Stockton v. Falls Auctioneers & Realtors & Peggy Buck of the Peggy Buck Trust, 18A05–1304–CT–160.

Citation999 N.E.2d 959
Decision Date14 February 2014
Docket NumberNo. 18A05–1304–CT–160.,18A05–1304–CT–160.
PartiesRalph STOCKTON, Appellant, v. FALLS AUCTIONEERS AND REALTORS and Peggy Buck as Trustee of the Peggy Buck Trust, Appellees.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Reversed and remanded. Jason R. Delk, Delk McNally LLP, Muncie, IN, Attorney for Appellant.

Branch R. Lew, Andrew S. Williams, Fort Wayne, IN, Attorneys for Appellee, Peggy Buck as Trustee of the Peggy Buck Trust.

OPINION

BROWN, Judge.

Ralph Stockton appeals the trial court's summary judgment ruling in favor of Peggy Buck as Trustee of the Peggy Buck Trust. Stockton raises one issue, which we restate as whether the court erred in granting summary judgment in favor of Buck. In addition, Buck raises the issue of whether Stockton's appeal is timely. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On or about May 17, 2008, Stockton attended an auction conducted by Falls Auctioneers and Realtors (Falls). While inspecting a lawn mower which had been advertised for sale, Stockton's feet became caught in some chains which were lying on the ground and in the grass, causing Stockton to fall and break his hip.1

On May 11, 2010, Stockton filed a complaint against Falls and Buck which alleged that, while inspecting a riding lawn mower at the auction conducted by Falls, his feet became entangled in a chain which was concealed in tall grass causing him to fall and break his hip, that Buck was the owner of the property at the time, that he was a business invitee of both defendants at the auction, that the defendants were negligent in failing to maintain the property in a reasonably safe condition, failing to discover a hazardous condition, failing to adequately warn invitees of the existence of a hazardous condition, and failing to do what reasonably prudent persons would ordinarily have done under the same circumstances, and that the defendants' negligence was the proximate cause of his injuries.

On July 13, 2012, Buck filed a motion for summary judgment together with designated evidence and a memorandum in support of the motion. Stockton filed a response and designation of evidence in opposition to summary judgment on September 7, 2012, and Buck filed a reply on September 24, 2012. The court held a summary judgment hearing on September 26, 2012. On October 5, 2012, the court entered an order granting Buck's motion for summary judgment. On March 5, 2013, following a jury trial against Falls as the remaining defendant, the jury found that Falls was not at fault, and the court accepted the verdict and entered an Order on Verdict and Judgment in favor of Falls.

On March 4, 2013, Stockton filed a Notice of Appeal which indicated the appeal was taken from a final judgment, that the date of the judgment/order being appealed was March 5, 2013, and that the title of the judgment/order being appealed was Order on Verdict and Judgment.2 The notice requested the court reporter to transcribe the hearings on Buck's motion for summary judgment held on September 26, 2012, and the jury trial conducted on March 5, 2013. On August 9, 2013, Stockton filed an Amended Notice of Appeal which indicated that the date of the judgment/order being appealed was March 5, 2013/October 5, 2012 and that the title of the judgment/order being appealed was “Order on Verdict and Judgment/Order on Motion for Summary Judgment.” Appellee's Appendix at 5.

DISCUSSION

Stockton argues that the trial court erred in entering summary judgment in favor of Buck. Buck argues that summary judgment was proper and also that Stockton's appeal is untimely.

I.

We first address Buck's contention that Stockton's appeal is untimely. As previously noted, the trial court entered an order granting Buck's motion for summary judgment on October 5, 2012, and following a jury trial an Order on Verdict and Judgment was entered on March 5, 2013. Stockton filed his initial notice of appeal on March 4, 2013, identifying the March 5, 2013 order as the order being appealed, and filed an amended notice of appeal on August 9, 2013, identifying the March 5, 2013 and October 5, 2012 orders as the orders being appealed.

Buck argues that Ind. Appellate Rule 9 requires the appellant to specify the date and title of the judgment or order being appealed and that Stockton's initial notice of appeal specified the trial court's March 5, 2013 order on verdict and judgment only and did not specify the court's October 5, 2012 order granting Buck's motion for summary judgment. In his reply brief, Stockton argues that, consistent with this court's opinion in Trinity Baptist Church v. Howard, 869 N.E.2d 1225 (Ind.Ct.App.2007), trans. denied, his notice of appeal with respect to the final judgment was timely with respect to the trial court's interlocutory order granting summary judgment. Stockton also notes that his initial notice of appeal requested a transcription of the hearing on Buck's motion for summary judgment and thus that Buck was on notice that the summary judgment order was an issue on appeal. Stockton argues that the amended notice of appeal was a clarification that he desired to appeal only the interlocutory order and not the final judgment following the jury trial.

In Trinity, this court held that a claimed error in an interlocutory order is not waived for failure to take an interlocutory appeal and that, if a notice of appeal from a final judgment is filed, it is also timely as to the appeal of interlocutory orders entered before the final judgment. 869 N.E.2d at 1227. With respect to whether the trial court's October 5, 2012 order granting Buck's motion for summary judgment was final or interlocutory, we note that the order did not dispose of all claims as to all parties, that the court did not in writing expressly determine that there was no just reason for delay and direct entry of judgment as to less than all the issues, claims or parties, and that Buck does not point to authority to show that the order was otherwise deemed final by law. See Ind. Appellate Rule 2(H) (providing in part that a judgment is a final judgment if “it disposes of all claims as to all parties,” the trial court “in writing expressly determines under ... Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment ... under Trial Rule 56(C) as to fewer than all the issues, claims or parties,” or “it is otherwise deemed final by law”); Ind. Trial Rule 56(C) (stating in part that [a] summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties). Accordingly, the trial court's summary judgment order was an interlocutory order. In addition, the trial court did not certify the interlocutory order to allow an immediate appeal under Ind. Appellate Rule 14(B). Stockton's timely appeal from the final judgment is also timely as to the appeal of the October 5, 2012 interlocutory order. See Trinity, 869 N.E.2d at 1227; see also Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind.Ct.App.2000) (recognizing the practical effect of the trial court's ruling dismissing a defendant party from the cause of action and denying the plaintiffs' request to add another defendant party was to end the litigation due to the fact there were no longer any viable defendants and holding that, “procedurally speaking, the cause of action had not concluded, in that there was no final judgment”), aff'd on reh'g, trans. denied. Stockton's notice of appeal was not untimely.

II.

The next issue is whether the trial court erred in granting summary judgment in favor of Buck and against Stockton. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Commr's of Knox Cnty., 779 N.E.2d 1, 3 (Ind.2002). The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

The Parties' Filings and the Designated Evidence

In her July 13, 2012 motion for summary judgment, Buck alleged that she was not in control of the property at the time of Stockton's fall and therefore did not have a duty to him. In her designation of evidence, Buck included her affidavit, portions of a deposition of Stockton, and an affidavit of Mike Rust, who held Buck's power of attorney, with an attached contract between Buck and Falls dated March 25, 2008. The contract stated that Buck would not “interfere, prevent, or prohibit [Falls] in any manner from carrying out [its] duties and obligations of this agreement....” Appellee's Appendix at 15.

In her designated affidavit, Buck states that she hired Falls to conduct an auction of her personal property located on the premises where Stockton's fall occurred, and that she: “never owned, possessed or controlled a chain on the premises,” moved into assisted living not on the...

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