Dedelow v. Rudd Equipment Corp., 3-783A202

• Citation: 469 N.E.2d 1206
• Decision Date: 31 October 1984
• Docket Number: No. 3-783A202,3-783A202
• Parties: Duane W. DEDELOW, Appellant (Defendant Below), v. RUDD EQUIPMENT CORPORATION, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1206

469 N.E.2d 1206

Duane W. DEDELOW, Appellant (Defendant Below), v. RUDD EQUIPMENT CORPORATION, Appellee (Plaintiff Below).

No. 3-783A202.

Court of Appeals of Indiana Third District.

Oct. 31, 1984.

Harold Abrahamson, Mark P. Dvorscak, Hammond, for appellant.

James A. Knauer, Julie Z. Schmitt, Kroger, Gardis & Regas, Indianapolis, for appellee.

HOFFMAN, Judge.

Duane Dedelow (Dedelow) appeals from a summary judgment rendered in favor of Rudd Equipment Corporation (Rudd). Rudd filed its complaint for damages in the Lake County Circuit Court ¹ seeking to recover the value of certain parts supplied by Rudd to repair a crane allegedly owned by Dedelow.

Dedelow was, during the time period in question, the sole proprietor of Calumet Charter Service. Said crane was leased by Calumet Charter Service to Dedelow, Inc., a corporation of which Dedelow was President and a substantial stockholder. The crane was damaged, on or about April 15, 1980, while being leased by Dedelow, Inc., to Certified Crane and Rigging, Inc., for use in Iowa. In Rudd's complaint it is alleged that Dedelow, on behalf of Dedelow, Inc., requested that Rudd supply parts for repair of the crane. The parts were thereafter supplied and invoices, with charges exceeding $240,000.00, were submitted to Dedelow, Inc., for payment. A check made payable to Rudd, in the amount of $179,810.07, drawn by Dedelow upon the bank account of Calumet Charter Service, was presented for payment but dishonored for insufficiency of funds.

Rudd filed its three-count complaint against Dedelow on July 29, 1980, alleging, in Count I, a violation of Indiana law based upon the dishonored check. Count II alleges that Dedelow fraudulently misrepresented that Dedelow, Inc., owned the crane to induce Rudd to supply the parts. Rudd alleges in Count III that Dedelow was unjustly enriched by the value of parts supplied by Rudd.

A motion for summary judgment, along with a legal memorandum and affidavit in support, was filed by Rudd on February 26, 1982, relating only to Count III of Rudd's complaint. Dedelow filed his affidavit in opposition and after a hearing on Rudd's motion, the court granted summary judgment in favor of Rudd on Count III. ²

Pursuant to the Ind. Rules of Procedure, Trial Rule 56, summary judgment may be granted if the pleadings, depositions, answers to interrogatories, admissions and affidavits filed with the court 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.

T.R. 56; Bell v. Northside Finance Corp., (1983) Ind., 452 N.E.2d 951. A fact is said to be material when its existence facilitates resolution of any of the issues involved. Havert v. Caldwell, (1983) Ind., 452 N.E.2d 154. When reviewing a grant of summary judgment, this Court may not weigh the evidence or resolve disputes as to different inferences which might be drawn from undisputed facts. The moving party has the burden of establishing that no material facts are in issue and all doubts and inferences must be resolved in favor of the non-moving party. Burdsall v. City of Elwood, (1983) Ind.App., 454 N.E.2d 434.

On appeal, Dedelow's primary challenge is to the affidavit of Scott K. Ferguson, filed in support of Rudd's motion for summary judgment. That affidavit appears as follows:

"AFFIDAVIT IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Comes now Scott K. Ferguson, who, being duly sworn upon his oath deposes and states as follows:

1. That he is the General Manager of Rudd Equipment Corporation ('RUDD'), 2655 Kentucky Avenue, Indianapolis, Indiana.

2. That RUDD is a dealer for Lima Cranes, parts and accessories for such cranes and Duane W. Dedelow ('DEDELOW') is the owner of a certain Lima Crane, Model No. 7707, Serial No. 3703-9 and such crane is believed to be currently located in the State of Iowa.

3. That the crane owned by DEDELOW was damaged in an accident and during a period commencing on or about April 15, 1980 through June 27, 1980, DEDELOW requested RUDD to furnish parts necessary for the repair of the crane.

4. That RUDD was induced to furnish such parts upon the request of DEDELOW and upon the representation by DEDELOW that the crane was owned by an Indiana corporation, Dedelow, Inc., and that the costs of the repair parts furnished for the crane would be paid from insurance proceeds payable as a result of the accident which damaged the crane.

5. That based upon the representations of the existence of insurance, RUDD ordered or shipped parts for the crane for which RUDD is currently due the sum of $248,014.09, plus interest.

6. That after shipment of the parts, DEDELOW advised RUDD that the crane was owned by DEDELOW personally, and not Dedelow, Inc.

7. That DEDELOW d/b/a Calumet Charter Service, and Dedelow, Inc. obtained insurance proceeds in the amount of $187,000.00 as partial reimbursement for damages to the crane for which parts had been shipped by RUDD, a copy of the check and endorsements thereon is attached to this Affidavit as Exhibit 'A'.

8. That on the 2nd day of June, 1980, DEDELOW d/b/a Calumet Charter Service issued a check to RUDD in the amount of $179,810.07, a copy of such check being attached to RUDD's Complaint as Exhibit 'A'.

9. That DEDELOW has been unjustly enriched by the value of the parts which RUDD shipped or ordered for his crane and RUDD should recover the value of such parts or the sum of $248,014.09 as evidenced by invoices attached to Plaintiff's Complaint.

10. That the check of June 2, 1980, was presented in the usual course of business and dishonored by the drawee bank, Northern Indiana Bank and Trust Company, because of non-sufficient funds, the dishonor being conspicuously noted on the face of the check.

11. That the indebtedness for which the check was given in payment is still due and owing and DEDELOW has failed to make any payment thereon.

FURTHER AFFIANT SAITH NAUGHT.

/s/ Scott K. Ferguson

Scott K. Ferguson G.M.

I affirm under the penalties of perjury that the foregoing statements are true.

/s/ Scott K. Ferguson

Scott K. Ferguson G.M."

The affidavit, Dedelow argues, was...