Loomis v. Ameritech Corp.

Decision Date27 February 2002
Docket NumberNo. 45A03-0012-CV-474.,45A03-0012-CV-474.
Citation764 N.E.2d 658
PartiesArthur E. LOOMIS, III, and, Linda D. Loomis, Appellants-Plaintiffs, v. AMERITECH CORP., Eichhorn & Eichhorn, and John McCrum, Appellees-Defendants.
CourtIndiana Appellate Court

Glenn S. Vician, Bowman, Heintz, Boscia & Vician, P.C., Merrillville, IN, Attorney for Appellant.

David C. Jensen, Robert J. Feldt, Scott B. Cockrum, Eichhorn & Eichhorn, Hammond, IN, Attorneys for Ameritech Corp.

Peter C. Bomberger, Stephen A. Tyler, Blackmun, Bomberger, Moran & Tyler, Highland, IN, Attorneys for John McCrum and Eichhorn & Eichhorn.



Arthur E. Loomis, III, ("Arthur") and Linda D. Loomis (collectively, the "Loomises") appeal the trial court's grant of motions for judgment on the pleadings in favor of Ameritech Corp. ("Ameritech") and Attorney John McCrum ("McCrum") and the law firm of Eichhorn & Eichhorn ("Eichhorn") (collectively "the Attorneys"). The Loomises raise two issues for our review, which we restate as: 1) whether the trial court erred by not expanding the tort of intentional interference with civil litigation by spoliation of evidence to include the spoliation of testimonial evidence; 2) whether Ameritech and the Attorneys are immune from suit because their actions arose out of their performance of their duties in a judicial proceeding; and 3) whether the Loomises' complaint sets out circumstances whereby relief could be granted under various other theories of liability.

We affirm.


In August of 1996, the Loomises filed a personal injury lawsuit against Ameritech arising out of a collision between Arthur's van and an Ameritech truck. Ameritech asserted release as one of their affirmative defenses.1 One of the issues that arose in the personal injury lawsuit was whether Ameritech fraudulently induced Arthur to sign a release that discharged all personal injury claims under the pretense that the release was needed only in order for Ameritech to pay for the repairs to Arthur's van. Darrel Wright ("Wright") witnessed the signing of the release.

On December 8, 1999, while the Loomises' personal injury lawsuit against Ameritech was pending, the Loomises filed the suit that is the subject of this appeal against Ameritech and the Attorneys. The Loomises' complaint consisted of six counts. Counts I, II, and III apparently restated the causes of action from the personal injury suit.2 Counts IV and V related to alleged misconduct on the part of the Attorneys arising out of their defense of Ameritech in the personal injury suit. Count VI3 alleged Ameritech was liable for the actions of the Attorneys performed in the defense of Ameritech.

In their complaint the Loomises allege that in December of 1997, McCrum, as a member of the Eichhorn law firm on behalf of its client Ameritech, made false statements to non-party lay witness Wright about Arthur's deposition testimony "for the purpose of poisoning the attitude of and adversely affecting the testimony of Darrel Wright towards [Arthur] about the facts and circumstances that surrounded the modification and signing of the Ameritech Corp. release." (R. at 31.)

The complaint further alleges that the Attorneys knowingly and intentionally presented false statements to Wright in an effort or scheme to intentionally induce Wright to sign an affidavit they drafted that contained false and misleading statements concerning the facts and circumstances of Arthur's signing of the release. Wright's deposition included some testimony different from that in his affidavit. An Eichhorn attorney impeached Wright with the statements contained in his affidavit and later sought to strike Wright's deposition testimony due to the inconsistent statements contained in his affidavit.

The complaint further alleged that the Loomises "have suffered certain injuries, damages, and attorney fees" due to the wrongful conduct of Ameritech and its attorneys. Id. at 33-36. Ameritech and the Attorneys filed motions for judgment on the pleadings pursuant to Ind. Trial Rule 12(C) stating that the Loomises had not stated a claim upon which relief could be granted. The trial court conducted a hearing and, on December 1, 2000, granted Ameritech's and the Attorneys' motions for judgment on the pleadings.

Standard of Review

T.R. 12(C) provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Like a motion to dismiss for failure to state a claim pursuant to T.R. 12(B)(6), a T.R. 12(C) motion attacks the legal sufficiency of the pleadings. Richards-Wilcox, Inc. v. Cummins, 700 N.E.2d 496, 499 (Ind.Ct.App.1998). Our review of the trial court's ruling on a T.R. 12(C) motion is de novo and a motion for judgment on the pleadings will not be granted unless it is clear from the face of the complaint that under no circumstances could relief be granted. Id. In reviewing a T.R. 12(C) dismissal, courts of appeal accept as true all well-pleaded facts set out in the complaint. Schuman v. Kobets, 716 N.E.2d 355, 356 (Ind.1999). We look only to the pleadings in making this assessment. Id.

Conduct During Personal Injury Lawsuit

The Loomises are seeking to maintain a suit against the Attorneys for conduct that occurred in the course of their defense of Ameritech in the personal injury lawsuit. The Loomises argue that the tort of intentional interference with civil litigation by spoliation of evidence should be expanded to include testimonial evidence. Additionally, the Loomises argue that a cause of action exists against the Attorneys on the basis of the attorney deceit statute,4 attorney common law liability for fraud, undue influence, fraud in the inducement, abuse of confidential relationship, breach of an implied covenant of good faith and fair dealing, and obstruction of justice. Ameritech, they argue, is liable for the acts of its attorneys. Ameritech and the Attorneys argue that even if the facts alleged in the Loomises' complaint were true, the Loomises have no cause of action under Indiana law.

1. Spoliation of Testimonial Evidence

The Loomises allege they have a cause of action against the Attorneys5 based on the tort of intentional interference with civil litigation by spoliation of evidence. The Loomises argue the Attorneys had a duty to maintain and preserve the integrity of Wright's testimonial evidence and that the "spoliation occurred when Ameritech's lawyers impeached the lay witness [Wright] with false and misleading statements that those same lawyers had drafted, and then moved to strike all testimony of the non-party lay witness." (Br. of Appellant at 8.) In essence, the Loomises invite us to recognize for the first time that the doctrine of spoliation of evidence includes the spoliation of testimonial evidence. We must decline their invitation.

Spoliation of evidence consists of "[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible." Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind.2000) (quoting Black's Law Dictionary 1409 (7th ed.1999)). "In Indiana, the exclusive possession of facts or evidence by a party, coupled with the suppression of the facts or evidence by that party, may result in an inference that the production of the evidence would be against the interest of the party which suppresses it." Id. (quoting Porter v. Irvin's Interstate Brick & Block Co., 691 N.E.2d 1363, 1364-65 (Ind.Ct.App.1998)). In Cahoon, our supreme court found that the spoliation rule applies to altered as well as destroyed documents. 734 N.E.2d at 545.

The Loomises are not seeking an evidentiary inference for the spoliation; rather, they are pursuing a tort action. The first case in this jurisdiction to address whether a tort action exists for spoliation of evidence was Murphy v. Target Products, 580 N.E.2d 687 (Ind.Ct.App.1991). Murphy filed a products liability action against the manufacturer of an allegedly defective power saw. He later amended his complaint to include an action against his employer for spoliation of evidence arising out of the employer's failure to preserve the allegedly defective saw. We concluded that the employer had no duty to maintain evidence for the employee's possible product liability action:

We therefore hold that at least in the absence of an independent tort, contract, agreement, or special relationship imposing a duty to the particular claimant, the claim of negligent or intentional interference with a person's prospective or actual civil litigation by the spoliation of evidence is not and ought not be recognized in Indiana.

Id. at 690 (citation omitted).

In Thompson v. Owensby, 704 N.E.2d 134, 137 (Ind.Ct.App.1998), this court found that a tort action existed for spoliation of evidence based upon the special relationship that existed between a third-party claimant and a liability insurance carrier. In Thompson, a dog broke free from its restraining cable and attacked Nicole Thompson. The Thompsons filed suit against the dog owners, the dog owners' landlords, and the manufacturer of the dog-restraining cable. The insurance company for the dog owner's landlord investigated the claim and took possession of the dog-restraining cable. The insurance company lost the cable. This court held that the insurance company had a duty to maintain the evidence. Id. at 140.

Thus far spoliation of evidence, whether as an evidentiary inference or as a tort, has been limited to physical evidence. See, e.g., Cahoon, 734 N.E.2d at 545 (medical record); Porter, 691 N.E.2d at 1365 (truck's drive line and related parts); Thompson, 704 N.E.2d at 135 (dog-restraining cable). However, the Loomises argue based on Thompson that the Attorneys owed the Loomises a duty to maintain testimonial evidence. We disagree, as the...

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