                                                                     FILED
                                                                Jun 17 2016, 8:51 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
      Travis W. Montgomery                                       Benjamin D. Ice
      Parr Richey Obremskey Frandsen &                           William A. Ramsey
      Patterson LLP                                              Barrett McNagny, LLP
      Indianapolis, Indiana                                      Fort Wayne, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Richard C. Gallops and Patricia                           June 17, 2016
      A. Gallops,                                               Court of Appeals Case No.
                                                                02A03-1509-CT-1401
      Appellants-Plaintiffs,
                                                                Appeal from the Allen Superior
              v.                                                Court.
                                                                The Honorable Nancy Eshcoff
                                                                Boyer, Judge.
      Shambaugh Kast Beck &                                     Cause No. 02D01-1206-CT-312
      Williams, LLP,
      Appellee-Defendant.




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Richard C. Gallops and Patricia A. Gallops seek to appeal an agreed judgment

      claiming error in interlocutory orders entered by the trial court prior to the

      parties submitting the agreed judgment to the trial court who consented to it.



      Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016                    Page 1 of 10
      Because Indiana has long held that no appeal can be taken from an agreed

      judgment, we dismiss this appeal.


                                Facts and Procedural History
[2]   The Gallopses filed a legal malpractice action against the law firm Shambaugh

      Kast Beck & Williams, LLP. Shambaugh attorney Nathan Williams had

      defended the Gallopses against claims that they had breached various fiduciary

      duties while housing and caring for an elderly relative in her final years.

      Shambaugh filed an answer, affirmative defenses, and counterclaim (for unpaid

      attorney fees) in response to the Gallopses’ complaint.


[3]   Shambaugh filed a motion for summary judgment including an alternative

      motion for partial summary judgment on Shambaugh’s comparative fault

      defense and counterclaim in addition to the Gallopses’ claim for attorney fees

      (as damages for the alleged malpractice). After multiple extensions of time in

      which to respond to Shambaugh’s motion, a dispute arose as to whether the

      Gallopses’ response was timely filed.


[4]   The trial court held oral argument on Shambaugh’s motion to strike the

      Gallopses’ response, on the Gallopses’ motion to strike portions of an expert

      affidavit, and on the motion for summary judgment. The trial court struck the

      entirety of the Gallopses’ response to Shambaugh’s motion for summary

      judgment. The Gallopses’ motion to strike portions of Shambaugh’s expert’s

      affidavit was granted in part and denied in part. The trial court then entered

      individual rulings on the motion for summary judgment as to each of the five

      Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016   Page 2 of 10
      instances of malpractice alleged by the Gallopses. The trial court granted

      summary judgment in favor of Shambaugh on three of the five claims. Each of

      those determinations was based on the unrebutted testimony in the affidavit of

      Shambaugh’s expert. The trial court found that genuine issues of material fact

      existed as to the remaining two claims even in the absence of materials in

      opposition. The trial court also denied summary judgment on Shambaugh’s

      counterclaim and the Gallopses’ inclusion of attorney fees as damages.


[5]   The case proceeded on the remaining claims with each side filing motions to

      exclude certain expert testimony offered by the other. After a hearing on the

      motions, the trial court granted Shambaugh’s motion and denied the

      Gallopses’. The Gallopses asked the court to certify its order for interlocutory

      appeal, but the trial court declined it. The Gallopses then sought relief from the

      court’s order striking their response in opposition to summary judgment,

      including newly discovered evidence, but the trial court denied that request as

      well. The trial court denied the Gallopses’ further request to certify its order for

      interlocutory appeal.


[6]   The procedural posture of the case left the Gallopses with the belief that there

      was little chance of success at trial on their remaining claims. The parties

      entered into an agreed judgment, which the trial court accepted and entered as

      follows:

                                              Agreed Judgment
              Defendant Shambaugh, Kast, Beck & Williams, LLP
              (“Shambaugh Kast”), by counsel, and Plaintiffs Richard and

      Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016    Page 3 of 10
        Patricia Gallops (“the Gallopses”), by counsel, submit their
        Agreed Judgment.
                                                   I.
                               Nature of an Agreed Judgment
        “Absent a claim of fraud or lack of consent, a trial court must
        approve an agreed judgment.” City of New Haven v. Allen Cnty.
        Bd. of Zoning Appeals, 694 N.E.2d 306, 310 (Ind. Ct. App. 1998)
        (citing State v. Huebner, 230 Ind. 461, 467, 104 N.E.2d 385, 387-
        388 (1952); State ex rel. Prosser v. Ind. Waste Sys., 603 N.E.2d 181,
        186 (Ind. Ct. App. 1992)). Here, the parties are submitting this
        Agreed Judgment, which has been reviewed and approved of by
        counsel for both parties. The parties acknowledge their consent
        to this agreement and state that no fraud has occurred.
        Therefore, as the Court of Appeals has explained, this Court “has
        only the ministerial duty of approving the agreed judgment and
        entering it in the record.” Id. (citing Mercantile Nat. Bank v.
        Teamsters Union, 668 N.E.2d 1269, 1271 (Ind. Ct. App. 1996)).
        This Agreed Judgment “does not represent the judgment of the
        court,” but is “an agreement between the parties, consented to by
        the court.” Id.
                                                  II.
                                        Agreed Judgment
        Shambaugh Kast and the Gallopses hereby enter into an Agreed
        Judgment in favor of Shambaugh Kast and against the Gallopses
        under the following terms and conditions:
        1.       The Trial Court in this matter has entered interlocutory
                 orders that have made judgment in favor of Shambaugh
                 Kast following a jury trial inevitable.
        2.       The Gallopses have expressed the desire to conserve their
                 resources, the resources of this Court, and the resources of
                 Allen County jurors and avoid a trial that will result in a
                 directed verdict following the Gallopses’ presentation of
                 evidence.


Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016     Page 4 of 10
              3.       Shambaugh Kast agrees that a defense verdict or directed
                       verdict in Shambaugh Kast’s favor would result were the
                       parties to try this case as scheduled. Shambaugh Kast,
                       therefore, consents to the Gallopses’ preference of
                       avoiding a jury trial and to the entry of judgment in
                       Shambaugh Kast’s favor without a jury trial.
              4.       The parties, therefore, agree to the entry of judgment in
                       Shambaugh Kast’s favor under the following conditions:
                                a.      A judgment in favor of Defendant
                                        Shambaugh Kast will be entered on the
                                        Court’s docket as a final judgment.
                                b.      This judgment will have the same effect as if
                                        the case had proceeded to trial as it is
                                        presently postured, a verdict had been arrived
                                        at by a jury on all presently pending claims,
                                        and the Court had then entered judgment in
                                        favor of Shambaugh Kast.
              ....
                           ORDER OR JUDGMENT OF THE COURT
              Parties have tendered an Agreed Judgment to the Court, along
              with a request that the Court consent to the Judgment. The
              Court signs and “consents” to the Agreed Judgment.
      Appellants’ App. pp. 8-10.


[7]   The Gallopses have now initiated this appeal seeking to reverse the preliminary

      orders that preceded the agreed judgment.


                                     Discussion and Decision
[8]   Although there are several issues presented in this appeal, we sua sponte raised

      an issue that is dispositive of this appeal; namely can a party appeal from an

      agreed judgment? After conducting our own research and considering the

      Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016        Page 5 of 10
       additional briefing of the issue by the parties, we conclude that long standing

       precedent answers that question in the negative.


[9]    In State v. Huebner, 230 Ind. 461, 467, 104 N.E.2d 385, 387 (1952), our Supreme

       Court held as follows:


               When, as in the instant case, the parties plaintiffs and defendants
               stipulate the finding of facts and the conclusions of law and hand
               these stipulations to the judge in open court, bearing the approval
               of each of the parties, evidenced by the written O.K. of their
               attorneys of record, the court is not called upon to perform a
               judicial act. The writing is in fact a consent finding and
               judgment, and the duty of the court is ministerial-to have the
               writing entered as agreed upon. State ex rel. Harp v. Vanderburgh
               Circuit Court, 1949, 227 Ind. 353, 360, 85 N.E.2d 254, 11
               A.L.R.2d 1108; McNelis v. Wheeler, 1947, 225 Ind. 148, 153, 73
               N.E.2d 339 and authorities there cited, supra.
               In the absence of fraud, parties who are competent to contract
               and not standing in confidential relations to each other may
               agree to the rendition of a judgment or decree respecting any
               right which may be the subject of litigation. When such a decree
               is entered it is a decree by consent. A consent decree is not a
               judicial determination of the rights of the parties. It does not
               purport to represent the judgment of the court, but merely records the
               agreement of the parties with respect to the matters in litigation. Such
               decree cannot be reviewed by appeal.
       (emphasis added).


[10]   This decision finds support in precedent. See Indianapolis, D. & W. Ry. Co. v.

       Sands, 133 Ind. 433, 32 N.E. 722, 724-25 (1892).


               In this case a trial was in progress, and, when the evidence was
               concluded, an endeavor was made between the counsel in the

       Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016        Page 6 of 10
               case, acting for their respective clients, to enter into an agreement
               in regard to the final judgment that should be entered by the
               court, and an agreement was drafted, together with a final decree
               to be entered. It was signed by some of the parties, and the
               attorneys for these appellees indorsed it “O. K.,” and signed their
               names, and it was handed to the judge. As it seems to us, but one
               inference could be drawn, and that is that the decree as drafted to be
               entered was all right, and they were giving their consent to the entry of
               the decree as prepared, and the court had the right to so regard it, and
               order the decree entered at the date agreed upon, which it did. Taking
               the view of the case which we do, the judgment must be affirmed, without
               considering the merits of the case. If the judgment entered by such
               agreement was entirely extrajudicial, and beyond the jurisdiction
               of the court entering it, so that it would be absolutely void, it is
               possible this court should intervene and set it aside; and yet it
               would seem that, even in such a case, when a court had
               acquiesced and rendered a void judgment on the agreement of
               parties, a party to the agreement is in no position to reverse it on
               appeal, and have the act of the court which he instigated set aside
               as erroneous.
       (emphasis added).

[11]   We have followed this precedent in various appeals since then. See Pond v.

       McNellis, 845 N.E.2d 1043 (Ind. Ct. App. 2006), trans. denied; City of New Haven

       v. Allen Cnty Bd. of Zoning Appeals, 694 N.E.2d 306 (Ind. Ct. App. 1998);

       Mercantile Nat’l Bank of Indiana v. Teamsters Union Local #142 Pension Fund, 668

       N.E.2d 1269 (Ind. Ct. App. 1996); State el rel. Prosser v. Indiana Waste Sys., Inc.,

       (Ind. Ct. App. 1992).


[12]   We have held that agreed judgments are not binding as to a nonparty. See GKN

       Co. v. Starnes Trucking, Inc., 798 N.E.2d 548 (Ind. Ct. App. 2003). However,

       absent fraud or lack of consent, a trial court must approve or consent to an

       Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016         Page 7 of 10
       agreed judgment submitted by the parties. Pond v. McNellis, 845 N.E.2d 1043,

       1061 (Ind. Ct. App. 2006); cf, Citizens For A Better Env’t v. Gorsuch (1983), D.C.

       Cir., 718 F.2d 1117, cert. denied, Union Carbide Corp. v. Nat’l Res. Def. Council, Inc.

       (1984), 467 U.S. 1219, 104 S. Ct. 2668, 81 L. Ed. 2d 373; United States v.

       Outboard Marine Corp. (1991), N.D. Ill., 764 F. Supp. 1315; United States v.

       Seymour Recycling Corp. (1982), S.D. Ind., 554 F. Supp. 1334 (federal courts

       appear to have discretion in certain circumstances to review and evaluate

       substance of agreed judgment prior to approval).


[13]   The Gallopses appear to acknowledge this long standing precedent in Indiana,

       but in support of their equitable argument that we accept the appeal, cite to

       Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001). Bemenderfer and Polk v.

       State, 683 N.E.2d 567 (Ind. 1997), a case cited in the Bemenderfer opinion, are

       quite different than this case, however.


[14]   In Bemenderfer, the Supreme Court in footnote 2 wrote:


               In order to appeal from a denial of a motion for partial summary
               judgment, the trial court is required to certify its order for
               interlocutory review and the Court of Appeals must accept
               jurisdiction pursuant to Appellate Rule 4(B) (now App. R. 5).
               Here, the parties provided and the trial court signed an “Agreed
               Final Judgment and Agreement Preserving the Issue of the
               Appropriate Measure of Damages” in an attempt to create a final
               appealable judgment pursuant to 54(B). An “Agreed Judgment”
               represents an agreement of the parties, not a judgment of the
               court. Thus, absent fraud, it is not appealable. See, e.g., State v.
               Huebner, 230 Ind. 461, 467–68, 104 N.E.2d 385, 387-88 (1952).
               But because it is clear that the trial court intended for its order to
               be appealable and the Court of Appeals, by issuing an opinion,
       Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016      Page 8 of 10
                has accepted appellate review of the trial court’s order, we
                exercise our discretion to ignore this procedural irregularity
                because only further delay in the disposition of this matter would
                be generated by sending it back to the trial court for proper
                certification. Cf. Polk v. State, 683 N.E.2d 567, 569 n.3 (Ind.
                1997) (exercising inherent authority and addressing merits of case
                even though jurisdiction as direct appeal was lacking because
                sentence was not greater than fifty years).
       Thus, the Supreme Court acknowledged and reaffirmed the long standing

       precedent disallowing appeals from agreed judgments. However, the Supreme

       Court found that the trial court had intended its order to be reviewable on

       appeal, and that this court had accepted appellate review of and decided the

       issues presented after the entry of the agreed judgment, without considering the

       ability to take an appeal from an agreed judgment.


[15]   In footnote 3 of Polk, cited in the footnote in Bemenderfer, the Supreme Court

       wrote:

                We lack jurisdiction over this case as a direct appeal because the
                fifty-year sentence was not “greater than” fifty years
                imprisonment for a single offense. IND. CONST. art. VII, § 4;
                Huff v. State, 440 N.E.2d 465 (Ind. 1982), transferred to Huff v.
                State, 443 N.E.2d 1234 (Ind. Ct. App. 1983). However, rather
                than further delaying its resolution by transferring the case back
                to the Court of Appeals, we exercise our inherent authority to
                issue a ruling on the merits. Wiseman v. State, 521 N.E.2d 942,
                943 (Ind. 1988), reh’g denied.
[16]   In the present case, there is nothing explicit in the agreed judgment concerning

       an appeal of any issues after entry of the agreed judgment. Indeed, the only

       language referring to the effect of the entry of the agreed judgment is that it


       Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016       Page 9 of 10
       would be entered on the trial court’s docket “as a final judgment” and that the

       “judgment will have the same effect as if the case had proceeded to trial, as it is

       presently postured, a verdict had been arrived at by a jury on all presently

       pending claims, and the Court had then entered judgment in favor of

       Shambaugh Kast.” Appellants’ App. p. 10. Furthermore, there is no evidence

       that the trial court intended for the agreed judgment to be appealable. Finally,

       unlike the panel in Bemenderfer, we decline to accept appellate review, and

       instead follow our Supreme Court’s precedent that agreed judgments are not

       appealable.


                                                 Conclusion
[17]   In light of the foregoing, and in recognition of long standing precedent, we

       dismiss this appeal.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1509-CT-1401 |June 17, 2016   Page 10 of 10
