Burcham v. Singer, 470A65

• Decision Date: 24 January 1972
• Docket Number: No. 470A65,470A65
• Parties: Howard L. BURCHAM, as Executor of the Estate of John W. Burcham, Deceased, Appellant, v. Marshall V. SINGER, Jr. and Robert L. Singer, as Co-Administrators of the Estate of Marshall V. Singer, Sr., Deceased, Appellees.
• Court: Indiana Appellate Court

Page 814

277 N.E.2d 814

151 Ind.App. 1

Howard L. BURCHAM, as Executor of the Estate of John W Burcham, Deceased, Appellant, v. Marshall V. SINGER, Jr. and Robert L. Singer, as Co-Administrators of the Estate of Marshall V Singer, Sr., Deceased, Appellees.

No. 470A65.

Court of Appeals of Indiana, Third District.

Jan. 24, 1972.

Rehearing Denied March 1, 1972.

John M. Lewis, Seymour, for appellant.

John P. Price, Indianapolis, Thomas R. Haley, Seymour, for appellees; Hamill, Price & Carroll, Indianapolis, of counsel.

HOFFMAN, Chief Judge.

The sole issue presented by this appeal is whether the trial court erred in entering a summary judgment in favor of plaintiffs-appellees.

The pertinent facts for the resolution of this issue are: On or about December 3, 1954, appellees' decedent, one Marshall V. Singer, Sr., was unable to meet certain mortgage obligations due and payable on his property. A conversation is purported to have ensued between Singer and one John W. Burcham whereby Singer was to sell the property subject to the mortgage obligations to Burcham, however, Singer was to retain the right to repurchase the property within one year's time. Subsequently a real estate contract and warranty deed passed between the parties.

On year later, on December 5, 1955, Burcham gave a written, one-year extension of the contract to Singer. Subsequently, similar one-year written extensions of the contract were given by Burcham to Singer on December 5, 1956, December 4, 1957, and December 4, 1958. Singer remained in possession of the property and gave to Burcham several checks, each in the amount of $759.25 on November 3, 1955, December 4, 1957, December 4, 1958, December 4, 1959, December 5, 1960, and December 4, 1961.

On March 6, 1963, the present appellees, as Co-Administrators of Singer's estate, filed their complaint in three legal paragraphs seeking 1) specific performance of the real estate contract to gain a reconveyance of the property; 2) a declaratory judgment to determine the rights of the parties under the contract (a demurrer to this paragraph of complaint was subsequently sustained); and 3) for a declaration of the transaction as a mortgage.

After the trial court denied plaintiff relief, an appeal was taken to the Appellate Court of Indiana. In Singer et al., Co-Admr. v. Burcham et al., (1966), 140 Ind.App. 378, at 385, 216 N.E.2d 532, at 537 (transfer denied), this court held:

'We see no alternative but to hold that in view of all the facts surrounding the transaction, the parties involved--whether knowingly or not--contemplated a situation which the law presumes to be an equitable mortgage. To hold otherwise would be contrary to law.

'The case is reversed and remanded for new trial.'

On September 25, 1969, the plaintiffs, as Co-Administrators of the estate of Marshall V. Singer, Sr., filed a motion for summary judgment incorporating therein the pleadings and evidence filed and introduced in the original trial and the decision of the Appellate Court in Singer et al., Co-Admr. v. Burcham et al., supra.

Burcham then filed his affidavit in opposition to motion for summary judgment which, omitting caption and formal parts, reads as follows:

'Comes now Leon D. Cline, who first being duly sworn upon his oath, says:

1.

'That he is now the attorney of record representing the defendants in the above captioned case.

2.

'That there is a dispute as to the material facts giving rise to this lawsuit. That as such the plaintiffs are not entitled to a summary judgment upon the pleadings.

GOLTRA, CLINE & KING

By /s/ Leon D. Cline

Attorneys for Defendants

'STATE OF INDIANA

COUNTY OF BARTHOLOMEW SS:

'Leon D. Cline, being duly sworn upon his oath, says: That he is one of the attorneys representing the defendants in the above captioned case; that he has read the above and foregoing Affidavit for Summary Judgment and that the matters and things herein contained are true as he verily believes.

/s/ Leon D. Cline'

Subsequently the trial court entered summary judgment in favor of plaintiffs-appellees. Appellant-Burcham then filed his motion to correct errors which was overruled by the trial court, and has now brought this appeal. The sole issue raised by appellant is whether the trial court's granting of the summary judgment was proper.

In Fair Share Organization v. Mitnick (1964), 245 Ind. 324, at 326--327, 198 N.E.2d 765, at 766, our Supreme Court in discussing the principle known as 'the law of the case' stated as follows:

'The decision of a court of appeals rendered upon a given state of facts becomes the law of the case applicable to such state of facts. Of course, upon a new trial, if new evidence is introduced and a new state of facts presented, we have a different case, and the trial court is not conclusively bound by the previous decision; but if the cause is submitted for a retrial upon the same facts upon which the decision was originally rendered such decision remains the law of the case and the trial court is bound thereby, as well as an appellate court on a subsequent appeal. Egbert v. Egbert et al. (1956), 235 Ind. 405, 132 N.E.2d 910; 2 I.L.E., Appeals, § 478.'

See also: Soderling v. Standard Oil Co. (1950), 229 Ind. 47, 95 N.E.2d 298; Pittsburgh, Cincinnati and St. Louis Railway Company v. Hixon (1887), 110 Ind. 225, 11 N.E. 285.

In the instant case no new facts or evidence were presented to the trial court, to the contrary, the only evidence was the evidence and pleadings filed and introduced in the original trial and the decision of this court that the evidence shows, as a matter of law, that the transaction contemplated an equitable mortgage. Furthermore, the affidavit in opposition to the motion for...