                                                                        FILED
                                                                   Dec 26 2019, 5:57 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
H. Kennard Bennett                                        Christopher D. Simpkins
Sara M. McClammer                                         Thomas D. Perkins
Bennett & McClammer                                       Stephanie L. Grass
Indianapolis, Indiana                                     Mackenzie E. Skalski
                                                          Paganelli Law Group
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Joann G. Sartain, by and                                  December 26, 2019
through her attorney-in-fact,                             Court of Appeals Case No.
Cindy Harding,                                            19A-PL-1567
Appellant-Plaintiff,                                      Appeal from the
                                                          Hamilton Superior Court
        v.                                                The Honorable
                                                          William J. Hughes, Judge
Trilogy Healthcare of Hamilton                            Trial Court Cause No.
II, LLC d/b/a Prairie Lakes                               29D03-1511-PL-9242
Health Campus,
Appellee-Defendant



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 19A-PL-1567 | December 26, 2019                       Page 1 of 7
                                           Case Summary
[1]   Joann Sartain filed a four-count complaint against Trilogy Healthcare of

      Hamilton II, LLC d/b/a Prairie Lakes Health Campus (“Prairie Lakes”).

      Prairie Lakes moved to dismiss Counts I and III, which the trial court granted.

      The parties continued to litigate Counts II and IV but eventually filed a

      stipulation to dismiss the case “in its entirety.” Sartain now seeks to appeal the

      dismissal of Counts I and III. Prairie Lakes argues that the appeal must be

      dismissed. We agree. Because Sartain explicitly stipulated to the dismissal of

      the case in its entirety, there was no final judgment, and we lack jurisdiction.

      We therefore dismiss the appeal.



                             Facts and Procedural History
[2]   In November 2015, Sartain, by and through her daughter and attorney-in-fact,

      Cindy Harding, filed a lawsuit against Prairie Lakes, a nursing facility in

      Noblesville. Sartain suffers from dementia and resided at Prairie Lakes from

      February 2012 until February 2014, when Prairie Lakes discharged her to a

      hospital. Sartain’s complaint made four claims: Count I, Negligence –

      Improper Discharge; Count II, Negligence – Substandard Care; Count III,

      Abuse of Process; and Count IV, Breach of Contract.


[3]   Prairie Lakes moved to dismiss Counts I and III, claiming that Sartain had

      failed to exhaust her administrative remedies. The trial court granted that




      Court of Appeals of Indiana | Opinion 19A-PL-1567 | December 26, 2019       Page 2 of 7
      motion in May 2016. The trial court certified its order for interlocutory appeal,

      but this Court declined jurisdiction.


[4]   Litigation continued on Counts II and IV until June 2019, when the parties

      filed a Stipulation of Dismissal. The stipulation provided that the parties,

      “pursuant to Rule 41(A)(1)(b) of the Indiana Rules of Trial Procedure, stipulate

      and agree to the dismissal of the above-referenced cause of action, in its

      entirety, each party to bear their own attorneys’ fees, costs, and expenses.”

      Appellee’s App. Vol. II p. 5. The parties also submitted a proposed Order of

      Dismissal, which provided:


              The Court, being duly advised in the premises and having
              reviewed the parties’ Stipulation of Dismissal, now ORDERS
              that the above-referenced cause of action is hereby dismissed,
              with each party bearing their own attorney’s fees, costs, and
              expenses.


              IT IS THEREFORE ORDERED, ADJUDGED, AND
              DECREED that Plaintiff’s cause of action against Defendant is
              hereby dismissed in its entirety.


      Appellant’s App. Vol. II p. 146. The trial court signed the order.


[5]   Three weeks later, Sartain filed a notice of appeal with this Court. She

      indicated that she is appealing the May 2016 order dismissing Counts I and III

      and that the “Basis for Appellate Jurisdiction” is “Appeal from a Final

      Judgment, as defined by Appellate Rule 2(H) and 9(I).” Appellee’s App. Vol. II

      p. 3. Prairie Lakes moved to dismiss the appeal, arguing that the trial court


      Court of Appeals of Indiana | Opinion 19A-PL-1567 | December 26, 2019        Page 3 of 7
      never issued a final judgment and that therefore this Court lacks subject-matter

      jurisdiction. A motions panel of this Court denied the motion, and briefing

      proceeded.



                                 Discussion and Decision
[6]   In its appellee’s brief, Prairie Lakes responds to Sartain’s arguments on the

      merits but first asks us to revisit its motion to dismiss the appeal. See Miller v.

      Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (“While we

      are reluctant to overrule orders decided by the motions panel, this court has

      inherent authority to reconsider any decision while an appeal remains in fieri.”),

      reh’g denied. Having done so, we agree with Prairie Lakes that the appeal must

      be dismissed.


[7]   Appellate Rule 5(A) gives this Court jurisdiction “in all appeals from Final

      Judgments of Circuit, Superior, Probate, and County Courts” (except as

      provided in Appellate Rule 4, which governs the jurisdiction of our Supreme

      Court). Appellate Rule 2(H)(1), in turn, provides that a judgment is “final” if it

      “disposes of all claims as to all parties[.]” Sartain contends that the trial court’s

      June 2019 order “disposed of all claims as to all parties” in this case.

      Appellant’s Reply Br. p. 5. That is incorrect. The parties filed a Stipulation of

      Dismissal pursuant to Trial Rule 41(A)(1)(b), which provides that “an action

      may be dismissed by the plaintiff without order of court . . . by filing a

      stipulation of dismissal signed by all parties who have appeared in the action.”

      (Emphasis added). The emphasized language—“without order of court”—

      Court of Appeals of Indiana | Opinion 19A-PL-1567 | December 26, 2019        Page 4 of 7
      means that this case was ended by the filing of the stipulation, not by the trial

      court’s subsequent Order of Dismissal, which was unnecessary and a nullity.

      We said as much in Young v. Davis, 40 N.E.3d 1254, 1258 (Ind. Ct. App. 2015),

      where we held that a voluntary dismissal under Trial Rule 41(A)(1) is not a

      “judgment” because no judicial action is required to accomplish the dismissal.

      See also Kohlman v. Finkelstein, 509 N.E.2d 228, 232 (Ind. Ct. App. 1987) (“[I]n

      Indiana, we have adopted the stance that once a case has been voluntarily

      dismissed, it is treated as if it never existed.”), reh’g denied, trans. denied. Because

      there was no final judgment in this case, we do not have jurisdiction under

      Appellate Rule 5(A).


[8]   Furthermore, even if we agreed that the trial court’s June 2019 order constituted

      a final judgment, the language of the order and of the Stipulation of Dismissal

      that led to the order would require dismissal of this appeal. In the stipulation,

      the parties agreed that the case would be dismissed “in its entirety.” Likewise,

      the order provided that the case was dismissed “in its entirety.” Having agreed

      to the dismissal of her case “in its entirety”—not just Counts II and IV—Sartain

      cannot now be heard to argue that the trial court committed any sort of

      reversible error with regard to Counts I and III.


[9]   Sartain argues that we should allow her appeal to proceed under our decision in

      Keck v. Walker, 922 N.E.2d 94 (Ind. Ct. App. 2010). There, the plaintiffs filed a

      two-count complaint, and the trial court granted summary judgment to the

      defendant on Count II. Later, the plaintiffs “filed a notice of voluntary

      dismissal with prejudice . . . seeking to dismiss Count I[.]” Id. at 98. The trial

      Court of Appeals of Indiana | Opinion 19A-PL-1567 | December 26, 2019          Page 5 of 7
       court “approved the Plaintiffs’ dismissal and entered an order stating that its

       earlier order granting summary judgment as to Count II ‘was now a final and

       appealable order and the case in its entirety is now final AND SO

       ORDERED.’” Id. (formatting altered, citation omitted). The plaintiffs then

       appealed as to Count II. The defendant asked us to dismiss the appeal, but we

       declined, explaining:


               [T]he trial court’s order granting the Plaintiffs’ request to dismiss
               Count I, when considered in conjunction with the earlier grant of
               partial summary judgment in favor of the Estate on Count II, had
               the effect of disposing of all issues as to all parties. In other
               words, the trial court’s order approving the dismissal of Count I
               was a final judgment.


       Id. at 99.


[10]   Three key facts distinguish Keck from this case. First, the parties in Keck did not

       jointly file a stipulation of dismissal that would have ended the case without a

       court order, as happened here. Rather, the plaintiffs unilaterally filed a notice

       of dismissal that needed to be approved by the trial court. See Ind. Trial Rule

       41(A)(2). Second, the plaintiffs in Keck requested dismissal of only the one

       remaining count (Count I), not dismissal of their case “in its entirety,” as

       happened here. And third, the dismissal order in Keck specifically stated that

       the earlier order granting summary judgment on Count II “was now a final and

       appealable order.” Here, there was no such language about Counts I and III in

       either the parties’ Stipulation of Dismissal or the trial court’s Order of

       Dismissal. For these reasons, Keck does not save Sartain’s appeal.

       Court of Appeals of Indiana | Opinion 19A-PL-1567 | December 26, 2019        Page 6 of 7
[11]   Dismissed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-1567 | December 26, 2019   Page 7 of 7
