Noble County v. Rogers, 57A03-9903-CV-124.
Citation | 717 N.E.2d 591 |
Decision Date | 12 October 1999 |
Docket Number | No. 57A03-9903-CV-124.,57A03-9903-CV-124. |
Parties | NOBLE COUNTY, by and through the NOBLE COUNTY BOARD OF COMMISSIONERS, and Noble County Building Department, through Richard A. Adair, its Building Inspector, Appellants-Plaintiffs, v. Crystal ROGERS, Appellee-Defendant. |
Court | Court of Appeals of Indiana |
Phillip A. Renz, Diana C. Bauer, Miller Carson Boxberger & Murphy LLP, Fort Wayne, Indiana, Attorneys for Appellant.
Crystal Rogers, Cromwell, Indiana, Appellee Pro Se.
In this interlocutory appeal, Noble County (the "County"), by and through the Noble County Board of Commissioners and the Noble County Building Department, challenges the court's denial of its motion for summary judgment. We affirm.
Although the County presents three issues for our review, we address only the following dispositive issue: whether the immunity provisions of the Indiana Tort Claims Act (the "Act")1 bar a Trial Rule 65(C) action against a governmental entity for wrongfully enjoining a party.
Crystal Rogers owns real estate located in an unincorporated area of Noble County and was engaged in constructing a second story to her residence. The work was being performed by members of Rogers' family and a friend. Rogers had not applied for a building permit from the County. The County's building inspector, concerned about the stability of the structure, issued a stop work order. In November of 1996, the County then filed a complaint to require Rogers to allow an inspection of the residence and moved to enjoin Rogers from further construction activity until she obtained a building permit and complied with the Noble County Code.
In December of 1996, following a hearing, the trial court issued a temporary restraining order and entered Findings of Fact and Conclusions of Law. In response, Rogers ceased all construction, filed an interlocutory appeal, and moved out of her residence and into a rental unit. In April of 1997, we issued an opinion stating:
Rogers v. Noble County By and Through Noble County Bd. of Comm'rs, 679 N.E.2d 158, 162 (Ind.Ct.App.1997), trans. denied.
In June of 1997, Rogers filed an amended counterclaim asserting that the County's actions "resulted in [her] being wrongfully enjoined from completing a construction project upon her private residence, and forcing [her] to vacate her home and relocate her family, causing severe financial hardship to [her] and her family, and an undue delay in completion of the construction." Record at 40-41. The County filed an answer and a motion for summary judgment. The court denied the motion in an order stating:
The County asserts that the interrelationship between the Act and Trial Rule 65(C) has never been squarely addressed by an Indiana court. Thus, for guidance, the County looks to an arguably similar Illinois law and to how an Illinois court dealt with the issue. Contending that Indiana's Act should trump the trial rules, the County claims that the trial court erroneously denied its summary judgment motion. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The burden is on the moving party to establish two elements. Squires v. Utility/Trailers of Indianapolis, Inc., 686 N.E.2d 416, 420 (Ind.Ct.App. 1997). Once the movant has sustained this burden, the opponent must respond by setting forth specifically designated facts showing the existence of a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).
The party losing in the trial court has the burden of persuading us that the trial court's decision was erroneous. Beaman v. Smith, 685 N.E.2d 143, 145 (Ind.Ct.App.1997). When reviewing an entry of summary judgment, we stand in the shoes of the trial court. Squires, 686 N.E.2d at 420. We may not reverse a summary judgment on the basis of an issue of fact or evidence relevant thereto which was not specifically designated to the trial court. T.R. 56(H). Yet, if the trial court is apprised of the specific material upon which the parties rely in support of or in opposition to a motion for summary judgment, then the material may be considered. National Bd. of Examiners v. Am. Osteopathic Ass'n, 645 N.E.2d 608, 615 (Ind.Ct.App.1994).
Although the County correctly notes that no Indiana case has directly addressed how Trial Rule 65(C) and the Act mesh, a few interesting Indiana cases do exist regarding this issue. For instance, we have stated:
Howard D. Johnson Co. v. Parkside Devel. Corp., 169 Ind.App. 379, 348 N.E.2d 656, 662-63 (1976). Although the above discussion following the word "Further" is dicta since Howard D. Johnson Co. did not involve a governmental entity, the viability of a Trial Rule 65(C) claim against a governmental entity was certainly presumed.
Likewise, more recently, we assumed the viability of a Trial Rule 65(C) claim against a governmental entity.
Union Township School Corp. v. State ex rel. Joyce, 706 N.E.2d 183, 187 (Ind.Ct. App.1998) (some citations omitted), trans. denied. However, in Union, we were not presented with an argument that the Act's immunity provisions would disallow a Trial Rule 65(C) action against a governmental entity.
In City of Seymour v. Onyx Paving Co., 541 N.E.2d 951 (Ind.Ct.App.1989), trans. denied. Seymour argued that notwithstanding Onyx's possession of a valid permit to construct a plant on certain land, Seymour was immune from liability that Onyx incurred by virtue of its issuance of a stop work order. Id. at 956. We concluded that the...
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Noble County v. Rogers, 57S03-0003-CV-218.
...procedural in nature and therefore trumped the conflicting provisions of the Tort Claims Act. Noble County ex rel. Noble County Bd. of Comm'rs v. Rogers, 717 N.E.2d 591, 596 (Ind.Ct.App.1999). We granted transfer, thereby vacating the Court of Appeals decision. Noble County v. Rogers, 735 N......