Russell Bernacchi v. Yon M. Lindborg

FILED May 13 2025, 8:57 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Russell Bernacchi and Judith Bernacchi, Appellants-Defendants

v.

Yon M. Lindborg and Kenneth L. Rutz, Appellees-Plaintiffs

May 13, 2025 Court of Appeals Case No. 24A-CT-1686 Appeal from the LaPorte Circuit Court The Honorable Thomas J. Alevizos, Judge Trial Court Cause No. 46C01-1603-CT-352

Opinion by Judge Weissmann Judges Pyle and Felix concur.

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Weissmann, Judge. [1] In this tort action, Kenneth Rutz and Yon Lindborg claim Russell and Judith

Bernacchi caused an obstruction to a “regulated drain”1 under the jurisdiction

of the LaPorte County Drainage Board. The Bernacchis moved for summary

judgment on Rutz and Lindborg’s complaint, arguing that Rutz and Lindborg

failed to exhaust certain administrative remedies before filing suit. The trial

court denied the Bernacchis’ motion and purported to certify its order as a

judgment under Indiana Trial Rule 56(C). The Bernacchis then appealed the

trial court’s order as a final judgment under Indiana Appellate Rule 2(H)(2). [2] Because an order denying a motion for summary judgment does not possess the

requisite degree of finality to be certified as a judgment under Trial Rule 56(C),

the trial court’s denial of the Bernacchis’ motion is not a final judgment under

Appellate Rule 2(H)(2). It is an interlocutory order, the appeal of which

required both the trial court’s certification under Appellate Rule 14(B)(1) and

this Court’s acceptance of jurisdiction under Appellate Rule 14(B)(2). These

requirements were not met. [3] As the trial court’s order is neither a final judgment nor an appealable

interlocutory order, this Court lacks appellate jurisdiction over the Bernacchis’

1 Under Indiana’s Drainage Law, “‘[r]egulated drain’ means an open drain, a tiled drain, or a combination of the two.” Ind. Code § 36-9-27-2. “‘Open drain’ means a natural or artificial open channel that: (1) carries surplus water; and (2) was established under or made subject to any drainage statute.” Id. And “‘[t]iled drain’ means a tiled channel that: (1) carries surplus water; and (2) was established under or made subject to any drainage statute.” Id.

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appeal. We therefore dismiss the appeal without prejudice to the Bernacchis’

right to file an appeal once a final judgment has been entered or the order has

been certified for interlocutory appeal.

Facts [4] The Mill Creek Lateral (MCL) is a regulated drain in LaPorte County, Indiana.

Water flows down the MCL continuously throughout the year and ultimately

discharges into Mill Creek. As it relates to this case, the MCL runs either

adjacent to or through three contiguous parcels of land owned by Rutz,

Lindborg, and the Bernacchis, respectively. The Bernacchis’ parcel is the

furthest downstream and borders Mill Creek. [5] In 2016, Rutz and Lindborg sued the Bernacchis for negligence, nuisance, and

trespass, alleging the Bernacchis had caused an obstruction to the MCL on the

Bernacchis’ parcel. According to Rutz and Lindborg, the obstruction causes the

water in the MCL to back up and intermittently flood Rutz’s and Lindborg’s

parcels. Rutz and Lindborg therefore sought injunctive relief and money

damages for the alleged loss of use and diminished value of their land. [6] The Bernacchis moved for summary judgment on Rutz and Lindborg’s claims,

arguing that Rutz and Lindborg had failed to exhaust certain administrative

remedies through the LaPorte County Drainage Board, thereby depriving the

trial court of subject matter jurisdiction over the case. The trial court denied the

Bernacchis’ motion and further ordered as follows:

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[T]here being no just reason for delay, the Court, in accordance with Ind. R. Civ. P. 56(C), expressly directs the entry of Final Judgment as to the issue of whether Plaintiffs’ failure to exhaust their remedies before the LaPorte County Drainage Board deprives the Court of subject matter jurisdiction, an issue upon which the Court finds no genuine issue as to any material facts.

App. Vol. II, p. 22. [7] The Bernacchis appeal the trial court’s order denying their motion for summary

judgment. Concluding we lack jurisdiction over the appeal, we dismiss it

without prejudice.

Discussion and Decision [8] “An appellate court must have jurisdiction to review a trial court’s order, and a

court has a duty to determine whether it has jurisdiction before proceeding to

the merits of the case.” Matter of Adoption of S.L., 210 N.E.3d 1280, 1282 (Ind.

2023). Appellate jurisdiction cannot be waived or conferred by agreement of the

parties, and its absence can be raised at any time. Id. If the parties do not raise

the issue, “the appellate court may consider the issue sua sponte.” Id. (quoting

Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). [9] “[T]he prerequisites for appellate jurisdiction are (1) entry of an appealable

order by the trial court and (2) the trial court clerk’s entry of the notice of

completion of the clerk’s record on the chronological case summary.” Town of

Ellettsville v. Despirito, 87 N.E.3d 9, 11 (Ind. 2017). In this case, the first

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prerequisite is absent—the trial court’s order denying the Bernacchis’ motion

for summary judgment is not an appealable order. [10] Indiana Appellate Rule 5 dictates which of a trial court’s orders are appealable.

With few exceptions, it provides this Court with mandatory jurisdiction over

appeals from a trial court’s “final judgments” as well as certain “interlocutory

orders” for which the Appellate Rules authorize appeals “as a matter of right.”

Ind. Appellate Rules 5(A)-(B), 14(A). Rule 5 also grants this Court discretion to

accept jurisdiction over appeals from interlocutory orders that a trial court has

certified for interlocutory appeal. App. Rs. 5(B), 14(B).

I. The Trial Court’s Order Is Not a Final Judgment [11] In their Notice of Appeal, the Bernacchis claim the trial court’s order denying

their motion for summary judgment is appealable as a final judgment under

Indiana Appellate Rule 2(H)(2). That rule provides:

[A] trial court’s order is deemed a “final judgment” 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 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.

App. R. 2(H)(2). [12] Indiana Trial Rules 54(B) and 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

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(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. But not every interlocutory order is susceptible

to the “magic” of Trial Rules 54(B) and 56(C). “To 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

Legg v. O’Connor, 557 N.E.2d 675, 676 (Ind. Ct. App. 1990)). [13] Here, the trial court denied the Bernacchis’ motion for summary judgment and

purported to certify the order as a final judgment under Trial Rule 56(C). But

the order did not dispose of a substantive claim or otherwise possess the

requisite degree of finality to be properly certifiable under that rule. Indeed, an

order denying a motion for summary judgment cannot be a final appealable

judgment because it does not foreclose any rights. Anonymous Dr. A v. Sherrard,

783 N.E.2d 296, 299 (Ind. Ct. App. 2003). “The denial merely places the

parties’ rights in abeyance pending ultimate determination by the trier of fact.”

Id. For this reason, “a party seeking review of a denial of a motion for summary

judgment must do so by way of interlocutory appeal in accordance with . . .

Appellate Rule 14.” Id.

II. The Trial Court’s Order Is Not an Appealable Interlocutory Order [14] Under Indiana Appellate Rule 14(A), an interlocutory order may be appealed

“as a matter of right” if the order grants or denies certain enumerated types of

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relief. See, e.g., App. R. 14(A)(1) (an order “for the payment of money”). The

trial court’s order denying the Bernacchis’ motion for summary judgment does

not qualify for appeal under this rule. But the order could be the subject of an

appeal under Appellate Rule 14(B). That rule permits appeals from “other

interlocutory orders if the trial court certifies its order and the Court of Appeals

accepts jurisdiction over the appeal.” App. R. 14(B). [15] More specifically, “[t]he trial court, in its discretion, upon motion by a party,

may certify an interlocutory order to allow an immediate appeal.” App. R.

14(B)(1). And, “[i]f the trial court certifies an order for interlocutory appeal, the

Court of Appeals, in its discretion, upon motion by a party, may accept

jurisdiction of the appeal.” App. R. 14(B)(2). Here, the trial court did not certify

for interlocutory appeal its order denying the Bernacchis’ motion for summary

judgment, and this Court did not accept jurisdiction of the appeal. In fact, the

Bernacchis never asked either court for its respective authorization. Therefore,

the trial court’s order was not an appealable interlocutory order.

Conclusion [16] Because the trial court’s order denying the Bernacchis’ motion for summary

judgment is neither a final judgment nor an appealable interlocutory order, this

Court lacks appellate jurisdiction over the Bernacchis’ appeal. Accordingly, we

dismiss the appeal without prejudice to the Bernacchis’ right to file an appeal

once a final judgment has been entered or the order has been certified for

interlocutory appeal. See Despirito, 87 N.E.3d at 12 (observing that, “in the

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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”). [17] Dismissed.

Pyle, J., and Felix, J., concur.

ATTORNEY FOR APPELLANTS Martin R. Lucas Martin R. Lucas Attorney LLC North Judson, Indiana

ATTORNEY FOR APPELLEES R. Brian Woodward Woodward Law Offices, LLP Merrillville, Indiana

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