Foster v. Littell
| Decision Date | 29 March 1973 |
| Docket Number | No. 1--972A65,1--972A65 |
| Citation | 293 N.E.2d 790,155 Ind.App. 627 |
| Court | Indiana Appellate Court |
| Parties | Calvin FOSTER, Jr. and Sandra Foster, Plaintiffs-Appellants, v. Noble LITTELL, Defendant-Appellee. |
Taylor & Kelly, Martinsville, for plaintiff-appellants.
Kagan & Barker, Martinsville, for defendant-appellee.
The action was originally filed in the Morgan Superior Court againt Noble K. Littell and two co-defendants. The complaint against the co-defendants was dismissed with prejudice on April 16, 1972.
The complaint was one for false imprisonment which alleged that Judge Noble Littell did falsely cause the imprisonment of Sandra Foster without warrant for her arrest being issued. She and her husband pray damages for such false imprisonment.
The defendant, Noble Littell, filed a motion to dismiss for failing to state a claim for relief under Rule TR. 12(B)(6) IC 1971, 34--5--1--1, together with his memorandum thereon.
The plaintiffs then filed their memorandum in opposition to Rule TR. 12(B)(6) motion to dismiss, with their affidavit attached, together with supplemental memorandum of law in opposition to the motion to dismiss.
Oral argument was had on the motion to dismiss and at that time plaintiffs' counsel informed the trial judge that if the motion would be treated as a motion for summary judgment he would like to be so informed so that he would have ample time to prepare affidavits to comply with the summary judgment rule.
The matter was taken under advisement and on March 17, 1972, the court stated it would convert the motion for dismissal under Rule TR. 12(B)(6) into one for motion for summary judgment and entered a summary judgment thereon in favor of the defendant, Littell.
Rule TR. 12(B)(6) states as follows:
'Trial Rule 12. Defenses and Objections--When and How Presented--By Pleading or Motion--Motion for Judgment on the Pleadings.
'(B) How presented. Every defense, in law or Fact, to a claim for relief in any pleading, whether a claim, counter-claim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion:
(6) Failure to state a claim upon which relief can be granted, which shall include failure to name the real party in interest under Rule 17,
(8) * * *
If, on a motion asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.' (Our emphasis.)
The plaintiffs contend that the trial court filed to give effect to Rule TR. 12(B)(6), paragraph 3, hereinabove set out, when it converted the Rule TR. 12(B)(6) motion to dismiss into a motion for summary judgment. The plaintiffs contend that the last sentence of paragraph 3 states that when such conversion is made all parties shall be given reasonable opportunity to present all material made pertinent to a motion for summary judgment. (Rule 56).
A motion to correct errors was filed but we are required, it appears to us, in passing upon any error, to pass upon the question as to whether the summary judgment granted in the case was proper, and properly entered at the time the same was granted when entered of record.
This case is one which, in our opinion, is to be solely determined from a construction of said Rule TR. 12(B), particularly the last sentence of the Rule, which gives the parties a reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
It must be noted that neither party to this appeal has cited any case or authority other than the Rule itself on this particular point which now confronts this court.
We are forced to rely on our own judgment in construing this Rule, except that we are fortified to some extent by Harvey's Indiana Practice, Vol. 1, p. 615, where he refers to Rule 12 under Federal Advisory Committee Notes.
The Federal Rule discussed by Professor Harvey is the same as our Rule 12. Professor Harvey says of Rule TR. 12(B)(6), in quoting the Advisory Committee, the following:
This court, in discussing the precedents of the Federal Rules of Procedure as guidelines for Indiana Rules, recently held in the case of Boehne v. Camelot Village Apartments (1972), Ind.App., 288 N.E.2d 771, 33 Ind.Dec. 424:
'. . . We find great precedent in the Federal Rules of Procedure for the construction of our Rules and we shall not hesitate to rely thereon.'
Inasmuch as the plaintiffs had filed an affidavit and the defendant had filed a memorandum with his motion and the affidavit and memorandum were a part of the record in the cause before the trial judge ruled on the respective motions and were not excluded by the record of the trial court, it is our opinion that the affidavit being matter outside the pleadings, falls with the guidelines of Rule TR. 12(B)(6), supra, and ultimately came under TR. 56. Cohen v. Cahill (9 Cir. 1960), 281 F.2d 879; Costen v. Pauline's Sportswear, Inc. (9 Cir. 1968), 391 F.2d 81. The court should have given reasonable opportunity to both parties to present all material made pertinent to such a motion by Rule TR. 56. Erlich v. Glasner (9 Cir. 1967), 374 F.2d 681; Rule TR. 12(B)(6), supra.
In the case of Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co. (5 Cir. 1967), 373 F.2d 493, the United States Court of Appeals, Fifth Circuit, reviewed proceedings wherein a motion to dismiss (12(b)(6)) was filed, along with a supporting affidavit. This situation is quite analogous to the case at bar. The Federal District Court, in Georgia, conducted a 'hearing' on the motion and did not at that time exclude the supporting...
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Middelkamp v. Hanewich
...he stated at the hearing that he had seen Hanewiches' exhibits and that he had no objection to their admission. See Foster v. Littell (1973), 155 Ind.App. 627, 293 N.E.2d 790. Mr. Schwanke did not object, nor did he suggest to the court that he had other evidence pertinent to a summary judg......
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Carrell v. Ellingwood
...to present all material made pertinent to such a motion by Rule 56." Failure to do so is reversible error. Foster v. Littell, (1973) 155 Ind.App. 627, 293 N.E.2d 790. Foster possessed the same procedural posture as exists here. In that case the matters presented outside the pleadings consis......
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Ayres v. Indian Heights Volunteer Fire Dept., Inc.
...to present all material made pertinent to such a motion by Rule 56.' Failure to do so is reversible error. Foster v. Littell, (1973) 155 Ind.App. 627, 293 N.E.2d 790.' 423 N.E.2d at Indeed, Trial Rule 12(B) specifically provides for the conversion of a motion to dismiss into a motion for su......
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Ayres v. Indian Heights Volunteer Fire Dept., Inc.
...opportunity to present all material made pertinent to such a motion by Rule 56." In Carrell, supra, 423 N.E.2d 630, and Foster v. Littell, supra, 293 N.E.2d 790, the trial courts considered matters outside the pleadings and converted the 12(B)(6) motions into motions for summary judgment wi......