FOR PUBLICATION                             Dec 18 2013, 6:58 am




ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE
                                            PEGGY BUCK AS TRUSTEE OF
JASON R. DELK                               THE PEGGY BUCK TRUST:
Delk McNally LLP
Muncie, Indiana                             BRANCH R. LEW
                                            ANDREW S. WILLIAMS
                                            Fort Wayne, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

RALPH STOCKTON,                             )
                                            )
      Appellant,                            )
                                            )
             vs.                            )    No. 18A05-1304-CT-160
                                            )
FALLS AUCTIONEERS AND                       )
REALTORS and PEGGY BUCK                     )
AS TRUSTEE OF THE PEGGY                     )
BUCK TRUST,                                 )
                                            )
      Appellees.                            )


                   APPEAL FROM THE DELAWARE CIRCUIT COURT
                       The Honorable Marianne L. Vorhees, Judge
                            Cause No.18C01-1005-CT-16



                                 December 18, 2013


                          OPINION - FOR PUBLICATION


BROWN, Judge
         Ralph Stockton appeals the trial court’s summary judgment ruling in favor of

Peggy Buck as Trustee of the Peggy Buck Trust. Stockton raises one issue, which we

restate as whether the court erred in granting summary judgment in favor of Buck. In

addition, Buck raises the issue of whether Stockton’s appeal is timely. We reverse and

remand.

                              FACTS AND PROCEDURAL HISTORY

         On or about May 17, 2008, Stockton attended an auction conducted by Falls

Auctioneers and Realtors (“Falls”). While inspecting a lawn mower which had been

advertised for sale, Stockton’s feet became caught in some chains which were lying on

the ground and in the grass, causing Stockton to fall and break his hip.1

         On May 11, 2010, Stockton filed a complaint against Falls and Buck which

alleged that, while inspecting a riding lawn mower at the auction conducted by Falls, his

feet became entangled in a chain which was concealed in tall grass causing him to fall

and break his hip, that Buck was the owner of the property at the time, that he was a

business invitee of both defendants at the auction, that the defendants were negligent in

failing to maintain the property in a reasonably safe condition, failing to discover a

hazardous condition, failing to adequately warn invitees of the existence of a hazardous

condition, and failing to do what reasonably prudent persons would ordinarily have done

under the same circumstances, and that the defendants’ negligence was the proximate

cause of his injuries.




         1
             Additional facts as set forth in the parties’ designated evidence will be discussed in Part II
below.
                                                      2
        On July 13, 2012, Buck filed a motion for summary judgment together with

designated evidence and a memorandum in support of the motion. Stockton filed a

response and designation of evidence in opposition to summary judgment on September

7, 2012, and Buck filed a reply on September 24, 2012. The court held a summary

judgment hearing on September 26, 2012. On October 5, 2012, the court entered an

order granting Buck’s motion for summary judgment. On March 5, 2013, following a

jury trial against Falls as the remaining defendant, the jury found that Falls was not at

fault, and the court accepted the verdict and entered an Order on Verdict and Judgment in

favor of Falls.

        On March 4, 2013, Stockton filed a Notice of Appeal which indicated the appeal

was taken from a final judgment, that the date of the judgment/order being appealed was

March 5, 2013, and that the title of the judgment/order being appealed was Order on

Verdict and Judgment.2 The notice requested the court reporter to transcribe the hearings

on Buck’s motion for summary judgment held on September 26, 2012, and the jury trial

conducted on March 5, 2013. On August 9, 2013, Stockton filed an Amended Notice of

Appeal which indicated that the date of the judgment/order being appealed was “March 5,

2013/October 5, 2012” and that the title of the judgment/order being appealed was “Order

on Verdict and Judgment/Order on Motion for Summary Judgment.”                               Appellee’s

Appendix at 5.



        2
           As noted by Buck, we recognize that the date of the initial notice of appeal was March 4, 2013,
one day before the March 5, 2013 Order on Verdict and Judgment. An entry in the chronological case
summary on March 8, 2013, indicates that Stockton filed a notice of appeal. The notice identifies the
March 5, 2013 order as the order being appealed, and Buck does not argue or point to authority to show
that the initial notice of appeal was untimely as to the March 5, 2013 order.
                                                    3
                                      DISCUSSION

       Stockton argues that the trial court erred in entering summary judgment in favor of

Buck. Buck argues that summary judgment was proper and also that Stockton’s appeal is

untimely.

                                             I.

       We first address Buck’s contention that Stockton’s appeal is untimely.            As

previously noted, the trial court entered an order granting Buck’s motion for summary

judgment on October 5, 2012, and following a jury trial an Order on Verdict and

Judgment was entered on March 5, 2013. Stockton filed his initial notice of appeal on

March 4, 2013, identifying the March 5, 2013 order as the order being appealed, and filed

an amended notice of appeal on August 9, 2013, identifying the March 5, 2013 and

October 5, 2012 orders as the orders being appealed.

       Buck argues that Ind. Appellate Rule 9 requires the appellant to specify the date

and title of the judgment or order being appealed and that Stockton’s initial notice of

appeal specified the trial court’s March 5, 2013 order on verdict and judgment only and

did not specify the court’s October 5, 2012 order granting Buck’s motion for summary

judgment. In his reply brief, Stockton argues that, consistent with this court’s opinion in

Trinity Baptist Church v. Howard, 869 N.E.2d 1225 (Ind. Ct. App. 2007), trans. denied,

his notice of appeal with respect to the final judgment was timely with respect to the trial

court’s interlocutory order granting summary judgment. Stockton also notes that his

initial notice of appeal requested a transcription of the hearing on Buck’s motion for

summary judgment and thus that Buck was on notice that the summary judgment order

                                             4
was an issue on appeal. Stockton argues that the amended notice of appeal was a

clarification that he desired to appeal only the interlocutory order and not the final

judgment following the jury trial.

       In Trinity, this court held that a claimed error in an interlocutory order is not

waived for failure to take an interlocutory appeal and that, if a notice of appeal from a

final judgment is filed, it is also timely as to the appeal of interlocutory orders entered

before the final judgment. 869 N.E.2d at 1227. With respect to whether the trial court’s

October 5, 2012 order granting Buck’s motion for summary judgment was final or

interlocutory, we note that the order did not dispose of all claims as to all parties, that the

court did not in writing expressly determine that there was no just reason for delay and

direct entry of judgment as to less than all the issues, claims or parties, and that Buck

does not point to authority to show that the order was otherwise deemed final by law.

See Ind. Appellate Rule 2(H) (providing in part that a judgment is a final judgment if “it

disposes of all claims as to all parties,” the trial court “in writing expressly determines

under . . . Trial Rule 56(C) that there is no just reason for delay and in writing expressly

directs the entry of judgment . . . under Trial Rule 56(C) as to fewer than all the issues,

claims or parties,” or “it is otherwise deemed final by law”); Ind. Trial Rule 56(C)

(stating in part that “[a] summary judgment upon less than all the issues involved in a

claim or with respect to less than all the 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”).

Accordingly, the trial court’s summary judgment order was an interlocutory order. In

                                              5
addition, the trial court did not certify the interlocutory order to allow an immediate

appeal under Ind. Appellate Rule 14(B).           Stockton’s timely appeal from the final

judgment is also timely as to the appeal of the October 5, 2012 interlocutory order. See

Trinity, 869 N.E.2d at 1227; see also Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind. Ct.

App. 2000) (recognizing the practical effect of the trial court’s ruling dismissing a

defendant party from the cause of action and denying the plaintiffs’ request to add

another defendant party was to end the litigation due to the fact there were no longer any

viable defendants and holding that, “procedurally speaking, the cause of action had not

concluded, in that there was no final judgment”), aff’d on reh’g, trans. denied.

Stockton’s notice of appeal was not untimely.

                                            II.

         The next issue is whether the trial court erred in granting summary judgment in

favor of Buck and against Stockton. Summary judgment is appropriate only where there

is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Ind. Trial Rule 56(c); Mangold ex rel. Mangold v. Ind. Dep’t of Natural

Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from

those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our

review of a summary judgment motion is limited to those materials designated to the trial

court.    Id. In reviewing a trial court’s ruling on a motion for summary judgment, we

may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd.

of Commr’s of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002). The entry of specific findings

and conclusions does not alter the nature of a summary judgment which is a judgment

                                            6
entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk,

670 N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment context, we are not bound

by the trial court’s specific findings of fact and conclusions of law. Id. They merely aid

our review by providing us with a statement of reasons for the trial court’s actions. Id.

                    The Parties’ Filings and the Designated Evidence

       In her July 13, 2012 motion for summary judgment, Buck alleged that she was not

in control of the property at the time of Stockton’s fall and therefore did not have a duty

to him.   In her designation of evidence, Buck included her affidavit, portions of a

deposition of Stockton, and an affidavit of Mike Rust, who held Buck’s power of

attorney, with an attached contract between Buck and Falls dated March 25, 2008. The

contract stated that Buck would not “interfere, prevent, or prohibit [Falls] in any manner

from carrying out [its] duties and obligations of this agreement . . . .” Appellee’s

Appendix at 15.

       In her designated affidavit, Buck states that she hired Falls to conduct an auction

of her personal property located on the premises where Stockton’s fall occurred, and that

she: “never owned, possessed or controlled a chain on the premises,” moved into assisted

living not on the premises in October 2007, was no longer residing at the premises on

May 17, 2008, had not been to the premises in the week before the auction, that she was

not present on the premises on May 17, 2008, was not in possession or control of the

property on that date, and did not participate in or control the auction of her personal

property. Id. at 17. In the designated portions of Stockton’s deposition he testified that

he approached the lawnmower, walked around it, and that “[w]hen I got around here

                                             7
some way I didn’t see the chains, got caught right in here and it threw me over here into

the driveway.” Id. at 22. Stockton later testified “[a]s I walked around the lawnmower

and my foot got hung in the chains, it just turned me around and I fell on my side.” Id. at

23. When asked if there was anything that obstructed his view from looking at the

ground where he was walking, Stockton answered “[n]o,” and when asked if he saw the

chains after he fell, Stockton answered “[a]fter I fell, and my foot got hung in them, and

that’s the only time I ever seen them.” Id.

       In her memorandum in support of her summary judgment motion, Buck argued

that whether a duty is owed to a plaintiff in premises liability depends on whether the

defendant was in control of the premises when the accident occurred, and that the

undisputed facts show that Falls was in control of the premises at the time. Buck argued

that the contract between Buck and Falls shows that Falls had exclusive control of the

premises by contract, that Buck was not in a position to observe and remedy any potential

dangers to Stockton, that Buck had not been present for the auction and had not been at

the residence in over a week, that she had not resided at the residence for more than six

months, and that ownership of the land alone is not sufficient for premises liability.

       In his September 7, 2012 response in opposition, Stockton argued that whether a

duty exists and the determination of control are typically questions of fact and that there

is no evidence that Buck relinquished control over the condition and maintenance of the

premises, including mowing the grass. In his affidavit, Stockton stated that he attended

the auction largely for the purpose of potentially purchasing a lawn mower that had been

advertised for sale in the newspaper, that, “[a]fter briefly inspecting the lawnmower, I got

                                              8
my feet caught in some chains that caused me to fall on the driveway and break my hip,”

and that “Had the grass been maintained and mowed, I would have been able to see the

chain and may have avoided being tripped.” Appellant’s Appendix at 38. Stockton

further stated: “I am unsure of the exact length of the grass [] at the time of the incident.

However, it had clearly not been mowed for some time and nonetheless prevented me

from seeing the chains lying in the grass.” Id. at 39. Stockton’s position is that Buck

failed to conclusively establish that she relinquished complete control to Falls and was

unable to negate the existence of a duty to Stockton as an invitee on the property.

                       The Trial Court’s Summary Judgment Ruling

       On October 5, 2012, the trial court entered an order granting Buck’s motion for

summary judgment, which stated in part: “The Court will accept as true the assertion in

[Stockton’s] Affidavit that the grass in the yard was too long, and he could not see the

chain and tripped on it” and noted that Buck’s affidavit showed that she never owned,

possessed, or controlled a chain. Id. at 12. The court found that Falls was in control of

the land, that Buck is not liable for a dangerous condition that came into existence after

Falls took possession, and that even if Buck had gone to her house on the morning of the

auction she could not have mowed as she could not interfere with Falls’s conduction of

the auction at that point.    The order further stated that Stockton did not designate

evidence or cite case law that says a landowner has the duty to check his or her property a

day or so prior to giving up control for an auction or other event, and that as a matter of

law Buck did not owe a duty to Stockton.




                                             9
                                   Arguments on Appeal

       On appeal, Stockton contends that possession and control of property generally is

a question of fact involving occupation and intent to control, that the designated evidence

reveals that his injuries were caused by both a chain and the dangerous length of the

grass, that the contractual prohibition on Buck interfering with the auction had no bearing

on the determination of whether a duty of care existed, and that nothing prohibited Buck

from inspecting the premises prior to the auction and removing the dangerous condition

of the lengthy grass.

       Buck points to Stockton’s testimony that he did not look in the grass where he was

walking and could not say that he would have seen the chains had he looked, and that she

had nothing to do with the placement of the chains, which was done entirely by Falls.

                                 Discussion and Analysis

       The tort of negligence has three elements: (1) a duty owed by the defendant to the

plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from the

defendant’s breach. Beta Steel v. Rust, 830 N.E.2d 62, 69 (Ind. Ct. App. 2005) (citing

Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004)). Summary judgment is appropriate

when the undisputed material evidence negates one element of a claim. Rhodes, 805

N.E.2d at 385. In the absence of the existence of a duty, there can be no negligence.

Harris v. Traini, 759 N.E.2d 215, 222 (Ind. Ct. App. 2001). Summary judgment is rarely

appropriate in negligence cases.     Beta Steel, 830 N.E.2d at 69.      “This is because

negligence cases are particularly fact sensitive and are governed by a standard of the




                                            10
objective reasonable person—one best applied by a jury after hearing all of the

evidence.” Id. (citing Rhodes, 805 N.E.2d at 387).

          An owner of property generally is under a duty to keep the property in a

reasonably safe condition for business invitees and has an affirmative duty to exercise

ordinary care to keep the property in a reasonably safe condition coextensive with the

purpose and intent of the invitation. Id. at 70; see Harris, 759 N.E.2d at 225 (“The thread

through the law imposing liability upon occupancy of premises is control. Only the party

who controls the land can remedy the hazardous conditions which exist upon it and only

the party who controls the land has the right to prevent others from coming onto it. Thus,

the party in control of the land has the exclusive ability to prevent injury from

occurring.”) (citations, internal quotation marks, and brackets omitted). This court has

stated:

          “In premises liability cases, whether a duty is owed depends primarily upon
          whether the defendant was in control of the premises when the accident
          occurred.” Rhodes, 805 N.E.2d at 385. The rationale behind this rule “is to
          subject to liability the person who could have known of any dangers on the
          land and therefore could have acted to prevent any foreseeable harm.” Id.
          “Generally, whether a duty exists is a question of law for the court to
          decide.” Id. at 386. Sometimes, however, the existence of a duty depends
          upon underlying facts that require resolution by the trier of fact, and this
          may include questions regarding who controlled property at the time and
          place of an accident. See id. Possession and control of property for
          premises liability purposes has been described as a question of fact
          involving occupation and intent to control the particular area where the
          injury occurred. Crist v. K-Mart Corp., 653 N.E.2d 140, 145 (Ind. Ct. App.
          1995).

Beta Steel, 830 N.E.2d at 70. In addition, “[a]ctual physical possession of property at the

precise moment an accident happens is not always dispositive on the question of control

for premises liability purposes, if there was evidence that another party was in a better
                                              11
position to prevent the harm that occurred.” McCraney v. Gibson, 952 N.E.2d 284, 288

(Ind. Ct. App. 2011) (citation omitted), trans. denied.

       In Rhodes, Gurtz, a truck driver for Tyson Foods, was struck and killed by a

forklift while at Wright Brothers Farm. 805 N.E.2d at 384. The defendants owned the

farm and raised chickens under a contract for Tyson, and the accident occurred while

Tyson employees were at the farm collecting chickens. Id. The lights in the chicken

houses were off and the outside of the chicken houses did not have any lighting to

illuminate the loading area, and neither the backup lights nor the backup alarm on the

forklift were working. Id. at 384-385. Gurtz’s estate sued Wright Brothers Farm, and the

trial court granted summary judgment in favor of Wright Brothers Farm. Id. at 385. This

court affirmed summary judgment for the defendants in part because it found that they

did not owe a duty to Gurtz because they did not exert control over the area where the

accident occurred when it occurred, basing its conclusion on the contract between Tyson

and the defendants. Id.

       On transfer, the plaintiffs argued that the Court of Appeals erred in using the

contract between Tyson and the defendants instead of Indiana law to determine if the

defendants owed a duty to Gurtz. Id. The Indiana Supreme Court held that the plaintiffs

were “correct that Indiana law governs whether Defendants owed a duty to Gurtz,” that

the Court of Appeals “placed too much emphasis on the contract between Tyson and

Defendants in determining that no duty existed,” that “[t]he contract aids in

understanding the business relationship between Tyson and Defendants, but that is all,”

and that “[a] person cannot limit his or her tort law duty to third parties by contract.” Id.

                                             12
The defendants argued that at the time Gurtz was killed, Tyson controlled the land, so

only Tyson could be held responsible for harm to its employees. Id. at 386. The Court

held that there was a sufficient factual dispute about whether Tyson or the defendants

controlled the premises where and when the accident occurred that a jury should decide

the question. Id. The Court also held:

              Furthermore, even if Tyson controlled the premises while it caught
       chickens, that would not automatically relieve Defendants of responsibility
       for injuries to Tyson’s employees. Defendants have always controlled the
       external lighting. Tyson provided its contract growers with specifications
       for building the chicken houses, but Tyson never prescribed any procedure
       for external lighting around the chicken houses. It neither required nor
       forbid the installation of external lights. . . . The lack of lighting may have
       contributed to the accident. . . .

              Because the facts are in dispute as to whether Tyson or Defendants
       controlled the area where the accident occurred at the time it occurred and
       because Defendants controlled the external lighting that may have
       contributed to Gurtz’s death, summary judgment is inappropriate on this
       issue.

Id. at 386-387.

       Here, in considering whether Buck retained control of the area of Stockton’s fall

for the purpose of duty we observe that the March 25, 2008 contract between Buck and

Falls does not provide or purport to provide that Buck surrender possession and control of

the premises to Falls or that such a surrender would result in Falls being responsible for

the condition of the premises.      There is no language in the contract and no other

designated evidence which suggests that Falls agreed to mow the grass or otherwise

maintain, check, or be responsible for certain or all conditions which may have existed on

all or part of the premises or that Buck was in part relieved, by virtue of the contract or

auction, of the duty of a landowner to keep the property in a reasonably safe condition
                                             13
coextensive with the purpose and intent of an invitation for persons to come on the

property. The contract did not prescribe any procedures regarding grass mowing. See

Rhodes, 805 N.E.2d at 386 (noting the agreement never prescribed any procedure for

external lighting). Consistent with the Court’s comments in Rhodes, the contract “aids in

understanding the business relationship between” Buck and Falls, “but that is all.” See

id. at 385. The contract did not relieve Buck of any duty she may have owed to third

parties but only provided that she would not interfere with the auction of her personal

property. We also observe that the contract and the other designated evidence does not

show when Falls took possession of the premises to conduct the auction—that is, whether

Falls arrived at the premises on the day of the auction or on an earlier date.

       In addition, while Buck may not have controlled or directed the placement of the

chains and although Stockton may not have looked in the grass where he was walking,

the designated evidence demonstrates that there is a question of fact regarding whether

Stockton’s fall was caused, at least in part, by the length of the grass. In his affidavit,

Stockton stated: “Had the grass been maintained and mowed, I would have been able to

see the chain and may have avoided being tripped,” and that the grass “clearly not been

mowed for some time” and “nonetheless prevented me from seeing the chains lying in the

grass.” Appellant’s Appendix at 38-39.

       Further, while Buck stated in her affidavit that she had moved into an assisted

living facility in October 2007 and that she had not been to the premises in the week

before the auction, there is no designated evidence which suggests Buck was unable to

have the grass mowed prior to the date of the auction in order to remove any dangerous

                                             14
condition which may have existed or keep the property in a reasonably safe condition

coextensive with the purpose and intent of the invitation. There is a sufficient factual

dispute regarding control of the condition of the premises and in particular the length of

the grass that a trier of fact should decide the question. See Rhodes, 805 N.E.2d at 386

(holding that there was a sufficient factual dispute about whether Tyson or the defendants

controlled the premises where and when the accident occurred that a jury should decide

the question); Beta Steel, 830 N.E.2d at 71 (noting that “[a]lthough Hyre had effectively

taken over the electrical control room at the time of Brian’s death and purportedly

controlled how the work would be performed, Beta had been fully responsible for the

installation of the electrical control cabinet on which he stepped”). Furthermore, the

designated evidence shows that the nature of the auction was such that individuals were

expected to walk in close proximity to the items such as the lawn mower. See Beta Steel,

830 N.E.2d at 71 (noting that the “[t]he nature of the job requested by Beta required

persons to work in close proximity to and above this cabinet”).

                                          CONCLUSION

       There are questions of fact regarding whether Stockton’s fall was caused in part by

the length of the grass and whether Buck controlled the length of the grass. It cannot be

said as a matter of law that Buck owed no duty to Stockton and Buck was not entitled to

summary judgment on this basis.3


       3
          Buck and the trial court in its summary judgment order cite to Reed v. Beachy Const. Corp., in
which the trial court granted summary judgment to the Johnsons as home owners, finding that they did
not have control of the construction of the deck upon which an accident occurred. 781 N.E.2d 1145, 1147
(Ind. Ct. App. 2002), trans. denied. On appeal, the court noted that the undisputed facts were that the
Johnsons owned the home where the accident occurred, had moved only a few miscellaneous items into
the home, and had not moved in the rest of their personal property, and it was undisputed that the
                                                  15
        For the foregoing reasons, we reverse the trial court’s order granting Buck’s

motion for summary judgment and remand for further proceedings.

        Reversed and remanded.

NAJAM, J., and MATHIAS, J., concur.




Johnsons had agreed to postpone possession of the property until after a home show at the builder’s
request. Id. at 1149. The court found that the Johnsons owned the property but were neither in
possession nor control of the premises during the home show and noted that the simple fact of ownership
is not necessarily dispositive of the question of possession or control and the duty that arises therefrom.
Id. at 1150. The court held that “[b]ecause the Johnsons postponed possession of the premises and
surrendered control of it to [the builder] for purposes of the tour, they did not control the premises to the
extent a duty to Reed arose.” Id. In this case, unlike in Reed, the designated evidence does not
demonstrate that Buck was not in possession and control of the premises prior to the auction or prior to
permitting Falls to conduct the auction on the premises. We find the designated evidence in Reed to be
distinguishable from the designated evidence in this case.
                                                    16
