Ball State Univeristy v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband , 6 N.E.3d 1035 ( 2014 )

Apr 14 2014, 9:25 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
JAMES R. WILLIAMS ADAM J. SEDIA
MATTHEW L. KELSEY Rubino Ruman Crosmer & Polen
DeFUR • VORAN LLP Dyer, Indiana
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BALL STATE UNIVERSITY, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1307-DR-296
)
JENNIFER IRONS, )
)
Appellee-Plaintiff, )
__________________________________________)
)
IN RE THE MARRIAGE OF: )
)
JENNIFER IRONS, )
)
Wife, )
)
and, )
)
SCOTT IRONS, )
)
Husband. )
APPEAL FROM THE LAKE CIRCUIT COURT
The Honorable George C. Paras, Judge
The Honorable Robert G. Vann, Magistrate
Cause No. 45C01-1106-DR-543
April 14, 2014
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Ball State University (“BSU”) appeals the trial court’s order to release the college
transcript of Jennifer Irons’s child, Jordan. We dismiss.
Issue
We address one dispositive issue, which we restate as whether this court has
jurisdiction over BSU’s appeal.1
Facts
Jennifer Irons and Scott Irons were married in 1992, and a dissolution decree was
entered in 1994. One child, Jordan, was born to the couple. In May 2011, Jennifer filed
a petition for modification, seeking in part an order that Scott contribute to Jordan’s
college expenses. Jordan attended BSU starting in the fall of 2011. However, Jordan
withdrew from BSU in February or March of 2012, leaving an unpaid tuition balance.
After various continuances regarding the petition for modification, a hearing was held in
1
In her Appellee’s Brief, Jennifer requested appellate attorney fees under Indiana Code Section 31-15-10-
1(a). Under this statute, “[j]urisdiction rests with the trial court to determine if an award of appellate
attorney fees is appropriate.” Goodman v. Goodman, 754 N.E.2d 595, 603 (Ind. Ct. App. 2001).
Consequently, this issue is more properly raised with the trial court.
2
December 2012. Jennifer requested that Scott contribute to Jordan’s college expenses
and pay BSU’s unpaid tuition. The trial court took the matter under advisement.
On January 24, 2013, Jennifer moved to join BSU as a supplemental defendant.
Jennifer advised that Jordan had been unable to obtain her transcripts from BSU and
enroll in Indiana University Northwest (“IUN”) because of the unpaid tuition. According
to Jennifer, the trial court was “unable to fully adjudicate the issues and afford complete
relief, as future college expenses cannot be completely determined until the child
completes her enrollment at [IUN], which requires the release of the child’s transcripts
from Ball State University.” App. pp. 96-97. On February 22, 2013, the trial court
granted the request to join BSU and ordered Jennifer to serve BSU with the order. On
May 3, 2013, BSU filed a motion to dismiss with prejudice the claim against it, arguing
that Jordan had no right to her transcripts unless she paid the balance on the tuition. After
a hearing on BSU’s motion, the trial court entered the following order:
5. BSU has a policy whereby it withholds the release of a
student’s transcript if there remains an unpaid tuition
balance. And so it goes in this case. Jordan has
requested a copy of her transcript so that she may
enroll at IUN but BSU refuses to provide it. IUN will
not enroll Jordan without a copy of her transcript. As
such, Jordan is stuck in limbo. Likewise this situation
leaves the court in a quandary since future college
expenses cannot be completely determined until
Jordan enrolls at a specific institution. Whether it be
IUN or some other institution the court, not having a
crystal ball, needs to know the amount of college
expense expected so that the court may factor that
information into a decision regarding, amongst other
factors, the parties[‘] ability to contribute.
3
6. An order was entered on February 22, 2013 adding
BSU as a Defendant herein. This was done pursuant to
TR 19 since BSU is an indispensable remedy
defendant.
*****
10. Neither party has cited any Indiana case law or statute
on this issue. BSU cites a federal bankruptcy case
from a Wisconsin district court which this court does
not find persuasive on the issue in this case. As such,
this is apparently an issue of first impression.
11. Further, the legislature has not created a statutory lien
that would allow a university to withhold a student’s
transcript for failure to pay tuition. The legislature’s
silence on this subject suggests that our legislature has
chosen not to bestow a state university with this sort of
remedy. . . . If the legisla[ture] wanted to grant BSU a
lien on their transcript it could. In the instant case,
BSU has no retaining lien.
*****
13. Importantly, BSU is not without a remedy as it has the
ability to follow normal collection procedures
including filing a complaint to collect the alleged
outstanding debt, if any.
App. pp. 121-24. The trial court denied BSU’s motion to dismiss and ordered it to
release Jordan’s transcript. BSU appealed the trial court’s order, and Jennifer filed a
motion to dismiss. Jennifer argued that the order was interlocutory and that BSU was
required to have the order certified under Indiana Appellate Rule 14(B). BSU filed a
response, arguing that it properly filed the appeal under Indiana Appellate Rule 14(A),
which governs interlocutory appeals of right.
4
Analysis
Appeals from interlocutory orders are not allowed without specific authority
granted by the constitution, statute, or rules of court. Whitezel v. Burosh, 822 N.E.2d
1088, 1090 (Ind. Ct. App. 2005). We must strictly construe authorizations for
interlocutory appeals. Id. Any attempt to perfect an appeal without such authorization
warrants a dismissal. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App.
2004), trans. denied.
BSU argues that we have jurisdiction over this appeal under Indiana Appellate
Rule 14(A)(3), which governs interlocutory appeals as of right and allows such an appeal
from any order “[t]o compel the delivery or assignment of any securities, evidence of
debt, documents or things in action.”2 Our supreme court has held that this rule applies to
“trial court orders which carry financial and legal consequences akin to those more
typically found in final judgments: payment of money, issuance of a debt, delivery of
securities, and so on.” State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991) (discussing a
prior version of the rule). The court held that the “rule is not designed to create an appeal
as of right from every order to produce documents during discovery.” Id.
We further discussed this rule in Scroghan, where we noted that “Rule 14(A)(3)
pertains to the delivery of documents where ‘delivery imports a surrender.’” Scroghan,
801 N.E.2d at 194 (quoting Cua v. Morrison, 600 N.E.2d 951, 955 (Ind. Ct. App. 1992),
2
We note that this appeal does not qualify as a discretionary interlocutory appeal under Indiana Appellate
Rule 14(B) because the order was not certified by the trial court. The order was also not a final judgment
because it did not dispose of all claims as to all parties and the trial court did not expressly direct the entry
of final judgment as to Ball State pursuant to Indiana Trial Rule 54(B). Finally, we note the dissent’s
argument regarding Indiana Appellate Rule 14(A)(8). However, that rule was not mentioned in either
Jennifer’s motion to dismiss or BSU’s response.
5
trans. denied). “Surrender may occur with such items as securities, receipts, deeds,
leases, or promissory notes.” Id. “‘It is easy to see that the administration of justice
might be seriously embarrassed, and vexatious delays secured, if appeals could be taken
in every case where a written instrument is ordered to be produced for use as evidence on
the trial of the cause.’” Id. (quoting Cua, 600 N.E.2d at 953). Thus, to seek an
interlocutory appeal as of right for the delivery of a document under Rule 14(A)(3), we
found that “the delivery of the document must import a surrender of the document.” Id.
BSU argues that Appellate Rule 14(A)(3) applies because the trial court’s order
compelled the delivery of a document—Jordan’s official transcript. According to BSU,
the delivery is a “surrender” because it “serves to dispose of all claims and relief sought
against Ball State.” Appellant’s Response In Opposition to Appellee’s Motion to
Dismiss p. 4.
We conclude that the order does not fall under Appellate Rule 14(A)(3). The
delivery of Jordan’s official transcript does not “import a surrender” as contemplated by
the rule. Whether the delivery disposes of all claims and relief sought against BSU does
not determine whether a surrender has occurred. The term surrender means “to give up
completely or agree to forgo especially in favor of another.” MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/surrender (last visited February 21, 2014).
Giving Jennifer a copy of Jordan’s official transcript does not remove the official
transcript from BSU’s control. Also, as noted by the trial court, Ball State is in no way
precluded from attempting to recover the unpaid tuition. The transcript simply is not like
the irreplaceable documents—securities, receipts, deeds, leases, or promissory notes—
6
mentioned in Scroghan. See, e.g., Scroghan, 801 N.E.2d at 194 (holding that documents
sought in discovery were not “documents” as contemplated by Appellate Rule 14(A)(3)).
Although BSU did not have a right to appeal the trial court’s order compelling the
delivery of the transcript under Appellate Rule 14(A)(3), it could have asked the trial
court to certify the order for an interlocutory appeal pursuant to Appellate Rule 14(B).
Because BSU failed to have the order properly certified, we must dismiss this appeal.
Conclusion
This appeal was not properly brought under Appellate Rule 14(A)(3).
Consequently, we dismiss the appeal.
Dismissed.
ROBB, J., concurs.
BROWN, J., concurs in part and dissents in part with separate opinion.
7
________________________________________________________________________
IN THE
COURT OF APPEALS OF INDIANA
BALL STATE UNIVERSITY, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1307-DR-296
)
JENNIFER IRONS, )
)
Appellee-Plaintiff. )
__________________________________________)
)
IN RE THE MARRIAGE OF: )
)
JENNIFER IRONS, )
)
Wife, )
)
and, )
)
SCOTT IRONS, )
)
Husband. )
BROWN, Judge, concurring in part and dissenting in part
I concur with the majority’s denial of Jennifer’s request for appellate attorney’s
fees but respectfully dissent from the majority’s conclusion that the order does not
constitute an interlocutory appeal of right. As the majority notes, Ind. Appellate Rule
14(A)(3) provides an appeal as a matter of right when the appealed order “compel[s] the
delivery or assignment of any securities, evidence of debt, documents or things in
8
action.” Here, the appealed order does exactly that – compels the delivery of a document
– by requiring BSU to immediately release an official transcript while admittedly tuition
debt remains due and owing.
Jennifer argues that delivery of the transcript is not a “surrender” and is being
sought only in discovery as a means of prosecuting litigation. Appellee’s Motion to
Dismiss at 3 (citing Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191 (Ind. Ct. App. 2003),
trans. denied). In that case, Scroghan was a traffic accident victim who was injured by an
uninsured motorist. 801 N.E.2d at 192. Scroghan had an uninsured motorist policy with
Allstate and sued Allstate for failure to pay him the policy limits. Id. Scroghan served
Allstate with a voluminous request for production of documents, to which Allstate
objected, and Scroghan moved to compel. Id. at 192-193. The trial court partially
granted Scroghan’s motion to compel. Id. at 193. Allstate appealed such discovery
order, and this court analyzed whether the discovery order was appealable under Ind.
Appellate Rule 14(A)(3). Id. at 193-194.
I do not see Allstate as a barrier to the hearing of this appeal. BSU is not simply
appealing a discovery order which requires parties to a lawsuit to produce documents
which could be used as evidence at trial. The appealed order is a dispositive order as to
BSU as it serves to dispose of all claims and relief sought against BSU.
Jennifer conceded in her motion to dismiss filed with this court that the purpose of
Rule 14(A)(3) is “to provide for appeals of orders ‘which carry financial and legal
consequences similar to those more often found in final judgments.’” Appellee’s Motion
to Dismiss at 3 (quoting Cua v. Morrison, 600 N.E.2d 951, 954 (Ind. Ct. App. 1994),
9
trans. denied). The order to release the transcript carries legal consequences because, as
asserted by BSU: (1) Jordan has no right to her transcript because her tuition balance
remains unpaid; (2) Jordan breached her contract with BSU and payment of an
outstanding tuition balance is a valid prerequisite to obtaining a transcript from an
institution of higher education; and (3) the appealed order declares that BSU has no
common law lien against the transcript. Contrary to Jennifer’s assertion, BSU does not
“lose[] nothing” by turning over the transcript to her. Id. Jennifer acknowledges the
unpaid tuition obligation, and the appealed order determines the legal issues raised by
BSU and involves an important public issue regarding the rights of public universities.
Further, unlike the cases of Hogan and Scroghan cited by the majority, the present
case involves a supplemental defendant. In W. Union Tel. Co. v. Locke, the Indiana
Supreme Court discussed a statute that allowed an appeal from an interlocutory order for
“the delivery or assignment of any instrument of writing, evidences of debt, documents,
or things in action,” and held that it would be “a great injustice to the public and a burden
to the courts, for it would enable litigants to take many appeals in a single cause.” 107
Ind. 9, 13-15, 7 N.E. 579, 582-583 (1886). Given that the order disposes of all claims
and relief sought against BSU as a supplemental defendant, I find that the concern in
Locke that a party could “take many appeals in a single cause” is not present here. 3
3
Ind. Appellate Rule 2(H) provides that 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) or Trial
Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i)
under 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 . . . .” Under these rules, the fact that the appealed order is dispositive
as to BSU does not make the order a final judgment, but I find that the fact that the order is dispositive
10
Under the circumstances, I would conclude that BSU could take an interlocutory appeal
as a matter of right under Appellate Rule 14(A)(3).
In addition, even if the court’s order does not fall under Rule 14(A)(3), the appeal
also involves an appeal of right under Appellate Rule 14(A)(8), which provides that
“[a]ppeals from the following interlocutory orders are taken as a matter of right . . . (8)
Transferring or refusing to transfer a case under Trial Rule 75 . . . .” In its motion to
dismiss with prejudice, BSU argued that the proper and preferred venue for issues
involving Jordan’s unpaid tuition balance and release of transcripts is in the Circuit
Courts of Delaware County, Indiana, the location of BSU and where such tuition costs
were incurred. In its order, the trial court stated that BSU did not establish that Delaware
County was the proper venue and that Trial Rule 75 provides Lake County with preferred
venue. The parties discuss the issue of venue on appeal. While BSU did not rely upon
Rule 14(A)(8) in its response in opposition to Jennifer’s motion to dismiss, Jennifer’s
argument that this court lacks jurisdiction to hear the appeal under Rule 14(A)(3) equates
to alleging that this court does not have subject matter jurisdiction and, accordingly, she
has the burden of establishing that jurisdiction does not exist. See generally Ramsey v.
Moore, 959 N.E.2d 246, 248 (Ind. 2012) (“We hold that because the trial court’s order is
not a final appealable judgment, there is no subject matter jurisdiction to hear the
appeal.”); GKN Co. v. Magness, 744 N.E.2d 397, 404 (Ind. 2001) (“As a general
proposition, the party challenging subject matter jurisdiction carries the burden of
with respect to BSU is relevant to the determination of whether the appeal is one of right under Rule
14(A)(3).
11
establishing that jurisdiction does not exist.”). Given that Jennifer has this burden, that
the issue regarding venue is raised by BSU in its appellant’s brief, and further that we
prefer to decide cases on their merits, I would find that there are two bases for bringing
an interlocutory appeal as a matter of right and would address the merits of the appeal.
For these reasons, I respectfully dissent from the dismissal of BSU’s appeal.
12