FILED
Oct 06 2017, 10:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher P. Jeter Mark D. Gerth
Massillamany & Jeter, LLP Michael E. Brown
Fishers, Indiana Sarah A. Hurdle
Kightlinger & Gray, LLP
Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indy Auto Man, LLC, October 6, 2017
Appellant-Plaintiff, Court of Appeals Case No.
29A02-1703-PL-551
v. Appeal from the Hamilton
Superior Court 4
Keown & Kratz, LLC, and The Honorable J. Richard
Dustin Stohler, Campbell, Judge
Appellees-Defendants. Trial Court Cause No.
29D04-1507-PL-5455
Mathias, Judge.
[1] Indy Auto Man, LLC (“IAM”) filed a complaint against Keown & Kratz, LLC
(“K&K”), and Dustin Stohler (“Stohler”), alleging legal malpractice. K&K
subsequently filed a motion for summary judgment, which the trial court
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granted. IAM appeals and claims that there are genuine issues of material fact
precluding summary judgment. We conclude sua sponte that the trial court’s
grant of summary judgment to K&K was not a final appealable order.
Accordingly, we dismiss this appeal.
Facts and Procedural History
[2] For purposes of our discussion, we need not set forth a detailed statement of the
facts underlying IAM’s claim. But briefly, after being sued by two customers
over the purchase of vehicles, IAM retained the services of attorney Stohler,
who was then working, at least partly, for K&K. K&K claims that Stohler was
employed only “of counsel,”1 and that IAM was not a client of the firm. Stohler
stopped showing up to work at K&K, and K&K allowed Stohler’s mail to pile
up, unopened, on his desk. Stohler failed to respond to discovery requests or the
plaintiff’s motion for default judgment in one of the cases.
[3] IAM eventually received notice that a default judgment in the amount of
$60,000 (which included treble damages) had been entered against IAM in one
of the cases. IAM then hired another attorney, the same attorney who had
initially recommended Stohler, to assist them in vacating or reducing the
1
An attorney “of counsel” is defined as “1. A lawyer employed by a party in a case; esp., one who —
although not the principal attorney of record — is employed to assist in the preparation or management of
the case or in its presentation on appeal. 2. A lawyer who is affiliated with a law firm, though not as a
member, partner, or associate.” COUNSEL, Black’s Law Dictionary (10th ed. 2014).
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default judgments. IAM’s new counsel was successful in settling the default
judgment for $30,000 and settled the other case for $15,000.
[4] IAM then brought a legal malpractice claim against K&K and Stohler. The trial
court’s chronological case summary (“CCS”) does not indicate that Stohler
responded to this claim. K&K did respond, filing an answer that included a
counter-claim for attorney fees. K&K subsequently moved for summary
judgment, arguing that it did not owe a duty of care to IAM because IAM was
not the firm’s client and further argued that K&K had a limited agency
relationship with Stohler that did not extend to Stohler’s clients like IAM. IAM
responded and filed its own cross-motion for summary judgment. The trial
court held a summary judgment hearing and granted summary judgment in
favor of K&K on IAM’s claims and in favor of IAM on K&K’s counter-claim
for attorney fees, concluding that IAM’s claims were not frivolous.
[5] Notably, the trial court’s summary judgment order did not grant summary
judgment in favor of Stohler; nor did the court’s order include the “magic
language” of Indiana Trial Rule 56(C), i.e. that there was no just reason for
delay and expressly directing entry of judgment as to less than all the parties.
IAM then filed a notice of appeal, initiating this appeal.
Discussion and Decision
[6] This court has jurisdiction in all appeals from final judgments. In re Estate of
Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012) (citing Ind. Appellate Rule
5(A)). “A ‘final judgment’ is one which ‘disposes of all claims as to all
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parties[.]’” Id. (quoting App. R. 2(H)(1)); see also Bueter v. Brinkman, 776 N.E.2d
910, 912–13 (Ind. Ct. App. 2002) (a final judgment is one that “disposes of all
issues as to all parties, to the full extent of the court to dispose of the same, and
puts an end to the particular case” and “reserves no further question or
direction for future determination.”) (internal quotations and citations omitted).
Whether an order is a final judgment governs the appellate court’s subject
matter jurisdiction. Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind.
2014) (citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003))2. The lack of
appellate subject matter jurisdiction may be raised at any time, and where the
2
We recognize that another panel of this court read our supreme court’s recent case of In re D.J. v. Indiana
Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017), as “effectively overrul[ing]” its prior holdings in Ramsey
v. Moore, 959 N.E.2d 246 (Ind. 2012), and Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003). Manley v. Zoeller, 77
N.E.3d 1227, 1230–31 (Ind. Ct. App. 2017).
In Georgos, the court held that neither the parties nor the trial court can confer appellate jurisdiction over an
order that is not appealable either as a final judgment or under deemed final under the “magic language”
provision of Trial Rule 54(B). Georgos, 790 N.E.2d at 451. And in Ramsey, the court dismissed for lack of
appellate jurisdiction even though a portion of the trial court’s order contained the “magic language” from
Trial Rule 54(B), because the “magic language” applied only to one portion of the trial court’s order. Ramsey,
959 N.E.2d at 253.
In In re D.J., the parents filed their notice of appeal from the trial court’s non-final CHINS determination as
opposed to the final dispositional order. 68 N.E.3d at 577. The court held that this rendered the parents’
notice of appeal untimely, thereby forfeiting their right to appeal. Id. at 578. But this forfeiture did not deprive
the appellate court of subject matter jurisdiction. Id. at 578–79. The court exercised its discretion to consider
the merits of the appeal despite this forfeiture. Id. at 579.
Unlike the court in Manley, we do not read In re D.J. as altering the long-standing rule that appellate courts
have no jurisdiction to consider non-final orders. See John C. & Maureen G. Osborne Revocable Family Tr. v.
Town of Long Beach, 78 N.E.3d 680, 691 (Ind. Ct. App. 2017) (citing Georgos for the proposition that appellate
courts have no jurisdiction over non-final orders, but concluding that the order before it was a final
appealable order). Instead, we read In re D.J. as merely applying our supreme court’s existing rule that the
timeliness of a notice of appeal does not affect an appellate court’s jurisdiction. See In re Adoption of O.R., 16
N.E.3d 965, 970 (Ind. 2014).
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parties do not raise the issue, this court may consider it sua sponte. In re Estate of
Botkins, 970 N.E.2d at 166.
[7] Here, IAM’s complaint named two defendants: Stohler and K&K. Only K&K
filed a motion for summary judgment, and the trial court’s order granting
summary judgment granted judgment only as to K&K:
For the reasons set forth above, the Court rules that the
designated evidence shows that there is no genuine issue as to
any material fact [and] that K&K is entitled to summary judgment as
a matter of law. Furthermore, the Court denies IA[M]’s cross-
motion for summary judgment. Furthermore, the Court on its
own motion grants judgement against K&K and in favor of
IA[M] on K&K’s counterclaim.
Appellant’s App. Vol. 2, p. 11 (emphasis added).
[8] Thus, even after granting summary judgment in favor of K&K, and granting
summary judgment in favor of IAM on K&K’s counter-claim, there was still
one defendant against whom judgment had not yet been entered—Stohler. Our
review of the trial court’s CCS reveals no entry granting judgment either for or
against Stohler. Thus, the trial court’s summary judgment order granted
judgment in favor of one of two parties. By definition, this order was not final
because it did not “dispose[] of all claims as to all parties.” App. R. 2(H)(1).
[9] An otherwise non-final judgment may be deemed final if:
the trial court in writing expressly determines under Trial Rule
54(B) or Trial Rule 56(C) that there is no just reason for delay
and in writing expressly directs the entry of judgment (i) under
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Trial Rule 54(B) as to fewer than all the claims or parties, or (ii)
under Trial Rule 56(C) as to fewer than all the issues, claims or
parties[.]
Ind. App. Rule 2(H)(2). This is a reference to the following language in Trial
Rule 56(C):
A summary judgment upon less than all the issues involved in a
claim or with respect to less than all the claims or parties shall be
interlocutory unless the court in writing expressly determines that
there is no just reason for delay and in writing expressly directs
entry of judgment as to less than all the issues, claims or parties.
[10] Our supreme court has adopted a “bright line” rule with regard to the “magic
language” provision of Trial Rule 54(B),3 which is in substantially similar to the
“magic language” provision of Trial Rule 56(C):
In Martin [v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998)], our
supreme court adopted a “bright line” rule requiring strict
compliance with Trial Rule 54(B) before a trial court’s order
disposing of less than all issues as to all parties will be deemed
final and appealable as of right. The court explained that this
formalistic approach “removes uncertainties about when a party
should appeal, thus minimizing the risk that an appeal will be
dismissed as premature or that the right to appeal will be
inadvertently lost.” Id. The court reasoned further that strict
3
The “magic language” provision of Trial Rule 54(B) provides:
A judgment as to one or more but fewer than all of the claims or parties is final when the
court in writing expressly determines that there is no just reason for delay, and in writing
expressly directs entry of judgment, and an appeal may be taken upon this or other issues
resolved by the judgment; but in other cases a judgment, decision or order as to less than all
the claims and parties is not final.
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compliance with the rule “place[s] the discretion of deciding
when the facts indicate that a judgment should be deemed final
in the hands of the individual best able to make such decisions—
the trial judge.” Id. Thus, unless a trial court uses the “magic
language” set forth in Trial Rule 54(B), an order disposing of
fewer than all claims as to all parties remains interlocutory in
nature.
In re Estate of Botkins, 970 N.E.2d at 167.
[11] Given the similarity between the language in Trial Rule 54(B) and Trial Rule
56(C), we see no reason why the Martin court’s rationale regarding non-final
orders under Trial Rule 54(B) should not also apply to summary judgment
orders under Trial Rule 56(C). That is, if a trial court’s summary judgment
order is not final as to all issues, claims, and parties, the order must include the
“magic language” set forth in Trial Rule 56(C) to be considered final.
Otherwise, a summary judgment order disposing of fewer than all claims as to
all parties remains interlocutory in nature. See Martin, 696 N.E.2d at 385.
[12] In the present case, the trial court’s summary judgment order did not dispose of
all issues as to all parties. Nor did it include the “magic language” from Trial
Rule 56(C) that would have converted its otherwise non-final order into a final
order. Therefore, the trial court’s summary judgment order is not a final order.
[13] Generally, a non-final order is not appealable unless it is an interlocutory order
that is appealable as of right under Appellate Rule 14(A), or the appellant has
sought and gained permission for a discretionary interlocutory appeal from the
trial court and this court under Appellate Rule 14(B). Manley v. Zoeller, 77
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N.E.3d 1227, 1230 (Ind. Ct. App. 2017). Neither of these provisions is
applicable here, where the appeal is not interlocutory as of right, nor have the
parties sought permission to file an interlocutory appeal.
[14] Because we do not have jurisdiction to hear an appeal from the trial court’s
non-final summary judgment order, we dismiss this appeal, without prejudice.
See In re Estate of Botkins, 970 N.E.2d at 168 (dismissing appeal where order
being appealed was not final because it did not dispose of all claims as to all
parties, did not contain the magic language required to deem it final, was not an
order from which an interlocutory appeal could be taken as of right, and the
parties had not received permission from this court to take a discretionary
interlocutory appeal).
[15] Dismissed.
Vaidik, C.J., and Crone, J., concur.
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