Barnd v. Borst

Decision Date15 February 1982
Docket NumberNo. 1-281A60,1-281A60
PartiesMaurice Eugene BARND, Plaintiff-Appellant, v. James R. BORST, Defendants-Appellees.
CourtIndiana Appellate Court

Robert H. Orbison, Inezellen Bales, Frederic C. Sipe, Baker, Orbison, Bales & Knowles, Indianapolis, for plaintiff-appellant.

Richard W. Yarling, John W. Hammel, Yarling, Tunnell, Robinson & Lamb, Indianapolis, for defendants-appellees.

RATLIFF, Presiding Judge.


Maurice E. Barnd, plaintiff below, appeals from the trial court's grant of summary

judgment in favor of defendants below, James R. Borst and Robert A. Borst. We affirm

On December 5, 1976, Robert was driving a 1970 Chrysler along Pendleton Pike in Indianapolis, Indiana, when he collided with the rear end of Barnd's 1969 Cadillac. The automobile Robert was driving was owned by Richard Borst and was insured under a policy owned by James Borst. James's insurer settled Barnd's property damage claim on January 5, 1977. On June 13, 1977, Barnd filed his initial complaint for $50,000 in damages against James alleging James's negligent operation of the motor vehicle which caused him (Barnd) personal injuries. On August 23, 1977, Barnd amended his complaint with respect to the issue of damages. James filed interrogatories to Barnd on July 27, 1977, and an answer in general denial on September 2, 1977. Later in 1977 the cause was venued to the Hancock Circuit Court where no action was taken until July 20, 1979, when the court set the cause for hearing pursuant to Ind.Rules of Procedure, Trial Rule 41(E). At Barnd's request the court removed the hearing from its docket, and Barnd resumed discovery by filing interrogatories to James on August 6, 1979. James filed his answers thereto on October 31, 1979, stating that Robert was the driver of the car involved in the accident complained of. On January 8, 1980, Barnd filed what he denominated as his Second Paragraph of Amended Complaint for Damages in which Robert was named a defendant and allegations of fraud were introduced. 1 Barnd alleged in his complaint, which was not verified and contained no signed certificate of service, that at the time and place he was injured he was given James's name as the owner and operator of the vehicle in question and that settlement of the property damage to his car and negotiations for the settlement of his personal injury claims had been carried out by attorneys for James. Barnd stated that as a result of the foregoing he believed James to be the owner and operator of the car until June 25, 1979, when James's attorney advised his (Barnd's) attorney that James was the wrong party. Thus Barnd alleged, "The actions of the Defendants herein in misleading the Plaintiff amounts (sic) to a fraud perpetrated by Defendants and their agents and they should not now be permitted to plead the Statute of Limitations in defense to this action." Record at 88. The record reveals no service of process at this or any point upon Robert. James filed his motion for summary judgment on January 17, 1980, accompanied by his affidavit stating that he was not operating an automobile at the time and place alleged by Barnd, has no firsthand knowledge of the accident, was not the employer or principal of any driver, and has never collided with Barnd's automobile. Robert also filed an affidavit stating that he was the driver of the car involved in the accident at issue, but that he properly identified himself to all parties, as was reflected in the police report. Barnd then, on January 25, 1980, filed his Third Paragraph of Amended Complaint for Damages, which was verified and certified as mailed to James's attorney. In this complaint Barnd incorporated by reference pertinent paragraphs of his earlier amended complaints and in addition alleged the following:

"5. That the Defendant, James R. Borst, by and through his agents and representatives knowingly continued to mislead this Plaintiff by obtaining privileged information to which he was not entitled, and thereafter, attempting to negotiate a settlement of the personal injuries of this Plaintiff, and did not file his motion for summary judgment in this accident until the 16th of September, 1979, almost four years after said accident and after the statute of limitations had run against Robert A. Borst. All of said actions of the Defendant, James R. Borst, the plaintiff relied upon and all of

the false actions of said Defendant has (sic) operated as a fraud upon this Plaintiff, in an effort to preclude this Plaintiff from bringing his action against Robert A. Borst within the statute of limitations

"6. The said Robert A. Borst who lived at the same address as James Richard Borst, knew that the Plaintiff believed that the Defendant, James R. Borst, was the operator of this car, and he collaborated with the said James R. Borst to work a fraud upon this Plaintiff.

"7. That the said James R. Borst is guilty of fraud and of laches in this matter, and a copy of this Plaintiff's Affidavit is attached hereto and made a part hereof and marked Exhibit 'A'.

"8. The said James R. Borst, having contracted to protect the general public against the acts of the said Robert A. Borst, this Plaintiff being a part of said general public, should not be permitted to perpetrate a fraud upon this Plaintiff, and should remain a party to this action, by reason of his contractual relationship to protect this Plaintiff against the negligent acts of the said Robert A. Borst. A copy of said Contract is attached hereto, made a part hereof and marked Exhibit 'B'.

"9. By reason of the false and fraudulent acts of the Defendants herein the Plaintiff is entitled to recover the sum of $50,000.00 against said Defendants for said fraud perpetrated upon this Plaintiff.

"WHEREFORE, Plaintiff prays for judgment against the Defendants herein in the sum of $50,000.00 for said fraud and damages to this Plaintiff and for such further relief proper in the premises."

In his affidavit, Exhibit "A," Barnd restated the allegations of his complaint, viz., that he received the name of James R. Borst at the time of the accident, that he believed the name of the driver to be James, and that James's insurance company led him to believe James was the driver of the car.

The court, noting that it had considered the entire record in this cause, first sustained James's motion for summary judgment as to the negligence issue of Barnd's amended complaint and second sustained James's 12(B)(6) motions as to the second and third paragraphs of Barnd's amended complaint which involved allegations of equitable estoppel and fraud. Third, the court also sustained Robert's 12(B)(6) motions, dismissing all three complaints alleging negligence, equitable estoppel, and fraud on the grounds that the complaints failed to state a claim upon which relief could be granted.


The issues which Barnd presents for review are

1. Did the trial court err in granting summary judgment in favor of James upon the issue of negligence?

2. Did the trial court err in granting summary judgment in favor of Robert upon the issue of equitable estoppel?

3. Did the trial court err in granting summary judgment in favor of James and Robert upon the issue of fraud?


All parties agree that, because facts in addition to those alleged in the various complaints were placed of record and considered by the trial court, the court's order must be treated as one granting summary judgment upon all the issues. See Middlekamp v. Hanewich, (1977) 173 Ind.App. 571, 364 N.E.2d 1024, trans. denied. They further agree that our standard of review therefore must be whether or not there is a genuine issue as to any material fact relevant to the claims stated in each of the three paragraphs of Barnd's amended complaint.

We have stated many times that motions for summary judgment are properly granted only when the pleadings and other matters of record reveal that there is no genuine issue or dispute as to a material fact and that the moving party is entitled to judgment as a matter of law. Associates Financial Services Co. of Kentucky v. Knapp, (1981) Ind.App., 422 N.E.2d 1261; Kendrick Memorial Hospital, Inc. v. Totten, (1980) Ind.App., 408 N.E.2d 130. To determine whether such issues exist, the court must accept as true those facts alleged by the nonmoving party and resolve all doubts against the moving party. English Coal Co. v. Durcholz, (1981) Ind.App., 422 N.E.2d 302, 303, trans. denied. The granting of a motion for summary judgment is not appropriate if the trial court must weigh conflicting evidence to reach a decision, Collins v. Dunifon, (1975) 163 Ind.App. 201, 323 N.E.2d 264, or even if there are conflicting inferences which may be drawn from undisputed facts. Moll v. South Central Solar Systems, Inc., (1981) Ind.App., 419 N.E.2d 154. "However, despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation." Hayes v. Second National Bank of Richmond, (1978) Ind.App., 375 N.E.2d 647, 650, trans. denied. Moreover, on appeal, all reasonable presumptions will be indulged in favor of the rulings and judgments of a trial court, and no presumptions will be indulged in favor of an appellant to sustain his alleged error. N.Y. Central Ry. Co. v. Milhiser, (1952) 231 Ind. 180, 106 N.E.2d 453, reh. denied 108 N.E.2d 57. The burden of proving reversible error is on the appellant. English Coal v. Durcholz, supra.

With these standards of appellate review before us we turn our attention to the issues at hand.

Issue One

While he asserts that the first issue is whether or not the trial court erred in granting summary judgment in favor of James on the negligence count, Barnd devotes the totality of his appellate argument to the issues of estoppel and fraud. Generally when a party fails to support his...

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