Kuykendall v. County Com'rs of Marion County

Decision Date19 March 1968
Docket NumberNo. 20504,No. 2,20504,2
PartiesWillard KUYKENDALL, Clifford Richmann, Robert E. Buchanan, Appellants, v. The COUNTY COMMISSIONERS OF MARION COUNTY, Indiana, the Board of Zoning Appeals of Marion County, Indiana, Harry Kemlo, Sarah Kemlo, and John Chittenden, Appellees
CourtIndiana Appellate Court

Richard J. Hartman, Indianapolis, for appellants.

Nick G. Ricos, George A. Rubin, Indianapolis, for appellees.

PFAFF, Judge.

Appellants brought this action for Writ of Certiorari to review a decision of the Board of Zoning Appeals of Marion County, Indiana, which granted a variance of zoning to permit the construction of a mobile homes or trailer park.

Trial to the court resulted in judgment in favor of appellees. The error assigned here is the overruling of appellant's motion for a new trial. The only proper specifications of that motion are that (1) the decision of the court is not sustained by sufficient evidence, and (2) the decision of the court is contrary to law.

Appellees did not file an answer brief. Our courts of appeal have uniformly held that, in the event the appellee fails to file an answer brief, it is only necessary for the appellant to demonstrate a prima facie case of reversible error. Newton d/b/a, etc. v. Hunt d/b/a, etc. (1957, 127 Ind.App. 456, 142 N.E.2d 643; Wertzberger, Admr., etc. v. Herd et al. (1957), 128 Ind.App. 85, 140 N.E.2d 771, 146 N.E.2d 115; Sunn v. Martin (1959), 130 Ind.App. 29, 161 N.E.2d 487; 2 I.L.E., Appeals, § 394, p. 275; 3 Wiltrout Ind.Civ.Proc., Briefs, § 2682, p. 427.

The question to be determined is whether the appellants have made a prima facie showing of reversible error in their brief.

In all cases appealed to this court there is a presumption that the trial court correctly decided the questions presented. It is incumbent upon the appellants to rebut this presumption in their brief by clearly showing that the trial court committed serious error which denied the relief to which they were entitled under the law.

The argument portion of appellants' brief contains only their opinions and conclusions as to the weight to be given to the evidence before the trial court. The appellants have cited two cases in their brief, neither of which apply to this case but do contain correct statements of the law, namely:

'* * * if the court and jury were deceived by his conduct at the trial into believing that he was helpless, a...

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  • Dufour v. Dufour
    • United States
    • Indiana Appellate Court
    • September 16, 1971
    ...the trial court's decision. Berry et al. v. The Town of Fowler (1960), 240 Ind. 443, 166 N.E.2d 333; Kuykendall v. County Com'rs of Marion County (1968), 142 Ind.App. 363, 234 N.E.2d 860; Nunemaker v. Glassburn et ux. (1965), 137 Ind.App. 655, 210 N.E.2d The appellant's Motion to Correct Er......
  • Ernst v. Sparacino
    • United States
    • Indiana Appellate Court
    • September 28, 1978
    ...trial court committed serious error which denied him the relief to which he was entitled under law. Kuykendall v. County Com'rs of Marion County (1968), 142 Ind.App. 363, 234 N.E.2d 860. Ernst has failed to rebut the Affirmed. BUCHANAN, C. J. (by designation), concurs. GARRARD, P. J., concu......
  • State, Bureau of Motor Vehicles v. Waller
    • United States
    • Indiana Appellate Court
    • December 11, 1975
    ...149 Ind.App. 404, 273 N.E.2d 102; Berry v. Town of Fowler (1960), 240 Ind. 443, 166 N.E.2d 333; Kuykendall v. Co. Comm'rs of Marion County (1968), 142 Ind.App. 363, 234 N.E.2d 860; Nunemaker v. Glassburn (1965), 137 Ind.App. 655, 210 N.E.2d 668; Speedway Bd. of Zon. App. v. Standard Concret......
  • Boffo v. Boone County Bd. of Zoning Appeals
    • United States
    • Indiana Appellate Court
    • June 15, 1981
    ...417 N.E.2d 297. This court presumes that the trial court correctly decided the questions before it. Kuykendall v. County Commissioners of Marion Co., (1968) 142 Ind.App. 363, 234 N.E.2d 860, trans. denied. In reviewing a case in which the trial court has rendered findings of fact pursuant t......
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