Baker v. Fall Creek Hous. Partners, LLC
| Decision Date | 20 December 2016 |
| Docket Number | Court of Appeals Case No. 49A02-1605-CT-1060 |
| Parties | Ricky L. Baker and Victoria Baker, Appellants-Plaintiffs, v. Fall Creek Housing Partners, LLC, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS
John P. Daly, Jr.
Golitko & Daly, PC
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
William A. Ramsey
Barrett McNagny LLP
Fort Wayne, Indiana
Appeal from the Marion Superior Court
The Honorable John F. Hanley, Judge
[1] Ricky L. Baker and Victoria Baker (together, the "Bakers") appeal from the trial court's February 26, 2016 order granting summary judgment in favor of Fall Creek Housing Partners, LLC ("Fall Creek"). We find one issue dispositive, which is whether the court's February 26, 2016 order is an appealable order. We dismiss.
[2] Ricky Baker, who was an employee of Waste Management, Inc. ("Waste Management"), visited an apartment rental property in Indianapolis owned by Fall Creek to unload trash compactor containers on September 24, 2012, and was injured.
[3] The Bakers filed a complaint for damages in July 2014 and, with the court's approval, an amended complaint for damages in September 2014 against Buckingham Urban Properties, LLC ("Buckingham"), JV Manufacturing Inc. d/b/a Cram-A-Lot ("JV"), and Cram-A-Lot Logistics, LLC ("Cram-A-Lot"),1 alleging that Ricky was employed by Waste Management; that Buckingham purchased or leased from Cram-A-Lot and/or JV a trash compactor for use at a property in Indianapolis; that Buckingham contracted with Waste Management for trash removal at the property including emptying the Cram-A-Lot and/or JV trash compactor; that Ricky was a business invitee on the property workingwithin the course and scope of his employment with Waste Management when he was injured; that on or about September 24, 2012, Ricky was on the property to empty a trash compactor when the compactor moved crushing his hand; that the compactor had been placed on a slope by employees and/or agents of Buckingham and/or Cram-A-Lot and/or JV; and that Ricky was seriously injured.
[4] On October 9, 2014, Buckingham filed an Answer to Amended Complaint, Affirmative Defenses, Third Party Complaint, and Jury Demand. In its third party complaint, Buckingham alleged in part that Buckingham Management, LLC ("Buckingham Management") is responsible for managing real estate including that occupied by Buckingham; that it entered into a Periodic Services Agreement with Waste Management for the collection and disposal of waste; that, pursuant to the Agreement, Waste Management is required to indemnify it and hold it and its affiliate or subsidiary Buckingham harmless for any claims by an employee of Waste Management in the performance of the Agreement; and that Waste Management is required to defend and indemnify Buckingham from the claims of the Bakers. Buckingham requested that the court enter judgment in its favor and against Waste Management and that Waste Management be ordered to defend and indemnify Buckingham.
[5] Counsel for Waste Management filed an appearance, and Waste Management filed an answer to Buckingham's third party complaint denying that it is required to defend and indemnify Buckingham. In February 2015, Waste Management filed a motion for leave to file a counterclaim against Buckinghamstating that it has denied and continues to deny any liability to Buckingham and seeking leave to file a counterclaim so as to recover its attorney fees, costs, and expenses incurred and to be incurred by Waste Management in its defense to the third party complaint. On March 9, 2015, the court granted Waste Management's motion for leave to file its counterclaim against Buckingham and ordered that the counterclaim was deemed filed as of the date of the order. On March 27, 2015, Buckingham filed a motion for judgment on the pleadings as to Waste Management's counterclaim.
[6] On November 23, 2015, the parties filed a Joint Stipulation to Amend Caption and Substitute Parties, stating that at the time the action was initially filed confusion existed as to the location of the accident that is the subject of the Bakers' complaint and Buckingham's third party complaint, and that discovery has revealed the location of the incident. The Stipulation stated that the owner of the premises on which the incident occurred was Fall Creek and not Buckingham, and that Buckingham should be dismissed and Fall Creek substituted as a defendant on the Bakers' claim, as the third party plaintiff on the third party complaint against Waste Management, and as the defendant on Waste Management's counterclaim to the third party complaint.
[7] On November 25, 2015, Fall Creek filed a motion for summary judgment, a memorandum in support of the motion, and a designation of evidence which included the deposition of Ricky and the Periodic Services Agreement between Waste Management and Buckingham Management as agent for property owners including Fall Creek. The Bakers filed their opposition and designatedevidence. Fall Creek filed a motion to strike and reply in support of its summary judgment motion which stated in part that the Bakers cited to an owners' manual that was not designated.
[8] On February 1, 2016, the court held a hearing on Fall Creek's summary judgment motion.2 On February 25, 2016, it entered an order of dismissal which stated that a joint stipulation of partial dismissal as to JV and Cram-A-Lot was before the court and ordered that JV and Cram-A-Lot be dismissed from the action.
[9] On February 26, 2016, the court entered an order which: denied Fall Creek's March 27, 2015 motion for judgment on the pleadings as to Waste Management's counterclaim; granted Fall Creek's motion to strike as to references made by the Bakers to an owners' manual and denied it in all other respects; granted Fall Creek's November 25, 2015 motion for summary judgment; and ordered that Fall Creek submit a proposed judgment entry to the court within ten days. An entry in the chronological case summary (the "CCS") dated March 8, 2016, states in part: "Order Signed: 03/07/2016" and 3 Appellant's Appendix, Volume 2, at 11. The Bakers filed a motion to correct error on March 15, 2016, and after a hearing4 the court denied the motion on April 27, 2016. On May10, 2016, the Bakers filed their notice of appeal from the trial court's February 26, 2016 order.
[10] The dispositive issue is whether the trial court's February 26, 2016 order is an appealable order. This court may sua sponte raise the issue of whether it has jurisdiction over an appeal. See Blinn v. Dyer, 19 N.E.3d 821, 822 (Ind. Ct. App. 2014). "The authority of the Indiana Supreme Court and Court of Appeals to exercise appellate jurisdiction is generally limited to appeals from final judgments." Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (quoting Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind. 2006), reh'g denied). We have the duty to determine whether we have jurisdiction over an appeal before proceeding to determine the rights of the parties on the merits. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied. Pursuant to Ind. Appellate Rule 5, this court has jurisdiction over appeals from final judgments of trial courts and only those interlocutory orders from trial courts that are brought in accordance with Ind. Appellate Rule 14.
[11] Ind. Appellate Rule 2(H) provides that a judgment is a final judgment if:
[12] The Bakers' notice of appeal identifies the order being appealed as the trial court's February 26, 2016 order, states that a motion to correct error was denied April 27, 2016, and indicates that the basis for appellate jurisdiction is that the appeal is taken from a final judgment as defined by Ind. Appellate Rule 2(H).
[13] The record reveals that the court's February 26, 2016 order granted Fall Creek's November 25, 2015 motion for summary judgment and denied Fall Creek's March 27, 2015 motion for judgment on the pleadings as to Waste Management's counterclaim to Fall Creek's third party complaint. However, the February 26, 2016 order did not enter judgment with respect to Fall Creek's third party complaint against Waste Management or Waste Management's counterclaim against Fall Creek. The Bakers do not direct our attention to the record to demonstrate that Fall Creek's third party complaint and Waste Management's counterclaim had been dismissed or that the trial court had entered judgment on the third party complaint and counterclaim.
[14] Based upon the record, the court's February 26, 2016 order does not dispose of all claims as to all parties, and thus the order is not a final judgment under Ind. Appellate Rule 2(H)(1). Cf. Ozinga Transp. Sys., Inc. v. Michigan Ash Sales, Inc., 676 N.E.2d 379, 382 (Ind. Ct. App. 1997) (...
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