Ind. Newspapers, Inc. v. Miller

• Decision Date: 07 December 2012
• Docket Number: No. 49A02–1211–PL–898.,49A02–1211–PL–898.
• Citation: 980 N.E.2d 852
• Parties: In re INDIANA NEWSPAPERS, INC., d/b/a The Indianapolis Star, Appellant, v. Jeffrey M. MILLER, et al., Appellees.
• Court: Indiana Appellate Court

980 N.E.2d 852

In re INDIANA NEWSPAPERS, INC., d/b/a The Indianapolis Star, Appellant,

v.Jeffrey M. MILLER, et al., Appellees.

No. 49A02–1211–PL–898.

Court of Appeals of Indiana.

Dec. 7, 2012.

Order on Rehearing Jan. 18, 2013.

PUBLISHED ORDER DISMISSING APPEAL

ROBB, Chief Judge.

STATEMENT OF THE CASE¹

The Indianapolis Star ("The Star") has filed a motion to stay the trial court's discovery order ("the Discovery Order") pending appeal. See Ind. Appellate Rule 39(C). The Discovery Order compelled The Star to disclose the identity of an anonymous commentator to a news report posted on The Star's website. The Star appeals the Discovery Order as a final judgment, but the plaintiffs, Jeffrey M. Miller and Cynthia S. Miller ("the Millers"), contend it is an interlocutory order. Thus, the threshold issue is whether we have subject matter jurisdiction to hear The Star's appeal.

In its Notice of Appeal, The Star indicates that the basis for appellate jurisdiction is an appeal from a final judgment, as defined by Appellate Rule 2(H). The Star advances two principal arguments in favor of jurisdiction.² First, The Star asserts that the Discovery Order is "the beginning and the end" of the case involving The Star, and that the Discovery Order is, thus, severable as a final, appealable judgment. The Star contends that the discovery dispute is a separate "case" against The Star in that the Discovery Order disposes of all issues and leaves nothing for further determination with respect to The Star, which is a non-party to the underlying case. See App. R. 2(H)(1). Thus, The Star reasons that this is not an interlocutory appeal but an appeal of a final order, Verified Response to Verified Motion for Emergency Telephonic Hearing at 2, and that The Star has properly appealed the Discovery Order as a matter of right, id. at 6.

Second, The Star asserts that Article VII, Section 6 of the Indiana Constitution guarantees "in all cases an absolute right to one appeal" and that "[n]o method of appeal exists here other than as a final, appealable order." Id. at 8. Hence, The Star continues, the Discovery Order must be "deemed final by law." See App. R. 2(H)(5).

We conclude that The Star's argument that the Discovery Order is severable as a final judgment is a reprise of the "distinct and separate branch doctrine," which our Supreme Court repudiated in Berry v. Huffman, 643 N.E.2d 327, 329 (Ind.1994), a doctrine which has been superseded by the requirement that the trial court "direct the entry of a final judgment" under Trial Rule 54(B). Thus, the Discovery Order cannot be considered a final, appealable judgment under Appellate Rule 2(H)(1) because it did not dispose of all claims as to all parties and cannot be considered a final, appealable judgment under Appellate Rule 2(H)(2) because the trial court did not expressly determine that there is no just reason for delay and direct the entry of the Discovery Order as a final judgment as to fewer than all the claims or parties under Trial Rule 54(B).

Accordingly, we hold that the Discovery Order is an interlocutory order which is not severable for appeal under the former, discredited "distinct and separate branch doctrine." Further, The Star has not perfected the Discovery Order as a final judgment under Trial Rule 54(B). And we conclude that the Indiana Constitution guarantees an absolute right to one appeal in all cases, not from all orders, and that the Discovery Order is not deemed final by law under Appellate Rule 2(H)(5).³ Thus, we hold that we lack subject matter jurisdiction to consider The Star's appeal on the merits and we dismiss the appeal. However, we continue the stay previously ordered by this court for seven (7) calendar days from the date of this order, at which time the stay shall automatically expire.

FACTS AND PROCEDURAL HISTORY

This is a second appeal following this court's opinion in Miller v. Junior Achievement of Central Indiana, Inc. (In re Indiana Newspapers, Inc.), 963 N.E.2d 534 (Ind.Ct.App.2012) ("Miller I "). As described in detail in Miller I. the Millers have sued, among others, "DownWithTheColts," an anonymous commentator on The Star's website for defamation. The Star has vigorously defended against releasing the identity of the anonymous commentator.

Prior to our opinion in Miller I, the trial court ordered The Star to release the identity of the commentator. The Star immediately appealed the trial court's discovery order. The Millers filed a motion to dismiss The Star's appeal for lack of subject matter jurisdiction, but that motion was summarily denied by this court's motions panel. Rulings by our motions panel are in fieri and may be re-visited by the writing panel, but the Millers did not re-assert their jurisdictional argument in Miller I, and this court held on the merits that the trial court erred in ordering The Star to release the commentator's identity. Id. at 552–53. We reversed the trial court's order and remanded with instructions that it "require [the Millers] to produce prima facie evidence to support only those elements of [their] cause of action that are not dependent on the commentator's identity." Id. at 552. We expressly excluded from the Millers' burden any showing of actual malice, as that would be dependent on the commentator's identity, id., and we further held that the commentator's statement was, as a matter of law, defamation per se, which would allow the trial court to presume that the Millers had been damaged by the statement, id. at 550.

On remand, the trial court held an evidentiary hearing on the Millers' discovery request. Following the hearing, on October 19, 2012, the court found as follows:

11. Based on the evidence presented ... and the Briefs submitted by both parties ... the balancing factors weigh in favor of Mr. and Ms. Miller as follows:

a. The statement made by "DownWithTheColts" is defamatory per se and is unprotected, illegal speech. It is not political speech;

b. "DownWithTheColts" had no expectation of privacy;

c. Defamatory speech is illegal and is detrimental to the object of the defamatory speech; thus, chilling this type of speech is warranted and is good public policy;

d. "DownWithTheColts" is already a named Defendant in this matter; thus, Mr. and Ms. Miller require the identity of "DownWithTheColts" for purposes of the lawsuit, specifically to identify a defendant, but also generally as to the relationship "DownWithTheColts" has to other parties in this lawsuit;

e. The Star is the only one who possesses this information.

Order Granting Plaintiffs' Motion for Order Compelling Non–Party Discovery at 4. Accordingly, the court ordered The Star to produce the commentator's identity by October 31.

On October 31, The Star filed an emergency motion to stay enforcement of the Discovery Order in the trial court. The court granted the stay until November 14. The court then amended its stay "until November 16, 2012[,] at which time The Star should seek any further stay from the Indiana Court of Appeals." Order on The Indianapolis Star's Motion to Stay Enforcement of October 19, 2012 Order and to Amend Order to Provide Required Security at 2.

On November 15, The Star filed its Motion to Stay Order Compelling Identification of Anonymous Speaker Pending Appeal in this court. We granted The Star's motion until we could consider the parties' arguments. Having held oral argument and having reviewed and considered the parties' written submissions, for the reasons explained below we conclude that this court lacks subject matter jurisdiction over The Star's appeal.

DISCUSSION

Overview

This court's subject matter jurisdiction is specified by the Indiana Rules of Appellate Procedure adopted by our Supreme Court. See Ind. Const. art. VII, § 6. "The question of subject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs." Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind.2000).

Whether [an] order was a final judgment governs the appellate courts' subject matter jurisdiction, and unlike most contentions, lack of [subject matter] 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.

Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003) (citing Albright v. Pyle, 637 N.E.2d 1360, 1363 (Ind.Ct.App.1994) ).

"[D]ismissal for lack of subject matter jurisdiction takes precedence over the determination of and action upon other substantive and procedural rights of the parties." Young v. Estate of Sweeney, 808 N.E.2d 1217, 1219 (Ind.Ct.App.2004) (citation and quotation marks omitted). "It is the duty of this court to determine whether we have jurisdiction 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). Jurisdiction is a question of law we review de novo. Young, 808 N.E.2d at 1219 (quotation marks omitted).

" ‘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) ). Indiana Appellate Rule 5 defines the limits of our jurisdiction. That Rule provides in pertinent part:

A. Appeals From Final Judgments. Except as provided in Rule 4, the Court of Appeals shall have jurisdiction in all appeals from Final Judgments of Circuit, Superior, Probate, and County Courts, notwithstanding any law, statute or rule providing for appeal directly to the Supreme Court of Indiana. See Rule 2(H).

B. Appeals From Interlocutory Orders. The Court of

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