Moxley v. Indiana Nat. Bank

• Decision Date: 30 December 1982
• Docket Number: No. 4-781A60,4-781A60
• Parties: David MOXLEY, Appellant (Plaintiff Below), v. The INDIANA NATIONAL BANK, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 374

443 N.E.2d 374

34 A.L.R.4th 1109

David MOXLEY, Appellant (Plaintiff Below), v. The INDIANA NATIONAL BANK, Appellee (Defendant Below).

No. 4-781A60.

Court of Appeals of Indiana Fourth District.

Dec. 30, 1982.

Arthur H. Northrup, Indianapolis, Robert T. Thopy, Matchett & Thopy, Shelbyville, for appellant.

Malcolm C. Mallette, Krieg DeVault Alexander & Capehart, Indianapolis, Phillip W. Brown, Brown, Brown & McQueen, Shelbyville, for appellee.

MILLER, Judge.

Appellant-plaintiff David Moxley is appealing an adverse summary judgment rendered by the Shelby Circuit Court in a tort action alleging misconduct and mismanagement by his former guardian, Indiana National Bank. Moxley requested actual damages of $2,326,704 and punitive damages of $3,500,000. The trial court granted summary judgment on the basis that the issues in the present civil case had been adjudicated in the Marion County Superior Court, Probate Division (hereinafter referred to as probate court) by a judgment which approved, after lengthy hearings, the Bank's final accounting and discharge as guardian of Moxley. Moxley claims there are issues involving acts of misconduct by the Bank which were not litigated in the probate proceedings and he is entitled to litigate these issues in a separate civil action. We find the trial court correctly determined the probate court judgment to be res judicata and affirm.

FACTS

This action was brought while the final guardianship accountings were pending. With regard to the guardianship, on February 6, 1976, the probate court appointed the Bank as guardian of the person and estate of Moxley. ¹ The Bank filed an interim accounting which was approved ex parte on May 31, 1978 and on January 17, 1979 the guardianship was terminated by the probate court. After this termination, Moxley filed 48 objections to the interim accounting, asking that the Bank be surcharged. The court then vacated the ex parte approval of the interim accounting. When the Bank filed its final accounting on July 20, 1979, Moxley filed an additional 33 objections to this accounting, again asking that the Bank be surcharged. The first hearing on these accountings and the 81 objections thereto was convened on March 17, 1980 and continued by agreement of the parties. Ten days later, on March 27, 1980 and while the guardianship litigation was pending, Moxley filed this separate tort action alleging mismanagement by the Bank.

Following further hearings on the guardianship accounting on April 14, 15, 16, 17, 18, 21, and 22, the probate court entered its findings of facts, conclusions of law and judgment on July 21, 1980. The interim and final accountings were in all respects approved and the Bank was discharged, the court concluding the Bank had exercised proper judgment and care in the supervision of the person and estate of Moxley.

After the probate court judgment, the Bank, in this civil case, filed a motion for summary judgment attaching the 31 pages of findings of fact, the conclusions of law and the judgment of the probate court. The Bank based its motion on the probate court judgment plus the pleadings and exhibits previously filed in this cause. ² These previous filings included:

1) Moxley's 81 objections to interim and final accounts;

2) Responses of the Bank to objections to interim and final accounts;

3) Moxley's reply to the Bank's responses 4) Moxley's objections to executor's final account in Constance Norris Moxley's estate and petitions to determine ownership of assets, liability for debts and surcharge against the executor; and

5) Moxley's complaint for damages against the Bank which was pending in the Hamilton County Court.

On October 31, 1980, with both parties present for the summary judgment hearing, Moxley was given leave to file documents with the court to oppose the motion. Although Moxley filed additional briefs and arguments, ³ he filed no material which the court could have considered in determining a genuine issue as to any material fact pursuant to Ind.Rules of Procedure, Trial Rule 56 (i.e., depositions, affidavits, etc.)

In his brief Moxley presents this issue for our review--"whether a probate court's approval of a final accounting pursuant to statute, against special statutory objections is res judicata on a tort action" for mismanagement in the Bank's dealings with Moxley's person and property.

DECISION

Moxley contends this action for tort damages should not be precluded under the doctrine of res judicata for two main reasons. First, he claims there is no estoppel by judgment because there are new matters in this complaint which were not included in the final accounting and he asserts the parties are not the same because "they are reversed." ⁴ Second, he suggests collateral estoppel is not applicable to this case. The Bank, on the other hand claims the alleged new matters were adjudicated by the probate court and, further, that a ward who contests his guardian's final accounting is barred by res judicata from asserting the same issues as a plaintiff in another cause of action against the guardian.

We must first observe that a summary judgment procedure is utilized to terminate those causes of action which have no factual dispute so the judgment may be made as a matter of law. The procedure is an aid to screen out spurious causes and to relieve litigants of undue burdens. Thus, in summary judgment proceedings the judge applies the law to the facts when there is no factual dispute, and the party seeking summary judgment has the burden of establishing there is no genuine issue of any material fact. Thrapp v. Austin, (1982) Ind.App., 436 N.E.2d 1170. Further, the trial court, as did the trial court in this case, considers only the pleadings, depositions, answers to interrogatories, admissions, affidavits and testimony on file. T.R. 56.

After examining the material before the trial court, we find the elements of res judicata or estoppel by judgment do exist and uphold the trial court's granting of summary judgment in the Bank's favor. For this reason we need not reach the issue of collateral estoppel.

To apply the doctrine of res judicata, Indiana courts have consistently required the following elements:

"The basic elements of res adjudicata are four-fold: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the matter now in issue was, or might have been, determined in the former suit; (3) the particular controversy adjudicated in the former action must have been between the parties to the present suit; and (4) judgment in the former suit must have been rendered on the merits. Middlekamp v. Hanewich (1977) , 364 N.E.2d 1024, 1033; Crown Point School Corp. v. Richards (1973), 154 Ind.App. 545, 549, 290 N.E.2d 449, 452; Wright v. Kinnard (1970), 147 Ind.App. 484, 488, 262 N.E.2d 196, 199-200."

Blake v. Blake, (1979) Ind.App., 391 N.E.2d 848, 851. Moxley directs his arguments in this appeal to elements two and three claiming some matters in this complaint were not adjudicated in the probate action and alleging the parties were not the same.

First, Moxley argues his complaint covers a different time period than adjudicated in the final accounting. He contends the probate court judgment was confined to matters occurring before the termination of the guardianship on January 17, 1979 and did not extend to acts of misconduct between that date and the date of discharge on June 30, 1979. This claim is based on the probate court's exclusion of the expert testimony concerning the value of Moxley's stock in the Henry B. Gilpin Corporation ⁵ as of June 30, 1979. But this argument was waived because it was not included in the motion to correct errors. ⁶ Rogers v. Rogers, (1982) Ind.App., 437 N.E.2d 92. But even if not waived, the argument is refuted by the probate court's finding of fact which stated the guardian's final accounting covered the period from February 7, 1978 through June 30, 1979 and the judgment of the probate court approving the accounting as filed.

Moxley also contends there are new matters which were never litigated in the probate court. In his motion to correct errors, he incorporates by reference 16 issues ⁷ from an earlier brief in opposition to the Bank's motion for summary judgment. Moxley argues he has presented issues which arose after the accounting. A review of the timing of these two cases immediately reveals all matters in the complaint in this case could have been litigated in the probate court. Seven days of hearing in the probate court were held after this civil complaint was filed. If the matters raised in this civil action were not in fact covered by his existing objections in the probate court, Moxley had an opportunity to amend those objections and obtain any appropriate continuances. Thus, in Diaz v. Duncan, (1980) Ind.App., 406 N.E.2d 991, this court held a probate court judge has jurisdiction to continue a scheduled hearing on a final accounting in order to allow written objections to be filed. In Diaz, Duncan appeared at the hearing on the final accounting and orally moved to reinstate earlier written objections which had been stricken. Although the motion was denied by the judge because the objections were not specific, the judge, as was his custom, continued the hearing to a later date to permit the filing of specific written objections. This court, in commending the judge's action, cited the principle that in matters relating to the filing of objections

"strict formality is not required ... and the court, in passing upon such matters, should be more observant of substance than of form. Goodbub v. Hornung's Estate, [ (1891) 127 Ind. 181, 26 N.E. 770] at 185 of 127 Ind. at 771 of 26 N.E."

Diaz v. Duncan, supra at 1003. Moxley's complaint in this civil case, allegedly raising new matters, was filed more than two weeks before the hearing again proceeded on the final accounting. Thus, there was ample opportunity for...