Creech v. Southeastern Indiana R.E.M.C., Inc.

• Decision Date: 01 November 1984
• Docket Number: No. 1-683A194,1-683A194
• Citation: 469 N.E.2d 1237
• Parties: John Allen CREECH and Nancy Creech, Appellants (Plaintiffs Below), v. SOUTHEASTERN INDIANA R.E.M.C., INC. and Dico, Inc., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1237

469 N.E.2d 1237

John Allen CREECH and Nancy Creech, Appellants (Plaintiffs Below), v. SOUTHEASTERN INDIANA R.E.M.C., INC. and Dico, Inc. Appellees (Defendants Below).

No. 1-683A194.

Court of Appeals of Indiana,

First District.

Nov. 1, 1984.

John J. Dornette, Votaw & Dornette, Lawrenceburg, for appellants.

Peter G. Tamulonis, Andrew Sulen, Jr., Knightlinger, Young, Grey & De Trude, Indianapolis, Warren Michael Wilke, Wickens, Wickens, & Wilke, Greensburg, Peter L. Obremskey, Parr, Richey, Obremskey & Morton, Lebanon, for appellees.

ROBERTSON, Judge.

John Allen Creech and his wife Nancy, plaintiffs, appeal summary judgments granted in favor of the defendants, Dico, Inc. and Southeastern Indiana REMC, Inc., on their complaint to recover damages for injuries John received when a boom he was operating came into contact with an electrical high voltage line.

John was an employee of Top Quality Building Products, Inc. and he was unloading concrete block when the loading boom touched a high voltage electrical power line owned by REMC. The boom was manufactured by Dico. Dico sold the boom to Fallsway Equipment Company; it was installed on an International Harvester truck and Fallsway sold the truck to Creech's employer.

The Creeches' complaint contained three counts; count one alleged REMC negligently installed and maintained its power lines; count two was a products liability claim against Dico alleging the boom was in a defective condition when it was initially sold and delivered to Fallsway Equipment Company and when it was sold to John's employer; count three alleged Dico had breached the implied warranty of fitness on its product. ¹

The trial court granted summary judgment in favor of Dico on March 4, 1982, and in favor of REMC on March 1, 1983. In relation to Dico, the trial court found that Creeches' products liability claim was barred by the ten-year statute of limitations in Indiana's Products Liability Act, IND. CODE 33-1-1.5-1 et. seq. and that On appeal, Creeches argue the trial court erred in granting Dico's motion for summary judgment because an affidavit supporting the motion was not based upon the affiant's personal knowledge and because discovery had not been completed.

their breach of warranty claim was barred by the four-year statute of limitations in IND. CODE 26-1-2-725. The trial court concluded that REMC had complied with the National Electric Safety Code provisions pertaining to the minimum elevation of power lines and therefore also concluded that REMC was not negligent.

Before responding to these issues, Dico argues Creeches' appeal should be dismissed because the praecipe and the record were untimely. This argument is based upon the premise that the trial court's decision to grant Dico's motion for summary judgment on March 4, 1982, was a final appealable judgment pursuant to Indiana Rules of Procedure, Trial Rule 56(C). T.R. 56(C) reads:

A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. (emphasis added).

The trial court's judgment entry reads:

The Defendant, Dico Company, Inc., and Dico Company, Inc., Under the Assumed Name of Waterloo Unloader, Division of Greater Iowa Corporation, having filed its Second Motion for Summary Judgment, the Court having been briefed on said Motion and having made Findings of Fact and Conclusions of Law, now GRANTS said Motion.

There being no just reason for delay, this Court now expressly directs that a Judgment be entered in favor of Defendant, Dico Company, Inc., and Dico Company, Inc., Under the Assumed Name of Waterloo Unloader, Division of Greater Iowa Corporation, and against the Plaintiffs, John Allen Creech and Nancy Creech, with costs to be assessed against the Plaintiffs. (emphasis added).

Creeches contend the trial court's decision was interlocutory until almost a year later when the trial court granted REMC's motion for summary judgment on March 1, 1983. Creeches argue the "boiler plate" language from T.R. 56(C) that the trial court used in its entry was insufficient to certify the decision as a final appealable judgment. They argue that the trial court was required to make specific findings explaining its reasons for certifying the decision and that its failure to make findings constituted an abuse of discretion.

Creeches primarily rely on two cases to support their argument. Allis-Chalmers v. Philadelphia Electric Co., (3rd Cir.1975) 521 F.2d 360 and Fender v. Herald-Times, Inc., (1969) 145 Ind.App. 575, 251 N.E.2d 843. In Allis-Chalmers, the court of appeals held that under Fed.R.Civ.P. 54(B) a district court must make a "brief reasoned statement" in support of its decision to certify a partial judgment for appeal. The court of appeals reasoned that an explanation would facilitate meaningful review of a certification and would indicate whether the district court had considered the appropriate criteria in reaching its decision. The court of appeals noted the following relevant factors:

In reviewing 54(b) certifications, other courts have considered the following factors, inter alia: (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Depending upon the facts of the 521 F.2d at 364.

particular case, all or some of the above factors may bear upon the propriety of the trial court's discretion in certifying a judgment as final under Rule 54(b)

Creeches cite Fender for the proposition that T.R. 56(C) must be read in relation to Ind. Rules of Procedure, Trial Rule 54(B). Then by analogy to Fed.R.Civ.P. 54(B) and Allis-Chalmers, they conclude a trial court must make specific findings to support certification of a partial summary judgment.

We have no quarrel with the idea that T.R. 56(C) and T.R. 54(B) are interrelated. See, Stanray Corporation v. Horizon Construction, Inc., (1976) 168 Ind.App. 164, 342 N.E.2d 645. The language pertaining to certification of a partial judgment in both rules is identical. Id. We are also aware that federal law provides guidance for interpreting our trial rules, particularly T.R. 54(B). Geyer v. City of Logansport, (1974) Ind.App., 317 N.E.2d 893. Absent a "certification" by the trial court, a partial judgment pursuant to T.R. 54(B) is an interlocutory order and is not appealable unless it falls within the parameters for certification of an interlocutory appeal. Id. This requirement also applies to T.R. 56(C) and partial summary judgments. Stanray Corporation v. Horizon Construction, Inc., supra. However, the certification in the case at bar is sufficient even if we assume Allis-Chalmers is applicable.

The court of appeals in Allis-Chalmers was concerned with insuring meaningful review of the trial court's decision. Examining the factors to which the court of appeals alluded, infra, it is also apparent the court was concerned with maintaining its proper role by avoiding unnecessary, advisory, or duplicitous appellate decisions. Phrased differently, the court was concerned with whether a distinct part of the litigation had been adjudicated rather than a single issue within a claim. Under the federal rules a trial court is not permitted to certify a partial summary judgment for appeal when less than all the issues of a claim have been adjudicated. 3 W. HARVEY INDIANA PRACTICE Sec. 56.9 at p. 559 (1970); 10 WRIGHT, KANE, MILLER FED.PRAC. & PROC. Sec. 2656-2659, 2715 (1983). Although the case was decided before the adoption of our current trial rules Fender, supra, illustrates the application of this restriction by our state courts.

In Fender, the plaintiff brought a two count wrongful death complaint against two defendants. The trial court granted summary judgment in favor of one defendant on count one which was based upon respondeat superior. Count two, based upon common law negligence, was still pending against both defendants. When the plaintiff attempted to appeal, the court of appeals held that the purported summary judgment was not a final appealable judgment because it did not determine all the rights and liabilities of the parties in a distinct or definite branch of the litigation.

In the case at bar, the trial court's entry certifying the judgment in Dico's favor must be read in context with the trial court's findings of fact and conclusions of law. ² See, Stanray Corporation v. Horizon s/s Henry A. Pictor

                Construction, supra.   Although these findings were entered to support summary judgment, they also provide a basis for meaningful review of the certification decision.  The summary judgment entered on March 4, 1982, clearly disposed of a distinct branch of the litigation.  Creeches' claims against Dico were based upon legal theories and factual issues distinct from their claim against REMC.  Review of the Dico judgment would not have duplicated review of the judgment in REMC's favor.  Any potential decision related to REMC would not have rendered issues related to Dico moot.  Therefore, we conclude the judgment granted in Dico's favor on March 4, 1982, was a final appealable judgment and Creeches were required to perfect their appeal from that date
                

Judge, Ripley Circuit Court

Creeches filed the entire record of proceedings on September 1, 1983. The portion of the...