James v. Board of Com'rs of Hendricks County, No. 1-479A112

Docket NºNo. 1-479A112
Citation396 N.E.2d 429, 182 Ind.App. 697
Case DateNovember 07, 1979
CourtCourt of Appeals of Indiana

Page 429

396 N.E.2d 429
182 Ind.App. 697
Robert G. JAMES, Administrator of the Estate of Gerald B.
Snodgrass, Deceased, Plaintiff-Appellant,
v.
The BOARD OF COMMISSIONERS OF the COUNTY OF HENDRICKS,
Defendant-Appellee.
No. 1-479A112.
Court of Appeals of Indiana, First District.
Nov. 7, 1979.

Page 430

Vernon J. Petri, John J. Fuhs, Doyal E. McLemore, Petri & Fuhs, Spencer, for plaintiff-appellant.

[182 Ind.App. 698] Allen F. Wharry, Hollingsworth, Martin, Wharry & Pedersen, Lebanon, for defendant-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Robert G. James appeals the denial of his Ind.Rules of Procedure, Trial Rule 60(B) motion for relief from judgment or order.

FACTS

This case involves a wrongful death action stemming from the accidental death of Gerald B. Snodgrass on a Hendricks County road. The issues on appeal are concerned solely with procedural matters.

The instant case was filed in June, 1975, but the relevant proceedings began on March 15, 1978, when, along with a number of interrogatories, requests to produce, and the like, James served a request for admissions pursuant to Ind.Rules of Procedure, Trial Rule 36. James requested thirteen admissions, pertaining generally to various facts in issue, negligence, and liability. Pursuant to T.R. 36(A), the request designated that written response was due in thirty days. On April 15th the Board of Commissioners of the County of Hendricks

Page 431

(the Board) filed a motion for extension of time, pursuant to Ind.Rules of Procedure, Trial Rule 6, which was granted up to and including May 8th. The Board failed to answer or object to the request for admissions within the prescribed period.

On May 18, 1978, the Board filed a "Motion to Strike" the request. On the first day of June, James filed an objection to this motion and on June 14th, he filed a motion for summary judgment. Ind.Rules of Procedure, Trial Rule 56.

On June 23, 1978, the court heard oral argument on the motions. On July 18th, the court issued an order denying James' motion for summary judgment, denying the Board's motion to strike, and ordering the Board to answer the request for admissions and other interrogatories by August 7th. The answers were properly filed within this period.

On July 28, 1978, James filed a petition for certification pursuant to Ind.Rules of Procedure, Appellate Rule 4(B). The trial court certified [182 Ind.App. 699] the petition and stayed the proceedings. We denied the petition, pursuant to the same rule, on August 10th.

On October 3, 1978, James filed a motion for relief from judgment or order, pursuant to T.R. 60(B), alleging that the order of July 18th, insofar as it gave the Board additional time to respond and therefore denied James' motion for summary judgment, constituted surprise, was contrary to law, and would visit unfairness and undue hardship on the plaintiff.

On November 17, 1978, the trial court overruled the T.R. 60(B) motion. This constituted a final judgment, T.R. 60(C), and James filed a motion to correct errors, Ind.Rules of Procedure, Trial Rule 59, alleging an abuse of discretion. 1 The motion was overruled, and James perfected the appeal to this court.

ISSUES

Although James addresses a number of issues regarding the proper interpretation of T.R. 36, we are more concerned with a single issue regarding the proper use of T.R. 60(B): Whether James may use T.R. 60(B) to transform interlocutory orders into final orders, amenable to appellate procedure and review.

DISCUSSION AND DECISION

Ind.Rules of Procedure, Appellate Rule 4 provides:

"(A) APPEALS FROM FINAL JUDGMENTS. Appeals may be taken by either party from all final judgments of Circuit, Superior, Probate, Criminal, Juvenile, County, and where provided by statute for Municipal Courts. A ruling or order by the trial court granting or denying a motion to correct errors shall be deemed a final judgment, and an appeal may be taken therefrom. The Supreme Court shall have exclusive jurisdiction of:

(B) In all other cases, appeals shall be taken to the Court of Appeals, notwithstanding any law, statute or rule providing for direct appeal to the Supreme Court of Indiana. Also, appeal [182 Ind.App. 700] from interlocutory orders shall be taken to the Court of Appeals in the following cases:

(1) For the payment of money or to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidence of debt, documents or things in action;

(2) For the delivery of the possession of real property or the sale thereof;

(3) Granting, or refusing to grant, or dissolving or overruling...

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3 practice notes
  • Lipginski v. Lipginski, No. 4-884A234
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1985
    ...as to interlocutory orders, appeals may only be taken from final judgments. James v. Board of Commissioners of Hendricks County (1979), 182 Ind.App. 697, 396 N.E.2d 429. Generally, a final judgment is one which disposes of all of the issues as to all the parties and puts an end to the matte......
  • Abdullah v. State, No. 49A05-0505-CR-300.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 25, 2006
    ...and up to the time a decision is final may re-think its position. See, James v. Board of Commissioners of Hendricks County, (1979) 182 Ind.App. 697, 396 N.E.2d 429. Thus, the court's initial pronouncement was completely ambulatory until January 24, 1980, the time it issued its final Id. (em......
  • Johnson v. Cornett, No. 1-384A72
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1985
    ...and up to the time a decision is final may re-think its position. See, James v. Board of Commissioners of Hendricks County, (1979) 182 Ind.App. 697, 396 N.E.2d 429. Thus, the court's initial pronouncement was completely ambulatory until January 24, 1980, the time it issued its final Trial R......
3 cases
  • Lipginski v. Lipginski, No. 4-884A234
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1985
    ...as to interlocutory orders, appeals may only be taken from final judgments. James v. Board of Commissioners of Hendricks County (1979), 182 Ind.App. 697, 396 N.E.2d 429. Generally, a final judgment is one which disposes of all of the issues as to all the parties and puts an end to the matte......
  • Abdullah v. State, No. 49A05-0505-CR-300.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 25, 2006
    ...and up to the time a decision is final may re-think its position. See, James v. Board of Commissioners of Hendricks County, (1979) 182 Ind.App. 697, 396 N.E.2d 429. Thus, the court's initial pronouncement was completely ambulatory until January 24, 1980, the time it issued its final Id. (em......
  • Johnson v. Cornett, No. 1-384A72
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1985
    ...and up to the time a decision is final may re-think its position. See, James v. Board of Commissioners of Hendricks County, (1979) 182 Ind.App. 697, 396 N.E.2d 429. Thus, the court's initial pronouncement was completely ambulatory until January 24, 1980, the time it issued its final Trial R......

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