*1 required deposit Carnegie, proposal purport to submit such a order to did not to impose money properly option. exercise its first The court an earnest condition to the library merely to agreement. pur- therefore authorized the sale of the It recited that the $16,500, $3,000 Carnegie, Beiger appeals. price chase was earnest made, money deposit had been and that the DISCUSSION purchase price paid should be in cash at the Beiger The sole issue before us is whether closing. that this Evidence was the Estate’s properly option exercised its first under the interpretation can found in fact agreement. Beiger We conclude that upon receipt acceptance, rather than properly right did its and reverse exercise inquiring payment, about down the Estate Beiger proceeding notified it was to dispute, As the facts are not in our prepare closing. for the correctly apply task on review is to the law sum, right under the terms of its of first undisputed Coplen to the facts. v. Omni refusal, Beiger required give was to notice Restaurants, Inc., acceptance thirty days, its within and it did (Ind.Ct.App.1994). right of first re When prece- so. Since there were no conditions initially granted, fusal is it is a dormant set sale, part proposed dent that formed a rights that does not entitle the holder to Beiger’s option complete exercise of was receipt take action until of a bona fide We, upon timely acceptance. therefore, its Management Corp. offer. Urban Hotel reverse and remand with instructions to con- Venture, Washington Main and Joint Beiger. firm the sale (Ind.Ct.App.1986), reh’g de Reversed and remanded. nied, Beiger trans. denied. Once received Carnegie, right notice of the offer from SHARPNACK, JJ., option.
first refusal was transmuted into an HOFFMAN and option continuing Id. An concur. is offer whose strictly
duration and method of exercise is agreement controlled that created it. Generally, option Id. the exercise of an only strictly effective if it adheres stipulated terms in the contract. North Side Foreman, Asphalt Transport, & Material Inc. v. 5 trans. denied. J.L.V., JR., In the Matter of a Child Thus, we look to the terms of Alleged to be Child Need purchase agreement the 1976 if determine of Services. Beiger properly rights. exercised its agreement purchaser states that No. 02A03-9511-JV-368. (the Estate) writing “shall offer in to sell the Appeals Court of of Indiana. subject property (Beiger) upon to the Vendor those same terms and conditions the ac [as June ceptable proposal party]. of the third (30) days thirty Vendor shall have after the
receipt accept of such it.” offer to This
language merely requires a communicated
acceptance thirty days, Beiger within 5,1994.
complied by April its letter of agree accept- While we addition to offer, party’s the terms of the third option required Beiger accept any to also precedent performance
conditions proposed sale between the Estate and *2 Gariepy, Wayne, Ap-
Roland Fort W. pellant. Lebamoff, Wayne, Appel-
Jordan Fort lee.
OPINION
STATON, Judge. “Parents”) (collectively J.V. Sr. and PA appeal from the trial court’s determination son, Jr., that their J.V. is a child in need (“CHINS”). services four review; however, appellate issues for following only, sider the two issues the first sponte: we raise sua I. Whether the trial court’s CHINS de- final, appealable termination is a II. Whether the trial court erred al- lowing the admission of certain char- acter evidence.
We dismiss. July relevant facts that in reveal Family the Office of and Children of Allen (“OFC”) County petition alleging filed Jr. J.V. was CHINS §§ An ini- 31-6-4-3 and 31-6-4-3.1 25,1994 hearing July during tial was held on allegations which the denied the against hearing them. A full on was held 1,1995 February and the trial court took the Thereafter, matter under advisement. July adjudged J.V. CHINS, finding Jr. a as follows:
[******] by preponderance finally The Court finds of the tional alternatives. That choice de- rights parties, especial- [J.V. Jr.] evidence that child needs termines the alleged petition. ly light guidelines of services as set Court further finds continuation of the down in the statute— contrary home child would be guidelines may prove support *3 of the child and that welfare reasonable later It is after that a pre- have been [OFC] efforts made to final, appealable judgment exists placement need for vent the outside of the M.R., (quoting Id. Matter of home. (footnote (Ind.Ct.App.1983) 1088-1089 Upon findings, such the Court now enters omitted)). judgment that said child is a child in need of services as defined in IC 31-6-43. M.R., appealed In Matter a mother the trial court’s determination that her children prepare The Court orders the to [OFC] were CHINS. This court indicated that the Predispositional Report. and file a Record finding presented ap- CHINS fact on praecipe August at 16. Parents filed a on peal completely dispose subject not did of the 1995; proceedings the record of was filed thus, litigation matter of the did not interim, Sep- October 1995. In the on final, appealable constitute granted tember Par- M.R., supra, Matter at 1088-1089. The stay petition ents’ to the trial court’s order court having noted that after determined removing the child from the mother’s home CHINS, that the mother’s children were and set the matter for a required disposi- trial court was to a hold on December 1995. Parents now hearing pursuant § tional to Ind.Code 31-6- the trial court’s CHINS determination. stated, regard, 4-16.1 Id. the court completion “We believe that I. element trial court action is absent at the time court Final, Appealable Judgment finding enters a CHINS order after a fact In order to review the issues Par hearing.” Id. at 1088. appeal, ents raise on must first decide presents This case similar facts as Parents whether the CHINS determination consti seek immediate review of the CHINS deter- final, appealable judgment. tutes a A final Yet, mination. a review of the current stat- judgment disposes subject matter of the utes reveals that the CHINS litigation as to the so far as court subject does not constitute the end of the pending in which power the action is has the litigation. Instead, matter of the after a dispose Family to of it. Adams Office of CHINS, child is determined to be a Children, (Ind.Ct.App. & juvenile required court is 1995). disposi- to hold a hearing pursuant § tional Ind.Code 31-6- regard determinations, With to CHINS (1993). There, 4-15.3 the court shall consid- the court has indicated: 2er: finding The status is a CHINS mere (1) preliminary step care, treatment, prior to be taken alternatives for the or choosing among disposi- child; several different rehabilitation of the nature, repealed necessity, partic- 1. IC 31-6-4-16 was in 1983 and re- er the and extent of the placed by through §§ 31-6-4-15.3 31- ipation parent, guardian, Ind.Code custodian in a 6-4-15.8. care, treatment, program of or rehabilitation for addition, 31-6-4-15(b). the child. IC finding prior 2. After the child to be a CHINS and probation prepare officer or caseworker shall dispositional hearing, the trial court shall report parent financial to assist the court probation order a officer or a caseworker to determining person's responsi- financial prepare predispositional report pursuant bility any services for the child or himself. report § 31-6-4—15 This should 31—6—4—15(c).Also, predispositional re- provide the court with a recommendation for the port disposi- to made available before the care, treatment, or rehabilitation of the child. IC (f). hearing. tional IC 31-6-4-15 31-6-4—15(a). preparer should also consid- (2) nature, necessity, and extent of the Included this evidence were peti- participation parent, guardian, or cus- tions filed on behalf of these children which care, treatment, program allegations todian parental neglect, included ina- child; bility provide necessary for the supervi- rehabilitation care and sion, complete and failure to a Parent Partic- (3) par- responsibility the financial ipation Plan. Also included were guardian ent or of the estate ser- adjudging court’s orders these children provided parent guardian vices for the CHINS. or the child. 31-6-4-15.3(a). argue 31-6-7-14, juvenile that IC court shall accompa- allows for the admission of
then enter decree acts or findings proceedings, omissions nied with written conclusions has been *4 record, superseded by 404(b), upon including the court’s rea- Ind.Evidence Rule 31-6-4-15.3(e) disposition. and therefore admission of sons for the this evidence was (I). doing, may erroneous. so the court order dispositional one or more of the decrees set correctly point Parents out that our § in (Supp.1995). forth 31-6-4-15.4 Ind.Code courts have determined that when a statute The record indicates that the trial court appellate conflicts with the rules of trial or dispositional hearing scheduled a for Decem- procedure, procedure govern the rules of 5, praecipe ber 1995 but Parents filed their phrases in contrary statutes which are appeal immediately after the CHINS de- procedure rules of are to be considered prior entry any disposi- termination and Lewis, nullity. Taylor 986, v. Entry tional decree. of a denied; (Ind.Ct.App.1991), 988-989 trans. following would con- Augustine v. Savings First Federal appealable judgment, allowing stitute a final Ass’n, 238, Loan 270 Ind. appeal challenging an determina- (1979); Bridenhager, and Indiana 257 Ind. v. Adams, supra, tion. at 206. Because we 699, 279 (1972). conflict, N.E.2d 794 To be in here, have no that determine necessary it is not the rule and the impermissible Parents an interlocu- Rather, in opposition. statute be direct tory appeal3 which should be dismissed. only rule incompati and the statute need be apply ble to the extent that both could not in
II. State, given Spencer situation. 520 (Ind.Ct.App.1988), N.E.2d reh. de Admission Character Evidence nied, trans. denied. Notwithstanding this determina 404(b) provides: Evid.R. tion, we choose to address one of the issues crimes, wrongs, Evidence other or acts Parents raise in their brief. Parents contend prove is not admissible to the character of that the trial allowing court erred in charac person in order to action in show prior ter evidence of their bad acts however, formity may, therewith. It be § 31-6-7-13 Evidentia- purposes, admissible for other such as ry determinations are committed to the trial intent, motive, proof preparation, plan, discretion, court’s and we will reverse knowledge, identity, or absence of mistake only upon showing of an accident, Rope abuse of discretion. Columbian Co. v. Todd, 31-6-7-13(c) states: trans. dismissed. prior subsequent Evidence that act or .a during
The record
by parent, guardian,
indicates that
the fact
omission
custodi-
finding hearing,
injured any
pro-
allowed evi-
an
child is admissible in
previous
dence of
ceedings alleging
Mother’s
involvement with
that a child
a child in
OFC
four of her other children.
need of services:
4(A)
Ind.Appellate
interlocutory
ground
3. This case was not certified for
as the
for their
Rule
4(B).
4(A)
appeal pursuant
Ind.Appellate
provides
may
App.R.
appeals
Rule
fact,
Appearance,
judgments.
in their Notice of
Parents cited
taken from all final
405).
(1)
person’s
intent,
alyzing
A
charac-
guilty knowledge, the
to show
Fed.R.Evid.
accident,
deciding
may
identifica-
be a material fact
who
absence of mistake or
ter
tion,
custody
of a common scheme or
children as fitness to
the existence
should have
purposes; and
plan, or other similar
provide
paramount
importance.
is of
care
put
character has been
issue
When
(2)
act or
show a likelihood that
case,
type
evidence of
pleadings
parent, guardian,
or custo-
omission of
brought
character must be
forth. McCoR-
responsible
the child’s current
dian is
17, §
mick on Evidence ch.
187 at 789-790
injury or condition.
1992).
(John
ed.,
Strong
4th ed.
William
added).
(Emphases
This statute has been
pro-
in CHINS
construed to allow evidence
our eommon law
This is consistent with
ceedings
parent’s
of a
acts or omissions
cases,
provided
has
in civil
conjunction
with sub-
toward his children
person’s character evidence will be admissi
injuries
sequent
sustained
another child
underlying
if
nature of the
action
ble
Roark, 551
parent’s
care. See Roark v.
at
places
person’s
character
issue. See
(Ind.Ct.App.1990).
N.E.2d
McCarty,
Niemeyer v.
221 Ind.
argue that IC 31-6-7-13 conflicts
(1943) (quoting
Gebhart v. Burk
404(b) in that it
evidence
with Evid.R.
allows
ett,
(1877)),
57 Ind.
overruled on
parent’s prior
bad act to show that the
*5
Anderson,
grounds,
v.
258 Ind.
other
Ashton
parent
responsible for the child’s condition
is
51,
(1972); People’s
volvement with
evidence of
orderly
the ultimate
speedy
end of
previous
proceedings
filed on behalf
justice. We must examine our technical
children,
Mother’s other
was
accordance
closely
appears
rules
it
invoking
when
404(b),
405(b),
with Evid.R.
EvmR.
and IC
justice;
them would defeat
otherwise we
Notwithstanding
31-6-7-13.
this determina-
become slaves to the technicalities them-
tion, for the reasons set forth above in Part
they acquire
position
selves and
I,
appeal
we determine that Parents’
should
being the ends instead of the means. This
be dismissed.
especially
true in a case such as the one
prejudice
at bar where we
no one
allow-
Appeal dismissed.
point.’
the record to be corrected at this
HOFFMAN, J., concurs.
(Em
Ind.App.
at
ROBERTSON, Judge, dissenting.
case,
although
the trial
respectfully
I
dissent. Because this
court
children,
dispositional
did not hold
formal
policy
involves the care of
court
order,
hearing or
enter a formal
given expedited
dictates that it shall be
*6
perhaps
it did make
the most drastic of
sideration.
In re
See
the Visitation Walk-
er,
disposition
orders
the
and
(Ind.1996);
future
We have a any cursory that cases pro- benefits to the children’s justice should be decided on the merits and tective services should that order be con- by should not be stayed. defeated technicalities. tinued to be Martha, 4. See Care Protection 407 Mass. mine whether were children in need of care and (1990) (evidence parents' protection, parents’ as acts of character battery criminal convictions for assault and fitness). parental pertinent were to issue of hearing their children was admissible in to deter- motion, granted parents’ The trial court
staying its order for the removal execution of from the home of the mother
of the child pending appeal. this parents’ and effect of the
The substance motion and the trial court’s order was adjudication certify for interlocu- the CHINS 4(B)(6). tory Ind.Appellate appeal. See Rule lacking All that is is an order from this court accepting interlocutory order for party misled or Id. No or court has been irregularity in- prejudiced procedural volved here. should not exalt form over substance
We procedural permitting the technical defect (and defeat) justice suspend possibly young should exercise our J.L.V. We discre-
tionary authority on the to hear promise duty
merits and fulfill our justice dispense speedy to Indiana’s children. Therefore, I dissent. FARM STATE MUTUAL AUTOMOBILE INSURANCE COMPANY and State Casualty Company, Appel Farm Fire & lants, *7 MORTELL, John F. Commissioner of the Department Insurance, Indiana Department Insurance, the Indiana Chiropractic Indiana State Association, Appellees.
No. 49A04-9501-CV-3. Appeals of Indiana. Court June 1996. Rehearing Aug. Denied