Turner v. Board of Aviation Commissioners

BAKER, Judge,

concurring and dissenting.

I fully concur with the majority's decision to reverse the award of attorney fees entered in the Board's favor. I cannot agree, however, with the vacation of the $300 judgment and the decision to remand this cause to the trial court for "further proceedings on [Turner's remaining claims." Op. at 1172.

Citing Trisler v. Indiana Ins. Co., 575 N.E.2d 1021, 1025 (Ind.Ct.App.1991), the majority concludes that the denial of Turner's motion for summary judgment was proper because he failed to establish that a genuine issue of material fact existed with respect to his claims that: 1) the Board acted improperly in holding an alleged "closed-door" meeting when approving the fine schedule; 2) Gilbert lacked authority as the Board's agent to designate a self-fueling area; and 3) Gilbert and the Board did not seek the approval of the building safety commission regarding a self-fueling area. Op. at 1160, 1161, 1163-1165.

At the time of trial, the judge informed the parties that he did not "intend to rehash everything that we have already done on the Summary Judgment." Record at 146. The judge further commented that "the issue of whether or not the Board approved the fueling or anything that was raised in the Summary Judgment no, you can't raise it again. Now, when the case is over with, if you think I've made an error *1173in my ruling, you are more than welcome to appeal it." R. at 147.

I can agree with the majority's view that Turner should have been afforded an opportunity at trial to proffer additional evidence regarding the merits of his claim, and that he was effectively precluded from doing so. However, Turner did nothing to establish that the trial court's exclusion of such purported evidence was improper. He did nothing to alert the trial court that he had any additional evidence to offer, which was separate and apart from that designated at the summary judgment proceedings. In other words, Turner has not demonstrated the substance, purpose, rele-vaney and materiality of excluded evidence that would enable us to determine on appeal whether the exclusion was proper. See Donaldson v. Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1170 (Ind.Ct.App.1994). As a result, I vote to affirm the $300 judgment entered in the Board's favor.