"inasmuch as the issues regarding the protective order were not certified for appeal . . . we decline to address those claims and grant the Library's motion to dismiss that portion of appeal"
How later courts described this case
- "inasmuch as the issues regarding the protective order were not certified for appeal . . . we decline to address those claims and grant the Library's motion to dismiss that portion of appeal"
Written by the judges who cited it.
The opinion
*1281 SULLIVAN, Judge,
concurring in result.
'It is undisputed that in dismissing Thornton's Motion for Preliminary Injunetion, the trial court concluded that Thornton's adequate remedy at law lay within Trial Rule 34. More to the point, T.R. 34(A)(2) permits entry onto a premises for purposes of testing.
Although the majority holds that matters concerning the issuance of the protective order in favor of the Library are not properly before us, it is equally undisputed that the trial court did indeed issue such order preventing Thornton from entering the project premises in order to conduct load tests.
The result of the protective order, although not properly before us as to the merits thereof, was undeniably to remove the remedy of T.R. 34(A)(@2) from Thornton's remedies at law.
Notwithstanding this glitch in the interrelationship 'between dismissal of the Motion for Preliminary Injunction and denial of Thornton's request to enter the premises for purposes of testing, the dismissal of the Motion for Preliminary Injunction was appropriate because Thornton failed in other respects to carry its evidentiary burden.
For this reason, I concur in result.