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Tuesday, February 25, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In James Kindred, Thomas Kindred, and Sam Kindred v. Betty Townsend and Harmon Crone , a 7-page opinion, Judge Mathias writes:

James Kindred, Thomas Kindred, and Sam Kindred appeal the interlocutory order of the Owen Circuit Court denying their motion to dissolve a preliminary injunction requested by Betty Townsend and Harmon 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. * * *

Because the Kindreds did not perfect 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. They cannot revive this right by filing a motion to dissolve the preliminary injunction entered 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.
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 supreme 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. Jackson, 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 appeal the trial court’s entry of the preliminary injunction.

NFP civil opinions today (1):

In Re the Visitation of L.W., D.W. v. G.W. and C.W. (NFP)

NFP criminal opinions today (6):

John R. Pugsley v. State of Indiana (NFP)

Derek A. Griffith v. State of Indiana (NFP)

Mark A. Petry v. State of Indiana (NFP)

James R. Willey v. State of Indiana (NFP)

Angelo A. Liali v. Patsy Liali (NFP)

Joshua Batchelor v. State of Indiana (NFP)

Posted by Marcia Oddi on February 25, 2014 11:06 AM
Posted to Ind. App.Ct. Decisions