Donald Fisher v. Tower Bank and Trust Co. (NFP)
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FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Aug 31 2010, 9:57 am CLERK of the supreme court, court of appeals and tax court ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE: SOLOMON L. LOWENSTEIN, JR. CHARLES E. DAVIS Fort Wayne, Indiana MILFORD M. MILLER DAVID R. SMELKO JARED C. HELGE Rothberg, Logan & Warsco LLP Fort Wayne, Indiana IN THE COURT OF APPEALS OF INDIANA DONALD FISHER, Appellant-Defendant, vs. TOWER BANK AND TRUST COMPANY, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 02A05-1002-MF-97 APPEAL FROM THE ALLEN CIRCUIT COURT The Honorable Thomas J. Felts, Judge Cause No. 02C01-0903-MF-206 August 31, 2010 OPINION ON REHEARING - NOT FOR PUBLICATION FRIEDLANDER, Judge Donald Fisher has filed a petition for rehearing asking this court to consider again whether the trial court properly granted summary judgment in favor of Tower Bank and Trust Company. Fisher also notes that we cited to evidence not properly designated to the trial court for summary judgment purposes. We take this opportunity to address the second issue raised by Fisher and clarify our opinion accordingly. It is well established that our review of a summary judgment motion is limited to those materials designated to the trial court. Weathersby v. J.P.Morgan Chase Bank, N.A., 906 N.E.2d 904 (Ind. Ct. App. 2009); Ind. Trial Rule 56(H). In our original opinion we cited to an appraisal report contained in the Appellee s Appendix to establish the value of the land As Is and the value of Parcel 1 As If Complete . See slip op. at 2, 8. We further referenced the As If Complete value in two other instances in our opinion. See slip op. at 9, 11. We acknowledge that the appraisal report referred to was never properly designated for summary judgment purposes and was not before the trial court. Our citation to such document was inadvertent. Nevertheless, the information garnered from the appraisal report is contained within materials that were properly designated to the trial court for summary judgment purposes. See, e.g., Appellant s Appendix at 119, 179, 180, 227, 230, and 231. Subject to this clarification, we reaffirm our decision in all respects. KIRSCH, J., and ROBB, J., concur. 2
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