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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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