VOL. XXXIII, No. 19
June 9, 2006
Selected decisions of the Indiana appellate courts abstracted for judges by the Indiana Judicial Center
The full text of Indiana opinions may be retrieved from the Indiana Judicial System website at www.IN.gov/judiciary/opinions.
IN THIS ISSUE
Henderson v. State – Expenses of insurance company to investigate arson as cause of property damage could not be ordered paid back as restitution.
Brown v. State –Criminal confinement by fraud and enticement was unconstitutionally vague as applied, Defendant’s posing as an employee of radio corporation was identity theft. Four hundred dollar jury fee was illegal.
Gutermuth v. State – Defendant who pled guilty prior to Collins and Blakely was entitled to retroactive application of Blakely in his belated direct appeal of his enhanced sentence.
UFG, LLC v. Southwest Corp. – Courts of equity should not order specific performance when the subject matter of the contract has been sold to an unrelated third party.
Dillman v. Trustees of Indiana Univ. – A gathering of less than a majority of the IU Trustees violates the spirit, but not the letter, of the Open Door Law.
Thomas v. Lewis Eng’g, Inc. – A professional owes no duty to one with whom it has not contracted unless the professional has actual knowledge that the third party would rely on the professional’s opinion or advice.
Lutz v. Erie Ins. Exch. – A party’s pleadings are subject to judicial notice and a fact admitted in a party’s pleading may be binding on that party as a judicial admission even if it is not subject to judicial notice.
Henderson argues that an insurance company’s investigative expenses are not compensable as restitution. Indiana Code section 35-50-5-3 provides, in relevant part, as follows:
(a) . . . in addition to any sentence imposed under this article for a felony or misdemeanor, the court may, as a condition of probation . . ., order the person to make restitution to the victim of the crime . . . . The court shall base its restitution order upon a consideration of:
. . . .
(4) earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime; . . . .
Henderson does not dispute that Allstate was a victim of the crime. Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005) (holding that an insurer may be a “victim” within the meaning of the restitution statute). Rather, Henderson argues that the $20,932.48 of investigative expenses incurred by Allstate is not “earnings lost by” Allstate. Thus, this restitution order does not fall into a permissible statutory category.
. . . Here, Allstate seeks money that it expended, not money that it lost. While Allstate unquestionably incurred approximately $20,000 in investigative expenses, there is no evidence that it lost any revenue or other income as a result.
It is apparent—and, indeed, Henderson admits—that Allstate has a civil claim against Henderson to recover the expenses it incurred in investigating the fire. But under these circumstances, Allstate is not entitled to restitution pursuant to a criminal proceeding because the losses that it incurred do not fall into a statutorily compensable category of restitution.
MAY, J., concurs.
SULLIVAN, J., concurs in result with opinion on another issue.
BROWN v. STATE, No. 49A05-0506-CR-321, __ N.E.2d __ (Ind. Ct. App., June 7, 2006).
Brown contends that the criminal confinement statute, Indiana Code Section 35-16 42-3-3, is unconstitutionally vague as applied to him, where he “merely lied about a radio contest that led individuals to leave their workplace to go to his home.” Appellant’s Br. at 12. The criminal confinement statute provides in relevant part:
(a) A person who knowingly or intentionally:
(1) confines another person without the other person’s consent; or
(2) removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another;
commits criminal confinement … a Class D felony.
Ind. Code § 35-42-3-3. Brown was charged with knowingly, by fraud and/or enticement, removing three men from their places of employment to his home.
. . . .
. . . Brown argues that the criminal confinement statute is unconstitutionally vague because the key words in the statute – fraud, enticement, and remove – are not defined by the statute, and thus the statute fails to provide adequate notice and does not establish minimal guidelines to govern law enforcement, prosecutors, and juries. Specifically, he argues that the statute does not provide notice to persons of ordinary intelligence that devising a fake radio contest, in which persons drive themselves to someone’s house and no force is used to make them enter the home or prevent their exit, constitutes criminal confinement.
. . . .
We agree with Brown that the ordinary understanding of the terms fraud and enticement is so broad that there is no discernible standard between lawful and unlawful conduct.4The same is true with respect to the definitions in Black’s Law Dictionary. In Black’s definition of fraud, the words “to act to his or her detriment” could have significantly different meanings to different people. Likewise, the word “wrongfully,” used in Black’s definition of enticement, is subject to a multitude of interpretations. By way of illustration, we note that many activities frequently engaged in by members of society would constitute criminal confinement pursuant to these terms. For example, asking a person to attend a quiet dinner that is actually a surprise birthday party could constitute removal of a person by fraud or enticement because some people do not enjoy surprise parties and might therefore think the lie told to lure them to the party was wrongful. Also, a person participating in a dating service who misrepresents themselves and successfully persuades another person to meet him or her could be subject to a criminal confinement conviction. The person who was misled by the misrepresentation might think that he or she had acted to his or her detriment.
. . . .
Here, we note, the criminal confinement statute does not expressly require a specific intent as an element of the crime. Even under Black’s definition of fraud and enticement, a specific intent is not included. The best that can be said is that fraud may imply a bad motive, but enticement is completely devoid of such a factor.
We also think that Vaughn, 782 N.E.2d 417, is helpful in determining whether the criminal confinement statute is unconstitutionally vague. The Vaughn court held that the domestic battery statute was unconstitutionally vague because “living as if a spouse” may be based on many things, and therefore different people could interpret the language differently. Id. at 419. Here, as in Vaughn, different people may interpret the undefined terms in the criminal confinement statute – fraud and enticement – differently. We conclude that the criminal confinement statute does not provide notice to persons of ordinary intelligence that devising a fake radio contest, in which persons drive themselves to someone’s house and no force is used to make them enter the home or prevent their exit, constitutes criminal confinement and that the terms are not defined in a manner to avoid arbitrary and discriminatory enforcement. [Footnote omitted.] Therefore, the criminal confinement statute is unconstitutionally vague as applied to Brown. . . . .
Brown contends that the identity deception statute, Indiana Code Section 35-43-5-3.5, is unconstitutionally vague as applied to him where he merely lied about working for or being a fictitious person at 93.1 Radio Now. Brown was charged with three counts of identity deception as follows:
Richard Carlos Brown, on or about July 29, 2004, did knowingly use the identifying information of another person, namely: Radio Now (93.1), without the other person’s consent and with the intent to harm or defraud another person, that is [J.M., M.C., A.H.], and/or profess to be another person, that is: an agent of Radio Now (93.1).
Appellant’s App. at 22-24. The identity deception statute provides in pertinent part:
(a) Except as provided in subsection (b), a person who knowingly or intentionally obtains, possesses, transfers, or uses the identifying information of another person:
(1) without the other person’s consent; and
(2) with intent to:
(A) harm or defraud another person;
(C) profess to be another person;
commits identity deception, a Class D felony.
(c) It is not a defense in a prosecution under subsection (a) that no person was harmed or defrauded.
Ind. Code § 35-43-5-3.5 (emphases added). At the time of Brown’s offenses, “identifying information” was defined as “information that identifies an individual, including an individual’s: (1) name, address, date of birth, place of employment, employer identification number, mother’s maiden name, Social Security number, or any identification number issued by a governmental entity[.]” Ind. Code § 35-43-5-1(h) (now 35-43-5-1(i)) (Emphasis added). We observe that the term “including” indicates that the list of identifying information provided by the statute is not exclusive. “Person,” means “a human being, corporation, limited liability company, partnership, unincorporated association, or governmental entity.” Ind. Code § 35-41-1-22.
Brown asserts that persons of ordinary intelligence would not be on notice that pretending to be a radio disc jockey constitutes identity deception and that upholding the constitutionality of the statute as applied to the facts of this case creates an enormous potential for erratic and arbitrary enforcement. Specifically, he claims that he was not aware of, nor did he use, any “identifying information” as defined by Indiana Code Section 35-43-5-1(h). The State argues that there is no ambiguity or risk of arbitrary enforcement in the identity deception statute as applied to Brown and that he knew and used the unique identifying information of a corporation and, in so doing, committed identity deception. We agree with the State.
. . . .
Brown asserts that ordinary people associate identity deception with the misuse of credit data. Even if that is true, it does not necessarily lead to the conclusion that the identity deception statute applies only to the misuse of credit data and that ordinary people understand it to be so limited. Brown also contends that the statute is so ambiguous that persons dressing up as someone else on Halloween or providing a false name at a bar are committing identity deception. We think that the statute is written in a manner that excludes such conduct in that it requires the “intent to harm or defraud another person.” I.C. § 35-43-5-3.5; . . . . We conclude that the identity deception statute is defined with sufficient definiteness to adequately inform persons of ordinary intelligence that knowingly using the identifying information of a corporation, such as a radio station, without its consent and with intent to harm or defraud another person constitutes identity deception. We further conclude that it provides satisfactory guidelines to police, prosecutors, and juries to avoid arbitrary and discriminatory enforcement. Accordingly, the identity deception statute is not unconstitutionally vague as applied to Brown.
. . . .
Brown contends that the $400 jury fee violates both the Indiana Code and the Due Process Clause of the state and federal constitutions. . . . .
Brown correctly notes that we have held that without statutory authority, the trial court has no power to assess jury costs. . . . However, the legislature has now authorized such an assessment. Indiana Code Section 33-37-5-19(a) provides, “The clerk shall collect a jury fee of two dollars ($2) in each action in which a defendant is found to have committed a crime, violated a statute defining an infraction, or violated an ordinance of a municipal corporation.” The State concedes that the trial court’s assessment of a $400 jury fee exceeded its statutory authority. We therefore affirm the imposition of the jury fee but remand for entry of a two-dollar jury fee. Upon remand, the trial court may reconsider whether to waive the fee based on a determination of Brown’s indigency.
FRIEDLANDER, J., and MAY, J., concur.
GUTERMUTH v. STATE, No. 10A01-0509-CR-41-, __ N.E.2d __ (Ind. Ct. App. , June 7, 2006).
. . . We agree with Gutermuth that Blakely applies retroactively to his case, but not because it is currently on direct review. As mentioned earlier, our supreme court stated that it would “apply Blakely retroactively to all cases on direct review at the time Blakely was announced.” Smylie, 823 N.E.2d at 690-91 (emphasis added). Blakely had been on the books for over a year by the time Gutermuth filed his notice of appeal.
Instead, we conclude that Blakely applies retroactively because Gutermuth’s case was not yet final when Blakely was decided. In Griffith, the U.S. Supreme Court explained that “final” means “a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition of certiorari elapsed or a petition for certiorari finally denied.” 479 U.S. at 321 n.6. In Gutermuth’s case, the availability of appeal via Post-Conviction Rule 2(1) had not yet been exhausted when Blakely was announced, and therefore Blakely must be given retroactive effect. . . . .
We acknowledge that at least two different panels of this Court have reached a different conclusion. In Robbins v. State, 839 N.E.2d 1196 (Ind. Ct. App. 2005), trans. not sought, the defendant pleaded guilty to two counts of class B felony child molesting and was sentenced to consecutive maximum twenty-year terms in 1999. Robbins filed an amended petition for post-conviction relief in 2001, which he withdrew in 2005 after our supreme court decided Collins. Robbins filed a belated notice of appeal in March 2005 and challenged his sentence under Blakely. In addressing the Blakely claim, the Robbins court discussed the ramifications of Smylie and noted that the defendant’s “direct appeal was not pending at the time that Blakely was decided.” Id. at 1199. The court then stated,
. . . While Robbins still had the option of pursuing a belated appeal at the time that the Blakely rule was announced, it is our conclusion that because his right to pursue a timely appeal had lapsed over four years prior to Blakely, his case was final for the purpose of retroactivity. Accordingly, we conclude that Robbins is not entitled to raise a Blakely challenge because Blakely does not apply retroactively to Robbins’s case.
In Hull v. State, 839 N.E.2d 1250 (Ind. Ct. App. 2005), trans. not sought, the defendant was resentenced for two counts of murder fifty days before Blakely was decided. . . . .
With respect to Hull’s Blakely claim, however, the court stated,
Hull did not file a timely notice of appeal and thus, Hull’s direct appeal was not pending at the time Blakely was decided. It was nearly ten months after Blakely that Hull filed his motion to file a belated notice of appeal. In short, although it was later revived, Hull’s case was not on direct review when Blakely was decided. See Robbins v. State, [839 N.E.2d at 1199,] (holding that Blakely did not apply to a case that was final but not on direct review when Blakely was decided and in which the trial court later allowed a belated appeal). Accordingly, Hull’s claims under Blakely must fail.
Hull, 839 N.E.2d at 1256.
We must respectfully disagree with our colleagues’ interpretation of finality as it relates to the retroactive application of Blakely. The U.S. Supreme Court’s definition of finality in Griffith requires only that the availability of appeal be exhausted; it does not require that the appeal be timely filed. . . . Although not based directly on Griffith, we have found one Indiana case that illustrates this critical point. . . . .
. . .
The State argues that Horrall may not benefit from a “retroactive” application of Bryant in this belated appeal. The State argues that the procedure for bringing a belated appeal under [Post-Conviction Rule] 2 “essentially allows collateral attacks on a conviction, although under the guise of a direct appeal.” We disagree.
As discussed by Professor Stroud:
Post-Conviction Remedy Rule 2 … is not a post-conviction relief procedure in the truest sense. [Post-Conviction Rule] 2, unlike [Post-Conviction Rule] 1, does not create a procedure for collaterally challenging a conviction or sentence. [Post-Conviction Rule] 2 does, however, provide a means by which a procedurally derailed appeal can be set back on the track towards review on the merits. The function, then, of [Post-Conviction Rule] 2 is to facilitate the direct appellate review of convictions.
Stroud, Kenneth M., 4A Indiana Practice (2nd Ed. 1990) § 18.1 p. 253 (Emphasis added). . . . .
The present appeal, although belated, is a direct appeal. Therefore, Horrall is entitled to an application of Bryant, 660 N.E.2d 290, and we must vacate his criminal conviction under principles of double jeopardy. . . . .
[Horrall v. State, 673 N.E.2d 526, 527 (Ind. Ct. App. 1996).] . . . .
Likewise here, Gutermuth’s belated appeal is a direct appeal, and absent any indication that he is responsible for the tardiness of his appeal, he is entitled to the retroactive application of Blakely. See id. [Footnote omitted.] At this point, it bears mentioning that those familiar with Indiana’s criminal justice system are aware that there are likely hundreds, if not thousands, of criminal defendants in a situation similar to Gutermuth’s: namely, those who pled guilty and were sentenced prior to both Collins and Blakely and were not advised of their right to challenge their sentence in a direct appeal. Pursuant to Smylie and Griffith, many of those defendants are now entitled to retroactive application of Blakely, and many of them have pursued (or will pursue) a belated appeal and challenge their enhanced sentences “on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced[.]” Powell v. State, 574 N.E.2d 331, 334 (Ind. Ct. App. 1991), trans. denied (1992). [Footnote omitted.] To put it mildly, the retroactive application of Blakely is likely to “have a highly detrimental effect on the administration of justice.” [Footnote omitted.] Id. Unless and until the U.S. Supreme Court revises or clarifies its rules on retroactivity, however, we are bound to consider the merits of belated Blakely appeals where appropriate.
MAY, J., concurs with opinion addressing another issue.
FRIEDLANDER, J., dissents with opinion:
The threshold issue in this case is whether Blakely applies to Gutermuth’s appeal. I respectfully dissent from the majority’s conclusion that it does.
. . . .
In a nutshell, the majority concludes that Gutermuth’s appeal is timely based upon its determination that his case was not yet “final” because all avenues of appeal had not yet been exhausted, i.e., he could still appeal his conviction and sentence via a belated appeal filed under PC-2. In so holding, the majority rejects Robbins v. State, 839 N.E.2d 1196 (Ind. Ct. App. 2005), which held that an appeal is “final” for Blakely purposes when the right to pursue a timely appeal has lapsed, and that “timely” in this context does not include the prospect of filing a belated appeal under PC-2 rules. I was on the Robbins panel and concurred in its holding with respect to the meaning of “timely” in this context. Unless and until our Supreme Court holds that the Robbins view is incorrect, I continue to adhere to that point of view, and therefore respectfully dissent from the majority’s determination that Gutermuth’s Blakely challenge is timely.
UFG, LLC v. SOUTHWEST CORP., No. 71A03-0511-CV-568, ___ N.E.2d ___ (Ind. Ct. App. Jun. 2, 2006).
UFG, LLC (“UFG”), David Henigan (“Henigan”), LaVern Schramer, Jr., and Carol Schramer (collectively, “Buyers”) appeal the trial court’s judgment in favor of Southwest Corporation (“Seller”) in Buyers’ action for specific performance and legal damages. Specifically, Buyers argue that the trial court erred in finding that specific performance is no longer an available remedy and that Buyers abandoned any claim for legal damages by electing specific performance as their remedy. We affirm the trial court’s ruling that specific performance is not an available remedy, but because Buyers never “elected” specific performance as their remedy, we reverse and remand with instructions for the trial court to hold a hearing on Buyers’ alternate remedy of legal damages.
On April 14, 2000, Buyers filed a Complaint for Specific Performance and for Damages (“Complaint”) against Seller and its president, Donald B. Fisher, and a notice of lis pendens, relating to the sale of the College Park Horizontal Regime located in St. Joseph County, Indiana (“Property”). Count I of the Complaint, labeled “Specific Performance,” alleged that Seller had wrongfully refused to follow through on its promise to sell the Property to Buyers, that Buyers still desired to purchase the Property, and that Buyers “believe[d] money damages to be an inadequate remedy.” Appellants’ App. p. 23. Buyers asked the trial court to order Seller “to convey the [P]roperty in accordance with the terms and conditions of the contract of sale, for costs, and all other appropriate relief.” Id.
Count II, labeled “Damages,” incorporated the allegations in Count I and [the complaint] also . . . requested “judgment against [Seller] in the sum of $1,290,318.00 or otherwise as shown by the evidence, for costs, and all other appropriate relief.” . . .
. . . .
Buyers first argue that Seller’s sale of the Property to Tycor does not preclude an order of specific performance. We cannot agree. “The grant of specific performance directs the performance of a contract according to the precise terms agreed upon, or substantially in accordance therewith.” Wenning v. Calhoun, 811 N.E.2d 933, 935 (Ind. Ct. App. 2004), trans. denied. It is axiomatic that courts of equity will only order specific performance when the contract is capable of being performed. . . . The subject matter of a contract is “beyond the control of the parties” when it is sold to an unrelated third party. Heritage Dev. of Ind., 773 N.E.2d at 893 n.5. Here, the Property was sold before this Court remanded the case to the trial court, so it is beyond the control of the parties and the court may not grant specific performance.
Buyers argue that even if specific performance is not possible, they should be able to pursue their alternative remedy of legal damages. In response, Seller contends that the trial court was correct to hold that Buyers are precluded from now seeking legal damages because they elected the remedy of specific performance and prosecuted it to a conclusion. We cannot agree.
. . . Buyers do not dispute that specific performance and legal damages are inconsistent remedies. Rather, they argue that they never elected specific performance to the exclusion of legal damages. . . .
. . . .
We remand this cause with instructions to the trial court to conduct a hearing to determine the legal damages to be awarded to Buyers as a result of Seller’s breach of contract.
The trial court correctly found that specific performance is no longer available to Buyers as a remedy. However, the trial court erred in finding that Buyers elected specific performance to the exclusion of their alternately-pleaded remedy of legal damages.
Therefore, we remand this cause with instructions to the trial court to determine Buyers’ legal damages.
Affirmed in part, reversed in part, and remanded with instructions.
Robb, J., and Mathias, J., concur.
DILLMAN v. TRUSTEES OF INDIANA UNIV., No. 53A01-0505-CV-247, ___ N.E.2d ___ (Ind. Ct. App. Jun. 2, 2006).
James R. Dillman, et al (“Appellants”) appeal from the Monroe Circuit Court’s grant of summary judgment in favor of the Trustees of Indiana University (“Trustees”). Appellants raise the following combined and restated issues:
I. Whether the trial court erred in determining that the Indiana Open Door Law did not apply to a gathering of less than a majority of the Trustees; and,
II. Whether the trial court erred in determining that the Indiana University President’s decision to terminate the contract of a basketball coach was made pursuant to a delegation of authority by the Trustees and not subject to the Open Door Law.
Concluding that neither a gathering of less than a majority of the nine Trustees nor the university president’s decision to terminate a contract were subject to the Open Door Law, we affirm.
. . . .
At a public meeting held on September 11, 1987, the Trustees passed a resolution which retained their authority to set policy, but delegated to the university president the “explicit authority …to manage[ ] and administer the University.” . . .
On May 14, 2000, the Trustees held an executive session regarding Knight’s continued employment at Indiana University. During that session, the Trustees and then Indiana University President Myles Brand (“President Brand”) discussed possible sanctions and termination of Knight’s employment with the University.
On the morning of September 9, 2000, President Brand met informally with members of the Board of Trustees at his home in Bloomington prior to an I.U. football game in order to update them on an ongoing investigation into Knight’s alleged battery of an I.U. freshman. They also discussed other instances of Knight’s alleged misconduct and insubordination. President Brand first spoke with four of the Trustees, while four other Trustees waited in another room. Roughly thirty minutes after speaking with the first four Trustees, President Brand spoke with the remaining four Trustees. President Brand later explained in deposition testimony that he deliberately gathered with fewer than a quorum of the Trustees “to exclude any impropriety with respect to the Open Door Act.” Appellants’ App. p. 53. The following day, September 10, 2000, President Brand announced his decision to fire Knight pursuant to the no-cause removal provision of his employment agreement.
. . . .
. . . On May 4, 2005, the trial court issued findings and conclusions granting summary judgment in favor of the Trustees. This appeal ensued.
. . . .
The purpose of the Open Door Law is to assure that the business of the State of Indiana and its political subdivisions be conducted openly so that the general public may be fully informed. Frye v. Vigo County, 769 N.E.2d 188, 192 (Ind. Ct. App. 2002); Ind. Code § 5-14-1.5-1 (2002). We are to liberally construe the statute in order to give effect to the legislature’s intention. Ind. Code § 5-14-1.5-1. The Open Door Law requires that, except for those situations where an executive session is authorized, “all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them.” Ind. Code § 5-14-1.5-3(a) (2002).
For purposes of the Open Door Law, a meeting is defined as “a gathering of a majority of the governing body of a public agency for the purpose of taking official action on public business.” Ind. Code § 5-14-5-2(c) (2002 & Supp. 2005). . . .
The conduct of the I.U. Trustees was in direct contravention to the public policy behind the Open Door Law. While a more open process in matters of governance such as this might be preferable, the legislative branch of our state government has spoken. The law does not prohibit this conduct. Moreover and importantly, we know this because the General Assembly has repeatedly considered and declined to amend the Open Door Law to change the definition of a meeting to include a “series of at least two [ ] gatherings of members of the governing body…attended by at least two [ ] members but less than a quorum…[where] [t]he sum of the number of different members of the governing body attending any of the series of gatherings at least equals a quorum of the governing body.” . . .
This repeated refusal to amend the definition makes clear the legislature’s intent to preserve the meaning of the term “meeting” as it is written. See Miller Brewing Co. v. Bartholomew County Beverage Co., 674 N.E.2d 193, 206 (Ind. Ct. App. 1996), trans. denied. Therefore, we conclude that the trial court properly determined that the gatherings of less than a majority of the Trustees did not constitute a meeting subject to the Open Door Law.
. . . .
The trial court properly entered summary judgment in favor of the Trustees.
Robb, J., and Vaidik, J., concur.
THOMAS v. LEWIS ENG’G, INC., No. 32A01-0509-CV-400, ___ N.E.2d ___ (Ind. Ct. App. Jun. 7, 2006).
Deann Thomas appeals from the trial court’s grant of summary judgment in favor of Lewis Engineering, Inc. (“Lewis”) and from the denial of Thomas’ cross-motion for summary judgment on her complaint alleging negligent misrepresentation. Thomas presents a single issue for review, namely, whether the trial court erred when it entered summary judgment in favor of Lewis.
In May 2002, Eric Owens marked with a string what he believed to be the western boundary of his property in Hendricks County, where he intended to build a fence. Thomas, the adjacent property owner west of Owens’ property, informed Owens that the marked line was on Thomas’ property. According to the findings of fact made by the trial court in the underlying quiet title suit, “Owens hired Lewis for the purpose of locating Owens’ west boundary line when Owens was considering the construction of [his] fence.” Appellant’s App. at 85. Despite Thomas’ protest, Owens built the fence along the boundary he had marked. In October 2002, Lewis prepared a retracement survey of Owens’ parcel. Lewis then provided a copy to Owens. The survey indicated that the location of the proposed fence was not on Thomas’ property.
In December 2002, Owens filed suit against Thomas “related to the placement of the fence and the ownership and location of the property line separating their [respective] parcels.” Appellant’s App. at 28. Thomas counterclaimed to quiet title and alleged trespass. After a bench trial in that case, the trial court entered judgment against Owens and in favor of Thomas on Owens’ second amended complaint and on Thomas’ counterclaim.
In August 2004, Thomas filed her complaint against Lewis, alleging negligent misrepresentation with regard to the retracement survey performed for Owens and seeking to recover the fees and costs Thomas spent to defend against Owens’ suit and to prosecute her counterclaim. Lewis filed a motion for summary judgment, and Thomas filed a response and counter motion for partial summary judgment. After a hearing on both motions, the trial court granted Lewis’ motion and denied Thomas’ counter motion. Thomas appealed.
. . . .
. . . . [A] professional owes no duty to one with whom it has not contracted unless the professional has actual knowledge that the third party would rely on the professional’s opinion or service. Because Thomas had no relationship with Lewis, she had no right to rely on its survey. And, in fact, Thomas did not rely on Lewis’ survey. Instead, she argued that the survey was inaccurate when she defended against Owens’ suit and filed her own counter suit. In sum, Thomas has shown neither a duty arising from a relationship with Lewis nor a duty arising from Lewis’ actual knowledge that Thomas would rely on its survey. Thus, Thomas has failed to state a valid claim under Indiana law. As such, the trial court did not err when it granted summary judgment in favor of Lewis on Thomas’ negligent misrepresentation claim.
Sharpnack, J., and Robb, J., concur.
LUTZ v. ERIE INS. EXCH., No. 49S02-0606-CV-205, ___ N.E.2d ___ (Ind. Jun. 8, 2006).
. . . .
In spring 2001, Kathryn McCormick was in a funeral procession traveling eastbound on Washington Street in Indianapolis. Indianapolis police officer Christopher Morgan had stopped his motorcycle in the intersection of Washington Street and Post Road and was directing traffic as the funeral procession approached. Carson Lutz, traveling southbound on Post Road, entered the intersection and collided with McCormick. McCormick’s automobile insurer, Erie Insurance Exchange, paid $4,533.42 for repair to McCormick’s vehicle and then, as subrogee, sued Lutz for that amount. Lutz filed a third party complaint against McCormick asserting that her negligence caused the accident and that he suffered both personal injuries and damage to his vehicle.
At trial, McCormick testified on direct examination that she could not recall whether the traffic signal was red or green as she entered the intersection. On cross-examination, Lutz’s attorney presented McCormick with her answer to Lutz’s complaint in which McCormick admitted that “she entered the intersection against the red light as part of a funeral procession and as directed by the uniformed police officer pursuant to I.C. § 9-21-13-1.” Lutz’s attorney then re-quested the court to take judicial notice of this admission. This request was denied. The jury allocated fault 10% to McCormick, 80% to Lutz, and 10% to a nonparty and awarded $3,626.74 to Erie. Lutz appealed and the Court of Appeals affirmed, concluding that the trial court correctly denied Lutz’s request for judicial notice. Lutz v. Erie Ins. Exch., 838 N.E.2d 1181, 1187 (Ind. Ct. App. 2005).
. . . .
The court may take judicial notice that McCormick admitted in her answer that the color of the light was red. It is well settled in Indiana that a trial court may judicially notice a party’s pleadings, whether or not facts recited in those pleadings are susceptible of judicial notice. See Owen v. State, 272 Ind. 122, 129, 396 N.E.2d 376, 381 (1979); Brown v. Jones, 804 N.E.2d 1197, 1202 (Ind. Ct. App. 2004), trans. denied; Sanders v. State, 782 N.E.2d 1036, 1038-39 (Ind. Ct. App. 2003). McCormick’s admission in her answer, once noticed, became a judicial admission as a matter of law. Statements contained in a party’s pleadings may be taken as true as against the party without further controversy or proof. 13 Robert Lowell Miller, Jr., Indiana Practice § 801.422, at 561 (2d ed. 1995). Unless a pleading is withdrawn or superseded, any admission contained in the pleading is conclusive as to that party. Id. The reason for this is that pleadings are designed to narrow the issues required to be tried. See, e.g., Sundstrand Corp. v. Standard Kollsman Indus., Inc., 488 F.2d 807, 811 (7th Cir. 1973) (“pleading is important only to inform the opposing party of what is claimed and the grounds upon which the claim rests.”); Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977) (pleading “serves to sharpen the issues to be litigated and to confine discovery and the presentation of evidence at trial within reasonable bounds.”). Opposing parties prepare their case on the assumption that facts admitted by other parties require no proof. For this scheme to work properly, parties must be entitled to rely on trial courts to treat admissions in pleadings as binding on the party making the admission.
Because McCormick’s answer was a party admission, under Evidence Rule 201(g) Lutz was entitled to an instruction that as to McCormick the light was red. However, it is unclear that Lutz requested such an instruction, and in any event he was not prejudiced by the absence of an instruction because the jury was properly instructed that a funeral procession has the right of way, but drivers in the procession are to exercise due care. Accordingly, any error was harmless.
We summarily affirm on all issues not addressed in this opinion. Ind. Appellate Rule 58(A)(2). Transfer is granted. The judgment of the trial court is affirmed.
Shepard, C.J., Dickson, Sullivan, and Rucker, JJ., concur.
4 We think the term “remove” is sufficiently understood by persons of ordinary intelligence so as not to impair the constitutionality of the criminal confinement statute.
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