsville v. Despirito, 87 N.E.3d 9, 12 (Ind. 2017) (explaining that “in the overwhelming majority of cases, the proper course for an appellate court to take where it finds appellate jurisdiction lacking is simply to dismiss the appeal”). Accordingly, we dismiss this appeal without prejudice to Kelei's right to file an appeal once a final judgment has been entered or the order has been certified for an interlocutory appeal. See Indy Auto Man, LLC v. Keown & Kratz, LLC, 84 N.E.3d 718, 722 (Ind. Ct. App. 2017) (dismissing the appellant's appeal without prejudice where the trial court's order being appealed was not a final judgment).

[18] Dismissed.

Pyle, Judge.

Chief Judge Altice and Judge DeBoer concur. Altice, C.J., and DeBoer, J., concur.