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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.
ATTORNEY FOR APPELLANT: JORDAN D. CHURCH ATTORNEYS FOR APPELLEE: GARY A. SCHIFFLI

Noblesville, Indiana

Indianapolis, Indiana CHARLES F. MILLER, JR. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

EXPRESS MANUFACTURING, LLC., Appellant-Defendant, vs. COX II CORPORATION, Appellee-Plaintiff.

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No. 29A05-0602-CV-57

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Daniel J. Pfleging, Judge Cause No. 29D02-0410-CC-880

DECEMBER 28, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge

STATEMENT OF THE CASE Defendant-Appellant Express Manufacturing, L.L.C. ("Express") appeals from the trial court's order granting summary judgment in favor of PlaintiffAppellee Cox II Corporation ("Cox II"). We affirm, and remand for determination of appellate fees. ISSUES Express presents the following issues for our review. I. Whether the trial court erred by concluding that Express was liable under the terms of the purchase agreement for 2002 personal property taxes; Whether the trial court erred by granting summary judgment in favor of Cox II on the issue of records availability; and Whether the trial court erred by granting summary judgment in favor of Cox II on the issue of attorney fees. FACTS AND PROCEDURAL HISTORY On July 3, 2002, Express, as Buyer, and Cox II, as Seller, executed a purchase agreement regarding the sale of certain business assets. Express and Cox II closed on the agreement on October 3, 2002. In 2004, Cox II was notified by the Hamilton County Treasurer's Office that business personal property taxes were delinquent for the year 2002, payable in 2003, in the principal sum of $5,564.44 plus penalties and interest.

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Cox II sent demand letters to Express on August 14, 2003, and July 2, 2004, notifying Express that it was obligated to pay the taxes under the terms of the purchase agreement. Express did not pay the taxes. Cox II filed a complaint for declaratory judgment and damages against Express on October 4, 2004. Express filed an answer on December 21, 2004. On April 14, 2005, Cox II filed a motion for summary judgment. Express filed a response on May 16, 2005. The hearing on Cox II's motion for summary judgment was held on July 7, 2005. On July 27, 2005, the trial court entered an order granting summary judgment in favor of Cox II. Pursuant to the trial court's order, Cox II filed an affidavit of tax indebtedness on August 10, 2005 in the amount of $9,201.23. Express filed a motion to correct error on August 25, 2005 that later was deemed denied. Express now pursues this appeal. DISCUSSION AND DECISION STANDARD OF REVIEW On appeal, the standard of review of a summary judgment ruling is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. SMDfund, Inc. v. Fort Wayne-Allen County Airport Authority, 831 N.E.2d 725, 728 (Ind. 2005). A court on review can affirm an order granting summary judgment on any grounds as to which the designated evidence establishes no genuine issue of material fact. Id. BUSINESS PERSONAL PROPERTY TAX LIABILITY 3

The trial court determined that Express was liable under the terms of the purchase agreement for the assessed 2002 business personal property taxes which became payable in 2003. Express alleges that the trial court erred. Tangible property is assessed for tax purposes on the first day of March one year, but taxes thereon do not have to be paid until the following year. Ind. Code

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