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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowIn a dispute between neighbors over a dock being built on a shared lake, the Indiana Court of Appeals has dismissed the plaintiff’s appeal.
Mark Baker lives next door to Adam and Kathleen Pickering in Indianapolis on Lake Kesslerwood. Both parties are members of the Kesslerwood East Lake Association Inc., which requires homeowners to sign and adhere to a Declaration of Covenants and Restrictions.
The Pickerings constructed a dock extending from the shoreline into the lake, but in June 2020, Baker filed a complaint in Marion Superior Court against the Pickerings alleging the dock violated the terms of the declaration and interfered with Baker’s right to access the area around the lake. The complaint sought compensatory damages as well as declaratory and injunctive relief.
The Pickerings denied the material allegations of Baker’s complaint and asserted Baker failed to name Lauren Flanagan, the owner of an adjoining property, and the association as indispensable parties pursuant to Indiana Trial Rule 19(A). In their counterclaim, the Pickerings also accused Baker of being the party in breach of the declaration, and it asserted claims of intentional infliction of emotional distress, trespass and abuse of process.
The Pickerings’ third-party complaint was filed against the association. It alleged the association approved their plans for the dock and, therefore, the association had a duty to indemnify the Pickerings if Baker is entitled to any relief. Further, the Pickerings filed a motion to compel arbitration and stay proceedings pending arbitration based on the declaration’s arbitration clause.
Baker sought and was granted leave to amend his complaint to add the association and Flanagan as additional defendants. He further filed an objection to the Pickerings’ motion to compel arbitration, arguing the arbitration provision in the declaration didn’t apply to this dispute.
This past January, the trial court granted the motion to compel arbitration.
Baker then filed a Motion for Relief from Order, ostensibly pursuant to Indiana Trial Rule 60(B). Both the association and the Pickerings opposed Baker’s motion, and the trial court denied it.
On March 2, Baker filed a notice of appeal. Baker asserted in his notice of appeal that he was appealing from a final judgment, but the Pickerings and the association filed a joint motion to dismiss Baker’s appeal on the basis that the notice of appeal was untimely and improper.
Baker asserted his filing of the notice of appeal was timely because it was filed less than 30 days after the trial court denied his motion for relief. On April 15, the motions panel voted to deny the joint motion to dismiss.
But in a Tuesday opinion, the COA dismissed Baker’s appeal, finding the arbitration wasn’t a final judgment.
“… (T)he order compelling arbitration does not constitute a final order under either Indiana Appellate Rule 2(H)(1) or Rule 2(H)(2) because the order does not resolve the parties’ claims for damages and the order was not certified pursuant to Trial Rule 54(B),” Judge Melissa May opined for the COA, pointing to Maynard v. Golden Living, 56 N.E.3d 1232, 1237 (Ind. Ct. App. 2016).
The COA also ruled the Indiana Arbitration Act goes against Baker’s claims.
“Notably, this statute does not provide for the appealability of an order compelling arbitration, and thus, it does not make the trial court’s order compelling arbitration a final order,” May continued.
Baker also failed to meet the requirements for an interlocutory appeal, the court opined.
“… Baker has not met the requirements to bring an appeal of an interlocutory order under any of the subsections of Appellate Rule 14,” May wrote, pointing to Bacon v. Bacon, 877 N.E.2d 801, 805 (Ind. Ct. App. 2007). “Accordingly, we dismiss Baker’s appeal because he is attempting to pursue an interlocutory appeal without following the procedure for doing so outlined in the Rules of Appellate Procedure.”
The case is Mark Baker v. Adam Pickering, Kathleen Pickering, Lauren Flanagan, and Kesslerwood East Lake Association, Inc., 21A-MI-354.
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