Meier v. Pearlman, 2-578A173

• Decision Date: 21 February 1980
• Docket Number: No. 2-578A173,2-578A173
• Citation: 401 N.E.2d 31
• Parties: Marion R. MEIER, Plaintiff-Appellant, v. Louis PEARLMAN, Jr., George T. Schilling, James V. McGlone, et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 31

401 N.E.2d 31

Marion R. MEIER, Plaintiff-Appellant, v. Louis PEARLMAN, Jr., George T. Schilling, James V. McGlone et al., Defendants-Appellees.

No. 2-578A173.

Court of Appeals of Indiana, First District.

Feb. 21, 1980.

Marion R. Meier, pro se.

David L. Abel, II, Harry J. Jennings, Spangler, Jennings, Spangler & Dougherty RATLIFF, Judge.

Gary, for George T. Schilling and James V. McGlone.

STATEMENT OF THE CASE

Marion R. Meier, plaintiff below, appeals from a judgment of the Tippecanoe Superior Court, No. Two, granting summary judgment in favor of defendants George T. Schilling and James V. McGlone. Meier asserts that the summary judgment was procedurally defective and that Schilling and McGlone were not entitled to judgment as a matter of law. We affirm. ¹

FACTS

In 1961, Meier instituted an action in the Tippecanoe Superior Court against Frank D. Sandefur, James A. Sell, Donald E. Jones, and O. D. Roberts, seeking to recover damages from said defendants for alleged false imprisonment, said action being Cause No. S-578-61 in said Court. It was alleged in Cause No. S-578-61, that the defendants named therein forced Meier to accompany them to the Veterans Hospital at Marion, Indiana, and that Meier was deprived of his liberty and confined in that hospital against his will and without his consent. Cause No. S-578-61 was tried before a jury in January, 1974, which resulted in a verdict for the defendants and adverse to Meier. Meier appealed to this court, and the judgment of the trial court was affirmed by an unpublished opinion entered in Cause No. 2-774-A-164 by the Second District of this Court. Meier's petition for writ of certiorari was denied by the Supreme Court of the United States.

On January 15, 1976, Meier filed this action, naming as defendants, Roberts, Jones, Sell, and Sandefur, the defendants in the first action; Loyal W. Combs, John F. McBrearty, and William A. Sandy, who were witnesses for the defendants in the first case; Louis Pearlman, Jr., Russell Armstrong, and Arthur Griffith, who were attorneys for Meier at one time or another during the pendency of the first case; and George T. Schilling and James V. McGlone, who were attorneys for the defendants in the first case. Generally, the complaint in this case charged the former attorneys for Meier with various charges of malpractice, conspiracy, fraud, and other misconduct; Roberts, Jones, Sell, and Sandefur, the prior defendants, together with Combs, McBrearty, and Sandy were charged with producing and rendering false testimony and evidence in the prior action; Schilling and McGlone were charged with various acts of misconduct including suppression of evidence, presentation of false evidence, distortion of the facts and the truth, production of false witnesses, production of false evidence and limitation of the scope and reach of Meier's proof and damages. Meier charges that the misconduct of all the defendants, as alleged, resulted in the adverse verdict in the false imprisonment case. Meier's only allegations and contentions against Schilling and McGlone are found in Count Three of his complaint which reads in its entirety as follows:

(Count Three)

6. Defendants Pearlman, Armstrong, and Griffith who represented Plaintiff in the said cause combined and joined with Defendants Schilling and McGlone to deprive Plaintiff of his just compensation and damages in the said action by suppressing evidence, presenting false evidence, distorting the facts and truth of the evidence, producing fake witnesses without challenge, producing false evidence without challenge, and in limiting the scope and reach of Plaintiff's proof and damages, such that Plaintiff's cause was lost.

7. Defendant has therefore been damaged in the sum of $500,000 and he has been forced to hire other counsel and to expend large sums of money to bring this suit. Defendant is entitled to punitive damages because the injury done him by said defendant was deliberate and malicious. * * * " (Our insertion)

All defendants in this action except Pearlman filed motions for summary judgment, which motions have been granted by the trial court. It is from the granting of summary judgment in favor of Schilling and McGlone, the attorneys for the defendants in the first action, that Meier prosecutes this appeal. ²

ISSUES

1. Whether the summary judgment entered in favor of Schilling and McGlone was procedurally defective in that the trial court did not make findings as to the issues upon which there was no genuine issue of fact, and that the trial court failed to state its reasons for granting summary judgment.

2. Whether the trial court erred in granting summary judgment for Schilling and McGlone on the ground that the present action was an impermissible collateral attack on the judgment in the false imprisonment case and that, therefore Schilling and McGlone were entitled to judgment as a matter of law.

DECISION

Issue One

It has been held that the court must state with particularity its reasons for granting summary judgment. Harris v. Young Women's Christian Association of Terre Haute, (1968) 250 Ind. 491, 237 N.E.2d 242; Singh v. Interstate Finance of Indiana No. 2, Inc., (1969) 144 Ind.App. 444, 246 N.E.2d 776. ³

Ind.Rules of Procedure, Trial Rule 56(C) provides in part as follows:

(C) MOTION AND PROCEEDINGS THEREON. The motion shall be served at least ten (10) days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is not just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts. * * * " (Emphasis added)

Professor Harvey in his treatise on Indiana Practice says that the emphasized sentence in T.R. 56(C) was added to care for the problem raised by the Harris case, supra, and to "make it clear that the court granting summary judgment must state those issues and claims upon which summary judgment is granted." 3 W. Harvey, Indiana Practice, p. 547.

The summary judgment entered in favor of Schilling and McGlone simply states the court's finding that their motion for summary judgment "should be sustained for the reason that there is no genuine issue as to any material fact and that said defendants, George T. Schilling and James McGlone, are entitled to judgment as a matter of law. * * * " (Emphasis added) Meier contends that the summary judgment entry is procedurally defective under T.R. 56(C), and under Harris and Singh, supra, for the failure of the court to state the issues upon which summary judgment was granted and for the failure of the court to state its reasons for granting summary judgment. Meier is in error in his construction of the law pertaining to summary judgments.

The requirement that the court state the issues and claims upon which summary judgment is granted applies only where summary judgment is granted on less than all of the issues. Equitable Life Assurance Society of U. S. v. Crowe, (1976) Ind.App., 354 N.E.2d 772; Richards v. Franklin Bank & Trust Co., (1978) Ind.App., 381 N.E.2d 115. As Judge Lowdermilk said in the Equitable Life Assurance case, supra :

"Therefore, it is clear that TR. 56(C) requires a trial court to designate the issues or claims upon which it finds no genuine question of material fact only where it enters summary judgment on some but not all of the issues or claims in a case and tries the remaining issues or claims." (Citation omitted)

"Here, the trial court entered a final summary judgment encompassing all the issues and claims in the case. Therefore, neither Equitable nor this court was left in a quandary as to which issues or claims must meet the tests of TR. 56." 354 N.E.2d 772, 776.

Further, there is no requirement in T.R. 56 that the trial court must specifically state the legal basis for granting summary judgment. Ahnert v. Wildman, (1978) Ind.App., 376 N.E.2d 1182, where Judge Buchanan stated (at 376 N.E.2d 1189):

"Ahnert's fourth alleged procedural defect is that the trial court failed to identify the legal basis (reasons) relied upon in granting summary judgment, placing reliance on Singh v. Interstate Finance of Indiana, No. 2, Inc. (1969), 144 Ind.App. 444, 246 N.E.2d 776 . . . a case decided prior to the adoption of the present trial rules.

There is no specific requirement in TR 56 that the legal basis relied on by the trial court in granting summary judgment be specifically stated. It would be an aid to appellate review if such a practice is followed, but it is not required." * * * (Emphasis added)

The Court in Ahnert, supra, went on to say that if appellate review is frustrated by lack of statement of reasons, the appellate tribunal can remand to the trial court. However, the court in Ahnert, supra, said that the legal basis for the summary judgment was apparent from the record and remand was unnecessary. Other cases supporting the view that remand for a statement of reasons is unnecessary where the issues are few and readily ascertainable and remand would unnecessarily prolong the proceeding are Lows v. Warfield, (1971) 149 Ind.App....