December 8, 2010
Today, the Indiana Court of Appeals demonstrated its desire to remind the bar about what constitutes an appealable order by publishing its decision in
Forman v. Penn, 938 N.E.2d 287 (Ind. Ct. App. 2010), Case No. 33A01-1007-CT-343. Although an insurer was granted summary judgment on a coverage dispute and the coverage dispute may be viewed as separate from the underlying dispute, the trial court's failure to include
Trial Rule 54(B)'s "magic language" rendered the order not immediately appealable.
less..
In this case, Forman, a teen, was staying at a friend's home for the night. The boys were playing video games when the adults retired for the night. The next morning, after the adults had left for some errands before the boys were awake, the friend called them to report that Forman could not be wakened. Ultimately, Forman was hospitalized and contends that he has permanent injuries from ingestion of methadone that had been supplied by his friend from the friend's mother's prescription.
Forman sued his friend and the adults, alleging negligent supervision and control over the methadone and negligence in caring for him after it was discovered that he could not be wakened. Western Reserve, with whom the home was insured, intervened, seeking a declaratory judgment that it had no duty to provide a defense to Forman's complaint. It moved for summary judgment and the trial court granted that motion. The defendants filed a Motion To Correct Error, treating the trial court’s ruling as a final judgment, and Western Reserve responded, also citing Trial Rule 59 authority. After forty-five days without a ruling on that motion, the defendants appealed the grant of the summary judgment to Western Reserve, treating the passage of time as a denial of their motion pursuant to Trial Rule 53.3.
On appeal, the Court
sua sponte raised the issue of whether the trial
court's ruling on Western Reserve's summary judgment motion is an appealable order. It concluded that it was not because the trial court did not include Rule 54(B)'s "magic language" that "there is no just reason for delay and upon an express direction for the entry of judgment."
We recognize that the questions of Western Reserve's obligation to provide a defense and its potential exposure to liability present issues that are at least in part distinct from the issues presented in the underlying lawsuit. In this respect the coverage dispute may be viewed as separate from Forman’s claims against the defendants. ... In any event, in
Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998), the Indiana Supreme Court established a “bright line” rule enforcing the requirement of compliance with Trial Rule 54(B) before an appeal may be taken as of right from a trial court ruling that does not dispose of all claims. The Supreme Court specifically rejected the “separate branch” doctrine developed in some cases in this Court that permitted appeals of orders disposing of portions of lawsuits deemed sufficiently independent of the remaining issues to warrant a direct appeal.
Id. We are bound by that precedent.
The decision regarding whether the order should be immediately appealable was in the hands of the trial court. It did not decide to make the order appealable. Therefore, the appeal had to be dismissed.
As the Court pointed out, the parties were free to ask the trial court to amend its order, but litigants should be aware of this ruling before spending the time and resources on an appeal from a non-appealable order. An order is not appealable merely because it resolves a distinct portion of a case; it is appealable if the trial court provides the language necessary to make that order appealable. This may be an issue that the Court has been forced to deal with often in recent years, thereby calling for a published decision, rather than some other form of disposition. Take note.
Lessons:
- An order granting summary judgment on a distinct branch of a case is not immediately appealable unless the trial court includes Trial Rule 54(B)'s magic language.
- The Court of Appeals is paying attention to whether it has jurisdiction, even if those issues are not raised by either party.
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