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Thursday, June 10, 2004

Indiana Decisions - One Supreme Court, Four Court of Appeals Decisions Posted Today

Angela Lockridge v. State of Indiana (6/9/04 IndSCt - PUBLISHED ORDER DENYING TRANSFER OF JURISDICTION) [Appellate Practice]

The Court of Appeals affirmed appellant’s convictions in Lockridge v. State, No. 49A02-0303-CR-191 (Ind. Ct. App. Mar. 24, 2004) (unpublished memorandum decision).

The matter is now before this Court on appellant’s petition to transfer jurisdiction. * * *

Indiana Appellate Rule 57(G) provides in relevant part: "The Petition to Transfer shall concisely set forth: . . . (4) Argument. An argument section explaining the reasons why transfer should be granted." In this case, appellant’s argument consisted of the following: "Ms. Lockridge relies on the issues as presented in his [sic] original brief in support of her Appeal." In a Petition to Transfer, mere reference to argument and/or authorities presented in brief to C/A, without an explanation of the reasons why transfer should be granted, does not satisfy Rule 57(G).

At the same time, Appellate Rule 57(G)(4) should not be read to require a party to repeat all of the arguments made in the brief to the Court of Appeals. A Petition to Transfer constitutes a request to our court to review a decision of the Court of Appeals in its entirety; the request is that the entire appeal be transferred to our court and be before us as though it had not been reviewed by the Court of Appeals. ... Given this system, the "argument" contained in a brief in support of a petition to transfer should primarily be an argument as to why the Supreme Court should grant transfer and, in a brief in opposition, as to why the Court should not. ... It is appropriate in a transfer brief to cross-reference the analysis of the merits of the underlying legal argument contained in the brief to the Court of Appeals. The Court observes, however, that the most helpful transfer briefs combine argument as to why the court should (or should not) grant transfer and argument on the merits.

Being duly advised, the Court now denies appellant’s petition to transfer jurisdiction.

The Clerk is directed to send a copy of this order to the Public Defender of Indiana; to the Indiana Public Defender Council; to the Appellate Practice Section of the Indiana State Bar Association; to the Attorney General of Indiana; to the Marion County Public Defender Agency; to counsel of record; and to West Publishing for publication in the bound volumes of this Court’s decisions.

Done at Indianapolis, Indiana this 9th day of June, 2004.
Randall T. Shepar, Chief Justice of Indiana
All Justices concur.

Bank One Trust No. 386 v. Zem, Inc., et al. (6/9/04 IndCtApp) [Real Property; Taxation]
Vaidik, Judge
Bank One Trust No. 386 (“Trust 386”) appeals the trial court’s Order granting summary judgment in favor of the City of Gary Park and Recreation Board (“the City”) and against Trust 386. First, we find that Lake Superior Court has subject matter jurisdiction to hear quiet title actions and that Trust 386 waived any objection to jurisdiction over the particular case by filing its action in that court. Next, we find that the City had a substantial interest of public record in the property sufficient to establish its standing in the case. Further, we find that the property at issue, which is currently the site of the Hudson Campbell Fitness Center, was exempt from taxes, and therefore, no delinquent taxes were due at the time of the tax sale. Thus, we affirm the trial court’s Order determining that the tax sale to Trust 386’s predecessor in interest was void ab initio. * * *

Because the Property is tax exempt, there can be no delinquent taxes. Absent delinquent taxes, the tax sale was void ab initio. Because we find that the tax sale was void ab initio, we conclude that the trial court properly granted summary judgment in favor of the City and against Trust 386. Affirmed.
SHARPNACK, J., and MATHIAS, J., concur.

Kera Rector v. Joe Oliver, et al. (6/10/04 IndCtApp) [Torts]
Sullivan, Judge
Appellant-Plaintiff, Kera L. Rector, challenges the trial court’s grant of summary judgment in favor of Appellee-Defendant Judy Kadinger d/b/a Joe’s Video (“Kadinger”). We reverse and remand.

The basic facts necessary for our decision are undisputed. On February 12, 2000, Rector entered Joe’s Video, owned by Kadinger, and was struck on the head and shoulder by a light fixture which fell from the ceiling of the store. Thereafter, on January 30, 2002, Rector filed a complaint against Kadinger. Count I of the complaint alleged that the defendants were negligent for failing to maintain the video store in a reasonably safe condition and for failing to discover a dangerous condition. Count II, titled “Doctrine of Res Ipsa Loquitur,” alleged that the light fixture was in the exclusive control of the defendants and subject to their use and inspection, that Rector did nothing to cause the light fixture to fall, and that “[i]n [the] ordinary experience of mankind, the light fixture would not have fallen from the ceiling except for the negligence of Defendants or that of others for whose negligence they are legally responsible.” * * *

Upon appeal, the sole issue for our review is the propriety of the trial court’s grant of summary judgment in favor of Kadinger. * * * The resolution of the issue before us depends upon whether the doctrine of res ipsa loquitur is applicable to the facts in the present case. * * *

It may well be that there was a concealed defect in the manner in which the light fixture which fell was installed. However, a jury may still reasonably infer that the most probable cause was Kadinger’s negligence in permitting the light to become defective. * * * In the case at bar, the falling light fixture is more akin to a falling piece of plaster than an undiscoverable tack inside a blueberry. Again, we are not prepared to say as a matter of law that the defective condition of the light fixture was undiscoverable by reasonable inspection and maintenance. The judgment of the trial court is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.
ROBB, J., and HOFFMAN, Sr.J., concur.

City of Lawrenceburg v. Milestone Contractors, L.P. (6/10/04 IndCtApp) [Contracts]
Riley, Judge
Lawrenceburg raises one issues on appeal, which we restate as follows: Whether the trial court correctly interpreted the construction contract between the parties as a basis for its entry of summary judgment in favor of Milestone upon Milestone’s claim for additional compensation, and the trial court’s denial of Lawrenceburg’s cross-motion for summary judgment advocating a different interpretation of the construction contract. * * *

Therefore, in light of the clear and unambiguous language of the contract documents, we find that there is no genuine issue of material fact. * * * Based on the foregoing, we conclude that the trial court properly granted summary judgment in favor of Milestone.
Affirmed.
BAILEY, J., concurs.
DARDEN, J., dissents with opinion:

* * * I turn to the law of contracts. It is a court's duty to interpret a contract so as to ascertain the intent of the parties. First Fed. Sav. Bank of Ind. v. Key Markets, 559 N.E.2d 600, 603 (Ind. 1990). We must accept an interpretation of the contract which harmonizes its provisions as opposed to one which causes the provisions to be conflicting. In interpreting a written contract, the court will attempt to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties. When a contract is clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made.

I would find that consistent with the intent of the parties, Addendum 2 provided that in the event the successful bidder had to install more than 4,096 LF of pilings in order to meet the required load bearing capacity, then the additional quantity would be paid for at the rate of $60 per lineal foot. Therefore, I would reverse the trial court and order that summary judgment be granted to the City.

Connie Burke v. Timothy Burke (6/10/04 IndCtApp) [Family Law]
Riley, Judge
Mother raises two issues on appeal, which we consolidate and restate as follows: whether the trial court abused its discretion by modifying Father’s child support obligation due to a change in circumstances. * * *

Here, the record shows that Father obtained a new position as an assistant football coach, earning $10,000.00 less than his prior job. However, there is no evidence or finding that Father left his higher-paying job to avoid paying child support or to punish Mother or the children. To the contrary, Father lost his position as an assistant football coach at the University of Tennessee at Chattanooga because the head coach lost his job, not because he performed poorly. Due to the nature of the college coaching positions, when the head coach is fired at a college program, the assistant coaches are usually fired as well. The record shows where despite his efforts, Father was forced to accept a lower paying job in the industry within which he had skills and expertise. “It is not our function to approve or disapprove of the lifestyle of these parties or their career choices and the means by which they choose to discharge their obligations in general.” In re Buehler, 576 N.E.2d 1354, 1356 (Ind. Ct. App. 1991).

Further, the record reveals that at the hearing, Father presented evidence that he was on a “tight” budget and after all monthly bills were paid, he had very little discretionary income left. As a result, he was financially unable to visit his children as he wished, who relocated to New York.

Accordingly, based upon the undisputed facts and circumstances, we find that the trial court correctly determined that Father’s decrease in pay was a substantial change in circumstances. Consequently, we conclude that the trial court did not abuse its discretion by granting Father’s Petition to Modify Child Support Obligation. * * * Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.

Posted by Marcia Oddi on June 10, 2004 02:18 PM
Posted to Indiana Decisions