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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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