Piskorowski v. Shell Oil Co.
| Decision Date | 21 April 1980 |
| Docket Number | No. 3-778A176,3-778A176 |
| Parties | Joseph F. PISKOROWSKI, Appellant (Plaintiff Below), v. SHELL OIL COMPANY, a Delaware Corp., Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Dominic P. Sevald, Hammond, Joseph L. Skozen, Skozen & Tebik, Munster, for appellant.
James J. Nagy, Eichhorn, Eichhorn & Link, Hammond, for appellee.
On August 31, 1965, Shell Oil Company and Jospeh F. Piskorowski entered into a lease agreement whereby Shell agreed to rent Piskorowski's property located at the southeast corner of 139th Street and Hohman Avenue in Hammond, Indiana. The lease agreement was for a ten year term, but included provisions by which Shell could terminate its leasehold interest in Piskorowski's property prior to the expiration of the ten year period.
In January of 1965, Shell, acting under the auspices of the termination provisions, notified Piskorowski that it was exercising its option to cancel its rights and obligations under the lease effective May 1, 1967. Shell's cessation of rental payments on that date prompted Piskorowski to initiate three separate lawsuits in Lake Superior Court. Through the procedural vehicles of venue and consolidation, jurisdiction over Piskorowski's various actions was transferred to the Porter Superior Court, where Shell's Motion for Summary Judgment on the consolidated causes was granted. Piskorowski here appeals from that decision, and raises the following issues for our review:
(1) Whether the Porter County Superior Court had jurisdiction to render Summary Judgment on cause number 576-581 when the pleadings and transcript had not been physically transferred to the court?
(2) Whether genuine issues of material fact existed which made Summary Judgment improper.
We affirm.
In 1967, Piskorowski filed two separate breach-of-contract actions against Shell Oil Company in Lake Superior Court. The parties subsequently stipulated that the two causes be venued to Porter Superior Court. In 1969, the stipulations were effectuated; the Lake Superior Court ordered the actions venued, and the transcripts of each cause were physically transferred to the Porter Superior Court.
In 1976, Piskorowski filed a third suit against Shell wherein Piskorowski coupled his previous allegation that Shell had breached the lease agreement of the parties with the assertion that, in consideration of Shell's performance of its leasehold obligations, Piskorowski had constructed a service station on his property. The suit was filed in Lake Superior Court and assigned cause number 576-581. Shell responded to the complaint with a Motion for Summary Judgment, wherein it prayed alternatively that the Lake Superior Court dismiss the action or order the cause joined with those suits already pending in Porter Superior Court.
Pursuant to the discretionary power vested in it by Ind. Rules of Procedure, Trial Rule 21(B), 1 the Lake Superior Court ordered that cause number 576-581 be "consolidated" with cause numbers 69 PSC 1243 and 1290 pending in Porter Superior Court. As part and parcel of its order, the Lake Court directed that the case be transferred to the Porter Court; inexplicably, however, the transcript and pleadings of cause 576-581 were never physically transferred to the Porter Superior Court.
Shell Oil Company then filed a Motion for Summary Judgment in the Porter Superior Court. The Porter Court granted that motion and entered identical orders to that effect in the case files for the two causes which had been venued to its jurisdiction in 1969. In the prefatory sections of its identical orders, the Court noted three consolidated causes were before the Court, among them Cause 576-581. The order reads in relevant part:
By expressly including the action under cause number 576-581 in its summary judgment, the Porter Superior Court appeared to adjudicate the action without having the pleadings and other court records before it. Such is not the case, however. While the Lake County Court file for cause 576-581 was never transferred to the Porter Superior Court, copies of the pleadings, motions, and other matters filed in cause 576-581 were presented to the Porter Court for its consideration. 2
No questions with respect to the paradoxical disposition of cause 576-581 were raised in Piskorowski's subsequent Motion to Correct Errors, which was overruled by the Porter Court. Eight months later, however, Piskorowski filed in Lake Superior Court a motion to reset cause 576-581 for trial. The motion was predicated upon the fact that the transcript and pleadings had never been physically transferred to the Porter Superior Court. The motion was not ruled upon by the Lake Superior Court; rather, the Lake court certified the transcript and pleadings of cause 576-581 to this Court for purposes of Piskorowski's appeal.
Piskorowski does not contend otherwise. Rather, his contention on appeal is that inasmuch as the pleadings and transcript filed in the Lake Superior Court were never physically transferred to the Porter Superior Court, the court lacked jurisdiction to adjudicate the action. Consequently, he argues, the summary judgment granted Shell is void insofar as cause 576-581 is concerned. Shell maintains, however, that Piskorowski's failure to raise the jurisdictional issue in his Motion to Correct Errors constitutes a waiver of the right to raise the issue on appeal. 3
In their briefs, both parties have somewhat confused the jurisdictional aspect of the case-at-bar. Piskorowski has argued that the nature of jurisdiction involved is subject matter jurisdiction and hence not susceptible to waiver or alternatively, that jurisdiction over the particular case is at issue. Shell, on the other hand, has maintained that the question is a matter of jurisdiction over the person and that waiver rules are thereby applicable.
The confusion is somewhat understandable; our research reveals no governing precedent for the procedural circumstances present here. An inter-county consolidation of cases, however, is not unlike a change of venue, insofar as our purposes here are concerned. In either instance, a transfer of power to adjudicate the case occurs, together with a physical transfer of the case transcript and pleadings. Accordingly, we conclude that an inter-county consolidation of cases involves jurisdiction over the particular case, as per analogous venue principles. State v. Superior Court of Marion County (1955), 235 Ind. 151, 128 N.E.2d 874, 877; Indiana State Fair Board v. Hockey Corp. of Amer. (1975), 165 Ind.App. 544, 333 N.E.2d 104, 114.
The failure to physically transfer the transcript and pleadings of Cause Number 576-581, however, did not affect the Porter Superior Court's jurisdiction over the particular case; rather, it affected only the Lake Superior Court's jurisdictional power to act in Cause Number 576-581. Again, the rationale for this conclusion springs from analogous venue principles.
As a general rule, a trial court loses jurisdiction over a particular case when a proper motion for a change of venue is filed. State ex rel. Kealing v. Clay Circuit Court (1934), 207 Ind. 259, 263, 192 N.E. 423. The immediacy of this general loss of jurisdiction stems from the fact that the Court has a duty to grant the motion; each party to a civil action enjoys a right to one change of venue. Ind.Rules of Procedure, Trial Rule 76. The court in which a change of venue motion is filed, however, retains jurisdiction to make any necessary emergency interlocutory orders until that time when the case pleadings and transcript are physically transferred to the court to which venue is changed. Indianapolis Dairymen's Co-op v. Bottema (1948), 226 Ind. 260, 265-66, 79 N.E.2d 409, 411-12; Indiana State Fair Board v. Hockey Corp. of Amer., supra.
Of course, consolidation, unlike venue, is a matter in which the trial court exercises discretion. Arguably, a motion for consolidation would not generally divest the court of its jurisdiction to act in a case, as occurs when a motion for a change of venue is filed. That question is not before us, however, and we do not reach it.
We simply hold that when the Lake Superior Court ordered cause 576-581 consolidated with cause numbers 69 PSC 1243 and PSC 1290 already pending in Porter Superior Court, the Lake Court lost jurisdiction over the case. 4 When that order was rendered, then, jurisdiction over the particular case (cause 576-581) passed to the Porter Superior Court.
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