Tina Gallo and Rubino, Ruman, Crosmer & Polen, LLC v. Allstate Property and Casualty Insurance Company (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jan 31 2020, 8:49 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS
Daniel J. Zlatic
Rubino, Ruman, Crosmer & Polen
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tina Gallo and Rubino, Ruman, January 31, 2020
Crosmer & Polen, LLC, Court of Appeals Case No.
Appellants-Plaintiffs, 19A-CT-2308
Appeal from the Lake Superior
v. Court
The Honorable Bruce D. Parent,
Allstate Property and Casualty Judge
Insurance Company, Trial Court Cause No.
Appellee-Defendant. 45D11-1808-CT-453
Najam, Judge.
Statement of the Case
[1] The law firm of Rubino, Ruman, Crosmer & Polen, LLC (“Rubino”), counsel
for Tina Gallo, appeals the trial court’s entry of sanctions against it on
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2308 | January 31, 2020 Page 1 of 6
discovery disputes. Rubino presents one issue for our review, namely, whether
the trial court abused its discretion when it sanctioned Rubino. 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 November 12, 2018, Gallo, who was represented by Rubino, filed a
complaint against Jun Zhang and Allstate Property and Casualty Insurance
Company (“Allstate”) after Gallo was involved in a motor vehicle collision
with Zhang. In her complaint, Gallo alleged that Zhang had caused the
collision and that, as a result, Gallo had sustained injuries and incurred medical
expenses. Gallo, who was insured by Allstate, further alleged that Zhang was
an underinsured or uninsured motorist. Allstate filed its answers and
affirmative defenses.
[4] Gallo filed a notice of video deposition in which it sought to depose an
employee of Allstate. Allstate filed a motion for a protective order in which it
alleged that the proposed deposition was improper because it “requests material
prepared in anticipation of litigation,” which Allstate asserted was not
discoverable. Appellant’s App. Vol. II at 28. Gallo then filed a response in
which she asserted that, because she had not yet asked any questions, it was
“premature” for Allstate to claim that the deposition sought privileged
information. Id. at 34.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2308 | January 31, 2020 Page 2 of 6
[5] After the trial court received the motion for protective order and Gallo’s
response, the court ordered the parties’ attorneys to attend a discovery
conference. Specifically, the court ordered Rubino to provide a list of questions
to Allstate that it intended to ask at the deposition. Rubino and counsel for
Allstate met on September 12, 2019. Following that meeting, the parties filed a
report with the trial court in which the parties stated that Rubino had “provided
the questions [it] would ask which generally are the interrogatories propounded
previously, plus follow up questions which depend on the answer given by the
deponent.” Id. at 40. Also in that report, counsel for Allstate indicated that it
“did already object in its Reponses to [Gallo’s] interrogatories and adopts the
same” and that it reserved the right object to follow-up questions. Id. And the
parties stated that the “issues presented in the Motion [for protective order] and
Response are still at issue and need to be ruled on the by the Court.” Id.
[6] On September 25, the trial court held a hearing on Allstate’s motion for
protective order and Gallo’s response. At the hearing, Rubino reiterated that
the questions it intended to ask at the deposition were the interrogatories “along
with reasonable follow up questions,” which “can’t be anticipated.” Tr. Vol. II
at 5. Rubino then informed the court that Allstate only had four objections, at
which point Allstate interjected and stated that that was not correct. The court
then “call[ed] a timeout” and directed the parties to meet in the conference
room to attempt to resolve the issues. Id. at 6.
[7] As a result of the meeting, Allstate stipulated that Gallo was not at fault for the
accident. Based on that stipulation, Rubino agreed to withdraw five of the
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2308 | January 31, 2020 Page 3 of 6
twenty-two interrogatories, and Allstate agreed that it was not worth contesting
nine of the remaining questions. However, the parties disagreed on the final
eight interrogatories and asked the court to rule on those questions. The court
then stated: “I gave you an order and I told you to do certain things and it
doesn’t sound like you did it other than got together and ate cake.[ 1] . . . It’s my
intention to award attorney’s fees here. Neither of you did what I told you.”
Id. at 9. The court then took the matter under advisement.
[8] Thereafter, on February 27, the court issued an order in which it partially
granted and partially denied Allstate’s motion for protective order. Specifically,
the court ordered that Gallo could depose Hernandez but that she was
precluded from asking certain questions. The court also found that Rubino had
“directly disobeyed this Court’s order as [it] did not prepare a list of questions
that [it] sought to ask Ms. Hernandez at her deposition,” which conduct
“prolonged, interrupted, and complicated the hearing on this matter.”
Appellant’s App. Vol. II at 10. Accordingly, the court entered discovery
sanctions against Rubino in the amount of $625.00 but did not specify when
that payment was required to be made. This interlocutory appeal ensued.
Discussion and Decision
[9] Rubino asserts that the trial court abused its discretion when it issued discovery
sanctions against Rubino. However, we do not reach the merits of Rubino’s
1
Counsel for Allstate brought cake to the parties’ discovery conference.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2308 | January 31, 2020 Page 4 of 6
appeal because we lack subject matter jurisdiction. “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. “Jurisdiction is a question of law we
review de novo.” Ind. Newspapers, Inc. v. Miller, 980 N.E.2d 852, 857 (Ind. Ct.
App. 2012), aff’d on reh’g, 980 N.E.2d 863 (Ind. Ct. Appl. 2013), trans. denied.
[10] Rubino does not appeal following a final judgment but, rather, brings an
interlocutory appeal. The Indiana Appellate Rules provide that this Court
“shall have jurisdiction over appeals of interlocutory orders” pursuant to
Indiana Appellate Rule 14. Ind. Appellate Rule 5(B). “An appeal from an
interlocutory order is not allowed unless specifically authorized by the Indiana
Constitution, statutes, or the rules of court. The authorization is to be strictly
construed, and any attempt to perfect an appeal without such authorization warrants a
dismissal.” Allstate Ins. Co., 801 N.E.2d at 193 (emphasis added, citation
omitted).
[11] Here, Rubino purports to bring this interlocutory appeal under Indiana
Appellate Rule 14(A)(1), which allows a party to bring an interlocutory appeal
as of right when the court issues an order “[f]or the payment of money.”
However, that 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). Accordingly, to
constitute an appealable interlocutory order under that rule, the order must
require the payment of “a specific sum of money by a date certain[.]” DuSablon v.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2308 | January 31, 2020 Page 5 of 6
Jackson Cty. Bank, 132 N.E.3d 69, 76 (Ind. Ct. App. 2019) (emphasis added),
trans. pending; see also Huber v. Montgomery Cty. Sheriff, 940 N.E.2d 1182, 1185
(Ind. Ct. App. 2010).
[12] Here, the trial court entered sanctions against Rubino in the amount of $625.00,
which is a sum certain. However, the court’s order does not state a time for the
payment of that sanction. Rather, the court’s order simply states that
“[d]iscovery sanctions were entered in favor of the Law Office of Allstate and
against [Rubino] in the amount of $625.00, and that amount is today set to
judgment.” Appellant’s App. Vol. II at 11. Thus, the court entered an ordinary
money judgment. Because the order does not require Rubino to pay the
sanction by a date certain, it is not appealable as of right pursuant to Appellate
Rule 14(A)(1). See Huber, 940 N.E.2d at 1182. Accordingly, we lack
jurisdiction over Rubino’s claim, and we dismiss this appeal.
[13] Dismissed.
Vaidik, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2308 | January 31, 2020 Page 6 of 6