Jeannine Whittington, Personal Representative of the Estate of Robert J. Whittington, and Jeannine Whittington, Individually v. David Magnante, M.D., and Magnante Eye Care

Apr 24 2015, 9:54 am

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
James E. Ayers David G. Field
Wernle, Ristine & Ayers Justin C. Wiler
Crawfordsville, Indiana Schultz & Pogue, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Jeannine Whittington, Personal April 24, 2015
Representative of the Estate of Court of Appeals Case No.
Robert J. Whittington, 54A05-1411-PL-519
Deceased, and Jeannine Appeal from the Montgomery Circuit
Whittington, Individually, Court.
The Honorable Bruce Stengel,
Appellants-Plaintiffs, Special Judge.
Cause No. 54C01-1210-PL-942
v.

David Magnante, M.D., and
Magnante Eye Care,
Appellees-Defendants.

Sharpnack, Senior Judge

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 Statement of the Case
[1] Jeannine Whittington, personal representative of the Estate of Robert J.

Whittington, deceased, and Jeannine Whittington, in her individual capacity

(collectively, “the Plaintiffs”), appeal from the trial court’s order appearing to

grant a motion filed by David Magnante, M.D., and Magnante Eye Care

(collectively “the Defendants”). Because we lack jurisdiction over this appeal,

we dismiss.

Facts and Procedural History
[2] The Plaintiffs filed a medical malpractice action against the Defendants on

October 26, 2012, after going through the Medical Review Panel process. The

Defendants requested to take the deposition of the Plaintiffs’ expert, Dr. Peter

Hovland, an ophthalmologist. A discovery dispute arose between the parties

about who should bear the expense of Dr. Hovland’s deposition preparation

time.

[3] The Defendants filed a motion and brief with the trial court on December 2,

2013 requesting the trial court to order that the Defendants’ compensation to

the Plaintiffs’ expert be limited to a reasonable hourly rate for time spent in

being deposed but not including time spent in preparing to be deposed. After

the Plaintiffs filed a response to the Defendants’ motion, the trial court after

hearing argument entered its order.

[4] The trial court’s order reads as follows:

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 This matter came before the Court on Motion of Defendants,
David Magnate[sic], M.D., and Magnante Eye Care, Regarding
Discovery Dispute Over Payment of Plaintiff’s[sic] Expert’s Fees
for Time to be Spent Preparing for His Deposition, and the Court
being duly advised in the premises, NOW FINDS that:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that Defendant’s[sic] Motion regarding discovery dispute over
payment of expert’s fees is DENIED. Defendants are not
required to pay for the time Plaintiff’s[sic] expert, Dr. Hovland
spends preparing for his deposition.

1
Appellants’ App. p. 49. The Plaintiffs now appeal.

Discussion and Decision
[5] The Court of Appeals has jurisdiction in all appeals from final judgments. Ind.

Appellate Rule 5(A). In pertinent part, a judgment is a “final judgment” if it

falls under one of the subsections of Indiana Appellate Rule 2(H), none of

which are applicable here to the trial court’s order resolving a discovery dispute.

[6] In the Notice of Appeal, the Plaintiffs assert that this is an interlocutory appeal

of right under Indiana Appellate Rule 14(A), (C), or (D). Indiana Appellate

Rule 14(C) provides for interlocutory appeals from orders granting or denying

class action certification. Indiana Appellate Rule 14(D) provides that other

(than A, B, or C) interlocutory appeals may be taken only as provided by

1
Although the trial court’s order is internally inconsistent—denying Defendants’ motion, but then stating
that the Defendants are not required to pay for Dr. Hovland’s deposition preparation time, and thus granting
the Defendants’ requested relief—both sides are treating the order as if the Defendants’ motion was granted
and that the Defendants are not required to pay for Dr. Hovland’s preparation time.

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 statute. Neither of these rules applies to this appeal. This court has jurisdiction

“over appeals of interlocutory orders under Rule 14.” Ind. App. R. 5. The only

subdivision of Indiana Appellate Rule 14(A) that is arguably applicable in this

appeal is subsection “(1) For the payment of money[.]”

[7] If an order is not listed in Indiana Appellate Rule 14(A), the order is governed

by Indiana Appellate Rule 14(B), providing for discretionary interlocutory

appeals, “which requires the trial court, upon motion by either party, to certify

the order in question.” Rowe v. Ind. Dept. of Corr., 940 N.E.2d 1218, 1219 (Ind.

Ct. App. 2011). “The appeal still may not be granted unless this court accepts

jurisdiction of the appeal.” Id.

[8] In Rowe, we acknowledged that our Supreme Court has described orders falling

within the category “for the payment of money” as follows:

The matters which are appealable as of right under Appellate
Rule 4(B)(1) involve trial court orders which carry financial and
legal consequences akin to those more typically found in final
judgments: payment of money, issuance of a debt, delivery of
securities, and so on.
Id. at 1219-20 (quoting State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991)).

[9] In Rowe, we also noted our opinion in National Gen. Ins. Co. v. Riddell, 705

N.E.2d 465 (Ind. Ct. App. 1998), in which we cited examples of decisions

determining what orders fell within that category under the predecessor of the

current appellate rule. Borrowing examples from National Gen. Ins. Co., we

cited them in Rowe as follows: “Orders to pay death taxes (citing Estate of

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 Meyer, 702 N.E.2d 1078 (Ind. Ct. App. 1998), trans. denied); orders to pay

attorney’s fees (citing Skiles v. Skiles, 646 N.E.2d 353 (Ind. Ct. App. 1995));

orders to pay child support (citing Lamon v. Lamon, 611 N.E.2d 154 (Ind. Ct.

App. 1993)); orders to make a deposit of money into court (citing Schwedland v.

Bachman, 512 N.E.2d 445 (Ind. Ct. App. 1987)); and orders for the payment of

attorney’s fees as a sanction under Ind. Trial Rule 37 (citing State v. Kuespert,

425 N.E.2d 229 (Ind. Ct. App. 1981)).” Id. at 1220 (citing National Gen. Ins. Co.

705 N.E.2d at 465 n.1).

[10] In the present case, as in Rowe, the trial court’s order did not directly order one

of the parties to pay a sum to another party or to the court. Instead, the trial

court here determined that the Defendants did not have to pay a sum to the

Plaintiffs for the deponent’s deposition preparation time. The order does not

qualify as an order for the payment of money pursuant to Indiana Appellate

Rule 14(A). As a result, the Plaintiffs are not entitled to interlocutory review as

a matter of right.

[11] Because this is not a final judgment or an interlocutory appeal of right, the

Plaintiffs were required to pursue a discretionary appeal under Indiana

Appellate Rule 14(B). Having failed to do so, we must dismiss this appeal for

want of jurisdiction. See Moser v. Moser, 838 N.E.2d 532, 534 (Ind. Ct. App.

2005) (“[a]n appeal from an interlocutory order is not allowed unless specific

authority is granted by the Indiana Constitution, statutes, or the rules of court .

. . any such express authorization for an interlocutory appeal is strictly

construed”; the court of appeals may dismiss appeals upon its own motion

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 when it discovers it does not have jurisdiction) (internal citations omitted),

trans. denied.

Conclusion
[12] In light of the foregoing, we dismiss the Plaintiffs’ appeal.

[13] Dismissed.

Bailey, J., and Pyle, J., concur.

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