Keating v. Burton

Decision Date28 July 1993
Docket NumberNo. 43A04-9203-CV-73,43A04-9203-CV-73
Citation617 N.E.2d 588
PartiesSean P. KEATING, Appellant-Plaintiff, v. Bryce M. BURTON, Burton Mechanical Contractors, Inc. and Ebara Corporation, Appellees-Defendants.
CourtIndiana Appellate Court

Alan H. Lobley, Gary J. Dankert, Ice Miller Donadio & Ryan, Indianapolis, for appellant-plaintiff.

Stephen C. Carlson, Thomas A. Roberts, Gloria R. Mitka, Sidley & Austin, Chicago, IL, Richard W. Morgan, Mark D. Boveri, Barnes & Thornburg, South Bend, for appellees-defendents.

CHEZEM, Judge.

Case Summary

Plaintiff-Appellant Sean P. Keating (Keating) appeals the grant of summary judgment in favor of Defendants-Appellees Bryce M. Burton (Burton), Burton Mechanical Contractors (BMC), and Ebara Corporation (Ebara). We affirm.


Keating presents two (2) issues for our review, which we consolidate and restate as follows: whether the trial court properly entered summary judgment in favor of Burton, BMC, and Ebara.

Facts and Procedural History

Keating owns Nelson-Keating, a small mechanical contracting business in Lafayette, Indiana.

During February and March of 1987 Keating met with Burton, sole shareholder of BMC, to discuss the possibility of Keating working for Burton and purchasing the mechanical contracting division of BMC. During the course of these meetings, Burton presented Keating with drafts of an employment agreement and a stock option agreement. The drafts provided for a three year term of employment and also set out the terms of the proposed purchase option over five years.

During two months of negotiations, Burton and Keating met for the final time in March. At this meeting Keating told Burton that he still did not agree with the termination clause in the employment agreement and could not sign the documents the way they were. He called the documents "workable" and told Burton that they would let the attorneys work out the "details."

In April 1987 Keating moved to Rochester to begin working for BMC as a contract estimator. While Keating was in Rochester, Nelson-Keating continued to do service work but did not solicit any new contract work. Keating and Burton did not discuss the employment agreement or purchase agreement after Keating began working for BMC. In September 1988 Burton curtailed Keating's estimating duties because of alleged mistakes. Keating then left the employ of BMC.

Burton sold BMC, including the mechanical contracting division, to Ebara in November 1988. Keating filed a complaint against Burton, BMC and Ebara alleging breach of employment agreement and stock option agreement and inducement to breach.

Burton and BMC filed their motion for summary judgment on May 22, 1991. On November 13, 1991, the trial court entered its order granting summary judgment in favor of Burton, BMC, and Ebara.

Discussion and Decision

In summary judgment proceedings, the burden of production is on the moving party to show that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Pour v. Basic American Medical, Inc. (1990), Ind.App., 555 N.E.2d 155, reh. denied. The moving party must make a prima facie showing that 1) there is no issue of material fact, and 2) the movant is entitled to judgment as a matter of law. If both requirements are met, the burden then shifts to the nonmoving party to show specific facts indicating an issue of material fact. Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1101, reh. denied. Rational assertions of fact and reasonable inferences therefrom are deemed to be true. Jordan v. Deery (1993), Ind., 609 N.E.2d 1104, 1107. Any doubt as to a fact, or an inference to be drawn therefrom, is resolved in favor of the nonmoving party. Perry v. Stitzer Buick, GMC, Inc. (1993), Ind.App., 604 N.E.2d 613, 617.

As a reviewing court, we are no longer free to search the entire record to support the judgment of the trial court. Inland Steel v. Pequignot (1993), Ind.App., 608 N.E.2d 1378, 1381, trans. denied. The 1991 amendments to Ind.Trial Rule 56 have substantially limited the scope of materials in the record the trial court may examine when determining the propriety of summary judgment and, correspondingly, what parts of the record we may properly consider on review. Id. T.R. 56(C) states in pertinent part that:

At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the trial court each material issue of fact which that party asserts precludes summary judgment and the evidence relevant thereto.

Here the trial court stated in its order that it had "considered all documents" in connection with the motion. The use of any material not properly designated by the parties pursuant to the rule is error. In reviewing the grant of summary judgment in favor of Burton, BMC, and Ebara, we will not consider any materials within the 2500 page record which have not been properly designated.

The court held in Czaja v. City of Butler (1992), Ind.App., 604 N.E.2d 9, 10, that although the rule does not specify the particular form for a designation, a party may meet the designation requirements either in a writing or in an oral presentation to the trial court if no written response is made. This court further held that T.R. 56(C) requires the designation to be made "at the time of the filing or response...." In accordance with T.R. 56(C) we will look only to the evidentiary materials designated to the trial court at the time of the filing of the motion and at the time of the filing of the response.

In Czaja, the court also suggested that the interests of the parties and of good practice are better served if an opponent of a motion responds in writing, specifically designating material issues of fact, the evidence relevant to the facts, and where it may be found in the record. Id. Similar to the court's recommendations in Czaja, our supreme court has set out the better practice for the parties is to clearly and succinctly state the material factual issues and the pertinent parts of the record relevant to those factual issues in the actual motion or response to the motion. Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431.

The trial court determined that there are no genuine issues of material fact and that Burton, BMC, and Ebara are entitled to summary judgment as a matter of law. After reviewing only the evidentiary materials properly designated by the parties, we agree that summary judgment is appropriate. In Keating v. Burton (1989), Ind.App., 545 N.E.2d 35, 38, 1 this court determined that the alleged employment agreement and stock option agreement fall within the Statute of Frauds 2 because neither agreement was reduced to a writing signed by Burton. We went on to hold that Keating's allegations, if proved, constituted an unjust and unconscionable injury and loss sufficient to remove the claim from the Statute of Frauds. Id. Under the law of the case doctrine, we are bound by our previous determination of the legal issue, given that the case and the facts are the same. Hinds v. McNair (1980), Ind.App., 413 N.E.2d 586, 607.

Keating alleged in his complaint that he gave up a "growing mechanical contracting business that had a substantial future" in "reliance on the agreement between Mechanical [BMC] and Keating." To determine if an unjust and unconscionable injury and loss existed, we must first determine whether independent consideration exists. Ke...

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