Cody O'Riley v. Sergio Galindo-Oliva (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 11 2016, 10:23 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
W. Brent Threlkeld Matthew Kroes
Melanie A. Smith Benjamin Wolowski
Threlkeld & Associates Schiller Law Offices, LLC
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cody O’Riley, August 11, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1603-CT-567
v. Appeal from the Marion Superior
Court
Sergio Galindo-Oliva, The Honorable David J.
Appellee-Plaintiff. Dreyer, Judge
Trial Court Cause No.
49D10-1501-CT-1841
Najam, Judge.
Statement of the Case
[1] Cody O’Riley appeals the trial court’s denial of his motion to compel an answer
to a certified deposition question and order to reimburse Sergio Galindo-Oliva
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for his reasonable expenses incurred in opposing the motion to compel.
However, we do not reach the merits of this appeal because we lack subject
matter jurisdiction.
[2] We dismiss.
Facts and Procedural History
[3] On June 28, 2013, O’Riley was the driver of a vehicle involved in a minor rear-
end collision with a vehicle driven by Galindo-Oliva in Indianapolis. On
January 15, 2015, O’Riley filed a complaint against Galindo-Oliva, alleging
that, as a result of the car accident, he “was required to seek medical treatment
from various health care providers and [had] incurred medical expenses as a
result thereof and may continue to incur future medical expenses.” Appellant’s
App. at 8. One of the medical providers from which O’Riley sought treatment
was the chiropractic clinic Genesis Medical Center (“GMC”). Galindo-Oliva
filed his answer admitting his negligence but denying the reasonableness of
O’Riley’s claimed medical expenses and the nature and extent of his claimed
injuries.
[4] On October 22, 2015, O’Riley, through counsel, conducted a deposition of
Galindo-Oliva, who was also represented by counsel. At the deposition,
O’Riley’s counsel asked Galindo-Oliva how he learned of the GMC facility.
Galindo-Oliva’s counsel instructed him not to answer the question based on
attorney-client privilege. O’Riley’s counsel certified the deposition question
and, on January 4, 2016, he filed a motion to compel Galindo-Oliva to answer
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the question. Galindo-Oliva filed a response in objection to the motion to
compel and sought reimbursement for his costs in opposing the motion.
[5] On February 17, 2016, the trial court, by hand, signed and dated an order
denying O’Riley’s motion to compel. In that order, which appears to have been
prepared by one of the parties, the trial court crossed out a clause relating to
reimbursement for Galido-Oliva’s expenses in opposing the motion. However,
copies of the February 17 order that were distributed to the parties’ counsel
contained the trial court judge’s stamped signature with the clause relating to
reimbursement unstricken. The chronological case summary (“CCS”) entry for
March 7 indicates that the trial court signed the order denying the motion to
compel on February 17, and the CCS summarizes the order as follows:
Defendant’s motion to compel Plaintiff’s testimony is DENIED
and Defendant is ordered to reimburse Plaintiff for reasonable
expenses incurred in opposing the motion to compel pursuant to
the trial rules.
Appellant’s App. at 5. This appeal ensued.
Discussion and Decision
[6] O’Riley appeals the discovery order denying his motion to compel deposition
testimony and the discovery sanction order issued against him pursuant to
Indiana Trial Rule 37(A)(4), both of which are interlocutory orders. It is the
duty of this court to determine whether we have jurisdiction before proceeding
to determine the rights of the parties on the merits. Allstate Ins. Co. v. Scroghan,
801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied. An appeal from an
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interlocutory order is not permitted unless specifically authorized by the
Indiana Constitution, statutes, or the rules of court. Id. The authorization is to
be strictly construed, and any attempt to perfect an appeal without such
authorization warrants a dismissal. Id.[7] Indiana Appellate Rule 14(A)(1) allows a party to bring an interlocutory appeal
as of right when the order requires the payment of money. However, this rule
applies only to orders for the payment of money that “carry financial and legal
consequences akin to those more typically found in final judgments.” State v.
Hogan, 582 N.E.2d 824, 825 (Ind. 1991); see also Mosser v. Mosser, 729 N.E.2d
197, 200 (Ind. Ct. App. 2000) (noting that an enforceable “money judgment is
entered on the judgment docket and constitutes a lien on the judgment debtor’s
property”). We have held that, in certain circumstances, an order for “the
payment of attorney’s fees as a sanction under Ind. Trial Rule 37”1 can be an
example of an appealable order for the payment of money under Rule 14(A)(1).
Nat’l Gen. Ins. Co. v. Riddell, 705 N.E.2d 465, n.1 (Ind. Ct. App. 1998).
[8] However, to constitute an appealable interlocutory order, a sanction under Trial
Rule 37 must provide for a specific amount of money to be paid at a specific time.
Huber v. Montgomery, 940 N.E.2d 1182, 1184-85 (Ind. Ct. App. 2010). For
example, we held in Huber that an award of “reasonable” costs and attorney’s
1
Indiana Trial Rule 37(A)(4) requires that a trial court award expenses to the party who successfully moves
to compel discovery or successfully opposes such a motion, unless the unsuccessful party’s position was
“substantially justified” or an award of expenses would otherwise be “unjust.”
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fees to a party under Trial Rule 37 was not appealable as of right as an “order
for the payment of money” because “[t]he order did not require Huber to pay a
specific amount at a specific time.” Id. at 1185. Rather, the order simply stated
that the party who had successfully moved to compel discovery was “awarded
reasonable costs and attorney fees incurred by the necessity” to make the
motion. Id. at 1184.
[9] Likewise, here, the trial court’s order does not specify an amount of payment or
a time for payment. The order states only that “Defendant is ordered to
reimburse Plaintiff for reasonable expenses incurred in opposing the Motion to
Compel pursuant to the Trial Rules.” Appellant’s App. at 6. Because the order
does not require O’Riley to pay a specific amount of money at a specific time, it
is not appealable as of right pursuant to Appellate Rule 14(A)(1).2 Huber, 940
N.E.2d at 1184-85.3
[10] And just as we lack jurisdiction to address the discovery sanction order, we
cannot consider O’Riley’s challenge to the denial of his motion to compel,
which is also an interlocutory order. If the discovery sanction order were an
order for the payment of money under Appellate Rule 14(A)(1), we would have
2
We note that O’Riley could have sought certification of the order for a discretionary interlocutory appeal
under Appellate Rule 14(B), but he did not. State v. Hogan, 582 N.E.2d 824 (Ind. 1991). Or he could have
sought an order from the trial court expressly determining that there was no just reason for delay and
expressly directing entry of final judgment under Indiana Trial Rule 54(B), but he did not.
3
Even if the sanction order were appealable as of right, given the disparity between the two orders dated
February 17, we would have been required to remand this case for clarification of whether the trial court
actually did or did not award Galindo-Oliva’s expenses incurred in opposing the motion to compel.
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ancillary jurisdiction to address the underlying discovery dispute. See e.g.,
White-Rodgers v. Kindle, 925 N.E.2d 406, 411 (Ind. Ct. App. 2010). In other
words, the sanction order and the underlying order are intertwined, and if we
had jurisdiction over the sanction order under Appellate Rule 14(A)(1), we
could also consider the denial of O’Riley’s motion to compel. Here, however,
we do not have jurisdiction to review either of these interlocutory orders.
[11] Dismissed.
Vaidik, C.J., and Baker, J., concur.
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