Cloverleaf Apartments, Inc. v. Town of Eaton, 27A02-9402-CV-72

• Decision Date: 24 October 1994
• Docket Number: No. 27A02-9402-CV-72,27A02-9402-CV-72
• Citation: 641 N.E.2d 665
• Parties: CLOVERLEAF APARTMENTS, INC. and Jerry Powell, Appellants-Plaintiffs, v. TOWN OF EATON, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 665

641 N.E.2d 665

CLOVERLEAF APARTMENTS, INC. and Jerry Powell, Appellants-Plaintiffs, v. TOWN OF EATON, Appellee-Defendant.

No. 27A02-9402-CV-72.

Court of Appeals of Indiana Second District.

Oct. 24, 1994.

Stan G. Wyrick, Muncie, for appellants.

Dale W. Eikenberry, Wooden McLaughlin & Sterner, Indianapolis, for appellee.

OPINION

FRIEDLANDER, Judge.

Cloverleaf Apartments, Inc. (Cloverleaf), and Jerry Powell (Powell) appeal the grant of summary judgment entered in favor of the Town of Eaton, Indiana.

We affirm.

The facts most favorable to Cloverleaf, the nonmoving party, are that Powell is a general contractor who has built and remodeled several buildings in Eaton. In 1988, Powell purchased land and approached the Eaton town council with a plan for developing duplexes on that property. The land was subsequently annexed to Eaton, with an understanding that Powell would proceed with the project. Powell then became the incorporator and sole shareholder of Cloverleaf, in anticipation of creating the duplexes for rental apartment use.

Powell, as president of Cloverleaf, presented the Eaton town council with a written agreement allegedly covering matters regarding the proposed development project. The purported contract was never executed or agreed upon by the council. In November, 1989, the council met to discuss the extension of sewer and water lines regarding the project. Eaton eventually began constructing the sewer extensions and water lines to the real estate.

It was later discovered that a "sewer ban" had been implemented by the Indiana Department of Environmental Management (IDEM), which prohibited the connection of new sewer outlets serving multi-family units in Eaton. Eaton had been under the impression that the ban did not apply to the town in regards to the project. In March, 1990, IDEM issued a directive to the town enforcing the sewer ban. Cloverleaf was presented with a letter from the town ordering it to stop additional construction.

By the time Cloverleaf received the letter, it had completed construction on one of the buildings. In light of the sewer ban, Cloverleaf had to install a septic system which resulted in added expense. The remaining ground was also pre-empted from being used for duplex apartment construction purposes.

Cloverleaf and Powell filed a complaint for damages against Eaton on May 22, 1991, alleging breach of contract and fraud. Eaton moved for summary judgment on June 8, 1993. The trial court heard arguments on the motion on September 28, 1993. On that day, Cloverleaf filed a brief opposing Eaton's motion. The brief contained a statement of facts and a section entitled "Plaintiff's Theories For Relief." Record at 233-40. Cloverleaf had not filed a motion for an enlargement of time. At the hearing, Eaton orally moved to strike the brief alleging that it was untimely filed. The trial court took the matter under advisement, and on October 15, 1993, summary judgment was entered for Eaton:

"[Cloverleaf] has designated no material issues of fact nor has it made any indication to the Court of any material upon which it relied to oppose Defendant's Motion for Summary Judgment. Defendant, on the other hand, filed with its Motion for Summary Judgment, a designation of evidence in support of its Motion for Summary Judgment including a deposition and two affidavits together with supporting materials.

. . . . .

The Court having considered the arguments of counsel and the evidence designated by the Defendant now finds there is no genuine issue of material fact to support any of the theories contained in Plaintiff's Complaint against Defendant. Accordingly, the Court sustains Defendant's Motion for Summary Judgment and orders that judgment as a matter of law be entered in favor of Defendant and against Plaintiffs and that Plaintiffs take nothing by way of their Complaint against Defendant."

Record at 242-43.

Cloverleaf appeals and presents the following issue:

Did the trial court properly grant summary judgment in favor of Eaton?

In reviewing a motion for summary judgment, this court must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. Nelson v. Denkins (1992), Ind.App., 598 N.E.2d 558; Snider v. Bob Heinlin Concrete Const. Co. (1987), Ind.App., 506 N.E.2d 77, trans. denied. The trial court's judgment will be affirmed if sustainable on any theory found in the record. Nelson, supra. A moving party is entitled to judgment as a matter of law if the pleadings, depositions, answers to interrogatories, admissions and affidavits, together with any testimony, do not reveal a genuine issue of material fact.

Ind.Rules of Procedure, Trial Rule 56(C) provides that an adverse party has "thirty (30) days after service of the motion [for summary judgment] to serve a response and any opposing affidavits." We reject Cloverleaf's argument that T.R. 56(C) permits a party to file its designation of evidence and/or material issues of fact at any time. Cloverleaf did not file its brief opposing Eaton's motion for summary judgment until the day of the hearing. It never designated any evidence to the trial court which would allegedly preclude the entry of summary judgment in Eaton's favor.

T.R. 56 provides in relevant part as follows:

"(B) For Defending Party--When Motion Not Required.

A party against whom a claim ... is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(C) Motion and Proceedings Thereon.

The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The court shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of...