Augustine v. First Federal Sav. and Loan Ass'n of Gary

• Citation: 175 Ind.App. 597,373 N.E.2d 181
• Decision Date: 07 March 1978
• Docket Number: No. 3-375A49,3-375A49
• Parties: R. A. AUGUSTINE d/b/a South Shore Insurance, South Shore Building and Mortgage Company and South Shore Securities Corporation, Appellants (Defendants below), and Thirteen Hundred Broadway Corporation, an Indiana Corporation, Appellant (Defendant, Cross Complainant and Counter-Defendant below), and Frank L. KORPITA and Mary Agnes Korpita, husband and wife, Hobart Country Club Development Corporation, an Indiana Corporation, Title Corporation, and Norman Levenberg and ______ Levenberg, his wife, whose true Christian name is unknown, Appellants (Counter-Defendants below), v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF GARY, Appellee (Defendant, Cross-Defendant and Counter-Defendant below), and Buckeye Union Insurance Company, Appellee (Third-Party Defendant below), and Eichel Lovelace and Patricia Lovelace, Appellees (Plaintiffs below).
• Court: Court of Appeals of Indiana

Page 181

373 N.E.2d 181

175 Ind.App. 597

R. A. AUGUSTINE d/b/a South Shore Insurance, South Shore Building and Mortgage Company and South Shore Securities Corporation, Appellants (Defendants below) and Thirteen Hundred Broadway Corporation, an Indiana Corporation, Appellant (Defendant, Cross Complainant and Counter-Defendant below) and Frank L. KORPITA and Mary Agnes Korpita, husband and wife Hobart Country Club Development Corporation, an Indiana Corporation, Title Corporation, and Norman Levenberg and ______ Levenberg, his wife, whose true Christian name is unknown, Appellants (Counter-Defendants below), v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF GARY, Appellee (Defendant, Cross-Defendant and Counter-Defendant below) and Buckeye Union Insurance Company, Appellee (Third-Party Defendant below), and Eichel Lovelace and Patricia Lovelace, Appellees (Plaintiffs below).

No. 3-375A49.

Court of Appeals of Indiana, Third District.

March 7, 1978.

Rehearing Denied April 13, 1978.

Albert C. Hand, Michael L. Muenich, Lowell E. Enslen, Herbert E. Boase, Hammond, for appellants.

Borns, Quinn, Kopko & Lindquist, Merrillville, Dale E. Custer, Peter G. Koransky, Fred M. Cuppy, Gary, for appellees.

STATON, Presiding Judge.

Eichel and Patricia Lovelace purchased real estate from Thirteen Hundred Broadway Corporation under a conditional sales contract. Thirteen Hundred Broadway Corporation had mortgaged the real estate prior to the contract sale to First Federal Savings and Loan Association of Gary. The building on the real estate had been insured with Buckeye Union Insurance Company by R. A. Augustine, an agent, d/b/a South Shore Insurance Company, South Shore Building and Mortgage Company, and South Shore Securities Corporation. The insurance expired on December 5, 1971. After the insurance expired, the building on the real estate was destroyed by fire on December 12, 1971.

Lovelaces sued Thirteen Hundred, First Federal, Augustine, and Buckeye, alleging that one or more of the defendants negligently failed to notify Lovelaces of the expiration of the insurance. Augustine filed third-party actions against First Federal and Buckeye. First Federal and Buckeye moved for summary judgments; the motions for summary judgments were granted. Later, First Federal filed a counterclaim for foreclosure on the mortgage and a motion for summary judgment against Thirteen Hundred. First Federal's motion for summary judgment was granted by the trial court. This appeal arises from the granting of the two motions for summary judgment for First Federal and the granting of the summary judgment for Buckeye.

Ind. Rules of Procedure, Trial Rule 56(C) provides in pertinent part that:

"The (summary) judgment sought shall be rendered forthwith if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . ." (Emphasis added.)

We emphasize the fact that summary judgment shall be rendered if the evidence, including depositions, shows that there is no genuine issue as to any material fact. Summary judgment is appropriate only where there clearly are no factual issues in the case. See Linton v. Linton (1975), Ind.App., 336 N.E.2d 687.

Without unduly burdening this opinion with a recitation of the issues being litigated in this complex suit (most relate to negligence or breach of implied or expressed contracts), we point out that several instruments (mortgages, contracts, insurance policies) were subject to interpretation by the trial court. However, to be considered in conjunction with those instruments were the actions and agreements of many parties. The parties recorded, via deposition testimony, several hundred pages of evidence pertaining to the inter-relationships between the parties and their respective duties (expressed or implied). Yet, at the time Augustine filed his praecipe for appeal (after the summary judgments had been rendered and after the motions to correct errors had been denied) the depositions were still sealed. They were still sealed when they reached this Court. Clearly, the trial judge erred in granting summary judgment without considering all of the available evidence.

Our cursory review of part of the deposition testimony reveals that many genuine issues of material fact are in dispute. ¹ Therefore, the summary judgments are reversed, and the cause is remanded for trial.

BUCHANAN, J., concurs.

GARRARD, J., concurs in part and dissents in part with opinion.

GARRARD, Judge, concurring in part and dissenting in part.

In this multi-party, multi-claim litigation the seller and the insurance agent have appealed adverse rulings which granted summary judgment on some of the claims.

The basis of the litigation arises from the destruction of a building by fire shortly after the fire insurance covering it expired. The various claims seek to fix responsibility for the fire loss which was suffered, except one which seeks a mortgage foreclosure. While the following is an oversimplification of the claims and course of proceedings, I believe it accurately presents the issues raised on appeal.

The building in question had been sold on contract to Mr. and Mrs. Lovelace (the purchasers) by Thirteen Hundred Broadway Corporation (the seller). It remained subject to a mortgage in favor of First Federal Savings and Loan Association of Gary (the lender). Prior to the fire the building had been insured through South Shore Insurance (the agent). ¹ This policy was issued by Buckeye Union Insurance Company (the insurer). The policy expired December 5, 1971. The insurer had previously cancelled the agent's authority to write insurance for it and had determined to not renew the policy. ² The fire loss occurred on December 12th.

On January 6, 1974, the purchasers brought suit against the seller, the lender, the agent and the insurer. Subsequently, on plaintiff's motion, the insurer was dismissed as a party. The seller then cross-complained against the lender and the agent. ³ The gist of these claims was that the defendants tortiously and in breach of contract either failed to renew the fire insurance or failed to notify the claimant of the expiration of the old policy and that insurance should be procured.

Then the lender filed a counterclaim against the seller and purchaser asserting default and seeking foreclosure of its mortgage.

Finally, the agent cross complained against the lender and the insurer claiming it was entitled to indemnity and the expenses it incurred in litigation.

In the orders appealed from, the trial court granted summary judgment to the lender foreclosing the mortgage. It also granted summary judgment against the agent on its two cross claims and against the seller in its claim against the lender.

The majority reverses all these rulings upon the potential existence of material factual issues and the failure of the trial court to consider a number of depositions which were on file at the time of its rulings.

I concur with this result regarding three of the rulings, although it appears to me that the majority fails to consider an issue which must be confronted to reach...