Beiger Heritage Corp. v. Kilbey

• Decision Date: 25 February 1997
• Docket Number: No. 71A03-9604-CV-129,71A03-9604-CV-129
• Citation: 676 N.E.2d 784
• Parties: BEIGER HERITAGE CORPORATION, Appellant, v. Mark KILBEY and the Estate Of George D. Kilbey, Deceased, Appellee.
• Court: Indiana Appellate Court

Page 784

676 N.E.2d 784

BEIGER HERITAGE CORPORATION, Appellant, v. Mark KILBEY and the Estate Of George D. Kilbey, Deceased, Appellee.

No. 71A03-9604-CV-129.

Court of Appeals of Indiana.

Feb. 25, 1997.

Anastasia M. Mayette, Wilfred J. Mayette, Mayette & Mayette, Mishawaka, for Appellant.

James P. Knepp, William L. Wilson, Hahn, Walz, Knepp and Dvorak, South Bend, for Appellee.

OPINION

STATON, Judge.

Beiger Heritage Corporation ("Beiger"), plaintiff below, appeals the trial court's granting of summary judgment in favor of Mark Kilbey and the Estate of George D. Kilbey (collectively "Kilbey"). Beiger presents three issues for review:

I. Whether the grant of summary judgment was erroneous because Kilbey did not comply with the Indiana Trial Rule 56(C) requirement of specifically designating evidence in their motion for summary judgment.

II. Whether the trial court erred in granting summary judgment on the issue of waste.

III. Whether the trial court erred in granting summary judgment on the issue of laches.

We affirm in part, reverse in part, and remand.

In 1976 George Kilbey purchased fee simple title to the Carnegie Library in Mishawaka, Indiana, from Beiger. The purchase agreement provided that George Kilbey would renovate the facade of the Carnegie Library within two years of the sale. If George Kilbey failed to do so, the purchase agreement gave Beiger the right to renovate the facade itself and receive reimbursement from George Kilbey for the expense of such renovation. The purchase agreement also gave Beiger a right of first refusal, to purchase the property on the same terms offered Kilbey by another, should Kilbey ever sell the property. Neither Kilbey nor Beiger ever repaired the facade. After George Kilbey's death, his estate solicited offers for the sale of the Carnegie Library. Beiger opted to purchase the building for $16,500 pursuant to its right of first refusal. ¹

Beiger filed suit claiming tort damages resulting from Kilbey committing waste to the library, and contract damages from Kilbey's breach of a contractual duty to restore the facade of the library. Summary judgment was granted in favor of Kilbey. Beiger contends that summary judgment should be reversed because Kilbey's motion for summary judgment did not comply with the requirements of Indiana Trial Rule 56(C), and because material factual disputes exist in its waste and contract claims.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). The burden is on the moving party to prove there are no genuine issues of material fact, and he is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct.App.1994), reh. denied, trans. denied. We may sustain a summary judgment upon any theory supported by the designated materials. T.R. 56(C).

I. Specific Designation

Beiger first contends that summary judgment was improper because Kilbey did not comply with the T.R. 56(C) requirement of specifically designating the evidence on which his motion for summary judgment relied. The designation of supporting evidence contained in Kilbey's motion for summary judgment was merely the "pleadings filed in this cause of action" and the "Statement of Facts and Memorandum In Support Of Defendants' Motion For Summary Judgment, including the Exhibits attached thereto." Record at 72. This designation, standing alone, would be insufficient to meet the specificity requirements of T.R. 56(C). Plummer v. Board of Com'rs of St. Joseph County, 653 N.E.2d 519, 522 (Ind.Ct.App.1996), trans. denied. But this defect is remedied by quotations from the record and the specific designation of evidence contained in Kilbey's supporting brief. See Plummer, supra ("[A]lthough both parties designated entire portions of the record in their respective motion and responses, more detailed references to the record were provided in the accompanying memoranda"). While not the preferred method of complying with T.R. 56(C), identification of specific evidence in the supporting brief is sufficient to apprise the court of the particular evidence relied on by the litigants. Marshall v. Blue Springs Corp., 641 N.E.2d 92, 95 (Ind.Ct.App.1994) (The preferred method of designating evidence for a summary judgment motion is to succinctly list in the motion for summary judgment the material issues of fact, with a specific designation to their precise location in the record); See also L.E. Services, Inc. v. State Lottery Com'n of Indiana, 646 N.E.2d 334, 348 (Ind.Ct.App.1995), trans. denied; Trout v. Buie, 653 N.E.2d 1002, 1006 (Ind.Ct.App.1995), trans. denied ("As long as the trial court is apprised of the specific material on which the parties rely either in support of or in opposition to the motion then the designation requirement has been met"). The purposes of the 1991 amendments to T.R. 56(C) are to promote the expeditious resolution of lawsuits and conserve judicial resources. Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). T.R. 56(C) accomplishes these purposes by reducing the scope of materials in the record which the court must examine. Apprising the court of the specific evidence supporting a motion for summary judgment is sufficient to meet these purposes; no particular format is required. Kissell v. Vanes, 629 N.E.2d 878, 880-81 (Ind.Ct.App.1994) (Judge Baker concurring in result with separate opinion, in which Judge Staton concurs); Mid State Bank v. 84 Lumber Co., 629 N.E.2d 909, 913 (Ind.Ct.App.1994); National Bd. of Examiners for Osteopathic Physicians and Surgeons, Inc. v. American Osteopathic Ass'n, 645 N.E.2d 608, 616 (Ind.Ct.App.1994); Swan v. TRW, Inc., 634 N.E.2d 794, 796, note 1, (Ind.Ct.App.1994), trans. denied; Pierce v. Bank One-Franklin, NA, 618 N.E.2d 16, 19 (Ind.Ct.App.1993), trans. denied.

II. Waste

Beiger's contentions premised on waste are: (1) that Kilbey committed waste to the Carnegie Library; (2) that the waste was committed intentionally, entitling Beiger to punitive damages; and, finally, (3) that the waste devalued Beiger's right of first refusal. Kilbey responds that an owner vested with fee simple cannot be liable for waste.

Case law on the doctrine of waste before 1978 allowed an action for waste only to one vested with a remainder or reversionary interest. The case of Gwaltney v. Gwaltney, 119 Ind. 144, 21 N.E. 552 (1889), is similar to this case in that the plaintiff in Gwaltney sought to hold the defendant liable for waste, but the plaintiff did not have a remainder or reversion in fee simple. The plaintiff, stepson of the defendant, was heir apparent to land held in fee simple by the defendant, and sought to enjoin her from cutting standing timber. Our Supreme Court held that waste was a cause of action available only to those with a presently existing vested interest in real estate, either as remainderman or reversioner. The plaintiff in Gwaltney had no such presently vested interest in the land; an inheritance, the court reasoned, is an expectancy. The plaintiff looked forward to the possibility that he may possess the land at some point in the future, but it was also possible that his fee simple expectations would never come to fruition. As the Court explained:

a remainder-man, reversioner, or other person having an existing interest in land, may invoke the aid of a court of equity to restrain the commission of acts of waste, such as removing valuable timber from the freehold, where the timber constitutes an important element in the value of the land. Ordinarily a reversioner or remainder-man must have the legal title, or at least a present existing vested right, in remainder or reversion, in order that he may maintain the action. One thus seized of an estate, in remainder or reversion, may maintain an action for waste, ... notwithstanding the intervention of an estate for life or years. The difficulty which confronts the appellant in the present case is, he is neither a remainder-man nor reversioner, nor has he any interest whatever in the land, except a mere expectancy that he may inherit it from his stepmother in case he survives her ... The plaintiff occupies the attitude of an expectant heir, seeking to restrain the ancestor from committing waste upon an estate which the former may or may not inherit. We are not advised of any principle or authority which supports such a proceeding.

Gwaltney, supra, at 145-47, 21 N.E. 552 (citations omitted). See also Wilson v. Galey, 103 Ind. 257, 260, 2 N.E. 736 (1885) ("Yet, it has always been the law in this State, that the owner in fee simple of real property, in remainder or reversion, might recover of the life-tenant or tenant for years damages for waste committed, or might upon a proper showing enjoin the commission of further waste") (emphasis added); Brugh v. Denman, 38 Ind.App. 486, 488, 78 N.E. 349 (1906) ("But waste is defined to be 'a spoil or destruction, not arising from an act of God, or of a public enemy, in houses, gardens, trees, lands, or other corporeal hereditaments, to the dishersion of him who has the immediate remainder or reversion in fee simple ...' ") (emphasis added).

In 1978 the Indiana Appellate Court...