MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            Feb 19 2016, 9:53 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Brett M. Haworth                                         Rick L. Weil
David M. Henn                                            Reminger Co., L.P.A.
Henn Haworth Cummings                                    Indianapolis, Indiana
Greenwood, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ashley Poythress and LaVenita                            February 19, 2016
Burnett,                                                 Court of Appeals Case No.
Appellants-Plaintiffs,                                   49A05-1509-CT-1363
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Gary L. Miller,
Esurance Insurance Company,                              Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         49D03-1412-CT-39694



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CT-1363 | February 19, 2016        Page 1 of 6
[1]   Ashley Poythress and LaVenita Burnett (collectively, the Plaintiffs) appeal from

      the trial court’s order granting summary judgment in favor of Esurance

      Insurance Company (Esurance).


[2]   Concluding sua sponte that the order from which the Plaintiffs appeal is not a

      final judgment or an appealable interlocutory order, we dismiss.


                                       Facts & Procedural History


[3]   On July 28, 2013, the Plaintiffs were passengers in a vehicle that was stopped at

      a red light when it was rear-ended by a vehicle registered to Jonathan Tarter.

      The driver of Tarter’s vehicle fled the scene. Although the Plaintiffs were able

      to get the license plate number, the driver of Tarter’s vehicle was never

      identified.


[4]   At the time of the accident, Poythress held a policy of car insurance issued by

      Esurance. Burnett is Poythress’s mother and lived with Poythress at the

      relevant time. The Plaintiffs filed a claim with Esurance for damages resulting

      from the accident, which Esurance denied.


[5]   On December 5, 2014, the Plaintiffs filed a complaint for damages against

      Tarter and Esurance. Esurance subsequently filed a motion for summary

      judgment. On August 11, 2015, the trial court entered its order granting

      summary judgment for Esurance. Although the order did not address the

      Plaintiffs’ negligence claims against Tarter, it contained language purporting to

      make the order final and appealable. This appeal ensued.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CT-1363 | February 19, 2016   Page 2 of 6
                                            Discussion & Decision


[6]   Except as provided in Ind. Appellate Rule 4,1 this court has jurisdiction in all

      appeals from final judgments. Ind. Appellate Rule 5(A); Whittington v.

      Magnante, 30 N.E.3d 767, 768 (Ind. Ct. App. 2015). “Whether an order is a

      final judgment governs the appellate courts’ subject matter jurisdiction.” Front

      Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v.

      Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). “The lack of appellate subject matter

      jurisdiction may be raised at any time, and where the parties do not raise the

      issue, this court may consider it sua sponte.” In re Estate of Botkins, 970 N.E.2d

      164, 166 (Ind. Ct. App. 2012).


[7]   A final judgment is one that “disposes of all claims as to all parties[.]” Ind.

      Appellate Rule 2(H); see also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.

      Ct. App. 2002) (explaining that a final judgment “disposes of all issues as to all

      parties, to the full extent of the court to dispose of the same, and puts an end to

      the particular case as to all of such parties and all of such issues” (quoting

      Hudson v. Tyson, 383 N.E.2d 66, 69 (Ind. 1978)). Because the summary

      judgment order did not dispose of the Plaintiffs’ negligence claims against

      Tarter, it was not a final judgment within the meaning of App. R. 2(H)(1).




      1
        App. R. 4 provides for appeal directly to our Supreme Court for a narrow class of cases, none of which are
      relevant here.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CT-1363 | February 19, 2016          Page 3 of 6
[8]   “A judgment or order as to less than all of the issues, claims, or parties in an

      action may become final only by meeting the requirements of [Ind. Trial Rule]

      54(B).” Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998). Pursuant to

      that rule, the trial court must, “in writing, expressly determine that there is no

      just reason for delay and, in writing, expressly direct entry of judgment.” Id.

      See also Ind. Trial Rule 56(C) (providing that summary judgment with respect to

      less than all of the issues, 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.”); App. R. 2(H)(2) (providing that a judgment as to fewer

      than all claims or parties is a final judgment where the requirements of T.R.

      54(B) or T.R. 56(C) are met). This court and our Supreme Court have noted

      that T.R. 54(B) establishes a “bright line” rule requiring strict compliance. See

      Martin, 696 N.E.2d at 385; In re Adoption of S.J., 967 N.E.2d 1063, 1065-66 (Ind.

      Ct. App. 2012). “Thus, unless a trial court uses the ‘magic language’ set forth

      in Trial Rule 54(B), an order disposing of fewer than all claims as to all parties

      remains interlocutory in nature.” Botkins, 970 N.E.2d at 167.


[9]   Here, the trial court’s summary judgment order did not satisfy the requirements

      of T.R. 54(B). Although the order contained language providing that it was “a

      final appealable order”, Appellant’s Appendix at 8, this court has noted that

      “simply labeling an order final and appealable does not make it so.” Botkins,

      970 N.E.2d at 167. Because the trial court’s summary judgment order did not

      contain the “magic language” set forth in T.R. 54(B), it was not a final,

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CT-1363 | February 19, 2016   Page 4 of 6
       appealable judgment. See Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)

       (explaining that the trial court cannot “confer appellate jurisdiction over an

       order that is not appealable either as a final judgment or under [T.R.] 54(B)”);

       Botkins, 970 N.E.2d at 167 (holding that a trial court’s order providing that the

       order was “final and appealable” did not satisfy the requirements of T.R.

       54(B)); Cincinnati Ins. Co. v. Davis, 860 N.E.2d 915, 920-21 (Ind. Ct. App. 2007)

       (holding that an order stating “as there now remain no pending issues, this shall

       be considered a final, appealable order” did not satisfy the requirements of T.R.

       54(B)).


[10]   Accordingly, the Plaintiffs cannot appeal unless the order is an appealable

       interlocutory order pursuant to Ind. Appellate Rule 14. See Botkins, 970 N.E.2d

       at 168. App. R. 14(A) provides that certain interlocutory orders may be

       appealed as a matter of right. “Such appeals must be expressly authorized, and

       that authorization is to be strictly construed.” Id. Because none of the grounds

       for interlocutory appeals set forth in App. R. 14(A) are applicable to the case

       before us, the Plaintiffs are not entitled to an interlocutory appeal as a matter of

       right. Nor have the Plaintiffs satisfied the certification and acceptance

       requirements of App. R. 14(B) (providing that “[a]n appeal may be taken from

       other interlocutory orders if the trial court certifies its order and the Court of

       Appeals accepts jurisdiction over the appeal”).


[11]   For all of these reasons, we conclude that the order from which the Plaintiffs

       appeal is neither a final judgment nor an appealable interlocutory order. This



       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CT-1363 | February 19, 2016   Page 5 of 6
       court therefore lacks subject matter jurisdiction to entertain the Plaintiffs’

       appeal.


[12]   Appeal dismissed.


[13]   Robb, J. and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CT-1363 | February 19, 2016   Page 6 of 6
