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Indy Auto Man, LLC v. Keown & Kratz, LLC

Court of Appeals of Indiana

October 6, 2017

Indy Auto Man, LLC, Appellant-Plaintiff,
Keown & Kratz, LLC, and Dustin Stohler, Appellees-Defendants.

         Appeal from the Hamilton Superior Court 4 Trial Court Cause No. 29D04-1507-PL-5455 The Honorable J. Richard Campbell, Judge

          Attorney for Appellant Christopher P. Jeter Massillamany & Jeter, LLP Fishers, Indiana

          Attorneys for Appellee Mark D. Gerth Michael E. Brown Sarah A. Hurdle Kightlinger & Gray, LLP Indianapolis, Indiana Crystal G. Rowe Kightlinger & Gray, LLP New Albany, Indiana

          MATHIAS, JUDGE.

         [¶1] Indy Auto Man, LLC ("IAM") filed a complaint against Keown & Kratz, LLC ("K&K"), and Dustin Stohler ("Stohler"), alleging legal malpractice. K&K subsequently filed a motion for summary judgment, which the trial court granted. IAM appeals and claims that there are genuine issues of material fact precluding summary judgment. We conclude sua sponte that the trial court's grant of summary judgment to K&K was not a final appealable order. Accordingly, we dismiss this appeal.

         Facts and Procedural History

         [¶2] For purposes of our discussion, we need not set forth a detailed statement of the facts underlying IAM's claim. But briefly, after being sued by two customers over the purchase of vehicles, IAM retained the services of attorney Stohler, who was then working, at least partly, for K&K. K&K claims that Stohler was employed only "of counsel, "[1] and that IAM was not a client of the firm. Stohler stopped showing up to work at K&K, and K&K allowed Stohler's mail to pile up, unopened, on his desk. Stohler failed to respond to discovery requests or the plaintiff's motion for default judgment in one of the cases.

         [¶3] IAM eventually received notice that a default judgment in the amount of $60, 000 (which included treble damages) had been entered against IAM in one of the cases. IAM then hired another attorney, the same attorney who had initially recommended Stohler, to assist them in vacating or reducing the default judgments. IAM's new counsel was successful in settling the default judgment for $30, 000 and settled the other case for $15, 000.

         [¶4]IAM then brought a legal malpractice claim against K&K and Stohler. The trial court's chronological case summary ("CCS") does not indicate that Stohler responded to this claim. K&K did respond, filing an answer that included a counter-claim for attorney fees. K&K subsequently moved for summary judgment, arguing that it did not owe a duty of care to IAM because IAM was not the firm's client and further argued that K&K had a limited agency relationship with Stohler that did not extend to Stohler's clients like IAM. IAM responded and filed its own cross-motion for summary judgment. The trial court held a summary judgment hearing and granted summary judgment in favor of K&K on IAM's claims and in favor of IAM on K&K's counter-claim for attorney fees, concluding that IAM's claims were not frivolous.

         [¶5] Notably, the trial court's summary judgment order did not grant summary judgment in favor of Stohler; nor did the court's order include the "magic language" of Indiana Trial Rule 56(C), i.e. that there was no just reason for delay and expressly directing entry of judgment as to less than all the parties. IAM then filed a notice of appeal, initiating this appeal.

         Discussion and Decision

         [¶6] This court has jurisdiction in all appeals from final judgments. In re Estate of Botkins, 970 N.E.2d 164, 166 (Ind.Ct.App. 2012) (citing Ind. Appellate Rule 5(A)). "A 'final judgment' is one which 'disposes of all claims as to all parties[.]'" Id. (quoting App. R. 2(H)(1)); see also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.Ct.App. 2002) (a final judgment is one that "disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case" and "reserves no further question or direction for future determination.") (internal quotations and citations omitted). Whether an order is a final judgment governs the appellate court's subject matter jurisdiction. Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003))[2]. The lack of appellate subject matter jurisdiction may be raised at any time, and where the parties do not raise the issue, this court may consider it sua sponte. In re Estate of Botkins, 970 N.E.2d at 166.

         [¶7] Here, IAM's complaint named two defendants: Stohler and K&K. Only K&K filed a motion for summary judgment, and the trial court's order granting summary judgment granted judgment only as to K&K:

For the reasons set forth above, the Court rules that the designated evidence shows that there is no genuine issue as to any material fact [and] that K&K is entitled to summary judgment as a matter of law. Furthermore, the Court denies IA[M]'s cross-motion for summary judgment. Furthermore, the Court on its own motion grants ...

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