Pivarnik v. Northern Indiana Public Service Co.

• Decision Date: 29 June 1994
• Docket Number: No. 75S00-9311-CV-1305,75S00-9311-CV-1305
• Parties: Daniel PIVARNIK, Edward Pivarnik, and Robert Cauffman, Appellants (Third-party defendants below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Defendant, Counter-plaintiff, Third-party Plaintiff below), and G.V.K. Corporation (Plaintiff, Counter-defendant below); Van Keppel Supply, Gerrit Van Keppel, Andy Sytsma (Third-party Defendants below.)
• Court: Indiana Supreme Court

Page 131

636 N.E.2d 131

Daniel PIVARNIK, Edward Pivarnik, and Robert Cauffman, Appellants (Third-party defendants below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee

(Defendant, Counter-plaintiff, Third-party Plaintiff below),

and

G.V.K. Corporation (Plaintiff, Counter-defendant below);

Van Keppel Supply, Gerrit Van Keppel, Andy Sytsma

(Third-party Defendants below.)

No. 75S00-9311-CV-1305.

Supreme Court of Indiana.

June 29, 1994.

Glenn J. Tabor, Thomas F. Macke, Roger A. Weitgenant, Blachly, Tabor, Bozik & Hartman, Valparaiso, for appellants.

Paul A. Rake, Lyle R. Hardman, Eichhorn, Eichhorn & Link, Hammond, for appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

This case arises out of a misunderstanding of Indiana Trial Rule 14 and third-party practice generally under the Indiana Trial Rules. ¹ We write in order to aid the courts and practitioners in their efforts to understand and apply the Rules in accord with the language of the Rules themselves and with the policies that the Rules are designed to promote.

Facts

While digging a pond in August of 1991, a bulldozer owned by G.V.K. Corporation (GVK) struck a natural gas pipeline belonging to Northern Indiana Public Service Company (NIPSCO). There was an explosion and fire that destroyed the bulldozer and injured the bulldozer's driver, Robert Cauffman.

In November of 1991 GVK, which had been hired by Daniel and Edward Pivarnik to dig the pond on land that they owned as tenants in common, sued NIPSCO in Porter Superior Court for negligently marking the location of the pipeline.

In December, NIPSCO filed a counter-claim against GVK for damage to its pipeline. It also filed a third-party complaint for damage to its pipeline against Robert Cauffman and Daniel Pivarnik. NIPSCO was apparently unaware that Edward Pivarnik owned the land as a tenant in common with Daniel Pivarnik and therefore did not include him as a third-party defendant in its complaint.

In January of 1992, on NIPSCO's motion for a change of venue and after striking, the case was transferred from Porter Superior Court to Starke Circuit Court.

In March, Cauffman filed suit in Porter Superior Court against NIPSCO for the injuries he suffered in the accident.

In May, NIPSCO answered Cauffman's complaint by filing a motion to dismiss the suit under Trial Rule 12(B)(8), saying that the same case was already pending in Starke County.

On May 28th in Porter County, Daniel and Edward Pivarnik initiated their own suit against NIPSCO for damage to their farm.

Also on May 28th but in Starke County, Daniel Pivarnik appeared by counsel and filed a motion to strike NIPSCO's third-party complaint for improper joinder under Trial Rule 14. He also filed under protest an answer to NIPSCO's third-party complaint and included with his answer certain designated compulsory counter-claims.

On July 1st in Starke County, Cauffman filed a motion to dismiss NIPSCO's third-party complaint for improper joinder under Trial Rule 14.

On August 5th in Starke County, NIPSCO sought to amend its pleadings. It sought both to redesignate the claims in its original third-party complaint against Daniel Pivarnik and Cauffman as counter-claims under Trial Rule 13(H) ² and to add Edward Pivarnik as a third-party defendant in its original third-party complaint.

On August 15th in Porter County, NIPSCO answered the Pivarniks' complaint of May 28th by claiming as an affirmative defense that the same case was already pending in Starke County and that Trial Rule 12(B)(8) precluded the Pivarniks from bring their action in Porter County.

In September, the Pivarniks moved to dismiss NIPSCO's third-party complaint in Starke County "for lack of subject matter jurisdiction" because NIPSCO had improperly impleaded them under Trial Rule 14.

In December, Cauffman again moved to dismiss as improper NIPSCO's Trial Rule 14 third-party complaint against him in the Starke County action.

In April of 1993 the Starke County trial court found that it had both subject matter jurisdiction and personal jurisdiction over the parties (R. 315-16). It also found that both Pivarniks and Cauffman were necessary parties under Trial Rule 19. It consequently entered the following order:

IT IS THEREFORE ORDERED that the motion to dismiss of Robert Cauffman is overruled; the motion of Northern Indiana to amend its pleadings is granted and Edward Pivarnik is added as a party to these proceedings; the motion of Daniel and Edward Pivarnik to strike [Northern Indiana's] third-party complaint is granted only insofar as the claims of Northern Indiana shall be designated as counter-claims rather than third-party claims.

(R. 316.)

Issues

On appeal, we now decide on the merits the issues raised by Appellants. We state those issues as

I. Whether Starke Circuit Court acquired exclusive jurisdiction over Appellants'

case before Appellants filed their separate actions in Porter Superior Court.

II. Whether Edward Pivarnik is a necessary party under Trial Rule 19.

I.

Appellants would have their cases against NIPSCO tried separately in Porter County while GVK pursues its action against NIPSCO in Starke County; NIPSCO would have the Appellants' pending Porter County actions tried together with GVK's action against NIPSCO in Starke County. Appellants claim that they were improperly included in NIPSCO's original third-party complaint in the Starke County action, that they therefore should have been dismissed from the Starke County action, and because they should have been dismissed from the Starke County action, their actions are properly within the exclusive jurisdiction of the Porter Superior Court where they were filed. NIPSCO claims that Appellants were already proper parties in the Starke County action before they had commenced their actions in Porter County, and that dismissal of the Porter County actions is therefore required in response to its motion to dismiss under Trial Rule 12(B)(8).

A. Are the Porter County and Starke County actions the same?

Trial Rule 12(B)(8) provides a defense to an action if "[t]he same action [is] pending in another state court of this state." Ind.Trial Rule 12(B)(8). If Appellants are correct that the Porter Superior Court properly has jurisdiction of their actions against NIPSCO and they are required to pursue the Starke County action nonetheless, they will have been required to pursue an action the results of which might be voidable. ³ Harp v. Indiana Dep't of Highways (1992), Ind.App., 585 N.E.2d 652, 659. Conversely, if NIPSCO is correct that the Starke Circuit Court first acquired jurisdiction over the case, judgments against NIPSCO in Porter County would be voidable, ⁴ Id., and NIPSCO will have been pointlessly compelled to defend the two Porter County actions.

First we must decide if Appellants' actions in Porter County are the "same case" as the action in Starke County within the meaning of Trial Rule 12(B)(8). Two cases are the same if the parties, subject matter, and remedies sought are substantially the same in both suits. State ex rel. International Harvester Co. v. Allen Cir. Ct. (1976), 265 Ind. 175, 178, 352 N.E.2d 487, 489; Indiana & Michigan Elec. Co. v. Terre Haute Indus. (1984), Ind.App., 467 N.E.2d 37, 40; Thrasher v. Van Buren Township of Monroe County (1979), 182 Ind.App. 121, 128, 394 N.E.2d 215, 219.

In Porter County, Cauffman has sued NIPSCO for its alleged negligence in marking its pipeline and is seeking damages for his personal injuries proximately caused by that alleged negligence. Daniel and Edward Pivarnik have sued NIPSCO in Porter County for negligently marking its pipeline and are seeking damages for injury to their property.

In Starke County, NIPSCO has claimed that Cauffman was negligent in his operation of the bulldozer while digging the pond, and it is seeking damages from Cauffman for injury to its pipeline. NIPSCO has also claimed in the Starke County action that Daniel and Edward Pivarnik trespassed on its easement and right of way for the pipeline and that they failed to provide notice of an intent to excavate as required by statute. Presumably NIPSCO would raise the same claims in Porter County if it should be required to defend Appellants' Porter County actions.

It is apparent that no party to the Porter County actions would not also be a party in Starke County should the Starke County action be permitted to continue. The parties in the two arenas are therefore the same. It is also apparent that the subject matter of the Porter and Starke County actions are the same since every claim involves a factual determination of who is liable for the rupture of NIPSCO's pipeline. All parties are seeking money damages for their various injuries that resulted from the pipeline rupture. Therefore the remedies sought are the same. Because the parties, the subject matter, and the remedies sought are substantially the same in the Porter County actions and in the Starke County action, the cases are the same within the meaning of Trial Rule 12(B)(8).

B. When is a case pending in a court?

When two or more courts have concurrent jurisdiction over the same case, "the jurisdiction of the court first acquiring such jurisdiction is deemed exclusive until the case is finally disposed of on appeal or otherwise." International Harvester, 265 Ind. at 177, 352 N.E.2d at 489. Although in International Harvester we issued an original writ of prohibition against a trial court, the problem there was identical to the problem arising from a motion to dismiss under Trial Rule 12(B)(8). See Thrasher, 182 Ind.App. at 127 n. 3, 394 N.E.2d at 222 n. 3; 1 William F. Harvey, Indiana Practice § 12.14, at 612 (1987). Once a court has acquired exclusive jurisdiction over a case, the case is pending in that court within the meaning of Trial Rule 12(B)(8).

The rule in Indiana is that jurisdiction over a case becomes exclusive in the court in which the case is first instituted. Taylor v. City of Fort Wayne (18...