Deckard v. Mathers

• Decision Date: 21 June 1972
• Docket Number: No. 372A121,372A121
• Citation: 284 N.E.2d 92,152 Ind.App. 440
• Parties: Roy DECKARD, Defendant-Appellant, v. Frank C. MATHERS, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 92

284 N.E.2d 92

152 Ind.App. 440

Roy DECKARD, Defendant-Appellant, v. Frank C. MATHERS, Plaintiff-Appellee.

No. 372A121.

Court of Appeals of Indiana, First District.

June 21, 1972.

Rehearing Denied Aug. 4, 1972.

Kenneth L. Nunn, Bloomington, for defendant-appellant.

William H. Andrews, Baker, Barnhart, Andrews, Baker & Mann, Bloomington, for plaintiff-appellee.

LOWDERMILK, Judge.

This appeal comes to us from a summary judgment granted in the trial court against defendant-appellant on his counterclaim in four Paragraphs in an action originally filed by plaintiff-appellee in ejectment for the recovery of the second floor, or apartment, in a building in Bloomington, Indiana.

Plaintiff-appellee did, on October 9, 1970, file a motion to strike, a motion to dismiss or in the alternative a motion for summary judgment or all four Paragraphs of Deckard's counterclaim. These pleadings, including the motion for summary judgment, were supported at that time by several exhibits, plus two affidavits in support of the motions.

Defendant-appellant did not file any exhibits, nor did he file any counter-affidavits. However, he did file two unverified motions in opposition to the pleadings, challenging the motion to dismiss and the motion for summary judgment.

The trial court set the motions for oral argument on November 30, 1970, oral arguments were had on the motions filed by plaintiff-appellee, including the motion for summary jugment. Defendant-appellant, Deckard, at the time of the oral arguments, requested permission of the court to testify under oath im opposition to the motion for summary judgment and the motion to dismiss. Permission to give oral testimony at the time of the argument on the motions was refused by the court. At the conclusion of the hearing the court took its findings on the motions under advisement and granted the parties additional time in which to file affidavits or other written instruments of proof.

Thereafter, on December 9, 1970, plaintiff-appellee accepted the court's generosity and filed a supplemental memorandum in support of plaintiff's motion to dismiss, or in the alternative, motion for summary judgment. The record discloses that the defendant-appellant did not at any time file any affidavits or any documentary evidence to sustain his position that there was a material issue of fact presented to the court in the cause.

On March 18, 1970, the trial court sustained the plaintiff's motion for summary judgment on defendant's counterclaim and entered a summary judgment thereon in favor of the plaintiff-appellee.

The findings show that the court considered the motion to dismiss the counterclaim and in the alternative the motion for summary judgment, pursuant to Rule TR. 12(B), IC 1971, 34--5--1--1 and also showed he had considered all the other Paragraphs of the counterclaim and being fully advised in the premises, found the following facts to be uncontroverted and established.

In the interests of brevity we will not set out the findings and judgment of the trial court in full, but they will be paraphrased as follows, to-wit:

1. On May 24, 19698 the parties entered into a conditional sales contract. Shortly thereafter, the parties agreed to an addendum thereto by which the plaintiff-appellee agreed to sell defendant-appellant real estate in the City of Bloomington.

2. That defendant-appellant executed a quitclaim deed to said real estate to the City of Bloomington, Monroe County, Indiana, releasing all his interests and rights in and to said conditional sales contract for said real estate between appellant and appellee.

3. Defendant-appellant left certain personal property on the premises after the execution of the quitclaim deed; that a part of said items of personalty were repossessed by a loan company and resold to plaintiff-appellee and said company executed a bill of sale to him; that the balance of personal property set out in the counter-claim has been removed by defendant-appellant from said real estate or was not about the premises when the plaintiff took possession, or is not the property of the defendant-appellant.

4. Defendant-appellant has been notified by plaintiff-appellee to pick up his property and failed to do so.

5. There was no contract, written or oral, obligating plaintiff-appellee to pay defendant-appellant for defendant's labor.

'And the Court further finds that there is no genuine issue of fact to be submitted to the trial court on the Defendant's Counterclaim, and that the Plaintiff is entitled to a Summary Judgment as a matter of law on the Defendant's Counterclaim.

'And the Court further finds that Plaintiff's Motion to Strike Defendant's Claim for exemplary damages and Defendant's Motion in Opposition thereto is made moot by the foregoing findings and the Judgment of the Plaintiff herein.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that Plaintiff's Motion for Summary Judgment on Defendant's Counterclaim is in all respects granted.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that Defendant's Motion in Opposition to Plaintiff's alternative Motion for Summary Judgment is overruled. * * *'

On the last day to file a motion to correct errors, namely, May 17, 1971, defendant-appellant filed a motion to vacate judgment, with supporting affidavits, and also filed a motion to correct errors, each of which motions was by the court overruled on December 9, 1971, with the court first overruling the defendant's motion to set aside the judgment entry and next overruling the motion to correct errors.

The motion to correct errors was brought under Rule TR. 59 and alleged that the court's findings were contrary to the evidence and contrary to law. This was followed by a memorandum consisting of five parts.

Part, or specification, 5, sets out that a hearing was held on November 30, 1970, on the motion for summary judgment and the court refused defendant-appellant the right to testify orally in support of his counterclaim and his other motions. He further admits that he failed to prepare and present his affidavit in support of his case against said plaintiff-appellee. He sets out the entry of the judgment of March 18, 1971, and further states:

'. . . The defendant, by mistake, failed to prepare and present said affidavits. On May 17, 1971, within 60 days after said judgment entry, the defendant filed an affidavit in support of each and every allegation in his counter-claim against said plaintiff. Trial Rule 60 of the Indiana Rules of Civil Procedure provides relief from judgment due to mistake, surprise, or excusable neglect . . .'

Defendant-appellant has argued three points, which he contends are reversible error. Pursuant to Rule AP. 8.3(A)(7), this court is not required to touch on any questions other than those saved in the argument section of his brief and we shall now proceed to pass on the three questions saved, which are:

1. The court committed reversible error when it refused to allow defendant to testify at the hearing on the plaintiff's motion for summary judgment.

2. The court committed reversible error in overruling the defendant-appellant's motion to set aside judgment where said motion was supported by defendant's affidavit demonstrating that a genuine issue as to material facts existed between the parties.

3. The court committed reversible error in overruling the defendant-appellant's motion to correct errors.

In his argument section, specification 1, defendant-appellant contends that the trial court committed reversible error in refusing to allow defendant to testify at the hearing on plaintiff's motion for summary judgment. To support his contention he relies on Rule TR. 56(C), which is under summary judgment and which states, in part:

'. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers 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 a judgment as a matter of law. . . .'

Defendant-appellant did not go far enough, for Rule TR. 56(E) provides, in part:

'. . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or, within the discretion of the judge, testimony of witnesses.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. . . .' (Our emphasis.)

This court takes judicial notice of the fact that the Monroe Circuit Court handles a large volume of business. We also know that Judge Hill is a very fair and compassionate judge and works hard at keeping the work of his court current. This was emphasized, as was his fairness, in granting the parties, and especially the defendant-appellant, time in which to file supplemental or amended pleadings, discovery evidence or affidavits. In fact, the trial court waited three and one-half months and defendant-appellant did nothing to support his motion in opposition to the motion for summary judgment and it was after this period of time that the trial judge ruled as he did.

Pursuant to Rule TR. 56(E) there can only be one construction placed on the authority of the trial court to hear testimony of witnesses during an argument on summary judgment and the Rule is so clear that it actually needs no citation of authority that it is solely within the discretion of the trial judge whether or not he permits witnesses to testify.

Defendant-appellant failed to cite in the argument section of his brief any case or authority to establish an abuse of discretion by the trial judge.

In our opinion, there was no abuse of discretion by the trial judge in...