Cynthia Vermette v. Northern Indiana Public Service Company (mem. dec) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 03 2018, 10:08 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Nikola Vidovic Edward P. Grimmer
Joseph I. Miyake Daniel A. Gohdes
Swope Law Offices, LLC Edward P. Grimmer, P.C.
Schererville, Indiana Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cynthia Vermette, July 3, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-PL-364
v. Appeal from the Porter Superior
Court
Northern Indiana Public Service The Honorable Julia M. Jent,
Company, Judge
Appellee-Plaintiff. Trial Court Cause No.
64D03-1706-PL-5807
Najam, Judge.
Statement of the Case
[1] Cynthia Vermette appeals the trial court’s grant of partial summary judgment in
favor of Northern Indiana Public Service Company (“NIPSCO”). Vermette
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raises several issues for our review. However, we do not reach the merits of
Vermette’s appeal because we lack subject matter jurisdiction to consider the
trial court’s interlocutory order. We dismiss.
Facts and Procedural History
[2] On November 23, 2016, Vermette crashed her vehicle into an electric pole
owned by NIPSCO. NIPSCO filed a complaint for damages against Vermette
alleging negligence, willful and wanton conduct, and trespass. On September
20, 2017, NIPSCO filed a motion for partial summary judgment solely “on the
issue of the costs to repair” the electric pole without any determination of
liability. Appellant’s App. Vol. II at 81. The trial court granted that motion
following a hearing. Thereafter, on NIPSCO’s motion, the trial court issued an
order stating that there was no just reason for delay and directing the clerk to
“show the ruling is to be entry of final judgment on the issues resolved by grant
of that summary judgment motion, all in accord with [Trial Rule] 54[(B)] and
56(C).” Id. at 13. This appeal ensued.
Discussion and Decision
[3] Subject matter jurisdiction concerns a court’s ability to hear and decide a case
based upon the class of cases to which it belongs. Cardiology Assocs. of Nw. Ind.,
P.C. v. Collins, 804 N.E.2d 151, 153 (Ind. Ct. App. 2004). Whether we have
subject matter jurisdiction is an issue we should raise sua sponte if the parties do
not. Id. “As we have previously explained, ‘dismissal for lack of subject matter
jurisdiction takes precedence over the determination of and action upon other
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substantive and procedural rights of the parties.’” Id. (quoting Warrick County v.
Weber, 714 N.E.2d 685, 687 (Ind. Ct. App. 1999)).
[4] Here, NIPSCO moved the trial court to “make” its order granting partial
summary judgment a “final” judgment, and the court granted that motion.
Appellant’s App. Vol. II at 17. In particular, the trial court issued an order
amending the interlocutory order on partial summary judgment to read as
follows:
This court’s grant of partial summary judgment in favor of
[NIPSCO] and against [Vermette] is a ruling and judgment as to
one or more but fewer than all of the claims or parties; there is no
just reason for delay; and the Clerk of Court is expressly directed
to show the ruling is to be entry of final judgment on the issues
resolved by grant of that summary judgment motion, all in
accord with T.R. 54[(B)] and 56(C).
Id. at 13.
[5] Trial Rule 54(B) and Trial Rule 56(C) have similar language and allow for trial
courts to issue interlocutory orders with respect to less than all of the issues,
claims or parties. Ramco Indus., Inc. v. C & E Corp., 773 N.E.2d 284, 287-88
(Ind. Ct. App. 2002). Additionally, both rules allow trial courts to certify
interlocutory orders as final, appealable orders if the trial court includes the
“magic language” in its order: that there is no just reason for delay and directs
entry of judgment. Id. at 288. However, “[t]o be properly certifiable under
either of these trial rules, a trial court order must ‘possess the requisite degree of
finality, and must dispose of at least a single substantive claim.’” Id. (quoting
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Legg v. O’Connor, 557 N.E.2d 675, 676 (Ind. Ct. App. 1990)). Under Trial Rule
8(A), a claim consists of two elements: 1) a showing of entitlement to relief,
and 2) the relief. Id.[6] Here, the trial court resolved a single issue in its partial summary judgment
order, namely, the amount of damages NIPSCO sustained when Vermette
crashed into the electric pole.1 The issue of Vermette’s liability is yet to be
determined and, therefore, the trial court’s order did not resolve the issue of
whether NIPSCO is entitled to any damages. Because the order only addressed
one element of a claim, the trial court’s partial summary judgment order did not
dispose of at least a single substantive claim, see T.R. 8(A), and the order was
not properly certified for our review under Trial Rule 54(B) or 56(C).2
Accordingly, we lack subject matter jurisdiction over this appeal, and we
dismiss it. See id.; see also Reiswerg v. Statom, 926 N.E.2d 26, 29-30 (Ind. 2010)
(agreeing with this court that partial summary judgment order that left issues of
causation and damages undecided was not an appealable, final order despite
trial court’s intent to certify it under Trial Rule 54(B)).
1
We reject NIPSCO’s contention, which it makes for the first time on appeal, that Vermette has “admitted
liability.” Appellee’s Br. at 45. First, in its summary judgment motion, NIPSCO explicitly reserved the issue
of Vermette’s liability to be determined after partial summary judgment. Second, nothing in the trial court’s
order on partial summary judgment addresses Vermette’s liability. And third, NIPSCO cites to a portion of
the transcript in support of its contention, but the full context of the statements made by Vermette’s attorney
at the hearing indicates that she intended to shield herself from liability under the sudden emergency
doctrine. NIPSCO’s assertion on this issue is not well taken.
2
We note that, should Vermette prevail on the issue of liability, the amount of damages will be a moot
point.
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[7] Dismissed.
Robb, J., and Altice, J., concur.
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