Rayle v. Bolin, 79A05-0111-CV-492.

• Decision Date: 07 June 2002
• Docket Number: No. 79A05-0111-CV-492.,79A05-0111-CV-492.
• Citation: 769 N.E.2d 636
• Parties: Merrick Scott RAYLE, Appellant-Plaintiff, v. Irene Temple BOLIN, Individually and as the Personal Representative of the Estate of Barbara Merrick Hawkins, Deceased, et al., Appellees-Defendants.
• Court: Indiana Appellate Court

769 N.E.2d 636

Merrick Scott RAYLE, Appellant-Plaintiff, v. Irene Temple BOLIN, Individually and as the Personal Representative of the Estate of Barbara Merrick Hawkins, Deceased, et al., Appellees-Defendants.

No. 79A05-0111-CV-492.

Court of Appeals of Indiana.

June 7, 2002.

Jerome L. Withered, Withered & Corrigan, LLP, Lafayette, IN, Attorney for Appellant.

Thomas J. Herr, Truitt & Herr, Lafayette, IN, Attorney for Appellees.

OPINION

KIRSCH, Judge.

Merrick Scott Rayle appeals the trial court's decision granting Irene Temple Bolin's motion for summary judgment on his verified will contest. The parties raise two issues for review, one of which we find dispositive: whether the trial court's decision was a final, appealable order.

We dismiss the appeal and remand the case to the trial court.

FACTS AND PROCEDURAL HISTORY¹

On September 9, 2000, Barbara Merrick Hawkins died. A few days later, her nephew and only heir at law, Rayle, filed objections to the probate of her 1991 will. Two weeks later, Bolin, the personal representative of Hawkins's estate under the will, filed a petition to probate the will. On January 18, 2001, Margot Rayle Gobel and Colleen R. Neal also filed a verified counter- and cross-complaint contesting the probate of Hawkins's 1991 will. Bolin filed a motion to dismiss Rayle's will contest, alleging that he lacked standing to bring such a challenge. The trial court treated Bolin's motion as one for summary judgment and granted it. Rayle now appeals.

DISCUSSION AND DECISION

Bolin argues that the trial court's order dismissing Rayle's will contest is not a final, appealable order, and accordingly, this court lacks jurisdiction to hear this appeal and should dismiss it. Ind. Trial Rule 54(B) provides:

"(B) Judgment upon multiple claims or involving multiple parties. When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.² A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final."

Bolin contends that the trial court's judgment was not appealable because it did not dispose of all issues or parties because others are also contesting the probate of Hawkins's will, and it did not contain an express determination that there is no just reason for delay or an express direction for the entry of judgment.

In Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind.1998),cert. denied by Zrnchik v. Amoco Oil Co., 525 U.S. 1049, 119 S.Ct. 608, 142 L.Ed.2d 548 (1998), our supreme court discussed T.R. 54(B). It explained the T.R. 54(B) requirements that the trial court, in writing, expressly determine that there is no just reason for delay and, in writing, expressly direct entry of judgment. It noted that T.R. 54(B) was based on the federal rule and was intended to "provide greater certainty to litigating parties and to strike an appropriate balance between the interests in allowing for speedy review of certain judgments and in avoiding the inefficiencies of piecemeal appeals." Id. The rule was a reaction to and intended to supplant the prior common law approach of basing appealability on whether a claim constituted a "distinct and different branch of litigation." Id. The supreme court noted that its insistence that the trial court's judgment include the express determination and order for entry of judgment was formalistic, but added that adhering to such a bright line rule "removes uncertainties about when a party should appeal" and places the discretion of deciding when the facts indicate that a judgment should be deemed final in the hands of the trial judge, who is best able to make such decisions. Id. See also First Equity Sec. Life Ins. Co. v. Keith, 164 Ind.App. 412, 416, 329 N.E.2d 45, 47-48 (1975) (holding that T.R. 54(B) mandates that judgment as to less than all issues is interlocutory judgment, and does not become final and appealable until trial court makes specified determination and direction, but electing to address merits of case under discretionary authority); Geyer v. City of Logansport, 317 N.E.2d 893, 896 (1974) (holding that T.R. 54(B) requires express determination and direction to certify order disposing of less than all claims or parties as final appealable order).

T.R. 54(B) has been interpreted consonant with federal practice. Legg v. O'Connor, 557 N.E.2d 675, 676 (Ind.Ct.App. 1990). Commentators explaining F.R.C.P. 54(b) have explained the necessity of the required language:

"The requirement in Rule 54(b) that the

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