Opinion
Court of Appeals Case No. 20A-PL-1814
01-29-2021
Shad TRUELOVE, Appellant-Plaintiff, v. Matthew "Cully" KINNICK, Justine Kinnick, Gerald Yarnell II, and Jennifer Mapalad, Appellees-Defendants.
Attorneys for Appellant: Grant E. Swartzentruber, Washington, Indiana, John B. Steinhart, Ashville, Ohio Attorney for Appellees Matthew "Cully" Kinnick, Justine Kinnick, and Jennifer Mapalad: Kathleen S. Crebo, Hocker & Associates, LLC, Indianapolis, Indiana
Attorneys for Appellant: Grant E. Swartzentruber, Washington, Indiana, John B. Steinhart, Ashville, Ohio
Attorney for Appellees Matthew "Cully" Kinnick, Justine Kinnick, and Jennifer Mapalad: Kathleen S. Crebo, Hocker & Associates, LLC, Indianapolis, Indiana
Pyle, Judge.
Statement of the Case
[1] In this appeal, Shad Truelove ("Truelove") attempts to challenge the trial court's order granting a motion to dismiss in favor of some, but not all, of the defendants in this underlying case. We sua sponte conclude that because the trial court's order was neither a final judgment nor an appealable interlocutory order, we dismiss the appeal without prejudice to his right to file an appeal once a final judgment has been entered or the order has been certified for an interlocutory appeal.
[2] We dismiss. Issue
Whether we should dismiss Truelove's appeal because the trial court's order granting the motion to dismiss was neither a final judgment nor an appealable interlocutory order.
Facts
[3] The relevant facts follow. This underlying case stems from Appellant-Plaintiff Truelove's breach of contract complaint filed in June 2020 against the following four defendants: (1) Matthew "Cully" Kinnick; (2) Justine Kinnick; (3) Jennifer Mapalad (collectively "the Three Dismissal Defendants"); and (4) Gerald Yarnell II ("the Remaining Defendant"). In his complaint, Truelove asserted that these four defendants owned four tracts of land ("the property") in Martin County and that they had breached a contract to sell the property to Truelove. Truelove sought specific performance of the sale of the property and filed a notice of lis pendens against the property.
[4] At trial and on appeal, the Three Dismissal Defendants are represented by one attorney, and the Remaining Defendant is represented by a second attorney. On August 21, 2020, the Remaining Defendant filed an answer to Truelove's complaint. On August 31, 2020, the Three Dismissal Defendants filed a motion to dismiss under Indiana Trial Rule 12(B)(6). The Three Dismissal Defendants also filed a proposed order. On September 11, 2020, the trial court, using the Three Dismissal Defendants’ proposed order, granted the motion to dismiss in favor of the Three Dismissal Defendants and discharged Truelove's notice of lis pendens. The trial court's order did not contain the "magic language" of Indiana Trial Rule 54(B), indicating that there was no just reason for delay and expressly directing entry of judgment as to less than all issues, claims, or parties.
[5] Truelove now attempts to appeal. Truelove filed his notice of appeal with this Court and indicated that he was appealing a final judgment as defined under Appellate Rule 2(H). Thereafter, the attorney for the Remaining Defendant filed an appearance with a notice that the Remaining Defendant was a "non-participating" party in the appeal because "a Judgment [had] not [been] entered against [the Remaining Defendant] in the lower Court." (Docket entry for Nov. 13, 2020).
Decision
[6] Truelove appeals the trial court's order granting the motion to dismiss in favor of the Three Dismissal Defendants. We, however, decline to review his challenge at this juncture because the trial court's order that he attempts to appeal was neither a final judgment nor an appealable interlocutory order.
[7] As set forth in Indiana Appellate Rule 2(H), a judgment is a "final judgment" if:
(1) it disposes of all claims as to all parties; [or]
(2) the trial court in writing expressly determines under Trial Rule 54(B) ... that there is no just reason for delay and in writing expressly directs the entry of judgment ... under Trial Rule 54(B) as to fewer than all the claims or parties [.]
Ind. Appellate Rule 2(H) (emphasis added). " Trial Rule 54(B) certification of an order that disposes of less than the entire case must contain the magic language of the rule." Georgos v. Jackson , 790 N.E.2d 448, 452 (Ind. 2003), reh'g denied. "This is intended to provide a bright line so there is no mistaking whether an interim order is or is not appealable." Id. If an order is not a final judgment, then an appellant may appeal the order only if it is an appealable interlocutory order. See In re Adoption of S.J. , 967 N.E.2d 1063, 1066 (Ind. Ct. App. 2012).
[8] Here, the trial court's order at issue was not a final judgment under Appellate Rule 2(H) because it did not dispose of all claims as to all parties and because the trial court did not include the "magic language" required to meet the "bright line" rule under Indiana Trial Rule 54(B). See Georgos , 790 N.E.2d at 452. See also Manley v. Zoeller , 77 N.E.3d 1227, 1231 (Ind. Ct. App. 2017) (holding that an order dismissing some, but not all, defendants was not a final judgment because it did not dispose of all issues as to all parties and did not contain the magic language of Trial Rule 54(B) ). Additionally, the trial court's order is not an appealable interlocutory order as of right under Appellate Rule 14(A) because it does not fall within one of the categories of Rule 14(A). See Moser v. Moser , 838 N.E.2d 532, 535 (Ind. Ct. App. 2005) (explaining that Appellate Rule 14(A)(4) applies only to an order that orders the sale or delivery of possession of real property; it does not apply to an order denying a party's request for the sale or delivery of possession of real property), trans. denied. Nor is the order a discretionary interlocutory appealable order under Appellate Rule 14(B) because Truelove neither requested the trial court to certify the interlocutory order nor sought permission from our Court to accept the interlocutory appeal. See Adoption of S.J. , 967 N.E.2d at 1066 ; see also App. R. 14.
[9] Because the trial court's order is not a final appealable order or an appealable interlocutory order, we dismiss this appeal for lack of appellate jurisdiction. See Town of Ellettsville v. Despirito , 87 N.E.3d 9, 12 (Ind. 2017) (explaining that "in the overwhelming majority of cases, the proper course for an appellate court to take where it finds appellate jurisdiction lacking is simply to dismiss the appeal").Accordingly, we dismiss this appeal without prejudice to Truelove's right to file an appeal once a final judgment has been entered or the order has been certified for an interlocutory appeal. See Indy Auto Man, LLC v. Keown & Kratz, LLC , 84 N.E.3d 718, 722 (Ind. Ct. App. 2017) (dismissing the appellant's appeal without prejudice where the trial court's order being appealed was not a final judgment); see also Ramsey v. Moore , 959 N.E.2d 246, 253 (Ind. 2012) (dismissing an appeal where there was "a clear absence of [Trial Rule] 54(B) language").
[10] Dismissed.
Vaidik, J., and Brown, J., concur.