Cordial v. Grimm

• Citation: 169 Ind.App. 58,346 N.E.2d 266
• Decision Date: 28 April 1976
• Docket Number: No. 3--974A161,3--974A161
• Parties: Moses CORDIAL, Plaintiff-Appellant, v. Edgar A. GRIMM and Howard S. Grimm, Defendants-Appellees.
• Court: Court of Appeals of Indiana

Page 266

346 N.E.2d 266

169 Ind.App. 58

Moses CORDIAL, Plaintiff-Appellant, v. Edgar A. GRIMM and Howard S. Grimm, Defendants-Appellees.

No. 3--974A161.

Court of Appeals of Indiana, Third District.

April 28, 1976.

Stephen P. Rothberg, David B. Keller, Parker, Hoover, Keller & Waterman, Fort Wayne, for plaintiff-appellant.

Carl J. Suedhoff, Jr., Hunt, Suedhoff, Borror, Eilbacher & Lee, Fort Wayne, for defendants-appellees.

HOFFMAN, Judge.

Plaintiff-appellant Moses Cordial brought this action to recover damages allegedly resulting from the legal malpractice of defendants-appellees Edgar A. Grimm and Howard S. Grimm. The trial court granted a motion for summary judgment made by the appellees, and entered a judgment in their favor. Cordial then filed a motion to correct errors, which was overruled by the trial court, and he subsequently perfected this appeal.

The sole issue presented by this appeal is whether the trial court erred in granting such summary judgment. In passing upon this question, it must be determined whether the trial court was correct in holding that there was no genuine issue as to any material fact. Trial Rule 56(C), Ind. Rules of Procedure; Glosser, et al. v. New Haven (1971), 256 Ind. 33, 267 N.E.2d 67; Brutus v. Wright (1975), Ind.App., 324 N.E.2d 165. In determining whether such a question of material fact exists, only the evidence and inferences therefrom most favorable to the non-moving party may be considered; all conflicts in the evidence must be resolved against the party seeking summary judgment. Surratt v. Petrol, Inc. (1974), Ind.App., 312 N.E.2d 487 (transfer denied).

The facts and inferences therefrom most favorable to appellant Cordial in the record of this cause establish that the appellant engaged attorney Edgar Grimm to represent him in a workman's compensation action in December of 1966. Such action was terminated adversely to appellant in November of 1967. In March of 1968 attorney Howard Grimm initiated a second claim for workman's compensation on appellant's behalf based upon the same injury. Such second claim was denied by a single hearing member of the Board in February of 1969 on the ground that it was barred by the prior claim and determination. The full Industrial Board sustained such finding in March of 1971.

Appellant then contacted numerous attorneys, presumably in reference to the alleged malpractice of the appellees, but did not retain an attorney to prosecute an action against the appellees. Ultimately, he commenced this action pro se on March 24, 1972.

Shortly after the commencement of this action, the appellees filed their motion for summary judgment. They asserted therein that the appellant's action was barred under the applicable statute of limitations because his right to maintain this action had arisen more than two years prior to its commencement. On appeal, the appellant asserts that this action was not so barred.

The trial court did not specify what statute of limitations it relied upon in granting summary judgment for the appellees. The appellant asserts that no statute of limitations barred his claim, while the appellees assert that two statutes of limitation are applicable to this case and that the appellant's claim is barred by both such statutes.

The first statute of limitations whose applicability is questioned by the parties is IC 1971, 34--1--2--2 (Burns Code Ed.), which provides, in pertinent part:

'The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards.

'First. For * * * injuries to personal property, * * * within two (2) years: * * *.'

In ruling upon the applicability of this statute, we must initially approach the question of the nature of appellant's cause of action. Although he concedes that his action has many of the characteristics of a tort claim, appellant has attempted to characterize his cause of action as a breach of an implied contract of employment, and to thereby render applicable the longer statute of limitations ¹ pertaining to contracts not in writing. In making this assertion appellant has, apparently unwittingly, stumbled across a question which provoked much litigation in relation to medical malpractice actions in the years before the adoption of the present Indiana statute of limitations applicable to such actions. Stated classically, the question is: Where a tort arises out of a contract, is the nature of the resulting action ex contractu or ex delicto, for the purposes of the application of a procedural statute imposing a limitation on the commencement of such action? See, generally, Anno. 1 A.L.R. 1313 (1919), as supplemented by Anno. 157 A.L.R. 763 (1945).

The Indiana cases which directly deal with this question were decided in the era of Field Code pleading. See, e.g., Staley v. Jameson (1874), 46 Ind. 159; Boor, Administrator, et al. v. Lowery (1885), 103 Ind. 468, 3 N.E. 151. At this time, each pleading paragraph of a complaint was required to contain sufficient averments of fact within itself to reveal the theoretical nature of the cause of action to the court. Sickels v. Aetna Securities Co. (1942), 220 Ind. 347, 351, 41 N.E.2d 947; State v. Adams Express Co. (1909), 172 Ind. 10, 87 N.E. 712; Chicago & Erie R. Co. v. Monesmith (1941), 110 Ind.App. 281, 37 N.E.2d 724. In those cases, our courts determined the question of the nature of an action such as the case at bar by reference to the theory stated in the complaint. See, e.g., Lane v. Boicourt (1891), 128 Ind. 420, 27 N.E. 1111.

However, under our present Indiana Rules of Procedure, a party commencing a civil action is required to include in his complaint only a short and plain statement of his claim, and a demand for relief. Trial Rule 8(A), Ind. Rules of Procedure. The complaint need not disclose the general legal theory upon which the plaintiff will proceed, but rather only the operative facts involved in the litigation. State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604.

In conformity with these principles, appellant alleged in his original and amended complaints the facts constituting the alleged malpractice by the appellees, and omitted any reference to his legal theory of the action. In ruling on appellees' motion for summary judgment, however, the trial court was required to determine what statute of limitations was applicable to the cause of action stated by appellant by determining the legal basis of the action.

It is proper for a trial court to make such a determination in order to determine what law is applicable to a particular case. Sickels v. Aetna Securities Co., supra. As stated by Judge Dillin in the case of Koehring Company v. National Automatic Tool Co. (1966), 257 F.Supp. 282:

'The general rule is that, especially where forms of action have been abolished, as in Indiana, it is the nature or substance of the cause of action, rather than the form of the action, which determines the applicability of the statute of limitations. 53 C.J.S. Limitations of Actions § 33 p. 982.'

Similarly, see, 51 Am.Jur.2d, Limitation of Actions § 105, pp. 677--78.

It will be noted that the American Jurisprudence section cited above states that some older caselaw authority exists in Indiana which is contrary to such general rule. However, as recounted hereinabove, such caselaw arose under a substantially different system of civil procedure and was premised upon the legal theories of such system. Today a dominant trend in the law, as exemplified by our present Indiana Rules of Procedure, is the recognition of substance and the disregard of mere form. The general rule quoted hereinabove serves this end. Furthermore, the older Indiana caselaw authorities now under consideration are of dubious vitality, due to the language of subsequent decisions. See, Anno. 1 A.L.R. 1313, at 1316--18, supra; and Anno. 80 A.L.R.2d 320, § 6(b), at 342--43.

Thus, it is both necessary and appropriate under the current state of the law for the trial court to rule upon the legal nature or substance of a cause of action when the applicability of a statute of limitations to such cause of action is in issue. See, 51 Am.Jur.2d, Limitation of Actions, § 62, at 640--41.

In the case at bar, the substance of the factual allegations which the appellant made in his complaint is that the appellees' actions or inactions rendered his valid workman's compensation claim worthless.

Such claim was a chose in action, and as such must be considered to have been the personal property of appellant. See, Gregory v. Colvin (1963), 235 Ark. 1007, 363 S.W.2d 539, 540; Peavy Lumber Company v. Murchison (1961), 272 Ala. 251, 130 So.2d 338, 340. Cf: Merritt v. Economy Dept. Store, Inc. (1955), 125 Ind.App. 560, 128 N.E.2d 279.

It is the alleged tortious damage to such personal property which gave rise to appellant's cause of action, and it is for such damage that he sought compensation.

In light of the foregoing, the trial court could have properly concluded that the provision of IC 1971, 34--1--2--2, supra, limiting the commencement of actions for damage to personal property was applicable to appellant's cause of action, because such aspect of this case was the gravamen of the case. See, Rush v. Leiter (1971), 149 Ind.App. 274, 271 N.E.2d 505.

The second statute of limitations, the applicability of which is questioned by the parties, is IC 1971, 34--4--19--1 (Burns Code Ed.), which provides:

'Malpractice--Limitation of actions.--No action of any kind for damages, whether brought in contract or tort based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of.'

Although this statute has historically been applied only to...