in-the-matter-of-the-supervised-administration-of-the-estate-of-gary-lee ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 12 2015, 5:42 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.
ATTORNEY FOR APPELLANT
Gregory W. Black
The Black Law Office
Plainfield, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Supervised November 12, 2015
Administration of the Estate of Court of Appeals Case No.
Gary Lee Shue, Deceased, 32A01-1502-ES-63
Kaylie Marie Schriber, Personal Appeal from the Hendricks
Representative, Superior Court
Appellant-Petitioner, The Honorable Stephenie LeMay-
Luken, Judge
v.
The Honorable Robert W. Freese,
Special Judge
Heather Shue, James Weddle,
and Larry Shue, Trial Court Cause No.
32D05-1311-ES-286
Appellees-Respondents,
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1502-ES-63 | November 12, 2015 Page 1 of 5
Case Summary
[1] The Estate of Gary Lee Shue (“Shue”) by its personal representative Kaylie
Marie Schriber (collectively “the Estate”) appeals a trial court order declaring
that during his lifetime, Shue had effectively transferred ownership of certain
assets to his son Larry Shue (“Son”) and his first wife’s brother James Weddle
(“Brother-in-law”). Finding that the appealed order is not a final judgment, we
dismiss for lack of subject matter jurisdiction.
Facts and Procedural History
[2] Shue’s first wife preceded him in death, and he married Heather (“Wife”)
shortly before his death. About a year before his death, Shue had agreed to sell
Brother-in-law his 2006 Pontiac GTO. Brother-in-law took possession of the
vehicle and made regular cash payments to Shue as agreed. When Shue died
on October 7, 2013, Brother-in-law paid the loan balance to the bank by
cashier’s check. As Shue had instructed, Wife signed Shue’s name on the title
and gave it to Brother-in-law. She back-dated it to October 1, 2013.
[3] On October 1, 2013, Shue gave his 2007 Harley Davidson FXB Motorcycle to
Son. Because his hand had become palsied, Shue instructed Wife to sign his
name on the certificate of title. The title was dated October 1, 2013. Shue
delivered the title to Son that day.
[4] After Shue’s death, the Estate moved to recover certain items, including the
GTO and Harley Davidson, and a hearing was held. On September 17, 2014,
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the trial court ruled that Son rightfully owned the Harley Davidson as a lifetime
gift from Shue and that Brother-in-law rightfully owned the GTO by purchase. 1
[5] Wife filed a motion to enter final judgment on the matters litigated at the
hearing and included in the September 2014 order. The Estate filed a motion in
opposition, a request for change of judge, and a request for reconsideration of
the September 2014 ruling. The new trial judge treated the Estate’s motion as a
motion to correct error, which it denied. 2 The Estate now appeals.
Discussion and Decision
[6] The Estate concedes that the September 2014 order is not a final, appealable
order and that subject matter jurisdiction over this appeal is lacking. Curiously,
the Estate also asks that we reverse the trial court’s determination that Brother-
in-law and Son are the rightful owners of the GTO and Harley Davidson
respectively and declare that these matters of ownership are under the exclusive
jurisdiction of the trial court in MI-270. We agree that this Court lacks subject
1
After the July hearing and before the trial court issued its September order, the Estate filed an independent
action for replevin (“MI-270”) in the same county, naming Wife, Son, Brother-in-law, and others, claiming
that Wife committed forgery and that she and other defendants did not have rightful title in various assets.
The court in MI-270 granted partial summary judgment to defendants concerning the vehicle titles under
principles of res judicata. The MI-270 court denied the Estate’s motion for certification of partial summary
judgment question for interlocutory appeal and stayed the proceedings on the remaining issues pending this
appeal.
2
The chronological case summary contains no entry indicating that either of the trial judges ever ruled on
Wife’s motion to enter final judgment.
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matter jurisdiction over this appeal due to the nonfinality of the September 2014
order. As such, we cannot and will not render an opinion on the merits.
[7] This Court’s authority to exercise appellate jurisdiction is generally limited to
appeals from final judgments. Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind.
2012). Indiana Appellate Rule 2(H) states, in pertinent part,
A judgment is a final judgment if … it disposes of all claims as to
all parties … [or] … the trial court in writing expressly
determines under Trial Rule 54(B) … that there is no just reason
for delay and in writing expressly directs the entry of judgment …
under Trial Rule 54(B) as to fewer than all the claims or parties.
[8] Indiana Trial Rule 54(B) states in pertinent part,
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.
“The purpose of Trial Rule 54(B) is to avoid piecemeal litigation and appeal of
various issues in a case and to preserve judicial economy by protecting against
the appeal of orders that are not yet final.” Front Row Motors, LLC v. Jones, 5
N.E.3d 753, 757 (Ind. 2014) (citation omitted). An order as to fewer than all
the parties and/or issues can become final only by meeting the requirements of
Trial Rule 54(B). Id.Court of Appeals of Indiana | Memorandum Decision 32A01-1502-ES-63 | November 12, 2015 Page 4 of 5
[9] Our supreme court has adopted a bright-line rule requiring strict compliance
with Trial Rule 54(B) before deeming as final and appealable an order that
disposes of fewer than all the issues or concerns fewer than all the parties.
Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998). “Thus, unless the
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 164, 167 (Ind. Ct. App. 2012).
[10] Here, the trial court’s September 2014 order disposes of fewer than all the
claims as to fewer than all the parties. It addresses only a handful of Shue’s
assets and includes fewer than all of his heirs. It does not specify “that there is
no just reason for delay,” as required by Trial Rule 54(B). Simply put, the
magic language is missing. As such, the September 2014 order is not a final,
appealable order. 3 Accordingly, the appeal is dismissed.
[11] Dismissed.
Baker, J., and Bailey, J., concur.
3
We note that the Estate did not seek interlocutory review of the September 2014 order pursuant to
Appellate Rule 14. We also note that when the Estate sought reconsideration of the order, the trial court
treated the motion to reconsider as a motion to correct error under Trial Rule 59. Where a party files a
motion for relief from judgment under Trial Rule 60(B), a mechanism exists for deeming the trial court’s
grant or denial as a final judgment. See Ind. Trial Rule 60(C) (“A ruling or order of the court denying or
granting relief, in whole or in part, by motion under subdivision (B) of this rule shall be deemed a final
judgment, and an appeal may be taken therefrom as in the case of a judgment.”). Trial Rule 59 contains no
such provision. Thus, in this case, the trial court’s ruling in denying the motion to correct error did not create
a final judgment.
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