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,
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.
and Procedural History
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, " 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
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.
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.
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.
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)). 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.
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 ...