Martin v. Grutka

• Decision Date: 17 February 1972
• Docket Number: No. 1071A198,1071A198
• Citation: 278 N.E.2d 586,151 Ind.App. 167,29 Ind.Dec. 242
• Parties: James R. MARTIN and Catherine J. Martin, Husband and Wife, Plaintiffs-Appellants, v. Andrew G. GRUTKA, Bishop of the Catholic Diocese of Gary, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 586

278 N.E.2d 586

151 Ind.App. 167

James R. MARTIN and Catherine J. Martin, Husband and Wife Plaintiffs-Appellants, v. Andrew G. GRUTKA, Bishop of the Catholic Diocese of Gary Defendant-Appellee.

No. 1071A198.

Court of Appeals of Indiana, First District.

Feb. 17, 1972.

William W. Andersen, Jr., Chesterton, Ronald V. Aungst, Valparaiso, for plaintiffs-appellants.

William J. O'Connor, Hammond, for defendant-appellee.

ROBERTSON, Judge.

The cause of action, out of which this appeal arises, was commenced on November 4, 1969, when plaintiffs- appellants filed a complaint against defendant-appellee Grutka in the Porter Superior Court. The issues before the trial court were formed by plaintiffs' amended complaint which alleged, inter alia, the following: That during the years of 1948, 1949, 1950, and 1951 plaintiffs conveyed by warranty deeds four parcels of real estate located in Porter County, Indiana; That the conveyances were without monetary consideration, and that as a condition of the conveyances the property was to be used 'for St. Patrick's Parish, Chesterton, Indiana;' That it was the intent of the parties that the said condition would mean that the real estate was to be used as a site upon which St. Patrick's Parish would construct a parochial school, a chapel and church, and that if the land or any portion thereof was not used for that purpose, it was to be returned to the plaintiffs, or if the land or any portion thereof was sold or otherwise conveyed, the plaintiffs were to be entitled to and receive the proceeds of said sale or conveyance; That if the intent of John F. Noll was to take and use said real estate for purposes other than that heretofore alleged, then John F. Noll fraudulently induced plaintiffs to convey the property to him; That Andrew G. Grutka, defendant herein, was appointed Bishop of the Catholic Diocese of Gary, and the aforesaid real estate was conveyed to defendant as the Bishop of the Diocese of Gary by John F. Noll and/or his successors; That on or about July 20, 1956, a portion of said real estate was sold and conveyed by the Catholic Diocese of Fort Wayne to John Read and Elinor Read, and said sale and conveyance was made only after Bishop Leo Pursley, President of the Catholic Diocese of Fort Wayne, and his subordinates and agents had discussed the matter with plaintiffs and requested and received their permission to and regarding the sale of said property; That plaintiffs are informed and believe, and on such information and belief allege, that defendant knows, or has reason to know, the intent of the plaintiffs and of said John F. Noll concerning the use and disposition of said property, and that defendant refuses to honor and be bound by said intent and agreement; That defendant has acknowledged to plaintiffs his knowledge of the intent of plaintiff and John F. Noll, and defendant has represented that he would honor said intent, and that plaintiffs have relied on said acknowledgement and representation; That on or about November 23, 1966, defendant caused approximately fourteen acres of the aforesaid real estate to be appraised and thereafter caused to be issued to plaintiffs monies equal to the appraised value of said parcel and said parcel is not intended to be a part of this law suit; That approximately six acres of the said real estate is being used by St. Patrick's Parish for the purposes intended by the parties; That the state of Indiana is claiming an interest, by eminent domain, in approximately ten acres of said real estate, and therefore, the said portion cannot and will not be used for the purposes intended by the parties; That the remaining portion of said real estate, constituting approximately fifty-five acres is vacant and unused, is not being used for the purposes which the parties to the deeds intended, nor are there any plans that said real estate was to be so used in the future; That plaintiffs have demanded of defendants the aforesaid unused fifty-five acres, or in the alternative, that defendant pay to plaintiffs the reasonable value of said property, and that defendant has failed and refused to do so; That by reason of the action of defendant alleged herein plaintiffs have been damaged in the sum of $160,000.

Plaintiffs' amended complaint further sought that the trial court grant such of the following measures of relief as it felt proper:

'1. That the warranty deeds referred to herein be canceled (sic) and that title to all real estate therein conveyed, except for the approximately six (6) acres being used by St. Patrick's Parish for the purposes intended by the parties to the warranty deeds, and the approximately fourteen (14) acres for which plaintiffs have previously received monies, be reinvested in the plaintiffs;

'2. That the proceeds of any condemation (sic) or eminent domain suit be delivered to plaintiffs;

'3. That the warranty deeds referred to herein be reformed to reflect the true intent of the parties thereto '4. That defendant Andrew G. Grutka, Bishop of the Catholic Diocese of Gary, be ordered to pay to plaintiffs as damages the sum of One Hundred and Sixty Thousand Dollars ($160,000.00); and

'5. Any and all other and alternative relief as may be proper.'

Subsequent to the filing of plaintiffs' amended complaint and defendant's answer thereto, defendant filed his motion for summary judgment, and his affidavit and brief in support of the motion, on October 8, 1970. During pre-trial conference, on February 16, 1971, the trial court heard argument on defendant's motion for summary judgment and took the same under advisement. Counsel for plaintiffs was granted 15 days to file his brief in opposition to the motion for summary judgment, which was thereafter filed on March 3, 1971. Subsequent to the filing of defendant's reply brief, the trial court entered the following judgment:

'The court, having examined defendant's Petition for Summary Judgment filed heretofore in this cause, the affidavit filed in support thereof and the briefs submitted by the parties, now sustains defendants' motion for summary judgment, and court now finds that the deed here in question made a conveyance in fee simple to the Catholic Diocese of Fort Wayne and its successors in interest.

ALL OF WHICH IS SO ORDERED, ADJUDGED AND DECREED by the court this 18th day of May, 1971. Costs versus plaintiff.'

Plaintiff's motion to correct errors, which was overruled by the trial court, sets out the following:

'(a) That the motion for Summary Judgment was considered at a pre-trial conference without prior notice to Plaintiffs' counsel that the same would then be considered causing surprise to Plaintiffs' counsel which ordinary prudence could not have guarded against and denying Plaintiffs' counsel the right to present affidavits in opposition to said Motion for Summary Judgment and in connection herewith Plaintiff attaches Affidavit of Plaintiff, James R. Martin and makes the same a part hereof.

'(b) That the Court abused its discretion in consideration of the Motion for Summary Judgment by pre-judging the case and resolving doubts in favor of Defendant, Andrew G. Grutka rather than in favor of Plaintiffs in contravention of the ruling set forth in Kochert, et. al v. Wiseman, et. al, (Ind.App.) 269 N.E.2d 12 (1971).

'(c) That in considering the Motion for Summary judgment the Court failed to consider the Pleadings and Affidavit in a light most favorable to Plaintiffs (sic) in contravention of the ruling of Kochert, et. al v. Wiseman, et. al. (Ind.App.) 269 N.E.2d 12 (1971).

'(d) That in consideration of the Motion for Summary Judgment the Court failed to consider and take into account the pledings filed in this cause in contravention of Kochert, et. al v. Wiseman, et. al. (Ind.App.) 269 N.E.2d 12 (1791) (sic).

'(e) That there exists a genuine issue as to material fact, which issue of material fact is whether or not said Defendant was aware of or should have been aware of the intent of the parties at the time of the original giving and donation of said real estate and whether or not Defendant, Andrew G. Grutka ratified and adopted said intent and acted, at least partially, in accordance therewith, and the Defendant, Andrew G. Grutka is not entitled to a Judgment as a matter of law.'

In examining plaintiffs' assignment (a), it appears from the record of the proceedings below that defendant's motion for summary judgment was filed approximately four months prior to the time it was considered at the pre-trial conference. Plaintiffs, however, do not contend that the time in which they were required to respond to the motion was insufficient, but rather that they were denied notice that defendant's motion for summary judgment would be considered at the pre-trial conference. While plaintiffs may earnestly argue that they did not have actual notice that the motion for summary judgment would be considered at the pre-trial conference, they must, nonetheless, be deemed to have had constructive notice by reason of Trial Rule 16 of [151 Ind.App. 172] the Indiana Rules of Trial Procedure and Rule VI of the Local Rules of the Porter Superior Court, which read as follows:

'Trial Rule 16(A) ...