*1 40 Wernke, lot); hog feed to
nuisance due LTD., WABASH, White (landowner brought nuisance LODGE OF Lodge, Lodge, Ltd., to River landowner due Flatrock adjacent River against action yard of and all displeasing Ltd., decoration of themselves aesthetically on behalf graffiti). situated, Appellants- similarly and involving a toilet seat others Plaintiffs, aforementioned from the is illustrated As on one is based cases, nuisance private of to the detriment property using or her his Jr., SULLIVAN, Director of as Frank of property enjoyment of the use and Budget Agency, Evan State Indiana nui- subject of the Generally, another. of Bayh, of the State Governor as Fre- senses. one of the is offensive sance Devore, Indiana, Auditor of as Ann G. repugnant due to is the nuisance quently, O'Laugh Indiana, Marjorie the State unsightly aesth- odor, noise or unreasonable Indiana, lin, State as Treasurer alleges in that Hutchens defect etics. Secretary Verdier, Assistant as Jim not create does carport/playground Policy & Plan of Medicaid the Office nuisance. private of action based cause Conner, Bobby as Director ning, L. and inter- be said to cannot alleged defects These Aging & Rehabilita Division of Hutchens. property of fere with Services, Appellees-Defendants. tive import clear and the these cases Based on 49A02-9406-CV-332. No. pri- Place, claim for Hutchens and of Stover of law. Al- a matter fails as nuisance vate Appeals of Indiana. cases based recognize that though we appropriate for seldom in fact are nuisance Aug. facts summary judgment, disposition where the rare case represent here Stover, 281; judgment proper. is
Place, N.E.2d 671.
CONCLUSION designated evidence
Considering all Hutchens, the non-
light most favorable genuine issue of is no
moving party, there Square is entitled fact and Sheffield
material law as to Count a matter of judgment as Accordingly, complaint.
II of Hutchens's affirmed.
trial court is way today intended holding no
Our negl claim based with Hutchens's
interfere fails only that Hutchens hold
igence2. We in nuisance. of action based a cause
to state
Affirmed. J.,
FRIEDLANDER, concurs. CHEZEM, J., A as to issue concurs B. in result as to issue
concurs negligence in maintain- guest and was a social landlord/owner's that he 2. Dave contends ing common area. a safe premises and that he sustained invitee on proximate result personal injury direct and as a *2 Lodges' complaint. Upon accepting materi- presented als outside the pleadings, the trial court converted the State's motion into one summary for judgment. Ind.Trial Rule 12(B). In reply Lodges' opposition to motion, the State filed the affidavit of Rachel McGeever. 25, 1993,
On October the Lodges filed a written proposed motion and order to strike the McGeever affidavit. day, On the same the trial court argument heard oral State's judgment motion and took it under advisement. The Lodges' counsel contends that the court then stated it would render a decision in about one month. Just days later, ten 4, 1998, on November the trial Sidney Mishkin, Fall, Lesa C. Mishkin & granted court the State's motion for sum- Fall, Indianapolis, for appellants. mary judgment and Lodges denied the mo- Carter, Atty. Gen., Pamela Abel, Arend J. tion to strike the McGeever affidavit. The White, Jr., Gordon E. Deputy Gen., Attys. Lodges' counsel received the court's order Indianapolis, appellees. for denying the motion to strike the McGeever affidavit, but did not receive notice of the OPINION granting Court's of the State's KIRSCH, judgment motion. Judge. The trial (the court appellants' denied the Beginning 29, 1993, on November a mem- Lodges) request permission for to file a ber Lodges' be- of the counsel's staff made week- praecipe
lated so that might ly challenge a calls to the court inquire whether a summary judgment entered in appellees' on the summary judgment motion had (the State) favor. We are asked to review been entered. The staff member called the that denial in light Lodges' claim that court on seven different occasions. Each they did not receive time, notice of the court's she was informed that no ruling had ruling on the State's motion for summary been made on pending summary judg- judgment. ment 18, 1994, motion. January On one of Lodges' spoke counsel directly to the
We affirm. trial court bailiff who him informed that the State's granted motion had been on Novem- FACTS 4, ber later, 1998. Three Lodges weeks The State provides of Indiana funding to 60(B) filed an Ind.Trial Rule cap- motion (RBA) the Room and Board Assistance pro- tioned "Motion Change of Date of Sum- gram which helps qualified defray individuals mary Judgment Entry and for Leave to File living certain personal expenses. The Belated Praecipe," together affidavits, with Lodges operate residential care facilities that proposed praccipe, and a supporting memo- provide RBA program recipients room, with randum. board and other services. The State reim- <By 11, Lodges burses the order dated March their services at a rate predetermined 60(B) the Department court Lodges' of Public denied the mo- Welfare. Lodges tion. The timely perfected pres- appeal. ent appeal
This arises out of a class action for mandate in which claim that the AND DISCUSSION DECISION State failed to allocate all of the ap- funds propriated by legislature for RBA supreme ser- Our court recently has held that vices. The State moved to dismiss extensions of the time filing limits for original not exceed knowledge and Rule by Ind.Trial governed are limitation." time Mut. 60(B). v. Covenant Collins TR. 116.1 Ind., considered (1994),
Ins. Co.
may
requirements
which
under
72(D)
forth
sets
the circumstances
and seek
receipt
rul
of notice
of court
challenge
provide
clerks
*3
case,
trial
the
that
praecipe.
file a belated
provides:
ings. It
January
rulings on
several
issued
court
Judgments.
or
"(D)
Orders
of
Notice
in a
issued
rulings were
the
of
Two
1991.
entry of a
the
Immediately upon
in-
rulings,
remaining
The
order.
written
the
judgment,
motion,
or
an order
upon a
in fa-
granted
judgment
summary
cluding a
by
entry
copy of the
a
serve
shall
clerk
a
Mutual,
issued
were
of Covenant
vor
Rule 5
for in
provided
manner
in the
mail
here, Collins'
entry. As
written
separate
for
in default
is not
who
party
upon each
January
receiving the
acknowledged
counsel
make a record
and shall
appear
to
failure
the
receive
did not
order,
he
claimed
but
31
mailing."
of such
Mutual's
Covenant
entry granting
separate
Sum-
Chronological Case
the
A notation
months
until four
motion
judgment
recording requirement.
the
mary satisfies
four
During those
it was entered.
after
72(E)
117.
Collins,
at
the court
telephoned
months,
counsel
Collins'
not receive
it did
that
claim
party's
governs a
as to
inquire
to
occasions
separate
three
provides:
It
ruling.
aof
motions,
notice
and each
pending
the
the status
Lack of
"(E)
Notice.
of Lack
Effect
personnel.
by
court
misinformed
was
time
receipt of a
actual
the
notice,
lack of
the
or
that
72(E),
held
the court
upon T.R.
Based
not
shall
Clerk
entry from the
the
copy of
contain evidence
does
"only if the CCS
the
to contest
which
time within
the
affect
to
entry was sent
court's
copy of the
a
that
the
or authorize
judgment,
or
ruling, order
claiming not to have
party
may a
party
each
to
failure
party
a
to relieve
petition
notice
such
received
ruling,
such
contest
to
ap-
proceedings
initiate an
initiate
to
of time
an extension
for
provided
as
except
After
judgment,
Collins,
117-18.
or
order
peal."
copy
Summary
a
mailing of
Chronological
the
Case
When
examining the
this section.
type-
the
not evidenced
(CCS),
determined
by the Clerk
the court
entry
the
Y" which
Notice:
notation
the
upon
"1/31/91
by the Clerk
made
by a note
the order
Court,
description of both
Summary,
preceded
the
Chronological Case
mail-
to demonstrate
shown,
entry
sufficient
was
the
cause
good
application
upon
entry granting Covenant
court's
ing
limita-
any time
an extension
may grant
judgment.
motion
Mutual's
ruling,
such
to contest
which
within
tion
from
so,
precluded
was
being
Collins
This
was
who
any party
to
judgment
or
order
initiate an
of time
seeking an extension
who relied
knowledge, or
actual
without
appeal.
by Court
representations
incorrect
upon
ap-
activity report
Here,
case
court's
com-
shall
extension
Such
personnel.
as follows:
record
pears
actual
first obtained
when
mence
.
RYO25
OF
AFFIDAVIT
TO STRIKE
MOTION
DENIES
COURT
RACHEL
AA014
11/04/93
MCGEEVER.
RYO25
AS SUM-
TREATED
DISMISS
TO
MOTION
DEFENDANTS
11/04/93
GRANTED.
JUDGMENT;
JUDGMENT
SUMMARY
MARY
TO SIDNEY
SENT
WAS
TEXT NOTICE
FREE-FORM
AAOS1l
11/04/93
Lodges' counsel].
[the
MISHKIN
TO GORDON
SENT
WAS
TEXT NOTICE
FREE-FORM
11/04/93
counsel].
State's
[the
JR.
WHITE
EUGENE
face of
ambiguity exists
they
because
contend
Record at
outside
case
CCS,
present
bringing
receipt of
challenge the
entitled
are
positions based
respective
presented their
present
after the
decided
was
1. Collins
newly
Collins case.
decided
parties
argument,
fully
At oral
briefed.
reached in
the ambit of
specifically,
Collins. More
policy
Collins with the
statement
contend that
arises from the
set forth in Markle. The rule set forth in
fact
rulings appear
that the
separate
para-
puts
Collins
nearly impossible
burden on
graphs and the
following
para-
those
trial counsel. After
lawyers must
graphs
specify
does not
whether notice of
again
once
continuously check the docket
both rulings was sent.
(now,
books
Chronological
Case Sum-
case)
mary of each
in each court
in which
According to
Lodges,
present
case
they have a
pending
case
protect
their
involves cireumstances
like those held
more
clients and themselves or run the risk of
justify
filing
of a
forfeiture
appellate
their
rights.
For
pracecipe
belated
in Markle v. Indiana State
attorneys
those
whose offices are in close
(1987), Ind.,
Teachers Ass'n
"The amendment of
came
SHARPNACK, C.J., concurs.
about
input
as a result of
from the bar of
Indiana.
emphasized
It was
the for
J., dissents.
FRIEDLANDER,
mer rule effectively required attorneys to
continuously
FRIEDLANDER,
check the docket
Judge,
books of
dissenting.
each
court which
had
pend
a case
I respectfully dissent.
ing in
protect
order to
their clients from
It
apparent
is
to me that
appellate
forfeiture of
rights
expira
due to
exists on the face of the
exempts
CCS which
tion
by
of time caused
attorney's igno
this case from the rule announced in Collins
rance of the existence of a ruling or order."
(1994),
Covenant
Ind.,
Mut. Ins. Co.
“01/31/91 followed, then on its face would the docket Defendant, Kathy Petition for Or- Collins’ preclude challenge. Since Withdrawing Reconsider be sufficient Motion der Stipulation directly and does not Memorializing it does not and Order follow per Order. Is orders all as that notice both granted, mention mailed, Defendant Col- open Motion to Strike question Plaintiff’s notice was Thakkar against Affirmative Defenses lins’ consideration. De- to Strike granted; Plaintiffs Motion Jury Request Collins’ fendant ' in the docket did not the notation Since to Dis- Motion granted; Defendant Collins’ mailed, specifically what was relate denied; Defen- Complaint Plaintiffs miss did its discretion trial court not abuse Motion to Reconsider was dant Collins’ invalidating the 1985 denial November withdrawn; Motion for Sum- Plaintiffs motion to correct errors.” of ISTA’s granted....” mary Judgment (emphasis supplied). Id. at 118. at 613-14 Id. observed, “the written the Collins court As Markle, only here As CCS a de- precedes Y’ Notice: T/31/91 that some was sent to coun- indicates the En- scription of both the Order and entries, each The trial court made two sel. case contains try.... [T]he CCS in this separate paragraphs, when it *5 contained having been specific reference to ruling. There its made November sent_” supplied). (emphasis Id. at 118 entry only one “notice” directed majority places reliance Col- While the Lodges’ appears below counsel which lins, provision “notice” contained entry. fails to mention second The CCS para- preceded case the entire CCS that mailed. whether both orders were encompassing ruling on the sum- graph that I would therefore hold mary judgment motion. The Collins court may challenge receipt of notice accor- “[ejvery entry in the also observed CCS 72(E) ambiguity T.R. an dance with because at issue in follows the form the one this face exists on the of the CCS. above,” determining appeal and set forth (Emphasis that no existed. Id.
supplied). The circumstances here are more presented in v.
akin to those Markle Indiana (1987),Ind., Teachers Ass’n
State Markle, supreme court deter-
612. In was entitled mined trial court KOTSOPOULOS, Appellant- George time to based extend the initiate Defendant, upon appellant-Markle’s that he did not claim notice of receive the court’s Indiana, Appellee-Plaintiff. writing correct STATE
motion to error. majority, as fol- Justice DeBruler observed No. 02A03-9412-CR-431. lows: listing Appeals find that of the three Indiana.
‘We names, any without or further Aug. 10, 1995. en- specific the orders to both reference day, conclu- Rehearing tered that does not on its 1995. Denied Nov. face mailing.... sively evidence the Transfer Denied Jan.
Here, there were two distinct orders
entered the same date and same
paragraph. The notation of handwritten attorney’s that some names evidences However,
notice was sent each counsel. ruling on
the notation does follow the