Amy and Steven Cerajewski v. Erin and Robert Kieffner ( 2012 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEES:
CHRISTOPHER D. LEE CRAIG GOEDDE
REBECCA NESS RHYMER Goedde Law Office, P.C.
FILED
Kahn, Dees, Donovan & Kahn, LLP Evansville, Indiana
Evansville, Indiana
Apr 05 2012, 9:03 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
AMY and STEVEN W. CERAJEWSKI, )
)
Appellants, )
)
vs. ) No. 82A01-1109-SC-401
)
ERIN and ROBERT KIEFFNER, )
)
Appellees. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Sheila M. Corcoran, Magistrate
Cause No. 82D06-1010-SC-10202
April 5. 2012
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
Steven and Amy Cerajewski1 bring this interlocutory appeal of the Vanderburgh
County small claims court’s denial of their motion to correct venue.
We dismiss.
On or about March 6, 2010, the Cerajewskis, as sellers, and Robert and Erin Kieffner,
as buyers, entered into a purchase agreement for the sale of a home located in Posey County,
Indiana (the Real Estate). Although Erin was, of the four, apparently the only resident of
Vanderburgh County at the time, both parties enlisted the services of real estate agents out of
Vanderburgh County. Closing for the Real Estate took place on or about May 12, 2010,2 and
the Kieffners assumed possession on or about May 21, 2010. Thereafter, the Cerajewskis
moved to Michigan, and the Kieffners moved to the Real Estate in Posey County.
On October 13, 2010, the Kieffners filed the instant small claims action in
Vanderburgh County, alleging breach of contract and fraud resulting from the transaction for
the sale of the Real Estate. The Cerajewskis appeared by phone and subsequently, on
January 10, 2011, filed a motion to transfer venue, relying upon Trial Rule 75 and arguing
that Vanderburgh County was not a preferred venue for this action. On January 12, the small
claims court set the matter for trial on March 29 and noted that the Cerajewskis’ motion to
1
The appellants’ last name was improperly captioned as “Cerojewski” at the trial court level but has been
changed on appeal to reflect the proper spelling.
2
In conjunction with the Kieffners’ appellate brief, they filed an appendix containing the affidavit of Erin
Kieffner. In said affidavit, Erin averred that the closing took place in Vanderburgh County. Though certainly
relevant to the issue at hand, we observe that this evidence was not presented below. Therefore, it is not
properly before us and will not be considered in this appeal. See generally Ind. Appellate Rule 50(A)(1)
(purpose of an appendix is to include those parts of the record on appeal that are necessary for the appellate
court to decide the issues presented). In further proceedings, however, the Kieffners would be well advised to
introduce said evidence. Finally, we observe that the Kieffners’ request for attorney fees pursuant to Ind.
Appellate Rule 66(E) is based entirely upon the “facts” supplied in their appendix, which we cannot consider.
2
transfer was taken under advisement. Thereafter, on February 4, Steven Cerajewski
telephoned the court, and court personnel once again advised him of the trial date and that the
motion to transfer had been taken under advisement. The day before the scheduled trial, the
Cerajewskis filed a motion to order plaintiffs’ payment of filing costs for refiling case in
defendants’ county of residence.
The Cerajewskis did not appear on the March 29 trial date. Robert Kieffner appeared
in person and by counsel and presented evidence in support of the Kieffners’ claim.
Accordingly, the small claims court entered a default judgment against the Cerajewskis in the
amount of $1250 plus costs, interest, and attorney fees.
On April 29, 2011, the Cerajewskis filed a motion to correct error, or in the
alternative, motion for relief from default judgment. The small claims court held a hearing
on the motion on July 12, 2011, at which the Cerajewskis asked the court to set aside the
default judgment and transfer venue from Vanderburgh County. With respect to venue, both
parties asserted arguments based upon T.R. 75, although the Cerajewskis’ counsel did (for
the first time) briefly address Ind. Small Claims Rule 12. On July 22, the small claims court
issued an order denying the Cerajewskis’ motion. As part of its written order, the court
stated: “Vanderburgh County is a county of preferred venue under Trial Rule 75 for the
reason that Plaintiff Erin Kieffner was a resident of Vanderburgh County, Indiana during the
time the cause of action arose”. Appellants’ Appendix at 9.
On August 2, 2011, the Cerajewskis filed a motion for the small claims court to
reconsider its decision to refuse to set aside the default judgment and to transfer venue. In
their motion, the Cerajewskis referred specifically to S.C.R. 12 when addressing their venue
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argument. The small claims court granted the motion to reconsider with respect to the default
judgment only. Accordingly, the court vacated the entry of default on August 10, 2011. The
court, however, refused to transfer venue to Posey County.
On September 9, 2011, the Cerajewskis initiated this interlocutory appeal to obtain
review of the small claims court’s venue determination only. We note that the Cerajewskis
did not request certification of the order from the trial court nor seek acceptance of
jurisdiction from this court. Rather, they proceed as if this is an interlocutory appeal as a
matter of right under Ind. Appellate Rule 14(A). It is not.
App. R. 14(A) sets forth the exclusive list of interlocutory orders that may be appealed
as a matter of right by the filing of a notice of appeal within thirty days of the entry of the
interlocutory order:
(1) For the payment of money;
(2) To compel the execution of any document;
(3) To compel the delivery or assignment of any securities, evidence of
debt, documents or things in action;
(4) For the sale or delivery of the possession of real property;
(5) Granting or refusing to grant, dissolving, or refusing to dissolve a
preliminary injunction;
(6) Appointing or refusing to appoint a receiver, or revoking or refusing to
revoke the appointment of a receiver;
(7) For a writ of habeas corpus not otherwise authorized to be taken
directly to the Supreme Court;
(8) Transferring or refusing to transfer a case under Trial Rule 75; and
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(9) Issued by an Administrative Agency that by statute is expressly
required to be appealed as a mandatory interlocutory appeal.
Id. (emphasis supplied). See also Rowe v. Ind. Dep’t of Correction, 940 N.E.2d 1218 (Ind.
Ct. App. 2011), trans. denied.
We may dismiss appeals sua sponte upon discovering that we do not have jurisdiction.
Moser v. Moser, 838 N.E.2d 532 (Ind. Ct. App. 2005), trans. denied. An appeal from an
interlocutory order, as in the instant case, is not allowed unless specific authority is granted
by the Indiana Constitution, statutes, or the rules of court. Id. Moreover, any such express
authorization is strictly construed. Id.
In the instant case, the Cerajewskis rely upon App. R. 14(A)(8) in pursuing this
interlocutory appeal as a matter of right. Under that provision, a party may immediately
appeal an order refusing to transfer a case under T.R. 75. At first blush, one could argue that
is the precise order being appealed here, as the parties and the trial court all discussed
preferred venue requirements under T.R. 75.
The reality, however, is that T.R. 75 is inapplicable. It is well established that venue
in small claims proceedings is not governed by T.R. 75 “but rather is governed exclusively
by Indiana Small Claims Rule 12.” Dreyer & Reinbold, Inc. v. Leib, 811 N.E.2d 858, 861
(Ind. Ct. App. 2004). S.C.R. 12 provides in pertinent part:
(A) Proper Venue. Proper venue for a case filed in the small claims docket of
a Circuit, Superior, or County Court shall be in the county where the
transaction or occurrence actually took place or where the obligation was
incurred or is to be performed, or where one of the defendants resides or has
his or her place of employment at the time the complaint is filed.
****
(B) Motion to Correct Venue. When it appears that the county in which the
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action is pending is not the proper place for the hearing of such action, the
court shall, on the motion of a party or upon its own motion, determine the
correctness of the venue. If the venue is incorrect the judge shall, at the option
of the plaintiff, order the action to be transferred or dismissed without
prejudice unless the defendant appears and waives the venue requirement.
“Thus, venue in a small claims proceeding is proper: (1) where the transaction or occurrence
actually took place; (2) where the obligation was incurred or is to be performed; or (3) where
one of the defendants resides or has his or her place of employment at the time the complaint
is filed.” Dreyer & Reinbold, Inc. v. Leib, 811 N.E.2d at 860-61.
The respective venue considerations under T.R. 75 and S.C.R. 12 are markedly
different, with the provisions of T.R. 75 being much more involved.3 Moreover, unlike
S.C.R. 12, T.R. 75(E) expressly provides for an interlocutory appeal as a matter of right.
This right is also reiterated in App. R. 14(A)(8). Given our strict construction of the list of
authorized interlocutory appeals as a matter of right, we cannot say that App. R. 14(A)(8)
applies to all venue determinations, whether under T.R. 75 and S.C.R. 12. Accordingly, we
conclude that the small claims court’s refusal to transfer venue is not an interlocutory order
appealable as a matter of right.
The Cerajewskis were required to request a discretionary appeal pursuant to the
procedures set out in App. R. 14(B). They failed to do this. Because no basis exists for an
interlocutory appeal as a matter of right pursuant to App. R. 14(A), we dismiss the
3
The simplicity of S.C.R.12, as compared to T.R. 75, is due to the nature of small claims proceedings, which
are “informal, with the sole objective of dispensing speedy justice between the parties according to the rules
of substantive law”. S.C.R. 8(A). Further, in small claims cases, the parties “shall not be bound by the
statutory provisions or rules of practice, procedure, pleadings or evidence except provisions relating to
privileged communications and offers of compromise.” Id.
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Cerajewskis’ appeal for lack of jurisdiction.4
Appeal dismissed.
BARNES, J., and MAY, J., concur.
4
We acknowledge that other cases from this court have entertained interlocutory appeals of S.C.R. 12
orders. See Dreyer & Reinbold, Inc. v. Leib, 811 N.E.2d 858; Ind. State Dist. Council of Laborers & Hod
Carriers Welfare Fund v. Med First Med. Ctr., 744 N.E.2d 542 (Ind. Ct. App. 2001); Monroe Heating &
Cooling, Inc. v. Rider, 450 N.E.2d 1056 (Ind. Ct. App. 1983). It is not clear in those cases whether the
interlocutory appeal was taken under App. R. 14(A) or (B).
7