      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                         FILED
      this Memorandum Decision shall not be
                                                                                Jul 03 2018, 10:08 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                   CLERK
                                                                                 Indiana Supreme Court
      the defense of res judicata, collateral                                       Court of Appeals
                                                                                      and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Nikola Vidovic                                            Edward P. Grimmer
      Joseph I. Miyake                                          Daniel A. Gohdes
      Swope Law Offices, LLC                                    Edward P. Grimmer, P.C.
      Schererville, Indiana                                     Crown Point, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Cynthia Vermette,                                         July 3, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-PL-364
              v.                                                Appeal from the Porter Superior
                                                                Court
      Northern Indiana Public Service                           The Honorable Julia M. Jent,
      Company,                                                  Judge
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                64D03-1706-PL-5807



      Najam, Judge.


                                        Statement of the Case
[1]   Cynthia Vermette appeals the trial court’s grant of partial summary judgment in

      favor of Northern Indiana Public Service Company (“NIPSCO”). Vermette

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-364 | July 3, 2018                        Page 1 of 5
      raises several issues for our review. However, we do not reach the merits of

      Vermette’s appeal because we lack subject matter jurisdiction to consider the

      trial court’s interlocutory order. We dismiss.


                                  Facts and Procedural History
[2]   On November 23, 2016, Vermette crashed her vehicle into an electric pole

      owned by NIPSCO. NIPSCO filed a complaint for damages against Vermette

      alleging negligence, willful and wanton conduct, and trespass. On September

      20, 2017, NIPSCO filed a motion for partial summary judgment solely “on the

      issue of the costs to repair” the electric pole without any determination of

      liability. Appellant’s App. Vol. II at 81. The trial court granted that motion

      following a hearing. Thereafter, on NIPSCO’s motion, the trial court issued an

      order stating that there was no just reason for delay and directing the clerk to

      “show the ruling is to be entry of final judgment on the issues resolved by grant

      of that summary judgment motion, all in accord with [Trial Rule] 54[(B)] and

      56(C).” Id. at 13. This appeal ensued.


                                      Discussion and Decision
[3]   Subject matter jurisdiction concerns a court’s ability to hear and decide a case

      based upon the class of cases to which it belongs. Cardiology Assocs. of Nw. Ind.,

      P.C. v. Collins, 804 N.E.2d 151, 153 (Ind. Ct. App. 2004). Whether we have

      subject matter jurisdiction is an issue we should raise sua sponte if the parties do

      not. Id. “As we have previously explained, ‘dismissal for lack of subject matter

      jurisdiction takes precedence over the determination of and action upon other


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-364 | July 3, 2018   Page 2 of 5
      substantive and procedural rights of the parties.’” Id. (quoting Warrick County v.

      Weber, 714 N.E.2d 685, 687 (Ind. Ct. App. 1999)).


[4]   Here, NIPSCO moved the trial court to “make” its order granting partial

      summary judgment a “final” judgment, and the court granted that motion.

      Appellant’s App. Vol. II at 17. In particular, the trial court issued an order

      amending the interlocutory order on partial summary judgment to read as

      follows:


              This court’s grant of partial summary judgment in favor of
              [NIPSCO] and against [Vermette] is a ruling and judgment as to
              one or more but fewer than all of the claims or parties; there is no
              just reason for delay; and the Clerk of Court is expressly directed
              to show the ruling is to be entry of final judgment on the issues
              resolved by grant of that summary judgment motion, all in
              accord with T.R. 54[(B)] and 56(C).


      Id. at 13.


[5]   Trial Rule 54(B) and Trial Rule 56(C) have similar language and allow for trial

      courts to issue interlocutory orders with respect to less than all of the issues,

      claims or parties. Ramco Indus., Inc. v. C & E Corp., 773 N.E.2d 284, 287-88

      (Ind. Ct. App. 2002). Additionally, both rules allow trial courts to certify

      interlocutory orders as final, appealable orders if the trial court includes the

      “magic language” in its order: that there is no just reason for delay and directs

      entry of judgment. Id. at 288. However, “[t]o be properly certifiable under

      either of these trial rules, a trial court order must ‘possess the requisite degree of

      finality, and must dispose of at least a single substantive claim.’” Id. (quoting

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-364 | July 3, 2018    Page 3 of 5
      Legg v. O’Connor, 557 N.E.2d 675, 676 (Ind. Ct. App. 1990)). Under Trial Rule

      8(A), a claim consists of two elements: 1) a showing of entitlement to relief,

      and 2) the relief. Id.


[6]   Here, the trial court resolved a single issue in its partial summary judgment

      order, namely, the amount of damages NIPSCO sustained when Vermette

      crashed into the electric pole.1 The issue of Vermette’s liability is yet to be

      determined and, therefore, the trial court’s order did not resolve the issue of

      whether NIPSCO is entitled to any damages. Because the order only addressed

      one element of a claim, the trial court’s partial summary judgment order did not

      dispose of at least a single substantive claim, see T.R. 8(A), and the order was

      not properly certified for our review under Trial Rule 54(B) or 56(C).2

      Accordingly, we lack subject matter jurisdiction over this appeal, and we

      dismiss it. See id.; see also Reiswerg v. Statom, 926 N.E.2d 26, 29-30 (Ind. 2010)

      (agreeing with this court that partial summary judgment order that left issues of

      causation and damages undecided was not an appealable, final order despite

      trial court’s intent to certify it under Trial Rule 54(B)).




      1
         We reject NIPSCO’s contention, which it makes for the first time on appeal, that Vermette has “admitted
      liability.” Appellee’s Br. at 45. First, in its summary judgment motion, NIPSCO explicitly reserved the issue
      of Vermette’s liability to be determined after partial summary judgment. Second, nothing in the trial court’s
      order on partial summary judgment addresses Vermette’s liability. And third, NIPSCO cites to a portion of
      the transcript in support of its contention, but the full context of the statements made by Vermette’s attorney
      at the hearing indicates that she intended to shield herself from liability under the sudden emergency
      doctrine. NIPSCO’s assertion on this issue is not well taken.
      2
        We note that, should Vermette prevail on the issue of liability, the amount of damages will be a moot
      point.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-364 | July 3, 2018                         Page 4 of 5
[7]   Dismissed.


      Robb, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-364 | July 3, 2018   Page 5 of 5
