*1 against and City the in favor judgment ex is tax property state-owned "because 386. Trust property state conveying deed a tax empt, that fact initio, the despite void, ab was Affirmed. Belo party." in another was title record this From n. 2. J., 290 MATHIAS, at vich, J., N.E.2d SHARPNACK, 504 that resolved court Belovich the premise, concur. void tax deed Beloviches' the "holding legally the therefore, seem
would, ORDER result[.]" correct motion, withdraws Court, its own on The opin- Publication Not for the and vacates the that Likewise, Property the hereby 2004, May on ion issued condemnation through acquired City of this the date as of opinion publishes fitness municipal aas and uses proceeding order. rendering thereby exempt, is tax facility for a Petition period to for Property thirty-day conveying deed tax of no It is shall Transfer to ab initio.4 Petition Rehearing or void 386 Trust order. of this the date title was from run begin the record to that consequence tax sale. time at the party another Judges Concur. Panel All im law Indiana that
Moreover, note we informa all of land purchaser ato putes by an conveyed have been would
tion v. Kessen premises. view
actual (Ind.Ct.App. 317, 320
Graft, viewing the By
1998), denied. trans. on been have would Trust
Property, property city was Property notice LAWRENCEBURG, OF CITY or, mini at a municipal purpose used Appellant-Defendant, that it off tipped mum, have been further Property investigate to needed informa From its status. clarify to CONTRACTORS, MILESTONE have ascertained tion, 386 could Trust L.P., Appellee-Plaintiff. from taxation exempt was Property de 15A01-0308-CV-313. to sale No. therefore, subject and, taxes. linquent Indiana. Appeals Court exempt, is tax Property Because 10, 2004. June Absent taxes. delinquent no can be there ab was void sale taxes, the tax delinquent tax sale find that we Because
initio. initio, conclude we ab
was void granted properly court trial prede- 386's Trust deed to a tax to issue ditor can ab initio something that is void 4. Because Kondamuri, time, Trust reason, same For any see challenged at in interest. cessor erred court the trial argument that 386's summarily reject NE.2d suppress in limine its motions denying City waived its argument that 386's Trust on evidence, premised were which reject Prop- title to challenge 386's Trust right to timely attack to launch City's failure Circuit the Lake failing appeal erty by sale, well. County Au- fails tax directing Lake Order Court's *2 Zerbe, Matthew P. Office, Zerbe Law IN, Lawrenceburg, Attorney for Appel- lant. consist- part of A substantial Stephen Hoffman, Carmel Robert J. HP 44 steel driving supplying ed: & Harrison Indianapolis, Lepage,
D. support structural provide pilings 12x53 Appellee. for LLP, Attorneys Moberly, spec- piers. abutments bridge called documents in the bid ifications *3 OPINION into the driven pilings of these each elevation) (tip depth whatever RILEY, to Judge. ground bearing a load provide to required was Specifically, 70 tons. at least of capacity CASE THE OF STATEMENT that: 1.B, 02000, provides § specification Lawrence- City of Appellant-Defendant, HP shall bridge pile all [pliling: trial the (Lawrenceburg), appeals burg A- conforming to ASTM sections 12x53 in summary judgment of award court's driven shall be Piling Specifications. Con- Milestone Appellee-Plaintiff, of favor and shown and location to batter regards (Milestone) with tractors, L.P. noted on as capacity bearing under compensation for its claim dynami- shall be pile[s] All plans. contract. construction a as capacity bearing for cally monitored affirm. We investiga- geotechnical in the fort[h] set Nutting Co. by H.C. report
tion ISSUE added). 80) (emphasis p. App. (Appellant's and S-9 S-8 plans on ap- The notation on issues one raises Lawrenceburg further detailed: Whether follows: as restate which peal, and interpreted 12x53 correctly HP [njote: piles court [be] shall trial All tip eleva- parties a minimum between shall be contract construction capacity judg- summary pile and entry of its tion for a basis as 34.0ft of upon Mile- of Milestone 70 tons. in favor ment compensation, for additional claim 86, stone's App. pp. (Appellant's Lawrence- court's denial trial and the judg- for cross-motion burg's investigation However, geotechnical different advocating a ment Report), (Nutting Nutting H.C. by report contract. construction draw- and specifications to in referred section within included ing note HISTORY PROCEDURAL AND FACTS two different manual, described pile and tip elevations estimated 16, 2001, Law- January about On or 70 ton to achieve lengths lump sum and received solicited renceburg in esti- This difference bearing capacity. railway aof construction for bids on Lawrence, depended tip elevations mated in Front Street over bridge form plug a or whether Various Indiana. County, Dearborn burg, installed: it was top were for documents form- plug awith (1) 34.0 feet tip elevation Law- either by assembled prepared feet minus 5 (2) tip elevation consultant, ing, and engineering renceburg App. forming. plug made without (Hrezo), Co. Engineering Hrezo fur- documents 28-4). pp. in- documents These to bidders. available quanti- estimated a table ther contained pro- plans, drawing construction cluded Hrezo, 11 different for ties, prepared specifica- containing detailed ject manual an estimated work, including elements materials. written tions, other quantity 4,096 (LF) linear feet the Nutting Report, should be used as HP work, 12x58 which would trans- pile tip elevation. late to an average piling depth of about 93 2, July 2002, On Milestone filed its Com- feet. plaint against Lawrenceburg demanding 2, 2001,
On February payment of days $102,960.00. three the remaining before due, bids were Lawrenceburg and Thereafter, Hrezo 25, 2003, March issued addendum # filed its which Motion Summary stated in per- Judgment, accompanied by a designation of materials part: tinent and brief in support of the motion. On [in the event that the specified pile tip April 2003, Lawrenceburg responded elevation is reached and adequate by filing its Motion for Summary Judg- *4 soil bearing capacity is yet mot ment, designated materials and brief in achieved, as witnessed opposition to Milestone's Motion and in engineer and geotechnical engineer, support of Lawrenceburg's cross-motion the contractor shall be paid for an addi- summary judgment. 28, May 2003, On tional HP 12x53 pile required at Milestone filed a reply 11, brief. On June a rate lineal foot. 2003, the trial court conducted a hearing (Appellant's App. p. on the cross motions for summary judg- On 5, or about February 2001, Milestone ment. Subsequently, 7, July 2008, submitted a lump $865,600.00 sum bid of to trial granted court Milestone's Motion for perform in accordance with the Summary Judgment, and denied Law- provisions of the contract documents. renceburg's cross-motion. Lawrenceburg accepted Milestone's bid Lawrenceburg appeals. now Additional it awarded the contract for the con- facts will provided necessary. as struction of the Front bridge Street pro- ject. Following award, 21, on March DISCUSSIONAND DECISION 2001, parties both entered into and execut- ed a written contract. I. Standard Review
During performance work, Summary judgment is appropriate only 4,561.72 Milestone drove a total of LF of when there are genuine no issues of mate piling to specified achieve the 70 ton load rial fact and the moving party is entitled to bearing capacity for each of the 44 piles. a judgment as a matter of law. Ind. Trial Of amount, 2,865.48 this LF 56(C). was driven to Rule In reviewing a trial court's the 34.0 ft pile minimum tip elevation, and ruling on summary judgment, this court an 2,196.24 LF was driven below stands in the shoes of court, the trial ap such 34.0 ft. tip elevation to an actual plying the same standards in deciding depth which specified achieved the 70 ton whether to affirm or reverse summary soil bearing capacity. Consequently, pur- judgment. Family American Mut. Ins. suant to 2, addendum # Milestone request- Hall, Co. v. 780, (Ind.Ct. 764 N.E.2d 783 payment ed from Lawrenceburg in App.2002) trams. Thus, denied. on appeal, $131,774.40 amount of 2,196.24 for the LF we must determine whether there is a of additional piling driven below the 34.0 genuine ft issue of material fact and whether tip elevation point. Howev- the trial court has correctly applied the er, Lawrenceburg approved only law. so, Id. In doing we consider all of the $28,814.40 of claim, Milestone's stating designated evidence in light most f2- elevation, minus 5 ft specified as vorable to the non-moving party. Id. The
883 upon grant appealing party com- for additional the calculation persuading which has the burden judgment #2 should be ruling was addendum pensation court's under the trial court that grant of Accordingly, the based. improper. if be reversed must
summary judgment applica incorrect ascertaining an the contract's discloses record Ayres v. facts. See the law thereof, tion of lack we consider clarity, or document, just disputed Dep.'t, lan Fire Heights Volunteer whole Indian (Ind.1986). 1229,1234 Inc., Personnel, 493 N.E.2d Century Robinson v. guage. 1268, (Ind.Ct.App. Inc., 1270 N.E.2d 678 of a Generally, the construction of con 1997), Construction trans. denied. of law for question ais written any render language that would tract summary judg for which court the trial words, ineffective or terms phrases, Mid appropriate. particularly is ment avoided. See should be meaningless Co., 629 N.E.2d v. Lumber Bank State 84 Blevins, Co., L.P. Gaming Indiana However, if (Ind.Ct.App.1994). trans. (Ind.Ct.App.2000), ambig are of a written the terms that all presume "Courts should denied. the trier of uous, responsibility it is the *5 there in a contract are included provisions necessary to the facts to ascertain fact and, reconcile possible, if a purpose Consequently, Id. the contract. construe give ef- conflicting provisions to seemingly granted based is summary judgment when Furthermore, Id. provisions." all feet to con of a written construction upon the contract, of the in its either determined tract, court has the trial par attempt to determine court should contract is that the matter of law as a contract from entering a intent when uncertain, the con ties' or that ambiguous or four corners exists, re within expressions can be their if ambiguity, one tract Samar, determi of a factual the aid See without instrument. solved the written 1286, 1290 Hofferth, 726 Inc. v. nation. trans. denied. (Ind.Ct.App.2000) the trial that Lawrenceburg now claims summary judg- granting in court erred that both note At the outset we Law- Specifically, ment to Milestone. only issue to be parties agree specified renceburg asserts legal proper meaning decided is 2,# elevation, in addendum mentioned tip in addendum of the words construction eleva- tip not refer does ele 2, establishing specified # Rather, Lawrenceburg ft. of 34.0 tion piling line between boundary as the vation specifications the contract contends lump sum by the covered work LF of steel. and 4096 pilings call depth the additional amount maintains, that Therefore, Lawrenceburg bearing ton load the 70 to achieve required formula, simple mathematical on a based Article I and V Although Article capacity. be an pilings knew bidders Law- between executed the contract reach long and would ft average 98.09 all the enumerate Milestone renceburg and Conversely, minus 5 ft. an elevation are documents, materials these contractual that, according to asserts to a definition silent as mini- interpretation, of contract rules tip elevation.1 read ft must be of 34.0 tip mum elevation issues, parties' govern the none speci- ments though V of the contract Article 1. Even clarify which documents appendices briefs or docu- the contract in which fies the order Nevertheless, agree we with the trial elevation using would be based on LF specified pile tip court that the pilings, of steel for 44 Lawrenceburg tip refers to the minimum elevation to, of 34.0 urges us then the inclusion of a mini- particular, specification ft. mum elevation of 34 ft meaning- would be 1.B, § expressly states that the "[pliling less and moot. See id. shall be to batter and location Additionally, we find Lawrenceburg's re- bearing shown and to the minimum capac- Nutting liance in Report an attempt ity plans" (Appellant's as noted on the argument bolster without merit. added). App. p. Reviewing Nutting Report The states that in the bidders, plans provided espe- to all event a plug tip forms at the cially "piles note the statement shall installed, as it tip is a elevation of be driven to a minimum tip elevation of 34.0 ft hand, suffices. On the other if no pile bearing capacity of 70 34.0 ft. forms, plug a tip elevation of minus 5 ft is 88) (em- tons." App. pp. necessary. Nonetheless, our review re- phasis interpret We this to mean veals that the Nutting Report only serves that if the 70 ton capacity was not very limited function and should not be upon tip ft.,
reached elevation of 34 considered as a contract specification for Milestone would have to continue to drive performed: the work pilings until bearing ca- [Nutting report] prepared is pri- pacity was attained. In order to correct marily to aid the design of work site problems inherent requir- associated with and structural Although foundations. ing an lump pricing all-inclusive sum the information in report expected is cover unknown piling depths, addendum to be sufficient for purposes, these if is #2 further elaborated that if speci- "the *6 not intended to determine the cost pile fied tip elevation is reached and the of construction or to stand alone as a con- adequate soil bearing capacity yet is not specification. tract achieved," Lawrenceburg shall make an payment of LF. (Appel- 39) (Appellant's added). App. p. App. p. lant's Moreover, in explaining the different ele- Furthermore, vations, our Nutting review of the the Report made the fol- documents lowing discloses that the tip minimum statement: elevation of 34.0 ft. is only elevation [Discussing pile tip the 34 ft elevation] figure Thus, included in these documents. pile Research and load suggest tests since the "specified" word refers to an driving when H-piles into dense to previously mentioned, item specified sands, very dense that the soil tends to pile tip elevation can nothing mean else wedge flanges between the of the H- than the tip minimum elevation 84of ft. section, and a "plug" forms. The entire
Moreover, mindful that all provisions in- "enclosed box" of the H-section end area cluded in the contract are there for a is used compute bearing capacity. purpose, we cannot interpret but this mini- Using method, the H-pile will mum tip elevation specified capacity achieve at higher a elevation. tip Co., elevation. See Indiana Gaming opinion It is our that this repre- case is 724 N.E.2d at If specified 278. tip sentative site. should part general be considered as of the fore, regards we cannot review this issue with conditions, conditions, governing special to the specifications, order of the numerous docu-
proposal, or instructions to bidders. There- ments. proposed of the docu- Any eleva- ft minus 5 [Discussing the only by addendum made will be ments the estimated also shown have We tion] of such adden- copy and a duly does issued elevation, assuming "plug" tip to each or delivered cross-sectional be mailed of the dum will at the bottom form case, the of such docu- receiving In this a set H-pile. person area of is used not be re- pile will area The OWNER "actual" end ments. and capacity explanation other any theoretical computed sponsible analysis indicates proposed This docu- tip interpretations elevation. significant- driven would be that the ments. doWe capacity. to achieve ly deeper 84). courts Although App. p. (Appellant's which the case this is believe that mot clauses recognize exculpatory in Indiana However, have had we develop. will contracts presume and contracts did not "plug" where past freely bargained agreement present sig- were piles and the develop, inap the clause to be we find parties, has analysis This nificantly deeper. See, eg., hand. the situation at plicable to performed been reference. (Ind. 608, 611 Boofter, 790 N.E.2d Crowe 38) (emphasis App. p. Ct.App.2003). en- expressly
Thus,
Nutting report
Fawver,
manager of
estimating
Todd
as the
elevation
tip
ft
the 34.0
dorsed
office,
area
testified in
Indiana
Milestone's
the most
considered
depth
that:
his affidavit
project site.
representative
compar-
studying and
process
contract doc-
Therefore,
all the
on
based
comparing
ing
[#]
[alddendum
us,
conclude
uments before
tip
"minimum elevation
same with
unambig-
clear
language was
by the
[nlotes
ft"
34.0
Bank,
State
uous. See Mid
8-9,
con-
[dJrawings
S-8
sup-
the contract
reading of
A close
should
lump sum bid
cluded
speci-
position
Milestone's
ports
needed
length
only the
include
tip
minimum
refers
tip elevation
fied
ft
specified 34.0
to reach the
in the draw-
ft as included
of 34.0
pile, and
for each
depth
tip elevation
ings.
*7
re-
length
piling
any additional
reading
this
Regardless
a 70
deeper to reach
driven
quired to be
next
documents, Lawrenceburg
contract
paid
was to be
bearing capacity
ton load
the risk
assumed
that Milestone
contends
in accor-
price
foot unit
per
by the $60
of the con
improper
anof
[#
with [alddendum
dance
12.
assertion, Law-
of its
support
tract.
31). Accordingly, no
App. p.
clause
following
renceburg points
meaning of
to the true
existed as
doubt
manual:
in the
included
or
specifications,
plans,
of the
any part
submitting
contemplating
any person
If
documents,
contract
proposed
other
in
is
contract
proposed
for the
a bid
a bid-
Moreover,
arguendo, that
assuming
any part
meaning of
to the true
doubt as
doubts,
any remaining
had
might have
der
pro-
other
plans, specifications,
of the
only,
permissive
is
exculpatory clause
documents, may sub-
he
posed contract
mandatory in nature.
a written re-
mit to the ENGINEER
and un-
Therefore,
the clear
light
in
thereof.
any interpretation
quest
docu-
language
ambiguous
request will
submitting this
person
The
genuine
no
ments,
there is
find that
delivery.
prompt
responsible
issue of material
fact. See
length-or
American
estimated
guessing
the risk of
Co.,
Family Mut. Ins.
bid given the worst-case number CONCLUSION in quantities table"-4,096 the estimated | LF. Id. Based on the foregoing, we conclude that the trial court properly granted sum- It point City was this that the issued mary judgment in favor of Milestone. 2, providing Addendum
Affirmed. In the event is reached and adequate BAILEY, J., concurs. soil bearing capacity yet is not achieved ... the contractor paid shall be for addi- DARDEN, J., with opinion. dissents tional HP 12x53bearing pile required at DARDEN, Judge, dissenting. rate of lineal foot. I respectfully dissent. (App.80). In context of the factual see- nario preceded As the issuance of majority acknowledges, the Nut- provision, I ting Report believe that Addendum 2 was to in ad- specifi- referred "predicament" cited, dressed drawing cations and note as well as described, namely that in it was included unknown manual. The what "the actual depth quantity (1) Report possible indicates both 34 foot might up being." end tip "estimated elevation" with a plug form- ing, which would be at an estimated 51 foot said, That being I turn to the law of (2) pile length; a "-5" tip estimated contracts. It duty is a court's interpret elevation, with "the ... signifi- a contract so as to ascertain the intent of cantly deeper to capacity" achieve and an parties. First Fed. Sav. Bank Ind. estimated 91 foot length. (App.38). Markets, (Ind. Key 559 N.E.2d specifications The then 1990). accept We must an interpretation (1) be "driven to batter and location shown of the contract which provi- harmonizes its and to the capacity as opposed as to one which sions causes the plans," noted referencing the Nut- provisions to be conflicting. Id. In inter- (2) ting Report; and "be driven to a mini- preting contract, a written the court will tip mum elev. of 34.0 ft. and pile bearing attempt to determine the intent of the 86). capacity of 70 (App.80, tons." parties at the time the contract was made disclosed the language used called for the installation to ex- *8 press their pilings. note, rights and drawing On the duties. Id. When a the esti- contract is quantity mated clear of 12x58 terms and the inten- steel 4,096 parties apparent, installed was Thus, linear the court will feet. tions require parties perform estimated average piling consistently length was 93 bargain they with the feet. made. Id. at 604. argued by Milestone, As it "and other I would find that consistent with the bidding contractors" faced "predica- intent of the parties, Addendum 2 provided ment" of being required to submit a lump that in the event the successful bidder had sum bid for either the 4,096 "worst-case" scenar- to install more than LF of pilings in io-using a upon bid based the maximum order to meet the load bearing <-quantity then capacity, the rate of $60 for at paid Therefore, I would reverse foot.
lineal judg- and order
trial court City. granted
ment be RECTOR, Appellant-Plaintiff,
Kera L. Any Kadinger OLIVER, Judy
Joe Joe's Individual
Other Unknown d/b/a
Video, Appellees-Defendants.
No. 18A02-0309-CV-807. of Indiana. Appeals
Court 10, 2004.
June