Indiana Newspapers, Inc. v. Miller

980 N.E.2d 852, 2012 Ind. App. LEXIS 610, 2012 WL 6115100
CourtIndiana Court of Appeals
DecidedDecember 7, 2012
DocketNo. 49A02-1211-PL-898
StatusPublished
Cited by12 cases

This text of 980 N.E.2d 852 (Indiana Newspapers, Inc. v. Miller) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Indiana Newspapers, Inc. v. Miller, 980 N.E.2d 852, 2012 Ind. App. LEXIS 610, 2012 WL 6115100 (Ind. Ct. App. 2012).

Opinions

[854]*854 PUBLISHED ORDER DISMISSING APPEAL

ROBB, Chief Judge.

STATEMENT OF THE CASE1

The Indianapolis Star (“The Star”) has filed a motion to stay the trial court’s discovery order (“the Discovery Order”) pending appeal. See Ind. Appellate Rule 39(C). The Discovery Order compelled The Star to disclose the identity of an anonymous commentator to a news report posted on The Star’s website. The Star appeals the Discovery Order as a final judgment, but the plaintiffs, Jeffrey M. Miller and Cynthia S. Miller (“the Millers”), contend it is an interlocutory order. Thus, the threshold issue is whether we have subject matter jurisdiction to hear The Star’s appeal.

In its Notice of Appeal, The Star indicates that the basis for appellate jurisdiction is an appeal from a final judgment, as defined by Appellate Rule 2(H). The Star advances two principal arguments in favor of jurisdiction.2 First, The Star asserts that the Discovery Order is “the beginning and the end” of the case involving The Star, and that the Discovery Order is, thus, severable as a final, appealable judgment. The Star contends that the discovery dispute is a separate “case” against The Star in that the Discovery Order disposes of all issues and leaves nothing for further determination with respect to The Star, which is a non-party to the underlying case. See App. R. 2(H)(1). Thus, The Star reasons that this is not an interlocutory appeal but an appeal of a final order, Verified Response to Verified Motion for Emergency Telephonic Hearing at 2, and that The Star has properly appealed the Discovery Order as a matter of right, id. at 6.

Second, The Star asserts that Article VII, Section 6 of the Indiana Constitution guarantees “in all cases an absolute right to one appeal” and that “[n]o method of appeal exists here other than as a final, appealable order.” Id. at 8. Hence, The Star continues, the Discovery Order must be “deemed final by law.” See App. R. 2(H)(5).

We conclude that The Star’s argument that the Discovery Order is severable as a final judgment is a reprise of the “distinct and separate branch doctrine,” which our Supreme Court repudiated in Berry v. Huffman, 643 N.E.2d 327, 329 (Ind.1994), a doctrine which has been superseded by the requirement that the trial court “direct the entry of a final judgment” under Trial Rule 54(B). Thus, the Discovery Order cannot be considered a final, appealable judgment under Appellate Rule 2(H)(1) because it did not dispose of all claims as to all parties and cannot be considered a final, appealable judgment under Appellate Rule 2(H)(2) because the trial court did not expressly determine that there is no just reason for delay and direct the entry of the Discovery Order as a final judgment as to fewer than all the claims or parties under Trial Rule 54(B).

Accordingly, we hold that the Discovery Order is an interlocutory order which is [855]*855not severable for appeal under the former, discredited “distinct and separate branch doctrine.” Further, The Star has not perfected the Discovery Order as a final judgment under Trial Rule 54(B). And we conclude that the Indiana Constitution guarantees an absolute right to one appeal in all cases, not from all orders, and that the Discovery Order is not deemed final by law under Appellate Rule 2(H)(5).3 Thus, we hold that we lack subject matter jurisdiction to consider The Star’s appeal on the merits and we dismiss the appeal. However, we continue the stay previously ordered by this court for seven (7) calendar days from the date of this order, at which time the stay shall automatically expire.

FACTS AND PROCEDURAL HISTORY

This is a second appeal following this court’s opinion in Miller v. Junior Achievement of Central Indiana, Inc. (In re Indiana Newspapers, Inc.), 963 N.E.2d 534 (Ind.Ct.App.2012) (“Miller /”). As described in detail in Miller I. the Millers have sued, among others, “DownWithThe-Colts,” an anonymous commentator on The Star’s website for defamation. The Star has vigorously defended against releasing the identity of the anonymous commentator.

Prior to our opinion in Miller I, the trial court ordered The Star to release the identity of the commentator. The Star immediately appealed the trial court’s discovery order. The Millers filed a motion to dismiss The Star’s appeal for lack of subject matter jurisdiction, but that motion was summarily denied by this court’s motions panel. Rulings by our motions panel are in fieri and may be re-visited by the writing panel, but the Millers did not re-assert their jurisdictional argument in Miller I, and this court held on the merits that the trial court erred in ordering The Star to release the commentator’s identity. Id. at 552-53. We reversed the trial court’s order and remanded with instructions that it “require [the Millers] to produce prima facie evidence to support only those elements of [their] cause of action that are not dependent on the commentator’s identity.” Id. at 552. We expressly excluded from the Millers’ burden any showing of actual malice, as that would be dependent on the commentator’s identity, id., and we further held that the commentator’s statement was, as a matter of law, defamation per se, which would allow the trial court to presume that the Millers had been damaged by the statement, id. at 550.

On remand, the trial court held an evi-dentiary hearing on the Millers’ discovery request. Following the hearing, on October 19, 2012, the court found as follows:

11. Based on the evidence presented ... and the Briefs submitted by both parties ... the balancing factors weigh in favor of Mr. and Ms. Miller as follows:
[856]*856a. The statement made by “Down-WithTheColts” is defamatory per se and is unprotected, illegal speech. It is not political speech;
b. “DownWithTheColts” had no expectation of privacy;
c. Defamatory speech is illegal and is detrimental to the object of the defamatory speech; thus, chilling this type of speech is warranted and is good public policy;
d. “DownWithTheColts” is already a named Defendant in this matter; thus, Mr. and Ms. Miller require the identity of “DownWithTheColts” for purposes of the lawsuit, specifically to identify a defendant, but also generally as to the relationship “DownWith-TheColts” has to other parties in this lawsuit;
e. The Star is the only one who possesses this information.

Order Granting Plaintiffs’ Motion for Order Compelling Non-Party Discovery at 4. Accordingly, the court ordered The Star to produce the commentator’s identity by October 31.

On October 31, The Star filed an emergency motion to stay enforcement of the Discovery Order in the trial court. The court granted the stay until November 14. The court then amended its stay “until November 16, 2012[,] at which time The Star should seek any further stay from the Indiana Court of Appeals.” Order on The Indianapolis Star’s Motion to Stay Enforcement of October 19, 2012 Order and to Amend Order to Provide Required Security at 2.

On November 15, The Star filed its Motion to Stay Order Compelling Identification of Anonymous Speaker Pending Appeal in this court.

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Cite This Page — Counsel Stack

Bluebook (online)
980 N.E.2d 852, 2012 Ind. App. LEXIS 610, 2012 WL 6115100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indiana-newspapers-inc-v-miller-indctapp-2012.