Gumz v. Starke County Farm Bureau Co-op. Ass'n, Inc., 1079S278

• Decision Date: 11 October 1979
• Docket Number: No. 1079S278,1079S278
• Parties: , 27 UCC Rep.Serv. 1000 Arthur P. GUMZ, Frederick Gumz and Paul Gumz, Appellants, v. STARKE COUNTY FARM BUREAU COOPERATIVE ASSOCIATION, INC., an Indiana Corporation, Pulaski County Farm Bureau Cooperative Association, Inc., an Indiana Corporation, La Crosse Grain Company, Inc., an Indiana Corporation, and Smolek Grain, Inc., an Indiana Corporation, Appellees.
• Court: Indiana Supreme Court

Page 257

395 N.E.2d 257

271 Ind. 694, 27 UCC Rep.Serv. 1000

Arthur P. GUMZ, Frederick Gumz and Paul Gumz, Appellants, v. STARKE COUNTY FARM BUREAU COOPERATIVE ASSOCIATION, INC., an

Indiana Corporation, Pulaski County Farm Bureau Cooperative

Association, Inc., an Indiana Corporation, La Crosse Grain

Company, Inc., an Indiana Corporation, and Smolek Grain,

Inc., an Indiana Corporation, Appellees.

No. 1079S278.

Supreme Court of Indiana.

Oct. 11, 1979.

Paul Reed, Knox, B. Patrick Maloy, North Judson, for appellants.

Thomas B. Dumas, Rensselaer, Edward L. Volk, LaPorte, for appellees.

GIVAN, Chief Justice.

This cause comes to us on a petition to transfer from the Third District of the Court of Appeals. We hereby grant transfer for the purpose of clarifying the opinion of that court. 383 N.E.2d 1061.

The appellees operated grain elevators. As a regular part of their business, they executed contracts with local farmers for the purchase of grain. Appellants are farmers who till in excess of 4,000 acres. Arthur Gumz, father of Frederick and Paul Gumz and the owner of the farm, runs the farm as a sole proprietorship. His sons were essentially his employees, although they both planted several hundred acres themselves. During the years 1972-73, the appellants executed 25 contracts for the sale of grain, 23 of which were signed on or on behalf of Arthur Gumz. One contract was signed by Frederick Gumz in his own behalf, and one contract was signed by Paul Gumz in his own behalf. The appellees brought this suit against the appellants alleging a conspiracy on the part of appellants to defraud the grain companies by contracting to sell more grain than they could produce, intending to honor only those contracts which were profitable and to breach those contracts which were unprofitable. The grain companies sought recovery of actual and consequential damages flowing from the breach of these contracts.

Following discovery, the parties filed motions for summary judgment. The trial court rendered judgment in favor of the grain companies on each of their individual contracts with the appellants.

In the Court of Appeals the appellants raised a number of issues, one of which was the consideration by the trial court of depositions which had not been published at the time judgment was rendered. The Court of Appeals erroneously implied that depositions need not be published and erroneously stated that the trial court would have erred had it failed to consider these depositions when ruling on the motions for summary judgment. It is our opinion that the trial court did err in considering the unpublished depositions, but that this error was cured by their subsequent publication, with the consent of the parties. We therefore will clarify the decision of the Court of Appeals with respect to the publication of depositions and will adopt the remainder of that court's opinion.

Numerous depositions were taken in this case. As a result of these depositions and other affidavits, documents and admissions, the parties filed motions for summary judgment. In their briefs to the court in support of their motions, the parties cited deposition testimony and seemed to operate on the assumption that the depositions were properly before the court. No motion to publish was filed prior to the ruling on the summary judgment motion.

The requirement that a deposition be published has recently been reaffirmed by this Court in Augustine v. First Fed. Sav. & L. Ass'n of Gary (1979), Ind., 384 N.E.2d 1018. The nature and use of depositions in modern practice compels this conclusion. Under TR. 32(B), a party may permit objectionable matter to be explored during a deposition, but then may have his objection sustained when the deposition is published in the trial court. Absent the publication requirement, counsel would be required to make all objections to every question at the time the deposition is taken. This would impede the operation of discovery and would necessitate continuous consultation with a magistrate to obtain rulings on various questions and series of questions. It might even require the presence of a magistrate during the entire deposition.

Notwithstanding the fact that the depositions in the case at bar were not published at the time the summary judgment motions were submitted, the trial court stated in its judgment that "the Court has considered the deposition testimony of James Anderson, Warren Short, Clarence Lawrence, Joseph Smolek, Arthur P. Gumz, Paul Gumz and Patricia Good." The trial court erred in this regard. However, after the praecipe was filed, the court entered an order publishing the depositions, which order was "agreeable to all parties." No objection was lodged against this publication. Under these circumstances, the error of the trial court in considering the depositions before they were published has been cured by the court's subsequent order of publication and the parties' assent thereto. Hence, the depositions were properly considered by the Court of Appeals in rendering its decision. We have examined the record and find that the Court of Appeals has correctly decided the remaining issues in the case. We therefore adopt the following from the opinion of Judge Hoffman:

"Indiana Rules of Trial Procedure, Trial Rule 56(C) sets out the standard by which the trial court is guided in ruling on a motion for summary judgment:

" '. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answer 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. . . .' " "The burden is on the proponent of summary judgment to demonstrate the absence of any genuine issue as to a material fact. All doubts and inferences are to be resolved in favor of the opponent of the summary judgment motion. Bassett v. Glock (1977), Ind.App., 368 N.E.2d 18, at 21.

"Appellants argue that the trial court should have granted their motion to separate the causes of action for purposes of trial and for all other purposes. As there was no trial, appellants' motion will be discussed only in terms of the separation of the causes for purposes of the summary judgment motion.

"The trial court denied the Gumzes' motion to separate on the basis of Ind.Rules of Procedure, Trial Rules 20(B) and 42(B). Gumzes argue that the Grain Companies should not have been permitted to join in one action because appellees did not meet the requirements of TR. 20(A): (1) that appellees assert a right to relief jointly severally or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and (2) that a question of law or fact common to all the parties will arise in the action.

" Appellants do not dispute that there are similar questions of law and fact common to all parties. But Gumzes argue that there is no right to relief arising out of the same transaction, occurrence or series of transactions or occurrences. Appellants cited no Indiana cases in their brief on this issue and we could find none. Since the Indiana TR. 20(A) is patterned after Federal Rule 20(a), the authorities on the latter are helpful in construing our Indiana rule. Rembold Motors, Inc. v. Bonfield (1973), 155 Ind.App. 422, at 439, 293 N.E.2d 210, at 220. Trial Rule 20(A) is generally given the broadest possible reading since it is still possible to protect the convenience of the parties and the court by use of TR. 20(B) and 42(B) providing for separate trials.

" A charge of conspiracy alleges a series of transactions related by a common purpose or intent and is usually sufficient to meet the requirements of TR. 20(A), permitting joinder of the claims arising from concerted action. Nassau City (County) Ass'n of Ins. Agts. Inc. v. Aetna Life & Cas. Co. (2nd Cir., 1974), 497 F.2d 1151, 1154. In Mesa Computer Utilities, Inc. v. Western Union Computer Utilities, Inc. (D.C.Del.1975), 67 F.R.D. 634, four plaintiffs sued on separate contracts with defendant alleging a conspiracy to defraud. The court at 637 held:

" '. . . (W)hile it is recognized . . . that plaintiffs' fraud and antitrust claims may eventually prove to have no factual or legal basis, it would be wholly premature to pass upon these arguments at this point in the litigation or in the context of the present motion.'

"Rule 20(a) does not require precise congruence of all factual and legal issues. Plaintiffs allege identical conspiratorial activity affecting each of them.

" Wide discretion is vested in the trial court as to the joinder of parties. And in the case at hand it is not discernible how the asserted misjoinder was prejudicial to appellants. The relatively straightforward contracts and the absence of complicated facts or relationships which might give rise to prejudice made joinder proper and desirable. See: Silverman v. Cinofsky (D.C.Ill.1953), 15 F.R.D. 122, at 123.

"The evidence which was available to the trial court shows that it is uncontradicted that the Gumzes signed the 25 contracts admitted into evidence and that at the time they were signed and until the suit was filed the Gumzes and the Grain Companies...