Midwest Natural Gas Corp. v. Locke Stove Co., Inc.

• Decision Date: 20 May 1982
• Docket Number: No. 4-981A114,4-981A114
• Parties: MIDWEST NATURAL GAS CORPORATION, Appellant (Defendant Below), The Seymour National Bank, Administratrix of the Estate of Samuel Sellers, Shirley Sellers and Barbara Sellers, Appellants (Plaintiffs Below), v. LOCKE STOVE COMPANY, INC., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 85

435 N.E.2d 85

MIDWEST NATURAL GAS CORPORATION, Appellant (Defendant Below),

The Seymour National Bank, Administratrix of the Estate of

Samuel Sellers, Shirley Sellers and Barbara

Sellers, Appellants (Plaintiffs Below), v. LOCKE STOVE COMPANY, INC., Appellee (Defendant Below).

No. 4-981A114.

Court of Appeals of Indiana, Fourth District.

May 20, 1982.

Emerson Boyd, Locke, Reynolds, Boyd & Weisell, Indianapolis, John M. Mayer, Jr., Hanger, Engebretson & Mayer, Clarksville, for appellant Midwest Natural Gas Corp. Roger L. Pardieck, Montgomery, Elsner & Pardieck, Seymour, for appellant The Seymour National Bank, et al.

Raymond O. Harmon, Boehl, Stopher, Graves & Diendoerfer, Louisville, Ky., Ernest W. Smith, Fox & Smith, Jeffersonville, for appellee Locke Stove Co., Inc.

YOUNG, Judge.

The personal representative of Samuel Sellers' estate, Sellers' wife, brother and sister-in-law and Midwest Natural Gas Corporation appeal the granting of summary judgment in favor of Locke Stove Company, Inc. The Sellers contend that the trial judge erred (1) in not fixing a time for a hearing on Locke's motion for summary judgment and (2) in determining that there were no genuine issues of material fact. Midwest contends that the trial judge erred in entering summary judgment in favor of Locke on Midwest's cross-claim against Locke and plaintiffs' complaint because the judgment precluded Midwest from recovering indemnity from Locke, in the event Midwest would be held liable for an act, omission, or breach of warranty of Locke. Midwest alleges the trial judge committed reversible error in concluding that a genuine issue of material fact did not exist.

We reverse in part and affirm in part.

In September and October 1970, Midwest converted the Sellers' residence from oil to gas service by installing gas service pipes both above and below the meter. In the process of this conversion, the Sellers purchased a gas-fired space heater manufactured by Locke and sold and installed by Midwest. On December 19, 1970, Sam Sellers was killed and Charles Sellers was injured by an explosion which occurred when Sam walked over to the heater and reached for the knobs on the back of the heater to lower the heat. The plaintiffs filed suit against Midwest alleging negligence in the installation and control of the gas pipes, as well as negligence in the inspection, installation and maintenance of the gas heater. The claim filed against Locke alleged negligence in the construction of and design of the heater which centered around defects in the thermostat and safety shut-off valve. Midwest filed a cross-claim against Locke for indemnity in the event Midwest was found liable. Locke filed a motion for summary judgment on the complaint and cross-claim and a motion to publish the depositions of Charles Sellers, Shirley Sellers, Barbara Sellers and Stratton O. Hammon. The court, without setting a time for a hearing, entered summary judgment in favor of Locke on the complaint and cross-claim.

Insofar as the Sellers are concerned, the failure of the trial judge to set a time for a hearing on Locke's motion for summary judgment is reversible error. Otte v. Tessman, (1981) Ind., 426 N.E.2d 660. In Otte, our Supreme Court stated:

... (P)rejudice is presumed on appeal where a trial court fails to follow the mandate of Trial Rule 56 which provides that the trial court fix a time for a hearing on the motion for summary judgment before ruling upon the motion. The fixing of time for a hearing is the cornerstone which supports the equitable operation of Trial Rule 56. It is the notice to the parties that motions to publish depositions must be filed and granted by the trial court before the time fixed if the depositions are to be considered by the trial court. Augustine et al. v. First Federal Savings and Loan et al. (1979) Ind., 384 N.E.2d 1018. It is notice to the parties that they must ask for an extension of time if they are contemplating the taking of a deposition which they wish the trial court to consider. If no time is fixed by the trial court, and it renders summary judgment, a party may find that the avenue to further discovery has been closed and that the showing of prejudice is now impossible.

Otte, supra at 661 (adopting Judge Staton's language at 412 N.E.2d 1231).

Locke argues that no error can be raised because local rules ¹ require a party to request a hearing on a motion, which plaintiffs failed to do. This local rule is inconsistent with T.R. 56(C) as interpreted by our Supreme Court's holding in Otte, supra. Under Trial Rule 81, local courts cannot have rules inconsistent with the Ind. Rules of Procedure. Because the trial court failed to follow the T.R. 56(C) mandate to set a time for hearing on the motion for summary judgment before ruling on it, we reverse the summary judgment on plaintiffs' complaint and remand for the court to set a time for a hearing.

However, Midwest raised no such objection in its motion to correct errors nor does it argue the matter in its appellant's brief. ² Therefore, any error on this issue has not been preserved by Midwest.

Because Midwest waived any error in the court failing to set a time for a hearing, we must consider Midwest's contention that summary judgment on its cross-claim and plaintiffs' complaint was improper because there were genuine issues of material fact. Summary judgment is proper only where the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits and testimony, disclose that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Whipple v. Dickey, (1980) Ind.App., 401 N.E.2d...