Georgos v. Jackson

• Decision Date: 26 June 2003
• Docket Number: No. 45S03-0207-CV-401.,45S03-0207-CV-401.
• Citation: 790 N.E.2d 448
• Parties: Michael GEORGOS and Pangere Corporation, Appellants (Defendants Below), v. Claude JACKSON, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

790 N.E.2d 448

Michael GEORGOS and Pangere Corporation, Appellants (Defendants Below), v. Claude JACKSON, Appellee (Plaintiff Below).

No. 45S03-0207-CV-401.

Supreme Court of Indiana.

June 26, 2003.

Daniel G. Suber, Valparaiso, IN, Attorney for Appellants.

Jerry T. Jarrett, Gary, IN, Attorney for Appellee.

ON PETITION FOR TRANSFER

BOEHM, Justice.

We hold that an order directing the parties to consummate a mediation settlement agreement, without more, is not a final judgment, and that an attorney attending a mediation settlement conference may bind the client to a settlement agreement despite the client's absence.

Factual and Procedural Background

Claude Jackson was injured in a collision with a truck driven by Michael Georgos, an employee of Pangere Corporation, and sued both Georgos and Pangere (collectively "Defendants").¹ The trial court ordered mediation. Although the order does not appear in the record, it is clear that the mediation was to be conducted under the Indiana Alternative Dispute Resolution Rules. Rule 2.7(B)(2) provides:

All parties, attorneys with settlement authority, representatives with settlement authority, and other necessary individuals shall be present at each mediation conference to facilitate settlement of a dispute unless excused by the court.

Jackson did not appear at the mediation. No party contends that his attendance was excused by the trial court. His attorney and an attorney representing both Defendants were present. Jackson's attorney stated at the mediation that he had the authority to settle, and Jackson has never disputed that this authority existed as of that time. The mediation resulted in a document signed by both attorneys and the mediator. It reads in its entirety:

CONFIDENTIAL

MEDIATION SETTLEMENT AGREEMENT

Come now the parties, by counsel, for mediation on November 2, 1998. Mediation of the claims resulted in the following settlement:

1. Defendants' insurer will pay the plaintiff $94,500.00 in exchange for a full release.

2. Plaintiff agrees to be responsible for all liens.

3. Costs of mediation will be shared equally by the parties.

/s/ Frederick J. Ball Attorney for [Defendants] /s/ Robert L. Lewis Attorney for [Jackson] /s/ Daniel W. Glavin, Mediator Date: November 2, 1998

The mediator reported to the court that the case had been settled. At the time of the mediation Jackson had already incurred medical expenses of approximately $85,000.00. At some point after the mediation Jackson advised the Defendants that he had repudiated the settlement. The Defendants then filed a "Motion to Enforce Mediation Settlement Agreement." Jackson responded that at the time of the mediation both he and his attorney had believed that the limit on the policy covering the Defendants was $100,000 but they had subsequently learned that the limit was $1 million. Based on this factual predicate, Jackson asserted a variety of legal theories (fraud, mistake, etc.) he contended warranted voiding the settlement agreement.

On August 2, 1999, the trial court granted the Motion to Enforce, but did not dismiss the complaint. Apparently treating the grant of the motion as a final judgment, almost five months later, on December 31, 1999, Jackson filed a Trial Rule 60(B)(8) "Motion for Relief from Judgment," asserting that because ADR Rule 2.7(B)(2) required the parties as well as the attorneys to be present at a mediation, any agreement reached in the absence of the parties was a nullity. The trial court agreed with Jackson and on February 22, 2000, granted Jackson's motion for relief from judgment. The case went to trial and on April 9, 2001, the jury returned a verdict for Jackson in the amount of $462,000. The Defendants appealed, asserting among other things that the trial court lacked jurisdiction to grant the "Motion for Relief from Judgment" because it was filed too late to be granted as a motion to correct errors or for reconsideration of a final judgment, and, if viewed as a Trial Rule 60 motion, stated no ground for relief under that rule.²

The Court of Appeals reversed. The Court of Appeals first held that the August 2 order enforcing the settlement agreement was a final judgment. Accordingly, the Court of Appeals reasoned that the trial court lost jurisdiction over the case after thirty days when the time for appeal or a motion to correct errors lapsed on September 1, 1999. The Court of Appeals also held that Jackson's Trial Rule 60 motion was improperly granted because it raised no facts not known at the time of the August 2 order. As a result, the dispute was resolved by the August 2 order, and the Court of Appeals ruling reinstated the order granting the Motion to Enforce. This Court granted transfer on July 19, 2002. For the reasons given below, we reach the same result as the Court of Appeals, but for different reasons.

I. Appealability of Order Enforcing Settlement Agreement

The Court of Appeals concluded that the grant of the Defendant's Motion to Enforce Mediation Settlement Agreement was appealable as a final judgment and also under Trial Rule 54(B). For the reasons given below, we conclude it was neither.

Succinctly stated, a final judgment "disposes of all issues as to all parties thereby ending the particular case." Doperalski v. City of Michigan City, 619 N.E.2d 584, 585 (Ind.Ct.App.1993). It leaves nothing for future determination. Thompson v. Thompson, 259 Ind. 266, 269, 286 N.E.2d 657, 659 (1972). This doctrine is now formalized in Indiana Rule of Appellate Procedure 2(H), which provides that a judgment is final if, "(1) it disposes of all claims as to all parties ...." Ind. Appellate Rule 2(H). The order did not call itself a judgment, and did not enter judgment for $94,500. Rather, it merely ruled on a motion and directed the parties to "take all measures to consummate the settlement ... within (30) thirty days...."

Both the parties and the trial court treated Jackson's motion for relief from judgment as properly filed under Trial Rule 60(B)(8). The Court of Appeals concluded that because the parties and the trial court treated the trial court's August 2 order as a final judgment, whatever defects existed in the ruling as a final judgment were cured. We do not agree that the views of the parties or the trial court resolve this issue. Whether the order was a final judgment governs the appellate courts' subject matter jurisdiction, and unlike most contentions, lack of jurisdiction is not waived by the parties. Neither the parties nor the trial court can confer appellate jurisdiction over an order that is not appealable either as a final judgment or under Trial Rule 54(B). To the contrary, the lack of appellate jurisdiction can be raised at any time, and if the parties do not question subject matter jurisdiction, the appellate court may consider the issue sua sponte. Albright v. Pyle, 637 N.E.2d 1360, 1363 (Ind.Ct.App.1994).

The trial court's grant of the Motion to Enforce was not a final judgment because it did not end the case. The relief requested by the Defendants was that the trial court uphold the validity of the settlement, and order Jackson to enter into a joint stipulation of dismissal. By its terms, the motion asked the trial court to order Jackson to sign the settlement agreement, which had already been signed by his attorney, and asked that the trial court order the Defendants to pay Jackson the agreed amount. In granting the Defendant's motion, the trial court order directed Jackson, "to take all measures necessary to consummate the settlement ... within 30 days." This did not dismiss the case, and left open what would happen if, as in fact turned out to be the case, Jackson did not comply with the directive to consummate the settlement.

A disposition of all claims requires more than the entry of a ruling on a motion without entry of judgment. See Constantine v. City-County Council of Marion County, 267 Ind. 279, 280, 369 N.E.2d 636, 637 (1977) (entry granting a motion to dismiss under Rule 12(B)(6) for failure to state a claim was not a final judgment, given the right under Trial Rule 12(B)(8) to replead); compare Parrett v. Lebamoff, 179 Ind.App. 25, 26-27, 383 N.E.2d 1107, 1108-09 (1979) (entry stating grounds for dismissal, dismissing claim, and awarding costs to plaintiff was a final judgment). A judgment that fails to determine damages is not final. First Fed. Sav. & Loan Ass'n v. Stone, 467 N.E.2d 1226, 1231 (Ind.Ct.App.1984).

The Court of Appeals concluded that even if the August 2 order was not a final judgment it met the requirements of an order appealable under Trial Rule 54(B) because "had it been carried out, [it] would have led to the entry of an ultimate determination ... between Jackson and the Appellants." Georgos v. Jackson, 762 N.E.2d 202, 206 (Ind.Ct.App.2002). We disagree that this is sufficient. Many orders, if carried out, will ultimately lead to a final judgment. Under this phrasing of the issue many orders would be at least arguably appealable even though they are plainly not final judgments and are subject to various contingencies, including whether the parties do in fact carry the order out. But even if it were the case that this order ended all disputes between Jackson and the Defendants, it would not be appealable under Rule 54(B). Trial Rule 54(B) certification of an order that disposes of less than the entire case must contain the magic language of the rule. This is intended to provide a bright line so there is no mistaking whether an interim order is or is not appealable. As we recently held in Martin v. Amoco Oil Co., 696 N.E.2d 383 (Ind.1998), an order becomes final and appealable under Rule 54(B) "only by meeting the requirements of T.R. 54(B). These requirements are that the trial court, in writing, expressly determine that there is no just reason for delay and, in writing, expressly direct entry of judgment." Id. at 385. The trial court made no Rule 54(B) finding here. As a result the August 2...