Indiana Suburban Sewers, Inc. v. Hanson

• Decision Date: 29 September 1975
• Docket Number: No. 3--1273A161,3--1273A161
• Parties: INDIANA SUBURBAN SEWERS, INC., and Suburban Services, Inc., Plaintiffs-Appellants, v. Robert D. HANSON, Clerk of the Allen Circuit Court, and Robert A. Bender, Sheriff of Allen County, Indiana, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 720

334 N.E.2d 720

166 Ind.App. 165

INDIANA SUBURBAN SEWERS, INC., and Suburban Services, Inc., Plaintiffs-Appellants, v. Robert D. HANSON, Clerk of the Allen Circuit Court, and Robert A. Bender, Sheriff of Allen County, Indiana, Defendants-Appellees.

No. 3--1273A161.

Court of Appeals of Indiana, Third District.

Sept. 29, 1975.

Rehearing Denied Dec. 19, 1975.

Donald F. Strutz, Fort Wayne, Arthur H. Gemmer, Indianapolis, for plaintiffs-appellants.

Harry W. Scott, Allen County Atty., Fort Wayne, Thomas E. Ruzzo, Chief Deputy Allen County Atty., Fort Wayne, for defendants-appellees.

GARRARD, Judge.

Appellants (Suburban) brought suit against the Allen County Sheriff and County Clerk seeking to enjoin a mortgage foreclosure sale. Appeal is taken from a summary judgment in favor of the defendants.

The record discloses the following background. On April 26, 1972, American Fletcher National Bank brought suit in Allen County against Suburban to foreclose a mortgage on Suburban's public utility property in Allen County. John Dehner, Inc., another mortgagee, was made a party to answer to its interest. It cross-complained to foreclose its mortgage.

On December 20, 1972, judgment was entered against Suburban on both claims, and the mortgages were foreclosed. The bank then filed a praecipe to secure execution of its judgment and on January 22, 1973, the order of sale was certified to the sheriff. Sale was set for February 28, 1973, and notice was published. On February 8, Suburban filed a TR. 60(B) motion alleging, among other things, that the execution issued was in violation of the six-month waiting period prescribed by Ind.Ann.Stat. § 3--1801 (IC 1971, 32--8--16--1 (Burns Code Ed.)). That motion was denied. The case was subsequently appealed to the Court of Appeals as Cause No. 3--673 A 74. That appeal was dismissed. It does not appear that Suburban ever sought a stay of execution in those proceedings.

On February 27, 1973, Suburban instituted this action seeking to enjoin the clerk and sheriff from proceeding with the fore-closure sale on the ground that the sale would be in violation of the six-month waiting period provided by Ind.Ann.Stat. § 3--1801.

Upon filing its complaint in this action, Suburban secured a temporary restraining order. The next day (the date scheduled for the sale) the defendants moved to dissolve the restraining order. Suburban asserts error in the failure of the court to provide it with two days' advance notice of any hearing upon that petition.

TR. 65(B)(2) provides in part:

'On two (2) days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.' (Emphasis Supplied)

The court was aware of the unique character of the mortgaged property. If the sale was not to be held that date, it would have to be readvertised with consequent delay. The court was also aware of the ruling in the foreclosure case denying Suburban's TR. 60 motion and the lack of any proceedings to stay execution in that case. The record reflects that the court elected to exercise its discretion under TR. 65(B)(2) and set the matter for prompt hearing. It caused Suburban's counsel to be notified by telephone to appear. After waiting two hours for the appearance of Suburban's counsel, and being advised that counsel did not intend to appear, the court proceeded to hearing. We find the court did not abuse its discretion in so proceeding. In addition, any potential error was rendered moot by the subsequent proceedings.

The defendants filed a motion to dismiss pursuant to Rule TR. 12(B), which was denied by the court. Suburban then petitioned the court to reconsider its action and treat the motion as one for summary judgment. The court granted the petition and gave the parties time to file responses, affidavits, etc. (In the time before hearing the defendants also filed a formal motion for summary judgment.)

Suburban now asserts that the court was bound by its initial determination on the motion to dismiss and was thereby precluded from granting summary judgment for the defendants. In support of this contention Suburban cites Munson Lines, Inc. v. Green (S.D.N.Y.1947), 6 F.R.D. 470 and Michel v. Meier (W.D.Pa.1948), 8 F.R.D. 464.

We think the reliance misplaced. In Munson the court held that the filing of a motion for summary judgment supported only by an affidavit which supplied no admissible facts was sufficient to invoke the sanction for reimbursement of expenses under Rule 56, Federal Rules of Civil Procedure, where the same question had already been decided on the movant's Rule 12(B)(6) motion. In Michel the court noted that a ruling on a Rule 12(B)(6) motion might bar consideration of the same matter if asserted again under Rule 56. The court then held that since the Rule 12(B)(6) motion in the case before it had been withdrawn, it was free to consider the application for summary judgment.

While we do not quarrel with the decision in Munson, it is helpful to recall the difference between motions pursuant to TR. 12(B)(6) and TR. 56. A motion under TR. 12(B) generally raises a matter in abatement. Even under TR. 12(B) (6), where the assertion is insufficient facts to state a claim, the motion does not in theory deny the existence of a claim. Instead it asserts that the pleadings are insufficient to establish one. Summary judgment, on the other hand, seeks to assert nonclaim upon a consideration of the undisputed facts. ¹ Thus, it is entirely possible that a plaintiff's complaint may be sufficient to withstand a TR. 12(B)(6) motion and yet, upon the basis of affidavits, depositions, etc., summary judgment may be appropriate. See discussion generally, 10 Wright & Miller: Federal Practice & Procedure, § 2713.

Furthermore, the Indiana law is well established regarding the trial court's ability to reconsider its rulings on motions while the case remains in fieri. City of East Chicago v. State ex rel. Pitzer (1949), 227 Ind. 241, 84 N.E.2d 588; Metropolitan Dev. Comm. v. Newlon (1973), Ind.App., 297 N.E.2d 483.

There was no error in the grant of summary judgment upon this ground.

We turn then to the summary judgment

The pleadings on file clearly establish that Suburban's suit is against the clerk and sheriff in their representative capacities and seeks to enjoin the performance of their official duties under the order of the court in the foreclosure action. The action is an attempted collateral attack upon the judgment and order of sale entered in the foreclosure proceeding. Accordingly, our determination is limited to ascertaining whether the order was void for want of jurisdiction. Any other error in the foreclosure case was beyond the court's consideration in this action. State v. Bridwell (1960), 241 Ind. 135, 170 N.E.2d 233; Fletcher v. Barton (1...