Opinion
No. 26A01-8907-CV-00285.
February 21, 1991.
Appeal from the Circuit Court, Gibson County, Walter H. Palmer, J.
Richard B. Steedman, Evansville, J. William Bruner, Robert R. Aylsworth, Boonville (Stephen T. Link, of counsel, on the brief), Evansville, for appellant.
James G. McDonald, Jr., McDonald McDonald, Charles R. Nixon, Fair Fair, Verner P. Partenheimer, Hall, Partenheimer Kinkle, Princeton, for appellee.
OPINION ON REHEARING
The Petition for Rehearing of appellant Mutchman is in all respects denied. However, the original majority opinion incorrectly cites a statute, IND. CODE 6-1-20-4, which has been repealed. Acknowledgement of this error does not change our conclusion that the express rights, with the exception of those specified in the original opinion, are appurtenant.
We note, in addition, that Mutchman represented to the trial court when it filed its motion for partial summary judgment that there were no genuine issues of material fact which would prevent the entry of a summary judgment in his favor. With the entry of summary judgment in favor of Consolidation Coal on Consolidation Coal's cross motion for summary judgment, the facts are deemed established under Ind. Trial Rule 56(D). Mutchman cannot now change his position and argue the existence of a genuine factual issue as a ground for denying summary judgment in Consolidation Coal's favor. Franklin Bank Trust Co. v. Mithoefer (1990), Ind., 563 N.E.2d 551.
RATLIFF, C.J., and BAKER, J., concur.