Figg & Muller Engineers, Inc. v. Petruska

• Decision Date: 23 May 1985
• Docket Number: No. 3-684A160,3-684A160
• Citation: 477 N.E.2d 968
• Parties: FIGG & MULLER ENGINEERS, INC., Defendant-Appellant, v. Nancy Anne PETRUSKA, Personal Representative and Administratrix of the Estate of Robert Arnold Kaser, Plaintiff-Appellee, Midwest Steel Erection Company, Inc.; Anthes Industries, Ltd.; Thatcher Engineering Corp.; Dyer Construction Company, Inc.; V.B.N.-S.T.S., Inc.; Lyle & Sons Excavating & Sales, Inc.; Chicago Contractors Supply, Inc.; State of Indiana; and Indiana Department of Highways, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 968

477 N.E.2d 968

FIGG & MULLER ENGINEERS, INC., Defendant-Appellant, v. Nancy Anne PETRUSKA, Personal Representative and Administratrix of the Estate of Robert Arnold Kaser, Plaintiff-Appellee Midwest Steel Erection Company, Inc.; Anthes Industries Ltd.; Thatcher Engineering Corp.; Dyer Construction Company, Inc.; V.B.N.-S.T.S., Inc.; Lyle & Sons Excavating & Sales, Inc.; Chicago Contractors Supply, Inc.; State of Indiana; and Indiana Department of Highways, Defendants-Appellees.

No. 3-684A160.

Court of Appeals of Indiana Third District.

May 23, 1985.

Stephen D. Marcus, Henry R. Daar, Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, Ill., Peter C. Bomberger, Friedrich, Bomberger, Tweedle & Blackmun, P.C., Highland, for defendant-appellant.

Steven R. Crist, Gregory R. Lyman, Singleton, Levy, Crist & Johnson, Highland, G. Richard Potter, Deputy Atty. Gen., Indianapolis, David H. Nicholls, Ellen S. Podgor, Nicholls & Podgor, Crown Point, Richard A. Mayer, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for appellees; William S. Spangler, Jr., Merrillville, of counsel.

GARRARD, Judge.

Nancy Anne Petruska is the personal representative and the administratrix of the estate of Robert Arnold Kaser. Kaser died as the result of the collapse of a bridge ramp being constructed as part of the Cline Avenue Extension project in East Chicago, Indiana. Petruska filed suit in Lake Circuit Court against several defendants including Figg & Muller Engineers, Inc. (Figg & Muller). After two changes of venue, ¹ this action was docketed in the Benton Circuit Court. In that court, Figg & Muller filed a motion pursuant to Indiana Rules of Procedure, Trial Rule 42(A) for consolidation of Petruska's action with related causes of action pending in other counties and filed by other plaintiffs. At the hearing on their motion, Figg & Muller explained that the relief they sought was to have all the pending actions consolidated in Pulaski County. After the hearing, the trial court ruled as follows:

"And now the Court, being duly advised, is of the opinion that the Trial Rules of the State of Indiana do not authorize consolidation of this cause with a similar, but not identical, cause pending in the court of another county of this state.

WHEREFORE, said Defendant's Motion to Consolidate is OVERRULED AND DENIED."

The trial court certified and we accepted Figg & Muller's interlocutory appeal from the above order. This appeal presents one issue for our review: ² Does Trial Rule 42(A) authorize a court of one county to order a case pending before it consolidated with a case pending before a court in a different county?

Trial Rule 42(A) provides:

"(A) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."

We believe the rule is clear on its face and not susceptible to the interpretation urged by Figg & Muller. The rule provides that "[w]hen actions involving a common question of law or fact are pending before the court ... [the court] may order all the actions consolidated...." (our emphasis). Figg & Muller encourages us to interpret the rule as if it provided:

"When one or more actions pending before a court involve a question of law or fact in common with one or more actions pending before another court, the first court may transfer the action(s) pending before it to the other court for consolidation with the other action(s)."

However, the plain language of Trial Rule 42(A) authorizes only consolidation of actions pending before the court; it does not authorize transfer of actions from one court's jurisdiction to that of another for consolidation. ³

Federal Rules of Civil Procedure 42(a) is identical to our Trial Rule 42(A). The federal cases interpreting that rule support our holding here. In Swindell-Dressler Corp. v. Dumbauld (3d Cir.1962), 308 F.2d 267, the Court of Appeals stated that "... a cause of action pending in one jurisdiction cannot be consolidated with a cause of action pending in another jurisdiction. Rule 42(a) ... will not permit such a course. The cases to be consolidated must be 'pending before the court.' " 308 F.2d at 273.

In Silver v. Goodman (D.C.Conn.1964), 234 F.Supp. 415, the District Court said, "Rule 42(a) pertains only to the consolidation of actions pending before the same court; it does not authorize the transfer of a case to a different district for consolidation with a case pending in the transferee court." 234 F.Supp. at 416.

In the federal courts, transfer from one district to another is accomplished pursuant to 28 U.S.C. Section 1404(a) which provides:

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

After such transfer, the transferee court then may exercise its discretion pursuant to Rule 42(a) to consolidate the transferred case with another case already pending before it. Anschell v. Sackheim (D.C.N.J.1956), 145 F.Supp. 447; Popkin v. Eastern Air Lines, Inc. (D.C.Pa.1966), 253 F.Supp. 244.

Figg & Muller cites cases from New York which permit intercounty consolidation of cases. However, the New York rules of civil practice with respect to consolidation, transfer and venue do not parallel our own rules. The cases interpreting the New York rules are therefore of no assistance here.

Figg & Muller also cites the Civil Code Study Commission Comments found in 3 Harvey, Indiana...