French v. Hickman Moving and Storage

• Decision Date: 03 March 1980
• Docket Number: No. 3-177A21,3-177A21
• Parties: Margaret E. FRENCH, Appellant (Plaintiff Below), v. HICKMAN MOVING AND STORAGE and Bekins Van Lines Co., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1384

400 N.E.2d 1384

Margaret E. FRENCH, Appellant (Plaintiff Below), v. HICKMAN MOVING AND STORAGE and Bekins Van Lines Co.,

Appellees (Defendants Below).

No. 3-177A21.

Court of Appeals of Indiana, Third District.

March 3, 1980.

Peter W. Bullard, John C. Dibble, Lafayette, for appellant.

Vincent P. Campiti, Crumpacker, May, Searer, Oberfell & Helling, South Bend, for appellee Bekins Van Lines Co.

HOFFMAN, Judge.

This action was instituted on May 25, 1976 when plaintiff-appellant Margaret E. French filed her complaint against defendants-appellees Hickman Moving and Storage and Bekins Van Lines Co. In her complaint, she alleged that on October 29, 1971, plaintiff and defendant Hickman entered into an agreement whereby certain antiques and other household furnishings owned by the plaintiff were to be stored by defendant Hickman; that on February 29, 1973 defendant Hickman sold the bailed property without giving the plaintiff notice of the sale and thereby converted the property; that the property converted was valued at $25,000; and that the plaintiff was entitled to compensatory and punitive damages.

Defendants responded to the plaintiff's complaint by filing motions to dismiss pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6) on the grounds that more than two years had elapsed from the time that plaintiff's claim of conversion arose and the filing of the suit. The parties filed supporting affidavits and memoranda prior to the trial court's ruling on the motions to dismiss. ¹ The trial court found that the plaintiff's claim was barred by the statute of limitations and granted defendants' motions.

The two issues raised on this appeal are:

(1) whether the trial court erred in denying plaintiff's motion to strike an affidavit filed in support of defendants' motions to dismiss; and

(2) whether the trial court erred in granting defendants' motions to dismiss.

Plaintiff contends that the trial court erred in failing to strike the affidavit of Marjorie Hickman. ² Plaintiff moved to strike the affidavit as being in violation of Ind. Rules of Procedure, Trial Rule 56(E) which requires that supporting affidavits, to be sufficient, must be made on personal knowledge; must show that the affiant is competent to testify to the matters included; and must set forth such facts as would be admissible into evidence. Plaintiff argues that the affidavit is nonconforming because there is no allegation that the affiant had personal knowledge of the averments and because the affidavit contains facts not shown to be within the affiant's personal knowledge.

When the contents of an affidavit supporting or opposing a motion for summary judgment show that the material parts thereof are statements of the affiant's personal knowledge, the mandate of TR 56(E) as to personal knowledge is met even though the affidavit does not contain a recital to that effect. See: Midland Engineering Co. v. John A. Hall Const. Co. (N.D.Ind.1975), 398 F.Supp. 981; Hay v. Duskin (1969), 9 Ariz.App. 599, 455 P.2d 281; Hoffer v. Wetzel (1964), 95 Ariz. 384, 390 P.2d 911. Thus, the absence of a prefatory remark in the Hickman affidavit averring personal knowledge is not fatal because, as will be discussed, its contents show that the material parts are statements within her personal knowledge.

Plaintiff also maintains that the following paragraphs of the affidavit are objectionable because the facts alleged were not shown to be within the affiant's personal knowledge:

"7. (t)hat the household goods designated by plaintiff were moved by defendant and stored in defendant's warehouse on October 29, 1971;

"8. (t)hat plaintiff was not at her cottage when the household goods were moved;

"9. (t)hat plaintiff never returned to defendant's warehouse, no inventory was made of plaintiff's household furnishings and no written contract was executed between plaintiff of (sic) defendant:

"10. (t)hat various statements were addressed and sent to plaintiff at plaintiff's last known address, postage prepaid, at 1151 South River Road, West Lafayette, Indiana 47906, between October 29, 1971 and September 6, 1972, and that no response to said statements nor payment was received by defendant from plaintiff;

"14. (t)hat items of plaintiff's household furnishings were sold on February 29, 1973 and from such sale defendant received approximately three hundred forty dollars ($340.00);

"15. (t)hat plaintiff did not communicate with defendant nor affiant between October 29, 1971 and November 10, 1975."

The affidavit may be considered only if the information contained therein would be admissible at trial. Accordingly, all portions of the affidavit which cannot be said to have been clearly based upon personal knowledge must be stricken. Podgorny v. Great Central Ins. Co. (1974), 160 Ind.App. 244, 311 N.E.2d 640.

Based upon her averments of familiarity with the operations and accounts of the business, as well as the fact that she was co-owner and bookkeeper of the company, it may be concluded that the contents of Hickman's affidavit show that she possessed the requisite knowledge regarding all the statements in the affidavit with the exception of paragraph (8). Since nothing in her affidavit indicates that the affiant was at the plaintiff's cottage when the furnishings were removed, it must be presumed that she had no personal knowledge as to whether the plaintiff was present at that particular time.

It was error not to strike paragraph (8) from the affidavit since it was inadmissible hearsay. Insofar as plaintiff has not demonstrated in what manner she was prejudiced by that paragraph, the error was harmless. The remaining portions of the affidavit adequately supported the motions to dismiss.

Plaintiff also challenges the propriety of granting defendants' motions to dismiss (hereinafter treated as motions for summary judgment). When ruling on a motion for summary judgment, the trial court's inquiry is limited to determining whether or not there is any genuine issue of material fact. Tabani v. Hester (1977), Ind.App., 366 N.E.2d 193. In reviewing the propriety of a summary judgment, the materials on file are to be liberally construed in favor of the opponent of the motion, and any doubt as to the existence of a genuine issue of material fact must be resolved against the proponent of the motion. Collins v. Dunifon (1975), 163 Ind.App. 201, 323 N.E.2d 264.

In the case at bar, defendants challenge the complaint on the basis that the conversion claim is barred by the statute of limitations. An action for conversion is governed by the two-year statute of limitations provided for in IC 1971, 34-1-2-2 (Burns Code Ed.). Rush v. Leiter (1971), 149 Ind.App. 274, 271 N.E.2d 505. Plaintiff, on the other hand, asserts that (1) whether plaintiff had actual or constructive notice of defendants' conversion; (2) whether plaintiff was diligent in demanding a return of her property; (3) whether defendants concealed the plaintiff's conversion claim from her; and (4) whether the defendants breached a duty of fairness and honest dealing owed to the plaintiff, presented factual controversies precluding summary judgment.

With respect to plaintiff's first assertion of a factual controversy, it is evident that the parties dispute when plaintiff received notice of defendants' conversion. Plaintiff alleges that despite her efforts to contact Hickman Moving and Storage in 1971 and 1972, she did not receive any communication from the defendant until November 13, 1975, nearly 21/2 years after the sale of the property. Defendants, however, submit that they sent notices and billings to plaintiff for almost one year from the date of storage demanding payment of warehouse charges. Defendants also claim to have sent a certified letter to plaintiff on September 6, 1972 advising her that unless she paid the charges, her property would be sold. However, that certified letter, according to plaintiff's view, failed to comply with the statutory requirements of notice provided in IC 1971, 26-1-7-210 (Burns Code Ed.). ³

Although the parties contest when plaintiff had notice of the sale, the determinative element for summary judgment purposes is whether notice is a material fact in the case. A material fact is one which may be dispositive of the litigation. Hayes v. Second Nat. Bank of Richmond (1978), Ind.App., 375 N.E.2d 647.

Plaintiff suggests that notice is material if the court adopts the position that her cause of action commences to run from the time she has actual or constructive notice of the conversion. She asserts that, in a bailment for an indefinite time, the bailor should be entitled to rely on the expectation that the property will be stored by the bailee pursuant to the terms of the bailment agreement.

The rule embraced by the courts of this state is that the statute of limitations begins to run at the time when a complete cause or right of action arises or when a person becomes liable to an action. Keilman, Tr. v. City of Hammond (1953), 124 Ind.App. 392, 114 N.E.2d 813. This general rule has been interpreted to mean that the statute commences to run when the injurious action occurs though the plaintiff may not learn of the act until later. Guy v. Schuldt et al. (1956), 236 Ind. 101, 138 N.E.2d 891.

The tort of conversion consists of the exercise of dominion over personal property to the exclusion and in defiance of the rights of the owner or withholding it from his lawful possession under a claim of title inconsistent with the owner's title. Monarch Buick Company, Inc. v. Kennedy (1965), 138 Ind.App. 1, 209 N.E.2d 922. When the bailee, Hickman Moving and Storage, sold the property, this act was an exercise of control over the property to the exclusion of the plaintiff's rights. Accordingly, the injury to her property occurred when the property was converted and the statute of limitations started to run at that time. Rush v. Leiter, supra. Notice to the plaintiff was...