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Fratus v. Marion Community Schools Board of Trustees12/27/1999
ut prejudice, because the case is being dismissed without being decided on its merits. "A dismissal under Trial Rule 12(B)(1) is not an adjudication on the merits nor is it res judicata. A plaintiff thus is free to refile the action in the same tribunal or another tribunal that has jurisdiction." Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994). However, just because the Teachers have an opportunity to refile, does not mean that this case has not been finally determined. "A final appealable order, or judgment of the court, is one which disposes of all issues as to all parties thereby ending the particular case." Doperalski v. City of Michigan City, 619 N.E.2d 584, 585 (Ind. Ct. App. 1993). The granting of a motion to dismiss is a final appealable judgment. State ex rel. Clay Community Schools v. Parke Circuit Court, 271 Ind. 266, 392 N.E.2d 804, 805 (1979). Therefore, the order of the trial court dismissing the Teachers' Amended Complaint is a final appealable order, and this appeal is properly before this court.
Standard of Review
When ruling on a T.R. 12(B)(1) motion to dismiss for lack of subject matter jurisdiction, the trial court must decide whether it possesses the authority to further adjudicate the action. Common Council of City of Hammond v. Matonovich, 691 N.E.2d 1326, 1328 (Ind. Ct. App. 1998), trans. denied. A T.R. 12(B)(1) motion to dismiss is decided based upon a consideration of the complaint, the motion, and any affidavits or other evidence submitted. Id. Further, the court may weigh the evidence to determine the existence of jurisdictional facts. Id.
"Lack of subject matter jurisdiction is an affirmative defense which may be raised in the pleadings, see T.R. 8(C), or on motion under 12(B)(1)." Perry, 637 N.E.2d at 1286. Here, the Association filed a motion to dismiss based on T.R. 12(B)(1) and the School Board filed an affirmative defense claiming the trial court lacked subject matter jurisdiction pursuant to T.R. 8(C). Thus, both defendants properly raised the issue of subject matter jurisdiction in the trial court. Moreover, "the absence of subject-matter jurisdiction is never waivable and there is a positive duty on a court, whether trial or appellate, to raise the question of subject-matter jurisdiction whenever it might appear . . ." 1 William F. Harvey, Indiana Practice §12.5 (2nd. ed. 1987). Thus, it was appropriate for the trial court to decide the subject matter jurisdiction issue regarding both defendants, even though the Association was the only defendant to file a motion to dismiss. In reviewing a trial court's dismissal of an action based on lack of subject matter jurisdiction under T.R. 12(B)(1), we review the trial court's decision de novo when the facts are not in dispute. Rieheman v. Cornerstone Seeds, Inc., 671 N.E.2d 489, 491 (Ind. Ct. App. 1996), trans. denied. The parties herein are not disputing the determining facts of this case and all parties agree that the Teachers did not file a claim with IEERB prior to filing the lawsuit at issue. Thus, our review of this matter will be de novo.
Exhaustion of Administrative Remedies
The intent of the CEEBA is to develop "harmonious and cooperative relationships between school corporations and their certificated employees," to recognize "the right of school employees to organize" and to "prevent any material interference with the normal public school educational process." Ind.Code § 20-7.5-1-1.
The CEEBA sets forth the specific rights of school employees and school employers, at Ind. Code § 20-7.5-1-6, as follows:
(a) School employees shall have the right to form, join, or assist employee organizations, to participate in collectiv
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