Smith v. Deem

• Decision Date: 30 September 2005
• Docket Number: No. 41A05-0408-CV-449.,41A05-0408-CV-449.
• Citation: 834 N.E.2d 1100
• Parties: Courtney SMITH, Appellant-Plaintiff, v. Natalie DEEM, Appellee-Defendant.
• Court: Indiana Supreme Court

834 N.E.2d 1100

Courtney SMITH, Appellant-Plaintiff, v. Natalie DEEM, Appellee-Defendant.

No. 41A05-0408-CV-449.

Court of Appeals of Indiana.

September 30, 2005.

Keith G. Blazek, Eckert & Craven, P.C., Indianapolis, for Appellant.

Richard R. Skiles, Janet M. Prather, Skiles DeTrude, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

Appellant-Plaintiff, Courtney Smith, challenges the trial court's grant of partial summary judgment in favor of Appellee-Defendant, Natalie Deem. Because we agree with Deem that Smith did not timely file her Notice of Appeal, we dismiss this appeal.

The present case stems from an automobile accident in which Smith was the driver and Deem was the passenger. The basic facts appear to be undisputed and were recounted by our Supreme Court as follows:

"Eighteen-year-old Natalie Deem owned a car insured by the Cincinnati Insurance Company. While out late one evening with fifteen-year-old Courtney Smith, Deem became extremely intoxicated, sick, and wanted to go home. Smith claimed Deem gave her permission to drive Deem's car. Deem did not remember. In any event the record is clear that Smith possessed only a learner's permit and could lawfully drive only when accompanied by a guardian or relative who holds a valid operator's license. See Ind.Code § 9-24-7-4(2). It is undisputed that Deem had a valid operator's license, however Deem is not Smith's guardian and Deem and Smith are not related. Attempting to drive Deem home, Smith ran off the roadway, which was covered with snow and ice. Both Smith and Deem were injured as a result." Smith v. Cincinnati Ins. Co., 790 N.E.2d 460, 460-61 (Ind.2003).

The procedural history of this case spans over six years, starting with Smith filing a complaint for damages against Deem and Deem's insurer, Cincinnati Insurance Company, on August 11, 1998. On October 4, 1999, Smith filed an amended complaint which named new defendants who were served with summonses. These new defendants were Susan Stafford-Ellis, Billy Collins, and Chad Collins. Eventually, on September 1, 2000, the trial court permitted Smith to file a second amended complaint. During the course of the litigation, the Collinses were dismissed as parties. On June 6, 2001, the trial court issued a declaratory judgment in favor of Cincinnati Insurance, concluding that Smith was not covered under Deem's insurance policy. This decision was affirmed by our Supreme Court upon transfer. See Smith, 790 N.E.2d at 461.

On November 20, 2003, Deem filed a motion for partial summary judgment. Smith was granted an extension of time in which to respond to this motion and filed a response on January 9, 2004 wherein she argued that summary judgment in favor of Deem was not warranted, but that Smith was entitled to judgment as a matter of law regarding the issue of negligence per se. A hearing upon the motion for summary judgment was held on April 15, 2004. Thereafter, the trial court issued an order granting Deem's motion for partial summary judgment. This order is file-stamped "JUN 17 2004," and the trial court judge's signature is dated the same. Appendix at 29-30.

On July 1, 2004, Smith and Deem both joined a motion to dismiss Smith as a counter-defendant.¹ On July 14, 2004, within thirty days of the trial court's rendition of the summary judgment order, Smith petitioned the trial court to certify the order for interlocutory appeal. See Ind. Appellate Rule 14(B)(1)(a). On July 26, 2004, the trial court granted the motion to dismiss Smith as a counter-defendant. The chronological case summary ("CCS") then contains the following entry for July 30, 2004:

"Clerk received Order dated 06/17/04. OB 67 PG 217-A. fkd" App. at 26.

On August 11, 2004, the trial court certified its order for interlocutory appeal. That same day, Deem filed a "Response to Petitio[n] to Certify Interlocutory Order for Appeal." App. at 26-27. On August 23, 2004, Smith filed both a motion to withdraw the order certifying the order for interlocutory appeal² and a Notice of Appeal. The Notice of Appeal states in relevant part:

"Plaintiff, Courtney Smith, by counsel, pursuant to Ind. Appellate Rule 9(A), respectfully gives notice of an appeal from the following judgment or order entered by the Johnson County Superior Court 3:

Order Granting Defendant Natalie Deem's Motion for Partial Summary Judgment: June 17, 2004.

This appeal is taken from a final judgment.

This appeal will be taken to the Indiana Court of Appeals." App. at 173.

On September 2, the court stayed proceedings pending resolution of the appeal.

On October 20, 2004, after Smith had filed her Appellant's Case Summary, this court issued an order which stated in part:

"Having reviewed Appellant's Case Summary, the Court FINDS AND ORDERS:

1. Pursuant to Indiana Appellate Rule 9(A)(1), the Appellant's Notice of Appeal was due to be filed on or before July 19, 2004.

2. Appellant filed a Notice of Appeal on August 19, [sic] 2004, outside the thirty-day limit prescribed by App. R. 9(A)(1).

3. When a Notice of Appeal in a civil matter is filed outside the time limit prescribed in App. R. 9(A)(1), the right of appeal is forfeited. See App. R. 9(A)(5).

4. Appellant is ordered to show cause within thirty-five days why this appeal should not be dismissed. Appellant's response shall include a certified copy of the trial court's chronological case summary."

Smith responded, noting that although the trial court signed the order granting partial summary judgment on June 17, 2004, the CCS indicates that this order was not entered into the Record of Judgments and Orders ("RJO") until July 30, 2004. Thus Smith argued that her Notice of Appeal was timely from the July 30 date. This court then entered an order on December 3, 2004 stating in part:

"1. The trial court's chronological case summary appears to show that the trial court did not enter judgment until July 30, 2004.

2. Appellant filed a Notice of Appeal on August 23, 2004, within the thirty-day limit prescribed by App.R. 9(A)(1).

3. Appellant has shown cause why the appeal should not be dismissed. Accordingly, this Court's October 20, 2004 show cause order is DISCHARGED."

Upon appeal, Deem still claims that Smith's Notice of Appeal was untimely and that this appeal should therefore be dismissed. Although the motions panel of this court has already ruled upon this issue, Deem is not precluded from presenting this argument to us. We are reluctant to overrule orders decided by the motions panel, but we are not precluded from doing so. See State v. Moore, 796 N.E.2d 764, 766 (Ind.Ct.App.2003); Davis v. State, 771 N.E.2d 647, 649 n. 5 (Ind.2002). Thus, we address the timeliness of Smith's Notice of Appeal as a threshold issue.

As outlined, the trial court's order granting summary judgment was signed and file-stamped on June 17, but the trial court clerk apparently did not enter the order into the RJO until July 30.³ Smith therefore claims that the time within which she could file a Notice of Appeal should run from July 30. Deem argues that the trial court's signing of the order on June 17 establishes the relevant date. Before we get to this issue, however, we address the apparently interlocutory nature of this appeal.

Indiana Appellate Rule 9(A) governs appeals from final judgments. Appellate Rule 14 governs interlocutory appeals. A judgment is a final judgment if:

"(1) it disposes of all claims as to all parties;

(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;

(3) it is deemed final under Trial Rule 60(C);

(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or

(5) it is otherwise deemed final by law." Ind. Appellate Rule 2(H).

Here, defendants Cincinnati Insurance and Billy and Chad Collins had been dismissed from the action. At the time of the summary judgment, the only remaining defendants were Deem and Stafford-Ellis. The last mention of Stafford-Ellis in the CCS was a notation that she failed to appear at a hearing held on August 21, 2003. The trial court's order on summary judgment addressed the claims against Deem only. The summary judgment order thus did not then dispose of all claims as to all parties because Stafford-Ellis was still a party to the action, and there is no indication in the CCS that she had been defaulted or otherwise dismissed. The summary judgment was therefore not final under Appellate Rule 2(H)(1), and the definitions in Appellate Rule 2(H)(3) through (5) do not appear to be applicable. However, the trial court's order on summary judgment contains the following provision:

"IT IS THEREFORE, ORDERED, AJUDGED, and DECREED that summary judgment is granted in favor of Defendant Natalie Deem as against Courtney Smith's Second Amended Complaint. There being no just reason for delay, entry of judgment is expressly so directed." App. at 30 (emphasis supplied).

This tracks the language of Rule 2(H)(2). It would thus appear that the trial court intended its order to be a final judgment as to Smith's claims against Deem.

Difficulties arise, however, from what happened after the trial court's order was rendered. Instead of filing a Notice of Appeal from this apparently final judgment, Smith filed on July 14, 2004 a petition for the trial court to certify its order for interlocutory appeal. See App. R. 14(B) (governing discretionary interlocutory appeals).⁴ Indeed, the trial court certified its order for interlocutory appeal on August 11, 2004. The next step in the interlocutory appeal process would have been for Smith to request this court to accept jurisdiction of the appeal within thirty days of the trial...