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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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