JAMES T. MITCHELL, Appellant (Petitioner below),
10TH AND THE BYPASS, LLC AND ELWAY, INC., Appellees (Respondent below)
Appeal from the Monroe Circuit Court, No. 53C06-0812-PL-3285. The Honorable Frances G. Hill, Judge. On Petition To Transfer from the Indiana Court of Appeals, No. 53A01-1112-PL-593.
ATTORNEYS FOR APPELLANT: Michael L. Carmin, Gregory A. Bullman, Andrews Harrell Mann Carmin & Parker, P.C., Bloomington, Indiana.
ATTORNEYS FOR APPELLEE: Donn H. Wray, Nicholas K. Gahl, Stewart & Irwin, P.C., Indianapolis, Indiana; Stephen Schrumpf, Brown Deprez & Johnson, PA, Shelbyville, Indiana; Marion Michael Stephenson, Shelbyville, Indiana.
Rucker, Justice. Dickson, C.J., and David, Massa and Rush, JJ., concur.
In this appeal we address whether evidence obtained after entry of an order granting a motion for partial summary judgment may form the basis for vacating that order on grounds that a non-final order is subject to revision at any time before entry of a final judgment. We conclude it may not. We also address whether relief from judgment under our Trial Rules is limited only to final judgments. We conclude it is not.
Facts and Procedural History
Asserting a claim for an environmental legal action (" ELA" ), see Ind. Code § § 13-30-9-1 through 13-30-9-8,
and alleging a violation of Indiana's anti-dumping statute, see I.C. § § 13-30-3-1 through 13-30-3-13, 10th and The Bypass, LLC (" LLC" ) filed a complaint on December 30, 2008 against James T. Mitchell individually; J.T. Mitchell, Inc.--a corporation Mitchell owned; the Sevan Corporation; and Elway, Inc. (collectively " Defendants" ). In relevant part the complaint alleged that Defendants were responsible for environmental contamination while operating certain dry cleaning businesses at a site owned by LLC and located on East 10th Street in Bloomington. In particular, according to the complaint, the Defendants " caused and/or contributed to the release of a hazardous substance into the subsurface soil and groundwater of the Site, . . . [and] dumped chlorinated solvents and other solid waste onto the Site without Plaintiff's consent." App. at 23, 24.
On June 30, 2009, James T. Mitchell in his individual capacity filed a motion for partial summary judgment on grounds that he was not personally liable for LLC's damages and that neither the responsible corporate officer doctrine nor the doctrine of piercing the corporate veil was applicable in imposing on him any personal liability. In support of his motion Mitchell designated several exhibits including his affidavit which alleged in pertinent part:
I never individually operated a dry cleaning business at Plaintiff's real estate. . . . My involvement in the dry cleaning business at Plaintiff's real estate was at all times as an officer or employee of J.T. Mitchell, Inc. . . . I never dumped, nor was I at any time involved in any capacity in the dumping of chemical waste on Plaintiff's real estate. . . . I never caused or contributed to the release of a hazardous substance into the surface or subsurface soil or ground water at Plaintiff's real estate.
App. at 40. LLC did not file a response to Mitchell's motion. Instead on September 3, 2009 LLC filed its own motion for partial summary judgment seeking to impose individual liability on Mitchell. In support of the motion LLC designated several exhibits none of which disputed the material substance of Mitchell's affidavit. See App. at 82-131. After conducting a hearing the trial court entered an order on January 11, 2010 ...