*1 may, adequate there that as Be two which are than the other aggravators sentences, for the enhanced
inadequate bases and the fact prior criminal record
Angle’s at the time he probation
that he was on bases, adequate these offenses are
committed so, im- minimally for the sentences
albeit
posed.8 RAILROAD
GRAND TRUNK WESTERN Enos, Appellants-
CO., and Richard
Defendants, KAPITAN, Special Adminis Lee
Tamera Rudolph J. Ka
tratrix of the Estate of Deceased, Appellee-Plaintiff.
pitan,
No. 45A03-9709-CV-336. Appeals of Indiana.
Court of
Aug.
Ind.,
(1995)
As noted in Sta
only
aggravating
Robert G. Sean E.G. P.C., Konopa Murphy, Bend, & South for Appellants-Defendants. Allen, Brammer,
Kenneth J. James E. Associates, P.C., Kenneth J. Allen Valpa- & raiso, Appellee-Plaintiff. for OPINION GARRARD, Judge. Western Railroad Co. and Trunk”) (collectively
Richard Enos “Grand Court’s denial of motion to dismiss and its of Tam- Kapitan’s (“Kapitan”) era Lee petition for a preliminary injunction.
We reverse and remand.
FACTS 6, 1988, On November husband Rudolph was killed when his car was struck by one of Grand Trunk’s trains. filed suit Supe- in Lake rior but the case was transferred to April Circuit Court on original complaint, In her Kapitan alleged that Grand negligent having- Trunk was for devices, inadequate warning failing to main- trains, tain a clear of approaching view failing to sound the train whistle. On No- 28, 1994, vember filed a motion summary judgment. Eight months later granted partial Circuit Court summary judgment in favor of Grand Trunk devices, improper warning the issue of but summary denied Grand Trunk’s motion for remaining on the two claims. Ka- certify II. petitioned trial court Whether pitan interlocutory Kapitan’s petition summary judgment granting erred partial deny- petition. appeal. The trial court denied this ing Trunk’s motion to dismiss. *3 immediately attempt appeal to III. Trunk was Whether Grand entitled summary judgment without grant partial of pursuant attorney’s to fees to trial, Kapitan costs of a and the additional 65(C). Indiana Trial Rule into an to Grand Trunk entered remaining two dismiss without DISCUSSION agreement stated that claims. The summary grant partial of event that I. Waiver appeal, Kapitan judgment reversed on was we Trunk’s claims Before discuss Grand on or would able to refile reinstate her suit. be appeal, Kapitan’s we claim first turn to that Jasper Kapitan appealed then Circuit any objection Trunk to Grand has waived summary partial judgment. grant Court’s of Superior jurisdiction Lake over this- Court’s 1997, 11, April we reversed the trial On particular Kapitan ease. claims because summary partial judgment grant court’s challenge the Grand Trunk did not Lake improper in a on issue of devices Superior jurisdiction through Indiana Court’s opinion.1 Pursuant to our de- memorandum 12(B)(6), Trial Rule Trunk waived Grand its cision, its Jasper Circuit Court amended argues In response, claim. order Trunk’s motion for sum- to Grand that its motion based on Indiana to dismiss mary judgment. 12(B)(8) specific, timely Trial Rule was a 22, 1997, Kapitan May On filed suit objection Superior juris- to the Lake Court’s Trunk Lake Grand diction sufficient to avoid waiver. presented claims in the alleging the same waiving a order to avoid chal Jasper Grand Trunk filed a Circuit Court. lenge to a trial court’s a suit, arguing motion this to dismiss case, specific must make a particular party a 12(B)(8) fifing Indiana Trial Rule barred the juris timely objection the exercise of and to lawsuit in the Lake Harp Dept. High Indiana diction. responded to Kapitan this motion 652, ways, (Ind.Ct.App. 585 659-60 preliminary injunc- and for filed 1992). at challenge Such must be made compel Trunk to its tion Grand abide opportunity first in order to avoid waiver. Kapitan. Eventually, with instance, Kapitan does not Id. at 659. In this Lake denied Trunk’s Superior Court Grand dispute objection was granted peti- motion to dismiss timely, argues that it was not but instead injunction. Sep- tion On objection sufficiently specific was because 10,1997, tember after Grand Trunk had filed Indiana Trial Rule through not made praecipe its with the Lake 12(B)(6). argues that the Trunk most Kapitan any to dismiss filed a motion action motion specific premise trial rule Jasper At pending still in the Circuit Court. Trial Rule dismiss was Indiana opinion, Jasper the time of this 12(B) 12(B)(8). provides: Trial Rule Indiana upon Kapitan’s Court has not ruled motion.
(B) fact, defense, Every or to a law any pleading, whether a claim relief in ISSUES claim, counterclaim, cross-claim, or third- This raises three issues which we in the party claim, be asserted re shall restate as: if one is re sponsive pleading thereto option of at the any quired; except waived ob- I.Whether pleader, following defenses jection to the Court’s by a Kapitan’s suit. made motion: 364, 11, (Ind.Ct.App. April v. Grand Western N.E.2d 1299 Tamera Lee Enos, 1997). Railway Co and Richard 37A03-9511-CV- Hunter, pending action The same another er v. Ind.App. (1973). state court of this state. “The are then re position stored to they held before the Grand Trank’s motion to dismiss was based pronounced and must take the fact that believed the same action places point the trial court at the pending was still Circuit Court. occurred, where the error proceed to a 12(B)(8), By using Trial Rule Grand Trank Doughty decision.” Department v. State specific utilized the most trial rale to raise its Welfare, 475, 121 Public 233 Ind. challenge juris- Court’s (1954). After our reversal of particular diction over the case. Because partial Circuit Court’s summary Grand Trank’s motion to timely dismiss was *4 judgment, Kapitan’s improper warning de sufficiently specific, Grand Trank did not vice claim Jasper returned to the Circuit objection waive its to the Lake Court. Id. As of appeal, the time of this jurisdiction particular Court’s over this case. Kapitan’s improper warning device claim re II. Jurisdiction mained Jasper viable the Circuit Court. Trank argues Superi- that the Lake time, At the same the same claim had been by granting Kapitan’s or Court erred Thus, filed the Lake Court. the preliminary injunction by denying question becomes whether two courts its motion to Jasper dismiss because the jurisdiction maintain concurrent over the jurisdiction Circuit Court exercised exclusive same claim. essence, over this case. jurisdiction contends that over this Indiana, case re- when two courts have Jasper turned to the Circuit Court when we jurisdiction case, concurrent over a the court Jasper grant reversed the Circuit Court’s of acquiring jurisdiction first is considered to partial summary judgment jurisdic- and that jurisdiction have exclusive over that case. relinquished. tion was never Kapitan con- Pivarnik v. Northern Indiana Public Service that agreement tends the par- Co., between the 131, 135 (Ind.1994). 636 N.E.2d “Once a clearly provided ties refiling for the acquired court has jurisdiction exclusive over and, thus, suit another court case, there was no a the pending case is in that court error. 12(B)(8).” within meaning the of Trial Rule Id. The court in which a case is first insti A trial court’s grant decision to or tuted has exclusive over the case. is left to the sound discre instance, Id. In this Jasper the Circuit tion of that court and the trial court’s deci acquired jurisdiction first over this only sion will be upon reversed an abuse of and, above, case as discussed never relin that Hayworth discretion. v. Schilli Leas quished jurisdiction improper Inc., 165, 167 (Ind.1996). ing, 669 N.E.2d An warning device claim. abuse of discretion occurs when the trial court's clearly against decision is logic Kapitan argues regardless that of and effect of the facts and circumstances or if which acquired court first jurisdiction, misinterprets the trial court the law. Id. parties’ agreement provided Kapitan that reviewing dismiss, When a motion to could refile the entire suit in another court. alleged takes the facts complaint “Once a court competent jurisdiction of ac grant as true and will the motion to dismiss quires jurisdiction cause, jurisdic only appears where that under no set of court, tion cannot be upon conferred another plaintiff facts could the granted relief. St. even parties.” Ingoglia of Center, Mary Casko, Medical Inc. v. Fogelson Inc., v. The Companies, 530 N.E.2d (Ind.Ct.App.1994). With 1190, 1196 (Ind.Ct.App.1988) (emphasis add mind, these standards review in we turn to ed). parties Because the could not confer Grand Trunk’s claims. improper over the warning de an appellate When court reverses a upon Court, vice claim decision, trial court’s that reversal Jasper vacates juris Circuit Court retained exclusive and nullifies the trial court’s decision. Hunt- diction over that claim unless the same warning device additional claims based stipulated improper death, event, prejudice appear after Rudolph’s and would claim was dismissed without essentially to the the same evidence. The it was returned involve immediately appeal parties’ efforts ques interpretation is a Contract improper device claim and the by the court. tion of law to be determined agreement’s provision that could re- Nuckolls, Ins. v. One USA Life if only or her suit file reinstate (Ind.1997). 534, 538 terms contract’s When partial summary improper on the simply unambiguous, we will are clear and reversed, points warning device claim was The apply provisions. contractual Id. the conclusion considered contract particular phrases words and issue in the issue to be central we will will not be read isolation and remedy sought by Kapitan in lawsuit. The parties’ intentions consider determine award, actions, money would be the both Wendy’s Fort ing as a whole. contract We hold that the actions well. Wayne, Fagan, Inc. v. pending Circuit Court and the agreement, (Ind.Ct.App.1994). In the substantially the Court were parties agreed dismiss without same action. The Lake summary judg *5 two which the claims therefore, by denying erred granted. agreement The ment not been had motion to dismiss because the could refile or rein then stated the retained exclusive Court if the court’s state her cause of action trial action. agreement The did was reversed. not, however, Kapitan’s improper dismiss Attorney’s Fees III. provide that claim or device if without claim would be dismissed brief, requested Trunk its summary judgment reversed. the order was attorney’s pursuant to Indiana Trial fees improper warning claim 65(C). Because the device 65(C), Rule Indiana Trial Rule Under parties, jurisdiction not dismissed the to the party legal is recover fees entitled in the claim remained Cir over that defending wrongful in in against incurred Supe cuit Court to the exclusion of the Lake junction. Hampton Morgan, v. 654 N.E.2d claim, Contrary Kapitan’s above, rior Court. to 8, 10 (Ind.Ct.App.1995). As discussed jurisdiction over agreement could not confer by granting Court erred upon the improper warning claim device preliminary injunc for a Ingoglia, Lake 530 is, therefore, to entitled tion. Grand not at 1196. Because the could defending in legal fees incurred recover this case be used to confer injunction. Id. We against Superi- in the Lake Lake instructions to determine remand with grant or Court abused discretion when appropriate legal fees. preliminary injunction enforcing the
ed a
Reversed and remanded.
purported to confer
which was
in
court.
jurisdiction over
lawsuit
J.,
HOFFMAN,
concurs.
Hayworth,
v. further an sets a believe such award bad (injunctive relief precedent by punishing litigants for an error essentially protection is from future or such, part and, augurs injury). an threatened Whether chilling litigants. effect I would injunction within rests the sound discretion fees, request attorney par- leave the Schlehuser, court. at trial them, ties where we found and let matter proceed just to a trial resolution in the court. 65(C), party Rule Under Indiana Trial attorney’s damages, including recover
fees, However, wrongful injunction. I
do not believe this case “wrongful”
should be characterized as so as attorney
to warrant award of The fees. years, facts of this case date back ten with GALANIS, Appellant- Michael J. litigation multiple courts. The instant Defendant, Cross question Kapitan’s ability proceed with her cause of action *6 interpre- Court involved the TRUITT, Appellee-Plaintiff, LYONS & legal agreement tation of a between parties. The trial court called
interpret the intent of the and the Brown, Appellee- Suzanne application applied of the law in- Defendant/Cross- tent, a task with which it had some difficul- Claimant. ty. law, pure question The matter was a regardless lay of whether venue No. 64A03-9704-CV-115. Jasper County, Lake or questions Court Appeals of Indiana. likely or issues were to arise until resolved appellate Consequently, per- an court. I Aug. ceive harm flowing no from Rehearing Denied Oct. seeking course of action in clarification or to a legal question answer through system, inasmuch as property rights civil and impinged were not any manner. attorney
I find the award of fees in this
case to an elevation form over sub-
stance. The action of the Lake
Court we now find to be erroneous had no
different, harmful, nor more effect than
action of Court in granting Trunk,
partial summary judgment to Grand
an action also found to be erroneous. The required Kapitan
latter to this relief, attorney
court for benefit of without
fees, in rectify part error on order 65(C),
of the court. Yet to T.R. reference