                                                                                       FILED
                                                                                  Oct 06 2017, 10:29 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Christopher P. Jeter                                       Mark D. Gerth
      Massillamany & Jeter, LLP                                  Michael E. Brown
      Fishers, Indiana                                           Sarah A. Hurdle
                                                                 Kightlinger & Gray, LLP
                                                                 Indianapolis, Indiana
                                                                 Crystal G. Rowe
                                                                 Kightlinger & Gray, LLP
                                                                 New Albany, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Indy Auto Man, LLC,                                        October 6, 2017
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 29A02-1703-PL-551
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court 4
      Keown & Kratz, LLC, and                                    The Honorable J. Richard
      Dustin Stohler,                                            Campbell, Judge
      Appellees-Defendants.                                      Trial Court Cause No.
                                                                 29D04-1507-PL-5455



      Mathias, Judge.


[1]   Indy Auto Man, LLC (“IAM”) filed a complaint against Keown & Kratz, LLC

      (“K&K”), and Dustin Stohler (“Stohler”), alleging legal malpractice. K&K

      subsequently filed a motion for summary judgment, which the trial court

      Court of Appeals of Indiana | Opinion 29A02-1703-PL-551 | October 6, 2017                            Page 1 of 8
      granted. IAM appeals and claims that there are genuine issues of material fact

      precluding summary judgment. We conclude sua sponte that the trial court’s

      grant of summary judgment to K&K was not a final appealable order.

      Accordingly, we dismiss this appeal.


                                   Facts and Procedural History
[2]   For purposes of our discussion, we need not set forth a detailed statement of the

      facts underlying IAM’s claim. But briefly, after being sued by two customers

      over the purchase of vehicles, IAM retained the services of attorney Stohler,

      who was then working, at least partly, for K&K. K&K claims that Stohler was

      employed only “of counsel,”1 and that IAM was not a client of the firm. Stohler

      stopped showing up to work at K&K, and K&K allowed Stohler’s mail to pile

      up, unopened, on his desk. Stohler failed to respond to discovery requests or the

      plaintiff’s motion for default judgment in one of the cases.


[3]   IAM eventually received notice that a default judgment in the amount of

      $60,000 (which included treble damages) had been entered against IAM in one

      of the cases. IAM then hired another attorney, the same attorney who had

      initially recommended Stohler, to assist them in vacating or reducing the




      1
        An attorney “of counsel” is defined as “1. A lawyer employed by a party in a case; esp., one who —
      although not the principal attorney of record — is employed to assist in the preparation or management of
      the case or in its presentation on appeal. 2. A lawyer who is affiliated with a law firm, though not as a
      member, partner, or associate.” COUNSEL, Black’s Law Dictionary (10th ed. 2014).

      Court of Appeals of Indiana | Opinion 29A02-1703-PL-551 | October 6, 2017                        Page 2 of 8
      default judgments. IAM’s new counsel was successful in settling the default

      judgment for $30,000 and settled the other case for $15,000.


[4]   IAM then brought a legal malpractice claim against K&K and Stohler. The trial

      court’s chronological case summary (“CCS”) does not indicate that Stohler

      responded to this claim. K&K did respond, filing an answer that included a

      counter-claim for attorney fees. K&K subsequently moved for summary

      judgment, arguing that it did not owe a duty of care to IAM because IAM was

      not the firm’s client and further argued that K&K had a limited agency

      relationship with Stohler that did not extend to Stohler’s clients like IAM. IAM

      responded and filed its own cross-motion for summary judgment. The trial

      court held a summary judgment hearing and granted summary judgment in

      favor of K&K on IAM’s claims and in favor of IAM on K&K’s counter-claim

      for attorney fees, concluding that IAM’s claims were not frivolous.


[5]   Notably, the trial court’s summary judgment order did not grant summary

      judgment in favor of Stohler; nor did the court’s order include the “magic

      language” of Indiana Trial Rule 56(C), i.e. that there was no just reason for

      delay and expressly directing entry of judgment as to less than all the parties.

      IAM then filed a notice of appeal, initiating this appeal.


                                      Discussion and Decision
[6]   This court has jurisdiction in all appeals from final judgments. In re Estate of

      Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012) (citing Ind. Appellate Rule

      5(A)). “A ‘final judgment’ is one which ‘disposes of all claims as to all

      Court of Appeals of Indiana | Opinion 29A02-1703-PL-551 | October 6, 2017   Page 3 of 8
parties[.]’” Id. (quoting App. R. 2(H)(1)); see also Bueter v. Brinkman, 776 N.E.2d

910, 912–13 (Ind. Ct. App. 2002) (a final judgment is one that “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” and “reserves no further question or

direction for future determination.”) (internal quotations and citations omitted).

Whether an order is a final judgment governs the appellate court’s 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))2. The lack of

appellate subject matter jurisdiction may be raised at any time, and where the




2
  We recognize that another panel of this court read our supreme court’s recent case of In re D.J. v. Indiana
Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017), as “effectively overrul[ing]” its prior holdings in Ramsey
v. Moore, 959 N.E.2d 246 (Ind. 2012), and Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003). Manley v. Zoeller, 77
N.E.3d 1227, 1230–31 (Ind. Ct. App. 2017).
In Georgos, the court held that neither the parties nor the trial court can confer appellate jurisdiction over an
order that is not appealable either as a final judgment or under deemed final under the “magic language”
provision of Trial Rule 54(B). Georgos, 790 N.E.2d at 451. And in Ramsey, the court dismissed for lack of
appellate jurisdiction even though a portion of the trial court’s order contained the “magic language” from
Trial Rule 54(B), because the “magic language” applied only to one portion of the trial court’s order. Ramsey,
959 N.E.2d at 253.
In In re D.J., the parents filed their notice of appeal from the trial court’s non-final CHINS determination as
opposed to the final dispositional order. 68 N.E.3d at 577. The court held that this rendered the parents’
notice of appeal untimely, thereby forfeiting their right to appeal. Id. at 578. But this forfeiture did not deprive
the appellate court of subject matter jurisdiction. Id. at 578–79. The court exercised its discretion to consider
the merits of the appeal despite this forfeiture. Id. at 579.
Unlike the court in Manley, we do not read In re D.J. as altering the long-standing rule that appellate courts
have no jurisdiction to consider non-final orders. See John C. & Maureen G. Osborne Revocable Family Tr. v.
Town of Long Beach, 78 N.E.3d 680, 691 (Ind. Ct. App. 2017) (citing Georgos for the proposition that appellate
courts have no jurisdiction over non-final orders, but concluding that the order before it was a final
appealable order). Instead, we read In re D.J. as merely applying our supreme court’s existing rule that the
timeliness of a notice of appeal does not affect an appellate court’s jurisdiction. See In re Adoption of O.R., 16
N.E.3d 965, 970 (Ind. 2014).

Court of Appeals of Indiana | Opinion 29A02-1703-PL-551 | October 6, 2017                               Page 4 of 8
      parties do not raise the issue, this court may consider it sua sponte. In re Estate of

      Botkins, 970 N.E.2d at 166.


[7]   Here, IAM’s complaint named two defendants: Stohler and K&K. Only K&K

      filed a motion for summary judgment, and the trial court’s order granting

      summary judgment granted judgment only as to K&K:


              For the reasons set forth above, the Court rules that the
              designated evidence shows that there is no genuine issue as to
              any material fact [and] that K&K is entitled to summary judgment as
              a matter of law. Furthermore, the Court denies IA[M]’s cross-
              motion for summary judgment. Furthermore, the Court on its
              own motion grants judgement against K&K and in favor of
              IA[M] on K&K’s counterclaim.


      Appellant’s App. Vol. 2, p. 11 (emphasis added).


[8]   Thus, even after granting summary judgment in favor of K&K, and granting

      summary judgment in favor of IAM on K&K’s counter-claim, there was still

      one defendant against whom judgment had not yet been entered—Stohler. Our

      review of the trial court’s CCS reveals no entry granting judgment either for or

      against Stohler. Thus, the trial court’s summary judgment order granted

      judgment in favor of one of two parties. By definition, this order was not final

      because it did not “dispose[] of all claims as to all parties.” App. R. 2(H)(1).


[9]   An otherwise non-final judgment may be deemed final if:


              the trial court in writing expressly determines under Trial Rule
              54(B) or Trial Rule 56(C) that there is no just reason for delay
              and in writing expressly directs the entry of judgment (i) under

      Court of Appeals of Indiana | Opinion 29A02-1703-PL-551 | October 6, 2017     Page 5 of 8
                  Trial Rule 54(B) as to fewer than all the claims or parties, or (ii)
                  under Trial Rule 56(C) as to fewer than all the issues, claims or
                  parties[.]


       Ind. App. Rule 2(H)(2). This is a reference to the following language in Trial

       Rule 56(C):


                  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.


[10]   Our supreme court has adopted a “bright line” rule with regard to the “magic

       language” provision of Trial Rule 54(B),3 which is in substantially similar to the

       “magic language” provision of Trial Rule 56(C):


                  In Martin [v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998)], our
                  supreme court adopted a “bright line” rule requiring strict
                  compliance with Trial Rule 54(B) before a trial court’s order
                  disposing of less than all issues as to all parties will be deemed
                  final and appealable as of right. The court explained that this
                  formalistic approach “removes uncertainties about when a party
                  should appeal, thus minimizing the risk that an appeal will be
                  dismissed as premature or that the right to appeal will be
                  inadvertently lost.” Id. The court reasoned further that strict



       3
           The “magic language” provision of Trial Rule 54(B) provides:

                  A judgment as to one or more but fewer than all of the claims or parties is final when the
                  court in writing expressly determines that there is no just reason for delay, and in writing
                  expressly directs entry of judgment, and an appeal may be taken upon this or other issues
                  resolved by the judgment; but in other cases a judgment, decision or order as to less than all
                  the claims and parties is not final.

       Court of Appeals of Indiana | Opinion 29A02-1703-PL-551 | October 6, 2017                              Page 6 of 8
               compliance with the rule “place[s] the discretion of deciding
               when the facts indicate that a judgment should be deemed final
               in the hands of the individual best able to make such decisions—
               the trial judge.” Id. 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.


       In re Estate of Botkins, 970 N.E.2d at 167.


[11]   Given the similarity between the language in Trial Rule 54(B) and Trial Rule

       56(C), we see no reason why the Martin court’s rationale regarding non-final

       orders under Trial Rule 54(B) should not also apply to summary judgment

       orders under Trial Rule 56(C). That is, if a trial court’s summary judgment

       order is not final as to all issues, claims, and parties, the order must include the

       “magic language” set forth in Trial Rule 56(C) to be considered final.

       Otherwise, a summary judgment order disposing of fewer than all claims as to

       all parties remains interlocutory in nature. See Martin, 696 N.E.2d at 385.


[12]   In the present case, the trial court’s summary judgment order did not dispose of

       all issues as to all parties. Nor did it include the “magic language” from Trial

       Rule 56(C) that would have converted its otherwise non-final order into a final

       order. Therefore, the trial court’s summary judgment order is not a final order.


[13]   Generally, a non-final order is not appealable unless it is an interlocutory order

       that is appealable as of right under Appellate Rule 14(A), or the appellant has

       sought and gained permission for a discretionary interlocutory appeal from the

       trial court and this court under Appellate Rule 14(B). Manley v. Zoeller, 77

       Court of Appeals of Indiana | Opinion 29A02-1703-PL-551 | October 6, 2017    Page 7 of 8
       N.E.3d 1227, 1230 (Ind. Ct. App. 2017). Neither of these provisions is

       applicable here, where the appeal is not interlocutory as of right, nor have the

       parties sought permission to file an interlocutory appeal.


[14]   Because we do not have jurisdiction to hear an appeal from the trial court’s

       non-final summary judgment order, we dismiss this appeal, without prejudice.

       See In re Estate of Botkins, 970 N.E.2d at 168 (dismissing appeal where order

       being appealed was not final because it did not dispose of all claims as to all

       parties, did not contain the magic language required to deem it final, was not an

       order from which an interlocutory appeal could be taken as of right, and the

       parties had not received permission from this court to take a discretionary

       interlocutory appeal).


[15]   Dismissed.


       Vaidik, C.J., and Crone, J., concur.




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