Huff v. House

452 N.E.2d 1015, 1983 Ind. App. LEXIS 3288

• Court: Indiana Court of Appeals
• Decided: August 22, 1983
• Docket: 4-882A254
• Status: Published

Opinions

ON PETITION FOR REHEARING

YOUNG, Judge.

We originally dismissed this appeal because the trial court rendered summary judgment as to only one of several defendants and did not direct the entry of judgment as provided in Ind.Rules of Procedure, Trial Rule 56(C). On petition for rehearing, Huff contends that, even though the order she appeals was not final, we should exercise our authority under Ind.Rules of Procedure, Appellate Rule 4(E) and review the trial court's decision in this case. In support of this argument, Huff alleges that her claims against the remaining defendants have been voluntarily dismissed with prejudice since this appeal was filed.

-It is clear that we have authority to dismiss attempted appeals from interlocutory orders like the one at issue. See Parrett v. Lebamoff, (1979) 179 Ind.App. 25, 383 N.E.2d 1107. However, we also have discretionary authority to consider such appeals in appropriate circumstances. Appellate Rule 4(E) provides:

No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues, or it may pass upon such adjudicated issues as are severable without prejudice to parties who may be aggrieved by subsequent proceedings in the court below.

Our courts have repeatedly exercised this authority to consider appeals from non-final orders, even though the requirements of AR. 4(B) have not been met. Krueger v. Bailey, (1980) Ind.App., 406 N.E.2d 665; Highland Realty, Inc. v. Indianapolis Airport Authority, (1979) Ind.App., 395 N.E.2d 1259; Parrett v. Lebamoff, supra; First Equity Security Life Ins. Co. v. Keith, (1975) 164 Ind.App. 412, 329 N.E.2d 45.

In this case, Huff alleges that her claims against the remaining defendants have been dismissed. If this is so, the trial court's order granting summary judgment as to defendant House should be ripe for entry of final judgment. In such cireum-stances, the proper procedure is not to dismiss but to suspend our consideration of the appeal as provided by A.R. 4(E) pending our receipt of a copy of the trial court's entry of final judgment on its order granting summary judgment. Montgomery v. Board of Zoning Appeals, (1963) 244 Ind. 117, 191 N.E.2d 317; Ingmire v. Butts, (1974) 160 Ind.App. 575, 312 N.E.2d 885. The court's order, of course, must be properly certified and added to the record as provided by A.R. 7.2.

Huff's petition for rehearing is accordingly granted. This court's memorandum decision dismissing Huff's appeal is vacated, and our consideration of this appeal is suspended pending the entry of final judgment below.

MILLER, J., concurs. CONOVER, P.J., dissents with opinion.