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FOR PUBLICATION

Mar 18 2013, 8:22 am

ATTORNEYS FOR APPELLANTS: BRUCE P. CLARK JENNIFER E. DAVIS KATHERINE Y. GAPPA Bruce P. Clark & Associates St. John, Indiana

ATTORNEY FOR APPELLEE: ERIC L. KIRSCHNER Green & Kuchel, P.C. Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA
CARMEUSE LIME & STONE and CARMEUSE LIME, INC., Appellants, vs. ILLINI STATE TRUCKING, INC., Appellee. ) ) ) ) ) ) ) ) ) )

No. 45A03-1211-CC-462

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable William E. Davis, Judge Cause No. 45D05-1206-CC-78

March 18, 2013

OPINION - FOR PUBLICATION

BROWN, Judge

Carmeuse Lime & Stone and Carmeuse Lime, Inc. (collectively, "Carmeuse") appeal from the trial court's order dismissing their complaint in favor of Illini State Trucking, Inc. ("Illini"). Carmeuse raises one issue which we revise and restate as whether the court erred in dismissing its complaint. We affirm. FACTS / COURSE OF PROCEEDINGS The relevant facts follow.1 On December 7, 2007, John Ruiz, an employee of Nick's Transport, a subcontractor of Illini, was injured on the premises of Carmeuse when he stepped into lime and/or other chemicals and received chemical burns. On November 30, 2009, Ruiz filed a complaint against Carmeuse in the Lake County Superior Court alleging premises liability,2 and on January 14, 2010, Carmeuse filed a notice to have the case removed to federal court due to diversity, noting that Carmeuse "is incorporated in the State of Delaware and its principal place of business is located in the State of Pennsylvania." Appellants' Appendix at 5. On November 15, 2010,

Carmeuse filed a third party complaint in the federal action against Illini alleging that at the time of the accident "there was in full force, effect, and existence a contract . . . by which Illini contracted and agreed and was required to indemnify, defend, and hold

Carmeuse's appendix does not contain a copy of the chronological case summary ("CCS"). We direct Carmeuse's attention to Ind. Appellate Rule 50(A)(2) which provides that "[t]he appellant's Appendix shall contain . . . copies of the following documents, if they exist: (a) the chronological case summary for the trial court . . . ."
1

Specifically, Ruiz alleged that he was driving a truck within Carmeuse's facility and "had to drive to the side of a road due to equipment located on the opposite side," that his truck ended up in a ditch, that he exited the truck into what he believed to be knee-deep snow, and that it was "later determined that the ditch contained `lime' and/or other chemicals, which caused [Ruiz's] legs to burn." Appellants' Appendix at 1-2.
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harmless Carmeuse." Id. at 9. Specifically, the third party complaint recited Paragraph 12.1 of the contract, which it noted was attached as "Exhibit `A,'"3 stated: Carrier [Illini] shall indemnify, defend, and hold harmless Shipper [Carmeuse], its employees, agents, representatives, successors and assigns from and against any and all judgments, costs, damages, claims, causes of action and expenses (including attorneys fees) resulting from or arising out of any injuries to persons (including death) and damage to property caused by [C]arrier's performance hereunder or the negligent acts or omissions of the Carrier, its employees, agents, servants or representatives. Id. On March 18, 2011, Illini consented to federal jurisdiction. On May 18, 2011, Illini filed a motion to dismiss Carmeuse's third party complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and brief in support, as well as a counterclaim against Carmeuse stating that Paragraph 12.2 of the contract contains a similar indemnity clause in Illini's favor for negligent acts of Carmeuse, that Ruiz's complaint alleges premises liability negligence on Carmeuse's part, and that Carmeuse "owes Illini indemnification and reimbursement for attorneys fees and expenses incurred in the defense of the underlying action and in bringing this third party counter-claim." Id. at 21. On August 4, 2011, the federal court issued an order granting Illini's motion to dismiss Carmeuse's third party complaint without prejudice, ruling that it failed to allege "any facts that Ruiz's personal injuries were `caused by [Illini's] performance [under the agreement] or the negligent acts or omissions of [Illini], its employees, agents, servants or representatives" and was "devoid of any factual allegation as to causation." Id. at 30. The order also left pending Illini's counterclaim against Carmeuse.
We note that although the contract is contained in the appellants' appendix as an attachment to Carmeuse's motion for leave to amend complaint and proposed amended complaint filed in the instant state action, it is not contained in the appendix following the third party complaint in the federal action.
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On November 14, 2011, Carmeuse filed a motion for leave to file a counterclaim against Illini,4 and on November 18, 2011 Illini moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On December 29, 2011, Ruiz and Carmeuse filed a stipulation of dismissal stating that all matters between them had been amicably settled, and on January 4, 2012, the court so ordered dismissal with prejudice and noted that the counterclaim filed by Illini remained pending. On January 18, 2012, the court entered an opinion and order denying Carmeuse's motion for leave to file a counterclaim and Illini's motion for judgment on the pleadings, and left Illini's counterclaim against Carmeuse pending. On March 1, 2012, Carmeuse filed a motion to remand the matter back to state court, arguing that the federal court no longer had jurisdiction.5 On April 18, 2012, the court issued an opinion and order declining to exercise supplemental jurisdiction over Illini's counterclaim.6 On June 26, 2012, Carmeuse filed a complaint against Illini in the Lake County Superior Court. The complaint contained substantially-similar language to Carmeuse's previous third-party complaint filed in federal court and, indeed, stated among other things that "complete diversity remains," that "[o]n or about December 7, 2007, the plaintiff herein was purportedly injured on the defendant's premises after allegedly stepping into lime," that "[t]he plaintiff was an employee of Nick's Transport," that "[a]ll of the claims against Carmeuse, as alleged in plaintiff's Complaint, are covered by the
4

Carmeuse's proposed counterclaim is not contained in the record on appeal.

Specifically, Carmeuse argued that "with respect to Illini's Counter-Claim, there is nor [sic] reason to believe, or evidence to support, that the amount in controversy . . . will amount to $75,000.00" which is a requirement for a federal court to maintain diversity jurisdiction. Appellants' Appendix at 58.
5

We note that part of the federal court's April 18, 2012 order, including the conclusion, was not included in the appellants' appendix.
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contract between Carmeuse and Illini," and that "WHEREFORE, the Counterclaimant/defendant, Carmeuse . . . prays that this Court find that the counterdefendant/claimant, Illini . . . must indemnify . . . Carmeuse . . . ." Id. at 71-73. On July 26, 2012, Illini filed a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6) and brief in support arguing that the complaint failed to meet the minimal requirements of Ind. Trial Rule 8(A) and that it made "no sense as it is doubtful that Carmeuse . . . was driving a truck or jumped into a lime pit." Id. at 78. Illini's brief also stated that Carmeuse's complaint suffered from the same deficiencies that caused the federal court to deny its motion for leave to file a counterclaim, and Illini attached as an exhibit a copy of the January 18, 2012 order. On or about August 28, 2012, Carmeuse filed a response to Illini's motion to dismiss requesting that the court deny Illini's motion and referencing its motion for leave to amend pursuant to Ind. Trial Rule 15(a) and attached and also filed a proposed amended complaint, with the contract attached. On or about September 7, 2012, Illini filed its Objections to Carmeuse's Motion for Leave to File Amended Complaint (the "Objection") and began by stating that the proposed amended complaint failed to state a cause of action because its assertions regarding the underlying claim constituted "a legal conclusion stating that there were acts or omissions by Illini and fully fails to state a short and plain statement of relief or to state any claim of actual negligence against Illini," that "the acts alleged in the proposed amended complaint are acts by Carmeuse on Carmeuse's property, which caused the injuries to Mr. Ruiz," and that "[t]he allegation that Carmeuse settled its claim with Ruiz for $7500 clearly indicates where the 5

negligence was." Id. at 122-123. The Objection also stated, under the heading "Improper Venue," as follows: The motor carrier/shipper agreement that has been attached and Paragraph 12 of that agreement cited by Carmeuse clearly does not apply. There have been no negligent acts or omissions of Illini or its agents even mentioned in any complaint ever filed by Carmeuse. However, the document at [P]aragraph 19 does say that with respect to any legal action related to this agreement, the action shall be brought and maintained in Allegheny County, Pennsylvania; to that effect, [Illini] and [Carmeuse] each hereby consent to personal jurisdiction and acknowledge venue is proper in that forum. Therefore, this matter should be filed in Pittsburgh, Pennsylvania and not in the State of Indiana. This issue was never raised in any of the Federal pleadings as Illini was a third-party defendant and the complaint against it was dismissed by the court. It is now time to point out that the agreement upon which Carmeuse claims this action is based mandates that this matter be filed in Pittsburgh, Pennsylvania. Id. at 123. On September 17, 2012, the court held a hearing on the filed motions. 7 On October 1, 2012, Carmeuse filed its response to Illini's Objection which stated in part that "for the first time in the entire course of litigation, Illini challenges forum" and that Carmeuse is "unaware of the exact reason(s) Illini waited until this juncture," but "Illini should not be permitted to raise a challenge to forum after consistently waiving any objection in every proceeding and pleading up to this point." Id. at 128. On October 4, 2012, the court issued an order stating: [Carmeuse] filed a Motion to Amend its Complaint on August 28, 2012. This amendment is sought in response to [Illini's] Motion to Dismiss
The record does not contain a transcript of this hearing. Also, as noted above, the record does not contain a CCS

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