Jones v. Berlove, 3-985-A-238
| Citation | 490 N.E.2d 393 |
| Decision Date | 26 March 1986 |
| Docket Number | No. 3-985-A-238,3-985-A-238 |
| Parties | Terry JONES, Appellant (Plaintiff Below), v. Julia BERLOVE, Appellee (Defendant Below). |
| Court | Court of Appeals of Indiana |
John P. Geberin, Bowser, Geberin & Dalton, Warsaw, for appellant.
Jay T. Hirschauer, Hirschauer & O'Neill, Logansport, for appellee.
Terry Jones appeals from a summary judgment in favor of Julia Berlove, raising one issue:
Whether the trial court erred in granting summary judgment sua sponte for Julia Berlove.
We reverse.
Jones filed a negligence action against Berlove on April 20, 1981, claiming $1,500,000.00 for injuries allegedly sustained when Berlove's car struck a recreational vehicle in which Jones was riding with his father. In September of 1982, Jones obtained new counsel, David Kolbe, and on February 4, 1983, he filed an amended complaint seeking only $350,000 in damages. On August 8, 1983, Berlove filed a Motion to Dismiss for want of prosecution, pursuant to Ind.Rules of Procedure, Trial Rule 41(E). A hearing on this motion was held at the pre-trial conference on September 9, 1983, and the trial court ordered the parties to complete discovery on or before January 1, 1984. Jones was also ordered to file a proposed pre-trial order on or before February 1. Jones failed to meet the latter deadline, but was able to show cause why the action should not be dismissed; he was ordered to file the proposed order by June 1, 1984, or again show cause why the action should not be dismissed.
On March 28, 1984, Berlove filed a motion for summary judgment, which was denied. In May of that year, David Kolbe withdrew as Jones' counsel, and the cause was continued until August 31, 1984, at which time Jones was ordered to indicate in some fashion his intention to prosecute the action or face dismissal under T.R. 41(E). Jones appeared personally on August 31 and, because of his difficulty in finding new counsel, was given until November 1, 1984 to show cause why the action should not be dismissed under T.R. 41(E).
On November 1, 1984, Jones' new counsel, John P. Geberin, requested the trial court to discharge the T.R. 41(E) order to permit him additional time to study the case file and consult an accident reconstruction expert. The trial court granted this request, scheduling a pre-trial conference for January 17, 1985, but on January 14 Geberin requested a continuance because he was still awaiting a report from Kenneth Baker, an accident reconstructionist. The cause was continued until May 20, 1985, before which date Jones was required to show cause once again why the action should not be dismissed pursuant to T.R. 41(E). On May 17, Jones, by counsel, showed the court that he was ready to proceed and requested the court to schedule the pre-trial conference at least thirty days hence. The conference was scheduled for June 28, 1985.
On May 21, Berlove again filed a Motion to Dismiss pursuant to T.R. 41(E), which the trial court denied. Due to a preexisting obligation of her counsel, Berlove moved for continuance and the pre-trial conference was again rescheduled for July 12.
Finally on July 12, 1985, the pre-trial conference was held and, after questioning Geberin as to the qualifications of his proposed expert witness, Jon D. Fultz, the trial court entered a finding that Fultz was not qualified to testify as an expert accident reconstructionist. The court then entered summary judgment sua sponte in favor of Berlove, finding that Jones had no other evidentiary basis for recovery against Berlove and that there existed no genuine issue of material fact.
Jones argues that the trial court had no authority to grant summary judgment sua sponte. He argues further that summary judgment was improper in any case, because a factual controversy exists and because the court erred in ruling that Fultz was not qualified as an expert witness. Because we reverse, w...
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