John Bryan Fulk, as Personal Representative of the Estate of Warren G. Fulk, Appellant-Plaintiff v. Steven T. Fulk and Reuben W. Craft, Appellees-Defendants (2024)

MEMORANDUM DECISION

Mathias, Judge.

[1] John Bryan Fulk, as the personal representative of Warren G. Fulk's Estate, is attempting to appeal the Sullivan Superior Court's order that vacated a prior award of over $700,000 in damages to the Estate and instead awarded approximately half that amount of damages. Concluding that the order on appeal is not a final judgment or otherwise appealable, we dismiss this appeal.

Facts and Procedural History

[2] Warren G. Fulk died testate on August 14, 2016, and his Estate was opened under case number 77D01-1609-ES-34. He had five children: John, the current personal representative of his Estate; Shellie; Matthew; Steven, an Appellee in this case; and Mary Kathryn, who died in 2016. Mary Kathryn is survived by her son, Jackson Holman. Steven was the personal representative of Warren's Estate until he was removed in July 2019.

[3] On June 24, 2020, under case number 77D01-2004-PL-187, John, as the subsequent personal representative of the Estate, filed a complaint against Steven and his partner Reuben Craft and alleged that Steven and Craft had converted Estate assets; that Steven, as the Estate's former personal representative, had failed to deliver Estate property to John as the new Personal Representative; and that Steven had breached his fiduciary duty to the Estate while serving as its personal representative.

[4] Thereafter, Craft filed a counterclaim and third-party complaint against John and Lucas Rowe, the Estate's attorney, in which Craft alleged intentional infliction of emotional distress, deceit of attorney, invasion of privacy, and defamation.¹ The trial court dismissed Craft's counterclaim and third-party complaint on February 9, 2021, pursuant to Trial Rule 12(B)(6). Nine days later, Craft filed an amended counterclaim and third-party complaint, which is still pending before the trial court.

[5] On January 9, 2023, the trial court issued an order granting John's motion to separate the pleadings for trial. The order also provided that, “[u]pon written request,” a bench trial on Craft's complaint “can be rescheduled.” Appellant's App. Vol. 2, p. 110. Approximately six weeks later, the trial court issued an order granting John's motion for default judgment as to Steven's liability for the allegations raised in John's complaint. The trial court then held a bench trial on those damages on June 16.

[6] The trial court issued findings of fact and conclusions of law on July 6. Ultimately, the court entered a judgment against Steven in the amount of $324,645.19, which the court ordered him to pay to John to be placed into the Estate account. Further, the court found that Craft had received two checks from the Estate totaling $2,416.29, which he also was ordered to pay to the Estate. The trial court further ordered Steven to pay the personal representative's attorney fees and costs totaling over $55,000. Finally, the court stated that its order was “a final appealable judgment.” Id. at 128.

[7] John filed a motion to correct error arguing that the trial court should have found Craft jointly and severally liable with Steven and should have awarded special damages pursuant to Indiana Code section 34-24-3-1. John included a proposed order with his motion, which the trial court signed on August 3. The court's amended judgment included additional findings and ordered that “[t]he Personal Representative shall recover from the Defendants, Steven T. Fulk and Reuben W. Craft, jointly and severally, the amount of $797,891.76, plus costs of this action.” Id. at 149.

[8] Forty days later, on September 12, the trial court issued an “Order on Vacating Prior Order,” which states in pertinent part:

Court received on July 25, 2023, Personal Representative's Motion to Correct Error. The proposed Order submitted by Personal Representative was signed and granted on August 4, 2023. After taking the matter under further consideration based upon subsequent pleadings, the Court now takes the following action.

The Court clearly did not review the proposed Order submitted by Personal Representative as thoroughly as it should have done. The Court was under the impression that it was simply correcting the error and including Reuben W. Craft in the judgment amount entered on July 7, 2023 containing the Findings of Fact and Conclusions of Law. However, the proposed Order submitted does much more than that and such proposed Order should have never been signed as that was not this Court's intention. On its own motion, the Court hereby vacates the Order dated August 3, 2023 ․

Id. at 48-49. The trial court then granted John's motion to correct error in part and ordered Craft to be jointly liable for the $324,645.19, which is the judgment amount in the court's prior July 6, 2023, order. The trial court also ordered Steven and Craft to be jointly liable for the attorney fee award to the personal representative. The court again declared that the order was a “Final Appealable Judgment.” Id. at 49. And the court issued a Status Order that same day, which states: “The Court does not believe there are any other pending issues. If the parties believe there are any pending issues that need to be addressed by this Court, they should promptly notify this Court within ten (10) days.”² Id. at 152. John filed a motion to reconsider, which the trial court denied.

[9] On September 27, John filed a notice of appeal of the trial court's September 12 order vacating its August 3 order. The dispositive issue presented in this appeal is whether the September 12 order is a final judgment or otherwise appealable order.

Final Appealable Order

[10] The parties disagree whether the September 12 order is a final judgment or otherwise appealable order. An appellate court will typically hear an appeal only after a trial court has entered a final judgment. Ball State Univ. v. Irons, 27 N.E.3d 717, 720 (Ind. 2015). Generally, a judgment is final when it “dispose[s] of all issues as to all parties, ending the particular case and leaving nothing for future determination.” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012); Ind. App. R. 2(H)(1). But there are other ways in which a judgment may become final. See App. R. 2(H)(2)-(5). Specifically, Rule 2(H) provides that a judgment is also final when:

(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;

(3) it is deemed final under Trial Rule 60(C);

(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or

(5) it is otherwise deemed final by law.

[11] In this case, Craft's Amended Counterclaim and Third-Party Complaint remains pending. Trial Rule 54(B) provides:

When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.

[12] Our supreme court has adopted a “bright line” rule requiring strict compliance with Trial Rule 54(B) before a trial court's order disposing of less than all issues as to all parties will be deemed final and appealable as of right. Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998). This formalistic approach “removes uncertainties about when a party should appeal, thus minimizing the risk that an appeal will be dismissed as premature or that the right to appeal will be inadvertently lost.” Id. The court reasoned further that strict compliance with the rule “place[s] the discretion of deciding when the facts indicate that a judgment should be deemed final in the hands of the individual best able to make such decisions—the trial judge.” Id. For this reason, unless a trial court uses the “magic language” set forth in Trial Rule 54(B), an order disposing of fewer than all claims as to all parties remains interlocutory in nature. See In re Estate of Botkins, 970 N.E.2d 164, 167 (Ind. Ct. App. 2012).

[13] John concedes that the trial court's September 12 order does not recite the “magic language” required by Trial Rule 54(B) and Appellate Rule 2(H)(2). However, he claims that there was no uncertainty about whether the judgment was ripe for appeal because the trial court's order specifically states that it was a “Final Appealable Judgment.” Appellant's App. p. 49. Moreover, John relies on the trial court's status order also issued on September 12 that states, “[t]he Court does not believe there are any other pending issues.” Id. at 152.

[14] But the trial court was mistaken in its belief that all pleadings had been addressed by the court. At a minimum, Craft's Amended Counterclaim and Third-Party Complaint filed on February 18, 2021, remains pending in the trial court.³ We do not disagree with John's argument that the “Appealed Orders are unlike typical interlocutory rulings.” Appellant's Br. at 18. However, we are constrained to follow our supreme court's precedent requiring strict compliance with Trial Rule 54(B). See Martin, 696 N.E.2d at 385.

[15] Because the trial court's September 12 order is not a final appealable judgment, we dismiss this appeal.

[16] Dismissed.

FOOTNOTES

1.   On May 3, 2021, Steven and Matthew filed a counterclaim against John for conversion, claiming that John had distributed Estate assets to his children without first ensuring that the terms of the Will were met. The counterclaims in the May 3, 2021, filing and resulting pleadings were dismissed in an order dated March 3, 2022.

2.   On April 13, 2022, Steven and Craft filed another counterclaim and third-party complaint against John and Lucas Rowe. This complaint is marked “filed.” It was filed in conjunction with a “Motion for Leave to File Amended Counterclaims.” The trial court granted the motion to amend but also ordered that the “Amended Counterclaim is under an automatic stay until Defendant Steven T. Fulk complies with this Court's prior Order and files a Notice of Compliance.” Appellant's App. p. 108. On March 16, 2023, the trial court ordered “Steven Fulk's pleadings ․ DENIED.” Appellant's App. p. 113Steven and Craft, or Craft individually, did not bring to the court's attention their amended counterclaims and third-party complaints that were still pending. Thereafter, on October 4, 2023, the trial court found that “all matters have been addressed and the parties should take their grievances up on appeal.” Appellant's App. p. 155. We need not decide the issue here, but even if we were to conclude that the trial court's March 16, 2023, order effectively dismissed Fulk's and Craft's April 13, 2022, counterclaim and third-party complaint, the order did not reference Craft's February 18, 2021, counterclaim and third-party complaint.

3.   Even if we accept John's claim that Steven's and Craft's April 13, 2022, amended counterclaim and third-party complaint superseded Craft's individually filed pleading, the trial court only ordered “Steven Fulk's pleadings ․ DENIED.” Appellant's App. p. 113. Therefore, Craft's claims remain pending.

Memorandum Decision by Judge Mathias

Chief Judge Altice and Judge Bailey concur. Altice, C.J., and Bailey, J., concur.