Mills v. Kimbley

ORDER DISMISSING APPEAL Appellant, by counsel, has filed a petition to transfer from an opinion of the Court of Appeals. See Mills v. Kimbley, 909 N.E.2d 1068 (Ind.Ct.App.2009), reh'g denied. Appellant's Case Summary states he is appealing a December 3, 2008 summary judgment order, and that the trial court directed the entry of judgment under Trial Rule 54(B). The summary judgment order is the only order attached to the Case Summary. The December 3, 2008 order granted Appellee summary judgment on Appellant's complaint and Appellee's counterclaim and set a damages hearing on the counterclaim. The order did not dispose of the damages elaim or, pursuant to Trial Rule 54(B), include an express statement that "there is no just reason for delay" and direct entry of judgment "as to fewer than all the claims or parties." Ind. Appellate Rule 2(H)(2). Therefore, the order is not a "Final Judgment" over which the Court of Appeals had jurisdiction. See R.App. 5(A) and Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind.2003). The order remained interlocutory and Appellant has not alleged the trial court certified the order under Appellate Rule 14(B) for a discretionary interlocutory appeal. Accordingly, Appellant's appeal is DISMISSED for lack of jurisdiction and the Court of Appeals opinion is VACATED. BOEHM and RUCKER, JJ., concur. DICKSON and SULLIVAN, JJ., vote to deny transfer.