Contrasting Nass, yet further enforcing the general principle stated above, are Perry v. Ballew, 873 N.E.2d 1068 (Ind.Ct. App. 2007), and State ex. rel. Steinke v. Coriden, 831 N.E.2d 751 (Ind.Ct.App. 2005). Perry involved a trial court mandate requiring a municipal sewer department to issue a permit allowing the relator to tap into a sewer line.
“An action for mandate, an extraordinary remedy of an equitable nature, is generally viewed with disfavor.” Hayes v. Trustees of Ind. Univ., 902 N.E.2d 303, 315 (Ind.Ct.App.2009) (quoting Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind.Ct.App.2007) ), trans. denied. Mandamus cannot be invoked unless the petitioner has a clear and unquestioned right to relief and the respondent has failed to perform a clear, absolute, and imperative duty imposed by law.
Public officials, boards, and commissions may be mandated to perform ministerial acts when under a clear legal duty to perform such acts.’ ” Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind.Ct.App.2007) (quoting Perry Twp. v. Hedrick, 429 N.E.2d 313, 316 (Ind.Ct.App.1981)), reh'g denied. Mandate actions exist “only where no adequate remedy at law is available.”
Public officials, boards, and commissions may be mandated to perform ministerial acts when under a clear legal duty to perform such acts.'" Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind.Ct.App. 2007) (quoting Perry Twp. v. Hedrick, 429 N.E.2d 313, 316 (Ind.Ct.App. 1981)). A motion to dismiss under Ind. Trial Rule 12(B)(6) tests the legal sufficiency of a claim, not the facts supporting it.
Nor need we address the denial of his request for mandate based on his rights as an employee. Set; Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind.Ct.App. 2007) (mandate appropriate only when "the petitioner has a clear and unquestioned right to relief and the respondent has failed to perform a clear, absolute, and imperative duty imposed by law"), reh'g denied. A party is entitled to summary judgment upon demonstrating the absence of any genuine issue of fact as to a determinative issue unless the non-moving party comes forward with contrary evidence showing an issue of fact for trial. An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.
For the same reasons, Great Lakes Transfer is not entitled to writ of mandamus. See Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind. Ct.App. 2007) ("Mandamus does not lie unless the petitioner has a clear and unquestioned right to relief and the respondent has failed to perform a clear, absolute, and imperative duty imposed by law.") (quotation omitted). Affirmed.
" Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind.Ct.App. 2007) (citations omitted) (emphasis added), reh'g denied "Put another way, mandate orders will not be granted to control the discretionary action of a public officer, board, or commission." Harmony Health Plan of Indiana, Inc. v. Indiana Dep't of Admin., 864 N.E.2d 1083, 1089 (Ind.Ct.App. 2007).
Mandate is an extraordinary equitable remedy that is viewed with disfavor. Perry v. Ballew, 873 N.E.2d 1068, 1072 (Ind.Ct.App. 2007), reh'g denied. Mandamus does not lie unless the petitioner has a clear and unquestioned right to relief and the respondent has failed to perform a clear, absolute, and imperative duty imposed by law.