Huff v. House
| Decision Date | 22 August 1983 |
| Docket Number | No. 4-882A254,4-882A254 |
| Citation | 452 N.E.2d 1015 |
| Parties | Lenora HUFF, Appellant (Plaintiff Below), v. Dennie L. HOUSE, Thomas P. Lynott, James A. Huff and Chicago Title Insurance Co., Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
We originally dismissed this appeal because the trial court rendered summary judgment as to only one of several defendants and did not direct the entry of judgment as provided in Ind.Rules of Procedure, Trial Rule 56(C). On petition for rehearing, Huff contends that, even though the order she appeals was not final, we should exercise our authority under Ind.Rules of Procedure, Appellate Rule 4(E) and review the trial court's decision in this case. In support of this argument, Huff alleges that her claims against the remaining defendants have been voluntarily dismissed with prejudice since this appeal was filed.
It is clear that we have authority to dismiss attempted appeals from interlocutory orders like the one at issue. See Parrett v. Lebamoff, (1979) 179 Ind.App. 25, 383 N.E.2d 1107. However, we also have discretionary authority to consider such appeals in appropriate circumstances. Appellate Rule 4(E) provides:
No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues, or it may pass upon such adjudicated issues as are severable without prejudice to parties who may be aggrieved by subsequent proceedings in the court below.
Our courts have repeatedly exercised this authority to consider appeals from non-final orders, even though the requirements of A.R. 4(B) have not been met. Krueger v. Bailey, (1980) Ind.App., 406 N.E.2d 665; Highland Realty, Inc. v. Indianapolis Airport Authority, (1979) Ind.App., 395 N.E.2d 1259; Parrett v. Lebamoff, supra; First Equity Security Life Ins. Co. v. Keith, (1975) 164 Ind.App. 412, 329 N.E.2d 45.
In this case, Huff alleges that her claims against the remaining defendants have been dismissed. If this is so, the trial court's order granting summary judgment as to defendant House should be ripe for entry of final judgment. In such circumstances, the proper procedure is not to dismiss but to suspend our consideration of the appeal as provided by A.R. 4(E) pending our receipt of a copy of the trial court's entry of final judgment on its order granting summary judgment. Montgomery v. Board of Zoning Appeals, (1963) 244 Ind. 117, 191 N.E.2d 317; Ingmire v. Butts, (1974) 160 Ind.App. 575, 312 N.E.2d 885. The court's order, of course, must be properly certified and added to the record as provided by A.R. 7.2.
Huff's petition for rehearing is accordingly granted. This court's memorandum decision dismissing Huff's appeal is vacated, and our consideration of this appeal is suspended pending the entry of final judgment below.
We originally dismissed this appeal because the trial court entered only a partial summary judgment and Lenora Huff (Huff) had not sought certification of the issues under Ind.Rules of Procedure, Trial Rule 56(C). Huff's petition for rehearing claims we lack authority to dismiss the appeal because of Appellate Rule 4(E). The majority now concurs in that assertion, but I do not.
This court has jurisdiction on appeal in civil cases, (assuming the other pre-appeal steps have been timely taken) when:
3) the trial court has entered judgment, making an interlocutory order final [T.R. 54(B) ], and
4) the interlocutory order is one of the kind specified in A.R. 4(B).
In this case, the judgment was neither final nor an interlocutory order of the kind specified in A.R. 4(B). Summary judgment here was entered only as to some of the parties and issues. Thus, Huff's only route to an immediate appeal was to obtain the trial court's certification of the issues under T.R. 56(C).
That rule permits the trial court to enter summary judgment on less than all the issues, claims or parties, but such judgment is interlocutory and not appealable unless the trial court, in writing, directs entry of judgment because there is "not just reason for delay." Only then may a partial summary judgment be appealed. Kasten v. Sims Motor Transport, (1975) 166 Ind.App. 117, 333 N.E.2d 906.
As Staton, J., speaking for the unanimous Third District of our court recently said:
Ind.Rules of Procedure, Trial Rule 56(C) reads, in pertinent part:
Thus, if a summary judgment is granted with respect to less than all of the issues before the court, that judgment is final and appealable only if the trial court: (1) in writing expressly determines that there is no just reason for delay; and (2) in writing expressly enters judgment thereon. Stanray Corp. v. Horizon Construction, Inc., (1976) 168 Ind.App. 164, 342 N.E.2d 645, 651; Kasten v. Sims Motor Transport (1975), 166 Ind.App. 117, 333 N.E.2d 906, 910. (Emphasis supplied.)
Lawson v. Howmet Aluminum Corp., (1983) Ind.App., 449 N.E.2d 1172, 1176. This procedure is jurisdictional as to this court. Kasten, supra. Here, Huff did not request and the trial court did not make the necessary certification. Therefore, we lack jurisdiction to entertain this appeal. Kasten, supra.
However, Huff directs our attention to A.R. 4(E) which...
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