 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kelly v. Levandoski4/18/2005
to file an appellee's appendix that included his designated evidence. Kelly is wrong.
The purpose of the appendix in civil appeals is to provide us "only those parts of the record on appeal that are necessary for the Court to decide the issues presented." App. R. 50(A)(1). "The appellant's Appendix shall contain . . . copies of the following documents . . . (f) pleadings and other documents from the Clerk's Record in chronological order that are necessary for resolution of the issues raised on appeal." App. R. 50(A)(2)(f).
That rule means "when appealing the grant or denial of a motion for summary judgment, it is not sufficient for the appellant to include in the appendix only those documents designated by it to the trial court." Thomas v. N. Cent. Roofing, 795 N.E.2d 1068, 1070 n.1 (Ind. Ct. App. 2003). "Rather [appellants] should [include] within their appellant's appendix all documents relating to the disposition of the motion for summary judgment, including any documents that [appellee] designated and filed with the trial court." Id. Recently, when an appellant failed to provide the documents designated to the trial court by the appellee, we determined the appellant waives his claim the trial court erred by granting summary judgment. Yoquelet v. Marshall County, 811 N.E.2d 826, 830 (Ind. Ct. App. 2004); see also Hughes v. King, 808 N.E.2d 146, 148 (Ind. Ct. App. 2004) (dismissing appeal of grant of summary judgment when appellant failed to include all designated evidence in the appendix).
However, we prefer to decide issues on their merits when possible. Hughes, 808 N.E.2d at 147. App. R. 49(B) provides: "Any party's failure to include any item in an Appendix shall not waive any issue or argument." Despite Kelly's failure to provide the evidence Levandoski designated to the trial court in response to Kelly's motion for summary judgment, Levandoski provided the documents in his Appellee's Appendix. Accordingly, we may decide the issue on the merits.
Kelly argues the trial court erred when it denied his motion for summary judgment. "The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law." Branham v. Celadon Trucking Serv., Inc., 744 N.E.2d 514, 521 (Ind. Ct. App. 2001), trans. denied 753 N.E.2d 16 (Ind. 2001). A trial court should grant summary judgment if the pleadings and designated evidence demonstrate "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). Any doubts about the existence of material issues of fact must be resolved in favor of the non-moving party, which here is Levandoski. SLR Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193, 198 (Ind. Ct. App. 2001).
The party moving for summary judgment has the initial burden to set forth evidence demonstrating no factual issues exist. Branham, 744 N.E.2d at 521. Then, the burden shifts to the nonmoving party to produce evidence demonstrating an issue of fact exists. Id. The nonmoving party may not simply rest on the pleadings; rather, he or she must designate evidence to the trial court. Id.
We review the trial court's decision applying the same standard applied by the trial court. SLR Plumbing, 757 N.E.2d at 198. In addition, our review is limited to the evidence designated to the trial court. Id. We may affirm on any theory supported by the evidence designated to the trial court. Branham, 744 N.E.2d at 521.
Levandoski filed an action against Kelly to recover payment for his storage of the Browns' van for four years. Contracts are formed when parties exchange an offer and accept
Page 1 2 3 4 5 6 7 8 9 10 11 Indiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|