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

• Court: Indiana Court of Appeals
• Decided: January 31, 2020
• Docket: 19A-CT-2308
• Status: Published

Opinion

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