                                                                 Apr 24 2015, 9:54 am




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
James E. Ayers                                              David G. Field
Wernle, Ristine & Ayers                                     Justin C. Wiler
Crawfordsville, Indiana                                     Schultz & Pogue, LLP
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeannine Whittington, Personal                             April 24, 2015
Representative of the Estate of                            Court of Appeals Case No.
Robert J. Whittington,                                     54A05-1411-PL-519
Deceased, and Jeannine                                     Appeal from the Montgomery Circuit
Whittington, Individually,                                 Court.
                                                           The Honorable Bruce Stengel,
Appellants-Plaintiffs,                                     Special Judge.
                                                           Cause No. 54C01-1210-PL-942
        v.

David Magnante, M.D., and
Magnante Eye Care,
Appellees-Defendants.




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 54A05-1411-PL-519 | April 24, 2015                Page 1 of 6
                                       Statement of the Case
[1]   Jeannine Whittington, personal representative of the Estate of Robert J.

      Whittington, deceased, and Jeannine Whittington, in her individual capacity

      (collectively, “the Plaintiffs”), appeal from the trial court’s order appearing to

      grant a motion filed by David Magnante, M.D., and Magnante Eye Care

      (collectively “the Defendants”). Because we lack jurisdiction over this appeal,

      we dismiss.


                                Facts and Procedural History
[2]   The Plaintiffs filed a medical malpractice action against the Defendants on

      October 26, 2012, after going through the Medical Review Panel process. The

      Defendants requested to take the deposition of the Plaintiffs’ expert, Dr. Peter

      Hovland, an ophthalmologist. A discovery dispute arose between the parties

      about who should bear the expense of Dr. Hovland’s deposition preparation

      time.


[3]   The Defendants filed a motion and brief with the trial court on December 2,

      2013 requesting the trial court to order that the Defendants’ compensation to

      the Plaintiffs’ expert be limited to a reasonable hourly rate for time spent in

      being deposed but not including time spent in preparing to be deposed. After

      the Plaintiffs filed a response to the Defendants’ motion, the trial court after

      hearing argument entered its order.


[4]   The trial court’s order reads as follows:



      Court of Appeals of Indiana | Opinion 54A05-1411-PL-519 | April 24, 2015    Page 2 of 6
              This matter came before the Court on Motion of Defendants,
              David Magnate[sic], M.D., and Magnante Eye Care, Regarding
              Discovery Dispute Over Payment of Plaintiff’s[sic] Expert’s Fees
              for Time to be Spent Preparing for His Deposition, and the Court
              being duly advised in the premises, NOW FINDS that:
              IT IS HEREBY ORDERED, ADJUDGED AND DECREED
              that Defendant’s[sic] Motion regarding discovery dispute over
              payment of expert’s fees is DENIED. Defendants are not
              required to pay for the time Plaintiff’s[sic] expert, Dr. Hovland
              spends preparing for his deposition.


                                     1
      Appellants’ App. p. 49. The Plaintiffs now appeal.


                                     Discussion and Decision
[5]   The Court of Appeals has jurisdiction in all appeals from final judgments. Ind.

      Appellate Rule 5(A). In pertinent part, a judgment is a “final judgment” if it

      falls under one of the subsections of Indiana Appellate Rule 2(H), none of

      which are applicable here to the trial court’s order resolving a discovery dispute.


[6]   In the Notice of Appeal, the Plaintiffs assert that this is an interlocutory appeal

      of right under Indiana Appellate Rule 14(A), (C), or (D). Indiana Appellate

      Rule 14(C) provides for interlocutory appeals from orders granting or denying

      class action certification. Indiana Appellate Rule 14(D) provides that other

      (than A, B, or C) interlocutory appeals may be taken only as provided by




      1
        Although the trial court’s order is internally inconsistent—denying Defendants’ motion, but then stating
      that the Defendants are not required to pay for Dr. Hovland’s deposition preparation time, and thus granting
      the Defendants’ requested relief—both sides are treating the order as if the Defendants’ motion was granted
      and that the Defendants are not required to pay for Dr. Hovland’s preparation time.

      Court of Appeals of Indiana | Opinion 54A05-1411-PL-519 | April 24, 2015                         Page 3 of 6
      statute. Neither of these rules applies to this appeal. This court has jurisdiction

      “over appeals of interlocutory orders under Rule 14.” Ind. App. R. 5. The only

      subdivision of Indiana Appellate Rule 14(A) that is arguably applicable in this

      appeal is subsection “(1) For the payment of money[.]”


[7]   If an order is not listed in Indiana Appellate Rule 14(A), the order is governed

      by Indiana Appellate Rule 14(B), providing for discretionary interlocutory

      appeals, “which requires the trial court, upon motion by either party, to certify

      the order in question.” Rowe v. Ind. Dept. of Corr., 940 N.E.2d 1218, 1219 (Ind.

      Ct. App. 2011). “The appeal still may not be granted unless this court accepts

      jurisdiction of the appeal.” Id.


[8]   In Rowe, we acknowledged that our Supreme Court has described orders falling

      within the category “for the payment of money” as follows:


              The matters which are appealable as of right under Appellate
              Rule 4(B)(1) involve trial court orders which carry financial and
              legal consequences akin to those more typically found in final
              judgments: payment of money, issuance of a debt, delivery of
              securities, and so on.
      Id. at 1219-20 (quoting State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991)).


[9]   In Rowe, we also noted our opinion in National Gen. Ins. Co. v. Riddell, 705

      N.E.2d 465 (Ind. Ct. App. 1998), in which we cited examples of decisions

      determining what orders fell within that category under the predecessor of the

      current appellate rule. Borrowing examples from National Gen. Ins. Co., we

      cited them in Rowe as follows: “Orders to pay death taxes (citing Estate of


      Court of Appeals of Indiana | Opinion 54A05-1411-PL-519 | April 24, 2015    Page 4 of 6
       Meyer, 702 N.E.2d 1078 (Ind. Ct. App. 1998), trans. denied); orders to pay

       attorney’s fees (citing Skiles v. Skiles, 646 N.E.2d 353 (Ind. Ct. App. 1995));

       orders to pay child support (citing Lamon v. Lamon, 611 N.E.2d 154 (Ind. Ct.

       App. 1993)); orders to make a deposit of money into court (citing Schwedland v.

       Bachman, 512 N.E.2d 445 (Ind. Ct. App. 1987)); and orders for the payment of

       attorney’s fees as a sanction under Ind. Trial Rule 37 (citing State v. Kuespert,

       425 N.E.2d 229 (Ind. Ct. App. 1981)).” Id. at 1220 (citing National Gen. Ins. Co.

       705 N.E.2d at 465 n.1).


[10]   In the present case, as in Rowe, the trial court’s order did not directly order one

       of the parties to pay a sum to another party or to the court. Instead, the trial

       court here determined that the Defendants did not have to pay a sum to the

       Plaintiffs for the deponent’s deposition preparation time. The order does not

       qualify as an order for the payment of money pursuant to Indiana Appellate

       Rule 14(A). As a result, the Plaintiffs are not entitled to interlocutory review as

       a matter of right.


[11]   Because this is not a final judgment or an interlocutory appeal of right, the

       Plaintiffs were required to pursue a discretionary appeal under Indiana

       Appellate Rule 14(B). Having failed to do so, we must dismiss this appeal for

       want of jurisdiction. See Moser v. Moser, 838 N.E.2d 532, 534 (Ind. Ct. App.

       2005) (“[a]n appeal from an interlocutory order is not allowed unless specific

       authority is granted by the Indiana Constitution, statutes, or the rules of court .

       . . any such express authorization for an interlocutory appeal is strictly

       construed”; the court of appeals may dismiss appeals upon its own motion

       Court of Appeals of Indiana | Opinion 54A05-1411-PL-519 | April 24, 2015     Page 5 of 6
       when it discovers it does not have jurisdiction) (internal citations omitted),

       trans. denied.


                                                  Conclusion
[12]   In light of the foregoing, we dismiss the Plaintiffs’ appeal.


[13]   Dismissed.


       Bailey, J., and Pyle, J., concur.




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