R. J. Realty, Inc. v. Keith

• Decision Date: 22 September 1969
• Docket Number: No. 368A46,No. 2,368A46,2
• Citation: 145 Ind.App. 314,250 N.E.2d 757
• Parties: R.J. REALTY, INC., Robert J. Wilson, Appellants, v. Arnold KEITH and Louise Keith, husband and wife et al., Appellees
• Court: Indiana Appellate Court

Page 757

250 N.E.2d 757

145 Ind.App. 314

R.J. REALTY, INC., Robert J. Wilson, Appellants, v. Arnold KEITH and Louise Keith, husband and wife et al., Appellees.

No. 368A46.

Appellate Court of Indiana, Diviison No. 2.

Sept. 22, 1969.

Rehearing Denied Oct. 29, 1969.

Michael J. Kias, Haggerty, Haggerty & Kias, Indianapolis, for appellants.

Thomas J. Murphy, Indianapolis, Hilgedag & Johnson, Indianapolis, of counsel, for appellees.

WHITE, Judge.

This is an appeal from a judgment of the Marion Circuit Court, Howard J. Travis, Special Judge, which reversed a grant of a variance of use by the Metropolitan Board of Zoning Appeals of Marion County, Fourth Division, to appellants. Appellees Keith, husband and wife; Eisenbarth, husband and wife; Roberts, husband and wife; Bass, husband and wife; Stallard, husband and wife; and Mosier, husband and wife, were remonstrators before the board and petitioners in the circuit court for a writ of certiorari to review the zoning board's decision. Other appellees are the said board of zoning appeals and the members thereof.

After appellants filed their brief here the appellees, on August 23, 1968, filed their motion to affirm. By order of September 11, 1968, 'the ruling on said motion * * * is, held in abeyance pending the determination of this appeal on its merits'. A subsequent motion filed September 26, 1968, and denominated, 'Motion to Dismiss or in the Alternative Affirm per Appellees' Motion to Affirm Filed August 23, 1968, and Held in Abeyance per Order of September 11, 1968' was, on November 11, 1968, overruled as to dismissal and held in abeyance as to affirmance.

The basis of the first motion to affirm is alleged failure of Appellants' Brief to comply with Indiana Supreme Court Rule 2--17 in that it fails to state what the issues were and fails to set out the Assignment of Error. Since only the caption is omitted from the Assignment of Errors as set forth in the brief that ground is without merit. While the statement of what the issues were may be less informative than is desirable, we are nevertheless able to ascertain the issues. The defect is therefore harmless. Bryan v. Yoder, 225 Ind. 57, 64, 71 N.E.2d 474 (1947); 3 Wiltrout, Indiana Practice 391, § 2678.

The second motion to affirm is grounded on the related propositions that the assignment that the court erred in overruling the motion for new trial raises no question on appeal and that the appeal was not perfected 'within 90 days from the day of final order of General Term of Marion Circuit Court. * * *' The second motion was filed September 26, 1968, but prior thereto, on August 23, 1968, appellees had petitioned for an extension of time in which to file their brief, which petition was granted September 11, 1968, to and including October 11, 1968. By this extension appellee waived all grounds for affirmance not going to the merits of the appeal. Gamble v. Lewis, 227 Ind. 455, 459, 85 N.E.2d 629 (1949); City of Fort Wayne v. Maplewood Park Utilities, Ind.App., 213 N.E.2d 337; 241 N.E.2d 805 (1968). Both motions are accordingly overruled.

The only error assigned on appeal is the overruling of appellants' motion for new trial. Among the ground of that motion urged here as a ground for reversal, is the assertion that the decision of the trial court is contrary to law.

On October 30, 1967, the circuit court made Special Findings of Fact and Conclusions of Law and rendered judgment thereupon. The first three findings identify the parties and the land and recite briefly the history of the case. The remaining findings, conclusions of law, and judgment read as follows:

'5. That there is substantial evidence of probative value in the record tending to show that the grant of variance will be injurious to the public safety and general welfare of the community.

'6. That there is substantial evidence of probative value in the record tending to show that the use or value of the area adjacent to the property included in the variance will be affected in a substantially adverse manner.

'7. That there is evidence of probative value in the record tending to show that the strict application of the terms of the governing ordinance will not constitute an unusual and unnecessary hardship when applied to the property above described for which the variance was sought.

'8. That there is evidence in the record tending to show that the granting of the variance does interfere substantially with the Metropolitan Comprehensive Plan of Marion County, Indiana.

'9. That the evidence in this cause is with the Petitioners herein and against the Defendants, and the variance of use was improperly granted.

'And, as conclusions of law upon the facts above found, the Court concludes:

'That the law in this cause is with the Petitioners herein and against (sic) the Defendants herein, in that this Court may reverse the decision of the Metropolitan Board of Zoning Appeals of Marion County, Fourth Division, where there is substantial evidence of probative value tending to show that any one of the five requirements prescribed by Burns' Ind. Stat. Sec. 53--969 were not met, and such evidence is present in the record, specifically as shown by Findings of Fact 5, 6, 7 and 8. To the extent that Defendants failed to meet the five requirements set out in Burns' Ind. Stat. Sec. 53--969, the variance requested below was improperly granted.

'WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that the decision of the Metropolitan Board of Zoning Appeals of Marion County, Indiana, Fourth Division is illegal, and it is hereby reversed, and it is further ordered, adjudged and decreed that no variance be granted in this cause, and it is further ordered and decreed that the Defendants, R.J. Realty, Inc. and Robert J. Wilson pay the costs herein and that the judgment be so entered in favor of the Petitioners and against the Defendants.'

The findings of facts and conclusions of law made by the court below demonstrate a failure to apply the proper rule of law in reviewing the decision of the board. In determining whether the board's decision was, or was not, contrary to law, it is immaterial that 'there is substantial evidence of probative value in the record tending...