Court of Appeals waiting on slip and fall case that enraged trial judge

The personal injury case that inspired a trial court judge to declare Indiana’s civil litigation process is broken is continuing to wait for a final order so the matter can move to the appellate level.

Carroll Circuit Judge Benjamin Diener granted summary judgment to the defendants in April in a slip-and-fall case, Penny Chappey, Gregory Chappey v. Joseph Paul Storey, Complete Auto & Tire, LLC, 08C01-1904-CT-2.The judge ruled that the lawsuit should never have been filed and that it was an example of insurance companies using the courts to extract money from each other.

In the original summary judgment order Diener issued on April 5, he expressed his rage. However, on May 12, the judge issued an amended order that had removed all his comments regarding civil litigation.

As part of the April 5 order, the court stated the costs were assessed against the Chappeys under Indiana Trial Rule 54(D). The defendants were ordered to file an itemized statement of all costs within 30 days.

On May 5, Hunt Suedhoff Kearney, the firm representing Storey and Complete Auto, told the court the total cost of litigating the case was $25,293.80. Attorney Scott Bunnell told the trial court the “fees and costs are reasonable given the type of work and the factors set forth in the Indiana Rule of Professional Conduct Rule 1.5.”

However, the May 12 amended order reiterated the costs were to be assessed under Indiana Trial Rule 54(D).

Consequently, the defense firm filed a new statement of costs on June 9, noting the defendants were only seeking reimbursement for the expenses permitted under the trial rule. The revised statement set the total costs at $2,114.90.

The Court of Appeals of Indiana issued an order on July 1 in Chappey, et al. v. Storey, et al., 22A-CT-979. In part, the appellate court directed the Carroll Circuit Court to hold a hearing if necessary and to enter a final order on the costs within 30 days.

No action at the trial court has been taken since.

Also in the July 1 order, the appellate court included a single sentence denying the defendants’ motion to dismiss.

The Chappeys had filed a notice of appeal a little more than three weeks after the April 5 summary judgment order.

On May 20, the defendants sought a dismissal. They claimed the appeal should be tossed because the Carroll Circuit Court had not entered a final judgment and the May 12 order did not contain the “magic language” that would make the order appealable.

The plaintiffs filed a response, pointing out they had 30 days to file a notice of appeal from the April 5 date when the summary judgment order was issued.

“Unless plaintiffs filed their notice of appeal without waiting for defendant to file a notice of costs, they ran the risk of losing the right to appeal if defendant chose not to file for costs,” the Chappeys asserted in their response filing.

This article was first published in The Indiana Lawyer.

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