Muncie Indiana Properties LLC v. Quality Construction Pro LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2016
• Docket: 18A02-1510-MI-1626
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:55 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Thomas Margolis Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA Muncie Indiana Properties LLC, March 31, 2016 Appellant-Defendant, Court of Appeals Case No. 18A02-1510-MI-1626 v. Appeal from the Delaware Circuit Court Quality Construction Pro LLC, The Honorable John M. Feick, Appellee-Plaintiff. Judge Trial Court Cause No. 18C04-1406-MI-24

Najam, Judge.

Statement of the Case [1] Muncie Indiana Properties, LLC (“Muncie Properties”) appeals the trial court’s

grant of partial summary judgment to Quality Construction Pro, LLC (“Quality

Construction”) on Quality Construction’s breach of contract claim. However,

Court of Appeals of Indiana | Memorandum Decision 18A02-1510-MI-1626| March 31, 2016 Page 1 of 5 we do not reach the merits of this appeal because we lack subject matter

jurisdiction.

[2] We dismiss.

Facts and Procedural History [3] On May 21, 2014, Quality Construction filed a complaint against Muncie

Properties for foreclosure on a mechanics’ lien, breach of contract, and

conversion. On July 23, Muncie Properties filed an answer and counterclaims

for breach of contract, breach of warranty, and “bad faith.” On April 16, 2015,

Quality Construction filed a motion for partial summary judgment on counts II

and III of its complaint, namely, breach of contract and conversion, respectively.

Following a hearing, the trial court issued an order granting

Quality Construction’s motion for partial summary judgment as to count II,

breach of contract, and denying the motion as to count III, conversion. The

court “grant[ed] Quality Construction’s requested relief as to Count II[,]” for the

total sum of $56,384.13 in damages and attorney’s fees, plus costs and post-

judgment interest. Appellant’s App. at 13. The court ordered that the case

would proceed on Quality Construction’s claims in counts I and III and Muncie

Properties’ counter-claims for breach of contract, breach of warranty, and bad

faith. The trial court specifically noted that, “should [Muncie Properties] be

successful on its counterclaims, any damages awarded would be a set-off to the

judgment entered on behalf of Quality Construction and against [Muncie

Properties] pursuant to this order.” Id. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 18A02-1510-MI-1626| March 31, 2016 Page 2 of 5 Discussion and Decision [4] Muncie Properties appeals from the trial court’s order granting partial summary

judgment in favor of Quality Construction, which is an interlocutory order. 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 interlocutory order is not allowed 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.

[5] Indiana Appellate Rule 14(B)(1) allows a party to bring an interlocutory appeal

as of right when the order requires the payment of money.1 However, this rule

only applies to orders for the payment of money which “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) (citing Ind. Code § 34-55-9-2) (noting that

an enforceable “money judgment is entered on the judgment docket and

constitutes a lien on the judgment debtor’s property”). Examples of such orders

“for the payment of money” which trigger application of Appellate Rule

14(A)(1) include “orders to pay death taxes, attorney’s fees, [and] child

1 We note that, along with many other errors in its appeal, Muncie Properties failed to comply with Appellate Rule 9(F) in that its Notice of Appeal lacked most of the required content, including a statement of the basis for appellate jurisdiction.

Court of Appeals of Indiana | Memorandum Decision 18A02-1510-MI-1626| March 31, 2016 Page 3 of 5 support[;] orders to make a deposit of money into court[;] and orders for the

payment of attorney’s fees as a sanction under Ind. Trial Rule 37.” Nat’l.

General Ins. Co. v. Riddell, 705 N.E.2d 465, n.1 (Ind. Ct. App. 1998).

[6] But Appellate Rule 14(A)(1) does not permit interlocutory appeals of partial

money judgments that do not require immediate payment of money. Id. Were

it otherwise, the exception would swallow the rule, opening the floodgates for

appeals from such interlocutory orders. This would contravene the intent of

Appellate Rule 14(A)(1). Hogan, 582 N.E.2d at 825. Accordingly, as we did in

Riddell, we conclude that a partial money judgment that is not immediately

payable is not an interlocutory order appealable as of right under Appellate

Rule 14(A)(1). Riddell, 705 N.E.2d at 465, n.1.

[7] We note that Muncie Properties could have sought certification of the order for

a discretionary interlocutory appeal under Appellate Rule 14(B), but it did not.

It could have sought an order from the trial court expressly determining that

there was no just reason for delay and expressly directing entry of judgment

under Indiana Trial Rules 54(B) or 56(C), but it did not.

[8] Because we lack jurisdiction to hear this appeal, we dismiss it.

[9] Further, we note that, had we not dismissed the appeal for lack of jurisdiction,

we would have dismissed it under Indiana Appellate Rule 46(A). It has long

been recognized that it is the appellant’s burden to provide us an adequate

record to permit meaningful appellate review. Wilhoite v. State, 7 N.E.3d 350,

354-55 (Ind. Ct. App. 2014). Here, Muncie Properties failed to support its

Court of Appeals of Indiana | Memorandum Decision 18A02-1510-MI-1626| March 31, 2016 Page 4 of 5 arguments with cogent reasoning and citations to relevant parts of the record, as

required by Appellate Rule 46(A)(8)(a). Westervelt v. Woodcock, 15 N.E.3d 75, 76

n.1 (Ind. Ct. App. 2014) (noting an appellant waives any issue for which it fails

to provide such reasoning and supporting citations). Moreover, Muncie

Properties failed to provide in its appendix the parties’ summary judgment

materials, including the designated evidence, as required in order for us to

review an appeal of an entry of summary judgment. Hughes v. King, 808 N.E.2d

146, 147-48 (Ind. Ct. App. 2004) (dismissing an appeal of an entry of summary

judgment where appellant failed to provide on appeal a complete copy of the

evidence designated to the trial court).

[10] Dismissed.

Robb, J., and Crone, J., concur.

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