Pursuant to Ind. Appellate Rule 65(D),

                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
                                                              Oct 15 2012, 8:33 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                     CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEYS FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

GARY P. PRICE                                        B.J. BRINKERHOFF
TABITHA J. LUCAS                                     Kopka Pinkus Dolin & Eads, LLC
MANUEL HERCEG                                        Indianapolis, Indiana
Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

SALLY APPLEGATE-RODEMAN and                          )
LESLIE M. RODEMAN,                                   )
                                                     )
        Appellants – Plaintiffs,                     )
                                                     )
                vs.                                  )       No. 49A02-1110-PL-950
                                                     )
JDK, LLC d/b/a LIVRITE FITNESS CENTER,               )
d/b/a NORTHEAST FITNESS,                             )
THRESTRANDS BY GRACE, LLC d/b/a                      )
LIVRITE FITNESS CENTER, d/b/a                        )
NORTHEAST FITNESS                                    )
                                                     )
        Appellees – Defendants.                      )


                       APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Cynthia J. Ayers. Judge
                               Cause No. 49D04-1001-PL-2739


                                          October 15, 2012

                  MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Sally Applegate-Rodeman (“Applegate-Rodeman”) and her husband Leslie

Rodeman (collectively the “Rodemans”) sued JDK, LLC, a corporation that does

business as Livrite Fitness Center (“Livrite”), after Applegate-Rodeman was injured

when she stepped on to a moving treadmill at Livrite. Applegate-Rodeman alleged

negligence on the part of Livrite and sought damages for the injuries she suffered. The

trial court granted summary judgment in favor of Livrite and subsequently granted the

Rodemans’ motion for leave to amend to add a defendant, Threestrands by Grace, LLC

(“Threestrands by Grace”), who does business as Livrite Fitness Center and Northeast

Fitness. Concluding that the Rodemans’ appeal is premature, we dismiss this appeal.

                            Facts and Procedural History

       On February 2, 2008, Applegate-Rodeman joined Northeast Fitness, subsequently

renamed Livrite Fitness Center, and she signed the “Northeast Fitness Membership

Agreement (“Membership Agreement”). Clause Two of the Membership Agreement

provided that the membership was for twelve months, would expire on February 1, 2009,

and would renew automatically on a month-to-month basis at the expiration of the initial

term unless terminated or cancelled by either party as provided under the Membership

Agreement. Next to Clause Two was a blank for initials, which Applegate-Rodeman did

not initial. Clause Eight of the Membership Agreement contained a release of liability

provision.

       In January 2009, Applegate-Rodeman’s health benefits provider, American

Healthways Services, Inc. (“Healthways”), executed a separate agreement (“Healthways

Agreement”) with Livrite to provide services for its members. Applegate-Rodeman had


	                                         2
never expressly renewed or cancelled her original Membership Agreement but enrolled in

the Healthways program, and Healthways paid Livrite directly for Applegate-Rodeman to

use the facility.

       In September 2009, Applegate-Rodeman was injured when she stepped on a

moving treadmill at the Livrite Fitness Center. The Rodemans filed a complaint in

January 2010 alleging that Livrite’s conduct, in allowing the treadmill to continue

running between users and in failing to inspect the premises, was negligent.

       On October 29, 2012, the Rodemans filed a motion for partial summary judgment.

Subsequently, Livrite and the Rodemans each filed motions to strike portions of the

designated evidence. A hearing was held on these matters on August 31, 2011. On

September 13 and 14, 2011, the Rodemans filed a motion for leave to amend complaint

to add a new defendant. On September 26, 2011, the trial court granted summary

judgment to Livrite, denied the Rodemans’ motion for partial summary judgment, and

denied both parties’ motions to strike. Thereafter, on October 3, 2011, the trial court

granted the Rodemans leave to amend complaint, and on October 5, 2011, the Rodemans

filed an amended complaint to add defendant Threestrands by Grace, which is an entity

that also runs Livrite Fitness. Appellant’s Br. at 1. The Rodemans now appeal.

                                Discussion and Decision

       The Rodemans argue that the trial court erred in granting summary judgment.

Livrite argues that the summary judgment motion should be affirmed but also notes that

“[t]he Order did not indicate that the disposition was a final judgment, nor did the Order

state that there was no just reason for delay such that the Rodemans had a right to an


	                                          3
immediate appeal.” Appellee’s Br. at 1. Before proceeding to the merits of the case,

however, we must consider as a threshold matter whether we have jurisdiction.

       The parties cannot waive lack of jurisdiction, and “the appellate court may

consider the issue sua sponte.” Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)

(citing Albright v. Pyle, 637 N.E.2d 1360, 1363 (Ind. Ct. App. 1994)).              We have

jurisdiction over “all appeals from Final Judgments of Circuit, Superior, Probate, and

County Courts, notwithstanding any law, statute or rule providing for appeal directly to

the Supreme Court of Indiana.” Ind. R. App. 5(A). A final judgment “leaves nothing for

future determination;” it disposes “of all issues as to all parties thereby ending the

particular case.” Georgos, 790 N.E.2d at 451 (citations omitted).

       We also may accept jurisdiction over an appeal of a trial court’s order or judgment

regarding less than all issues, claims, or parties if the trial court has made the judgment

final pursuant to the requirements of Indiana Trial Rule 54(B). Martin v. Amoco Oil Co.,

696 N.E.2d 383, 385 (Ind. 1998); see also Allstate Ins. Co. v. Fields, 842 N.E.2d 804,

806 (Ind. 2006). “According to [Trial Rule 54(B)], a judgment as to less than all of the

parties is final only when the court in writing expressly determines that there is no just

reason for delay and expressly directs entry of judgment.” Berry v. Huffman, 643 N.E.2d

327, 329 (Ind. 1994); see also Forman v. Penn, 938 N.E.2d 287, 289-90 (Ind. Ct. App.

2010) on reh'g, 945 N.E.2d 717 (Ind. Ct. App. 2011) trans. denied, 962 N.E.2d 639 (Ind.

2011). Under Indiana Trial Rules 54(B) and 56(C), “[a] summary judgment upon less

than all the issues involved in a claim or with respect to less than all the claims or parties”

is interlocutory and not immediately appealable “unless the court in writing expressly


	                                            4
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.” Ind. R. Trial P. 56(C); see also

Cincinnati Ins. Co. v. Davis, 860 N.E.2d 915, 921 (Ind. Ct. App. 2007).

       Our supreme court has “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.” Forman, 938 N.E.2d at 290 (citing

Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998)). “There was a time when an

order or judgment as to less than all of the issues, claims, or parties in an action became

final and appealable as of right because it disposed of ‘a distinct and definite branch’ of

the litigation,” but in Berry, our supreme court held that “Indiana Trial Rules 54(B) and

56(C) superseded the distinct and definite branch doctrine of finality and that such

appeals may now proceed only by leave of court.” 643 N.E.2d at 327-28. We “will not

consider cases piecemeal.” Breuninger v. Weck, 98 Ind. App. 347, 347, 189 N.E. 395,

395 (1934).

       The Rodemans argue that the trial court’s summary judgment order is a final

judgment. However, Livrite notes that the trial court’s “Order did not indicate that the

disposition was a final judgment, nor did the Order state that there was no just reason for

delay such that the Rodemans had a right to an immediate appeal.” Appellee’s Br. at 1.

While Livrite does not develop this argument in its brief, this is an issue we may and

must consider sua sponte.

       Here, the Rodemans’ appeal was not an appeal of a final judgment on all issues as

to all parties. Prior to the order granting summary judgment, the Rodemans had filed a


	                                           5
motion to amend to add Threestrands by Grace as a defendant, and the motion was

granted subsequent to the granting of the motion for summary judgment. As such, the

issues or claims in this case have not yet been resolved in regard to Threestrands by

Grace.

         The appeal could have been proper under Trial Rule 54(B), as to some issues or

some parties, but it was not certified as such pursuant to Trial Rule 54(B). In its August

31, 2011 order, the trial court did not indicate that there was “no just reason for delay”

and did not direct “entry of judgment.” See Ind. R. Trial P. 54. In Berry, we noted that

Indiana Trial Rules 54(B) and 56(C) were adopted “to provide greater certainty to the

parties and to strike an appropriate balance between the interest in the speedy review of

certain judgments and the inefficiencies of piecemeal appeals.” 643 N.E.2d at 329 (Ind.

1994). For this court to exercise jurisdiction, the trial court must decide all issues with

regard to all parties for the judgment to be final, or the trial court must make the

judgment final as to less than all parties or issues by expressly determining in writing that

“that there is no just reason for delay” and directing “entry of judgment.” See Ind. R.

Trial P. 54. The trial court did not do either in this case.

         For all of these reasons, we dismiss this appeal as premature.

VAIDIK, J., and BARNES, J., concur.




	                                             6
