Greives v. Greenwood, 49A04-8812-CV-423

Citation550 N.E.2d 334
Case DateFebruary 19, 1990
CourtCourt of Appeals of Indiana

Patrick W. Harrison, Beck & Harrison, Columbus, Lance D. Cline, Townsend, Yosha & Cline, Indianapolis, for appellants.

Jon D. Krahulik, Paul J. Knapp, Nana Quay-Smith, Bingham Summers Welsh & Spilman, Indianapolis, for appellee.


Plaintiffs-Appellants George and Robert Greives (The Greives) appeal the trial court's grant of partial summary judgment and partial denial of motion to correct error. Defendant-Appellee Dr. Gary Greenwood (Greenwood), owner of Greenwood Veterinary Clinic, cross-appeals.

We affirm in part and reverse in part.

The Greives present the following restated issues for our review:

1. whether the trial court erred in ruling damages for loss of profit from unborn and future unborn calves due to the slaughter of the mother or the stress of testing procedures are not recoverable as a matter of law;

2. whether the trial court erred by determining the Greives were not entitled to recover damages for injury to the reputations of themselves, their cattle business, or their herds as a matter of law, and

3. whether the trial court erred in concluding the Greives are not entitled to damages, as a matter of law, for default of financial obligations, default judgments, bankruptcy actions or similar proceedings due to Greenwood's negligence.

Greenwood cross-appeals and presents the following restated issues:

1. whether the trial court erred in allowing the Greives to present a claim for lost profits from the spring 1982 sale, and 2. whether the trial court erred in allowing the Greives to present their claim of variable costs when the parties settled this dispute prior to this appeal and any remaining costs were not recoverable as a matter of law.

The Greives ran a farming operation which specialized in breeding purebred Hereford animals. In the fall of 1981, Greenwood, a veterinarian, negligently injected two members of the Greives' herd with a Brucellosis vaccine known as Strain 19, which is a non-communicable form of the Brucella organism. In February 1982, the animals were labeled as suspects or reactors to the Brucellosis test. Thus, in March the state issued a Notice of Quarantine covering the entire herd. One animal was immediately slaughtered and the tissue samples revealed Strain 19.

The quarantine postponed the Greives' spring 1982 sale and thus, their breeding stock was not available for sale until the fall. When these animals were finally able to be sold, many did not sell and those sold brought less than their fair market value. Due to the quarantine, the Greives spent additional money feeding and caring for the animals until they could be sold. The Greives filed bankruptcy as the culmination of their misfortune.

In December 1982, the Greives filed suit against Greenwood, the Greenwood Veterinary Clinic, the Indiana State Board of Health and the State of Indiana. Voluntary dismissals as to the Board of Health and the State were later entered. Various motions, not germane to this appeal, were filed and addressed by the court. In June 1987, the court granted and denied in part Greenwood's Motion in Limine regarding damages. The Order in Limine prevented mention at trial by the parties of loss of profits from sales, interest on loans, costs of hay and grains, loss of unborn and future unborn calves, loss of reputation, and loss from default of payment of financial obligations, all items of damage advanced by the Greives. Then on the Greives' motion, the trial court converted its Order in Limine into a partial summary judgment, upon which stipulated findings of fact and conclusions of law were entered. The trial court then certified its partial summary judgment for interlocutory appeal but this court declined it, leaving those issues temporarily at rest below.

Upon return to the trial court, the parties stipulated to findings of fact and conclusions of law, and a consent judgment for $18,000, which the trial court entered as a final judgment. These stipulations, as approved and entered by the court, specifically preserved for appeal the propriety of the court's refusal to permit the Greives to present evidence on the several items of damage it had earlier ruled upon by the entry of partial summary judgment. The Greives then filed a motion to correct error, specifically raising their damage issues. When it ruled on the motion to correct error, the trial court reversed itself on several issues. It determined the Greives were entitled to have evidence heard on loss of net profits, loss of proceeds from sales and necessary expenses incurred during the quarantine period, but denied the Greives' motion as to losses of unborn and future unborn calves, loss of reputation and any default in payment of financial obligations. The Greives appeal denial of the last three issues. Greenwood cross-appeals as to those issues upon which the trial court reversed itself.

Additional facts, as necessary, appear below.

Summary judgment is appropriate only in limited situations. Ind. Trial Rule 56 provides in part

(C) Motion and Proceedings Thereon.

... The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits filed pursuant to Trial Rule 5(D), together with any testimony show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law....

(E) Form of Affidavits--Further Testimony--Defense Required....

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. If he does not so respond, summary judgment, if appropriate, shall be entered against him.... (Emphasis supplied).

Thus, the moving party carries the burden of establishing:

(a) there is no issue as to any material fact, and

(b) he is entitled to judgment as a matter of law.

Pepkowski v. Life of Indiana Insurance (1988), Ind.App., 526 N.E.2d 1015, 1016, rev'd on other grounds, (1989), Ind., 535 N.E.2d 1164. The moving party must fulfill these two requirements before any burden shifts to the nonmovant. Id. The nonmovant may rest upon his pleadings until the moving party establishes no genuine factual issue exists. Id. If, however, the moving party successfully demonstrates no genuine issue exists, the nonmoving party must show the presence of such a fact to stave off summary judgment. Fort Wayne Community Schools v. Fort Wayne Education Association, Inc. (1986), Ind.App., 490 N.E.2d 337, 339; Conard v. Waugh (1985), Ind.App., 474 N.E.2d 130, 134. In doing so, the nonmoving party may not merely rest upon his pleadings, but his response must set forth specific facts indicating an issue of material fact exists. Popp v. Hardy (1987), Ind.App., 508 N.E.2d 1282, 1284; Fort Wayne Community Schools, supra, at 340; T.R. 56(E). If the nonmovant fails to meet his burden, summary judgment may be granted. Williams v. Lafayette Production Credit Association (1987), Ind.App., 508 N.E.2d 579, 582, reh. denied; Conard, supra, at 134; T.R. 56(E).

When reviewing the grant of a summary judgment motion, we stand in the shoes of the trial court. Pepkowski, supra. All evidence must be construed in favor of the nonmovant and all doubts as to the existence of a material issue must be resolved against the movant. Penwell v. Western & Southern Life Ins. Co. (1985), Ind.App., 474 N.E.2d 1042, 1044. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences arise. Board of Aviation Commissioners of St. Joseph County v. Hestor (1985), Ind.App., 473 N.E.2d 151, 153.

Summary judgment is not a substitute for a trial to resolve factual disputes. Though the trial court may believe the nonmovant will be unsuccessful at trial, summary judgment should not be granted where material facts are disputed or conflicting inferences arise. Pepkowski, supra.

The Greives contend the trial court erred in granting partial summary judgment on the issue of damages for loss of profit from unborn or future unborn cows. The Greives maintain many of their cows aborted calves because of stress from the testing procedures, and they should be compensated for their loss. In addition, the Greives argue they are entitled to compensation for the known calf lost due to the slaughter of a pregnant cow. We disagree.

Damages directly attributable to the wrong done are recoverable. Symon v. Burger (1988), Ind.App., 528 N.E.2d 850, 852. However, the trier of fact may not be permitted to indulge in speculation in fixing the amount to be awarded. Jerry Alderman Ford Sales, Inc. v. Bailey (1972), 154 Ind.App. 632, 291 N.E.2d 92, 106, reh. denied, modified, (1973), 154 Ind.App. 632, 294 N.E.2d 617. Damages may not be awarded on guess or speculation, but must be ascertainable with reasonable certainty. Indiana & Michigan Electric v. Terre Haute Industry (1987), Ind.App., 507 N.E.2d 588, 601, reh. denied, trans. denied, (1988), Ind., 525 N.E.2d 1247. Uncertainty of dollar amount does not prevent the award of damages. Id. A jury may consider lost profits only if there is sufficient evidence to prevent mere speculation. Jackson v. Russell (1986), Ind.App., 498 N.E.2d 22, 38, reh. denied, trans. denied, relying on Prudential Insurance Co. v. Executive Estates, Inc. (1977), 174 Ind.App. 674, 369 N.E.2d 1117, reh. denied.

Further, domestic cattle are regarded as property. 3A C.J.S. Animals Sec. 4 (1973). See also State v. Sumner (1850), 2 Ind. 377. Where damages are allowed...

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