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

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.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-364 | July 3, 2018 Page 4 of 5 [7] Dismissed.

Robb, J., and Altice, J., concur.

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