Opinion
No. 73A05-1104-PL-165
12-19-2011
ERIE INSURANCE EXCHANGE as Subrogee of WELCH & WILSON PROPERTIES, LLC d/b/a HAMMONS STORAGE, and ALLIANZ GLOBAL RISKS U.S. INSURANCECOMPANY, Appellants, v. 500 RANGELINE ROAD, LLC and HSM DEVELOPMENT, INC., Appellees.
ROBERT A. SMITH Smith & Wade, LLP Noblesville, Indiana CAREN L. POLLACK ANDREA R. SIMMONS Pollack Law Firm, P.C. Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
ERIE INSURANCE EXCHANGE:
ROBERT A. SMITH
Smith & Wade, LLP
Noblesville, Indiana
ATTORNEYS FOR APPELLEES:
CAREN L. POLLACK
ANDREA R. SIMMONS
Pollack Law Firm, P.C.
Indianapolis, Indiana
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack Tandy, Judge
Cause No. 73D01-1002-PL-2
MEMORANDUM DECISION - NOT FOR PUBLICATION
MATHIAS , Judge
Erie Insurance Exchange ("Erie"), as subrogee of Welch & Wilson Properties, LLC d/b/a Hammons Storage ("Hammons"), appeals from the trial court's entry of partial summary judgment in favor of 500 Rangeline Road, LLC and HSM Development, Inc. (collectively, "Rangeline") on Erie's claim seeking recovery for damages it paid to Knauf Insulation KmbH ("Knauf") pursuant to its insured's policy. Concluding that the order from which Erie appeals is neither a final judgment nor an appealable interlocutory order, we dismiss this appeal sua sponte.
Facts and Procedural History
Rangeline is the owner of warehouse property located in Shelby County, Indiana. Hammons is a provider of commercial warehouse storage services. On April 30, 2008, Hammons entered into a commercial-industrial lease agreement with Rangeline pertaining to the Shelby County warehouse property. After taking possession of the property, Hammons used the warehouse to store insulation manufactured by Knauf. On December 23, 2008, the warehouse's fire-sprinkler system burst, causing water damage to the insulation Hammons was storing for Knauf. As a result of the water damage, Erie paid $1,000,000 to Knauf on behalf of its insured, Hammons.
On February 10, 2010, Hammons filed a complaint against Rangeline in Shelby Superior Court. Thereafter, Allianz Global Risks U.S. Insurance Company ("Allianz"), Knauf's insurer, filed a motion to intervene, along with a complaint seeking reimbursement for damages it had paid to its insured as a result of the loss. The trial court granted the motion on March 29, 2010. On April 5, 2010, Rangeline filed a counterclaim against Hammons seeking recovery for damage caused to the warehouse. On May 6, 2010, Hammons amended its complaint to substitute Erie as the real party in interest because Hammons claimed no uninsured losses.
On December 9, 2010, Rangeline filed an amended motion for partial summary judgment. In its motion, Rangeline sought judgment on Erie's subrogation claim only, asserting that the waiver of subrogation clause contained in the lease executed by Hammons and Rangeline precluded Erie from recovering any damages from Rangeline. The trial court granted Rangeline's motion on March 8, 2011. Thereafter, Rangeline's counterclaim and Allianz's third-party complaint remained pending. Nevertheless, Erie filed a notice of appeal and sought a stay of proceedings pending the outcome of this appeal, which the trial court granted. This appeal ensued.
Discussion and Decision
As a threshold matter, the parties do not address the question of whether the trial court's order granting partial summary judgment is an appealable order. This court has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A). Whether an order is a final judgment governs this court's subject matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003). The lack of appellate subject matter jurisdiction may be raised at any time, and where the parties do not raise the issue, this court may consider it sua sponte. Id.
Pursuant to Indiana Appellate Rule 2(H)(1), a "final judgment" is one which "disposes of all claims as to all parties[.]" Because both Rangeline's counterclaim and Allianz's third-party complaint remained pending after the trial court entered its order granting partial summary judgment, that order is not an appealable final judgment pursuant to Appellate Rule 2(H)(1). However, Trial Rule 54(B) provides, in relevant part, that:
When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. . . . 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.(emphasis added); see also Ind. Trial Rule 56(C) (providing that summary judgment with respect to less than all of the issues, 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."); Ind. Appellate Rule 2(H)(2) (providing that a judgment as to fewer than all claims or parties is a final judgment where the requirements of T.R. 54(B) or T.R. 56(C) are met).
In its Appellant's Case Summary, Erie indicated that it was appealing on the basis of Trial Rule 54(B).
In Martin v. Amoco Oil Co., our supreme court adopted a "bright line" rule requiring strict compliance with Trial Rules 54(B) and 56(C) before a trial court's order disposing of less than all claims as to all parties will be deemed final and appealable as of right. 696 N.E.2d 383, 385 (Ind. 1998). 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 compliance with the rules "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 Rules 54(B) and 56(C), an order disposing of fewer than all claims as to all parties remains interlocutory in nature. See id.; Forman v. Penn, 938 N.E.2d 287, 289-90 (Ind. Ct. App. 2010), summary judgment aff'd on reh'g, 945 N.E.2d 717 (Ind. Ct. App. 2011), trans. denied.
Here, the trial court's order granting partial summary judgment expressly directed the entry of judgment in Rangeline's favor. See Appellant's Br. at 27. However, that order contained no express determination that there was no just reason for delay, and our review of the record has not revealed the existence of any written order of the trial court making such an express determination. Accordingly, the trial court's partial summary judgment order is not a final judgment pursuant to Trial Rule 54(B) or 56(C).
Erie has not included a copy of the trial court's partial summary judgment order in its Appellant's Appendix. We therefore cite the copy of the order attached to Erie's Appellant's Brief.
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Because the trial court's partial summary judgment order was not a final judgment, Erie cannot appeal unless the order is an appealable interlocutory order. See Bacon v. Bacon, 877 N.E.2d 801, 804 (Ind. Ct. App. 2007), trans. denied. "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. This court has "jurisdiction over appeals of interlocutory orders under Rule 14[.]" App. R. 5(B).
Under Appellate Rule 14(A), certain interlocutory orders may be appealed as a matter of right. Such appeals must be expressly authorized, and that authorization is to be strictly construed. Bacon, 877 N.E.2d at 804. None of the grounds for interlocutory appeals set forth in Appellate Rule 14(A) apply to the case before us. Therefore, Erie is not entitled to an interlocutory appeal as a matter of right. Additionally, under Appellate Rule 14(B), interlocutory orders may be appealed "if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal." App. R. 14(B). However, no such certification and acceptance took place here. Thus, the trial court's partial summary judgment order is not appealable under Appellate Rule 14(B).
For all of these reasons, we conclude that the order from which Erie appeals is neither a final judgment nor an appealable interlocutory order. This court is therefore without subject matter jurisdiction to entertain Erie's appeal. Nevertheless, we note that the parties are free to seek an amendment of the trial court's order if they wish to pursue an appeal at this stage of the proceedings. See Forman, 938 N.E.2d at 290; Rayle v. Bolin, 769 N.E.2d 636, 638 (Ind. Ct. App. 2002).
Dismissed. BAILEY, J., and CRONE, J., concur.