sally-applegate-rodeman-and-leslie-m-rodeman-v-jdk-llc-dba-livrite ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
Oct 15 2012, 8:33 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
GARY P. PRICE B.J. BRINKERHOFF
TABITHA J. LUCAS Kopka Pinkus Dolin & Eads, LLC
MANUEL HERCEG Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SALLY APPLEGATE-RODEMAN and )
LESLIE M. RODEMAN, )
)
Appellants – Plaintiffs, )
)
vs. ) No. 49A02-1110-PL-950
)
JDK, LLC d/b/a LIVRITE FITNESS CENTER, )
d/b/a NORTHEAST FITNESS, )
THRESTRANDS BY GRACE, LLC d/b/a )
LIVRITE FITNESS CENTER, d/b/a )
NORTHEAST FITNESS )
)
Appellees – Defendants. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cynthia J. Ayers. Judge
Cause No. 49D04-1001-PL-2739
October 15, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Sally Applegate-Rodeman (“Applegate-Rodeman”) and her husband Leslie
Rodeman (collectively the “Rodemans”) sued JDK, LLC, a corporation that does
business as Livrite Fitness Center (“Livrite”), after Applegate-Rodeman was injured
when she stepped on to a moving treadmill at Livrite. Applegate-Rodeman alleged
negligence on the part of Livrite and sought damages for the injuries she suffered. The
trial court granted summary judgment in favor of Livrite and subsequently granted the
Rodemans’ motion for leave to amend to add a defendant, Threestrands by Grace, LLC
(“Threestrands by Grace”), who does business as Livrite Fitness Center and Northeast
Fitness. Concluding that the Rodemans’ appeal is premature, we dismiss this appeal.
Facts and Procedural History
On February 2, 2008, Applegate-Rodeman joined Northeast Fitness, subsequently
renamed Livrite Fitness Center, and she signed the “Northeast Fitness Membership
Agreement (“Membership Agreement”). Clause Two of the Membership Agreement
provided that the membership was for twelve months, would expire on February 1, 2009,
and would renew automatically on a month-to-month basis at the expiration of the initial
term unless terminated or cancelled by either party as provided under the Membership
Agreement. Next to Clause Two was a blank for initials, which Applegate-Rodeman did
not initial. Clause Eight of the Membership Agreement contained a release of liability
provision.
In January 2009, Applegate-Rodeman’s health benefits provider, American
Healthways Services, Inc. (“Healthways”), executed a separate agreement (“Healthways
Agreement”) with Livrite to provide services for its members. Applegate-Rodeman had
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never expressly renewed or cancelled her original Membership Agreement but enrolled in
the Healthways program, and Healthways paid Livrite directly for Applegate-Rodeman to
use the facility.
In September 2009, Applegate-Rodeman was injured when she stepped on a
moving treadmill at the Livrite Fitness Center. The Rodemans filed a complaint in
January 2010 alleging that Livrite’s conduct, in allowing the treadmill to continue
running between users and in failing to inspect the premises, was negligent.
On October 29, 2012, the Rodemans filed a motion for partial summary judgment.
Subsequently, Livrite and the Rodemans each filed motions to strike portions of the
designated evidence. A hearing was held on these matters on August 31, 2011. On
September 13 and 14, 2011, the Rodemans filed a motion for leave to amend complaint
to add a new defendant. On September 26, 2011, the trial court granted summary
judgment to Livrite, denied the Rodemans’ motion for partial summary judgment, and
denied both parties’ motions to strike. Thereafter, on October 3, 2011, the trial court
granted the Rodemans leave to amend complaint, and on October 5, 2011, the Rodemans
filed an amended complaint to add defendant Threestrands by Grace, which is an entity
that also runs Livrite Fitness. Appellant’s Br. at 1. The Rodemans now appeal.
Discussion and Decision
The Rodemans argue that the trial court erred in granting summary judgment.
Livrite argues that the summary judgment motion should be affirmed but also notes that
“[t]he Order did not indicate that the disposition was a final judgment, nor did the Order
state that there was no just reason for delay such that the Rodemans had a right to an
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immediate appeal.” Appellee’s Br. at 1. Before proceeding to the merits of the case,
however, we must consider as a threshold matter whether we have jurisdiction.
The parties cannot waive lack of jurisdiction, and “the appellate court may
consider the issue sua sponte.” Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)
(citing Albright v. Pyle, 637 N.E.2d 1360, 1363 (Ind. Ct. App. 1994)). We have
jurisdiction over “all appeals from Final Judgments of Circuit, Superior, Probate, and
County Courts, notwithstanding any law, statute or rule providing for appeal directly to
the Supreme Court of Indiana.” Ind. R. App. 5(A). A final judgment “leaves nothing for
future determination;” it disposes “of all issues as to all parties thereby ending the
particular case.” Georgos, 790 N.E.2d at 451 (citations omitted).
We also may accept jurisdiction over an appeal of a trial court’s order or judgment
regarding less than all issues, claims, or parties if the trial court has made the judgment
final pursuant to the requirements of Indiana Trial Rule 54(B). Martin v. Amoco Oil Co.,
696 N.E.2d 383, 385 (Ind. 1998); see also Allstate Ins. Co. v. Fields, 842 N.E.2d 804,
806 (Ind. 2006). “According to [Trial Rule 54(B)], a judgment as to less than all of the
parties is final only when the court in writing expressly determines that there is no just
reason for delay and expressly directs entry of judgment.” Berry v. Huffman, 643 N.E.2d
327, 329 (Ind. 1994); see also Forman v. Penn, 938 N.E.2d 287, 289-90 (Ind. Ct. App.
2010) on reh'g, 945 N.E.2d 717 (Ind. Ct. App. 2011) trans. denied, 962 N.E.2d 639 (Ind.
2011). Under Indiana Trial Rules 54(B) and 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”
is interlocutory and not immediately appealable “unless the court in writing expressly
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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.” Ind. R. Trial P. 56(C); see also
Cincinnati Ins. Co. v. Davis, 860 N.E.2d 915, 921 (Ind. Ct. App. 2007).
Our supreme court has “established a ‘bright line’ rule enforcing the requirement
of compliance with Trial Rule 54(B) before an appeal may be taken as of right from a
trial court ruling that does not dispose of all claims.” Forman, 938 N.E.2d at 290 (citing
Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998)). “There was a time when an
order or judgment as to less than all of the issues, claims, or parties in an action became
final and appealable as of right because it disposed of ‘a distinct and definite branch’ of
the litigation,” but in Berry, our supreme court held that “Indiana Trial Rules 54(B) and
56(C) superseded the distinct and definite branch doctrine of finality and that such
appeals may now proceed only by leave of court.” 643 N.E.2d at 327-28. We “will not
consider cases piecemeal.” Breuninger v. Weck, 98 Ind. App. 347, 347, 189 N.E. 395,
395 (1934).
The Rodemans argue that the trial court’s summary judgment order is a final
judgment. However, Livrite notes that the trial court’s “Order did not indicate that the
disposition was a final judgment, nor did the Order state that there was no just reason for
delay such that the Rodemans had a right to an immediate appeal.” Appellee’s Br. at 1.
While Livrite does not develop this argument in its brief, this is an issue we may and
must consider sua sponte.
Here, the Rodemans’ appeal was not an appeal of a final judgment on all issues as
to all parties. Prior to the order granting summary judgment, the Rodemans had filed a
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motion to amend to add Threestrands by Grace as a defendant, and the motion was
granted subsequent to the granting of the motion for summary judgment. As such, the
issues or claims in this case have not yet been resolved in regard to Threestrands by
Grace.
The appeal could have been proper under Trial Rule 54(B), as to some issues or
some parties, but it was not certified as such pursuant to Trial Rule 54(B). In its August
31, 2011 order, the trial court did not indicate that there was “no just reason for delay”
and did not direct “entry of judgment.” See Ind. R. Trial P. 54. In Berry, we noted that
Indiana Trial Rules 54(B) and 56(C) were adopted “to provide greater certainty to the
parties and to strike an appropriate balance between the interest in the speedy review of
certain judgments and the inefficiencies of piecemeal appeals.” 643 N.E.2d at 329 (Ind.
1994). For this court to exercise jurisdiction, the trial court must decide all issues with
regard to all parties for the judgment to be final, or the trial court must make the
judgment final as to less than all parties or issues by expressly determining in writing that
“that there is no just reason for delay” and directing “entry of judgment.” See Ind. R.
Trial P. 54. The trial court did not do either in this case.
For all of these reasons, we dismiss this appeal as premature.
VAIDIK, J., and BARNES, J., concur.
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