ILNews

Court dismisses INDOT appeal for not following procedure

Jennifer Nelson
January 1, 2007
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The Indiana Department of Transportation and the State of Indiana had their appeal dismissed by the Court of Appeals today because of a technicality in following procedure.

In Indiana Department of Transportation and State of Indiana v Robert Howard, et al., 49A05-0701-CV-36, the Court of Appeals dismissed and remanded INDOT's appeal of the trial court's denial of their motion for summary judgment because INDOT did not have an interlocutory order certified by the trial court and accepted by the Court of Appeals as an interlocutory appeal.

The appeal stems from a case in which Amber Howard died when the vehicle she was driving on State Road 8 in LaPorte County went off the road and crashed in November 2002. At the time, the road was being resurfaced and paved by E&B Paving Inc., which bid on and was awarded the job by INDOT. Robert and Lynn Howard, as co-administrators of Amber's estate and individually, filed a complaint against INDOT and E&B Paving.

INDOT filed a motion for summary judgment, alleging it was entitled to judgment as a matter of law because it was not responsible for the negligence of E&B Paving. In August 2006, the trial court granted INDOT's summary judgment motion and INDOT's request to find there was no just reason for delay and direct entry of final judgment.

In response, the Howards and E&B Paving filed Trial Rule 59 motions to correct error with regard to the entry of summary judgment and in December 2006, the trial court entered an order granting relief to the Howards and E&B Paving. In the order, INDOT's motion for summary judgment was denied.

The Court of Appeals noted in the opinion that the parties proceeded under the assumption the trial court's denying INDOT's motion for summary judgment is a final appealable order under Trial Rules 54(B) and 56(C). An order denying summary judgment is not a final appealable order and can't be made into one under the trial rules 54(B) and 56(C), because no issues have been disposed of and no rights have been foreclosed by such an order, wrote Judge Margret Robb.

Instead, a party seeking a review of a denial of a motion for summary judgment must use an interlocutory appeal. INDOT had to first seek and obtain certification from the trial court authorizing an appeal from the interlocutory order and then have the Court of Appeals accept the appeal, which INDOT did not do. Because INDOT did not follow the correct procedure for brining an interlocutory appeal and this is not a final appealable order, the Court of Appeals ruled it did not have jurisdiction over the case and dismissed it and remanded it back to the trial court for further proceedings.
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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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