Renn v. Davidson's Southport Lumber Co., Inc., No. 1071A200
| Docket Nº | No. 1071A200 |
| Citation | 300 N.E.2d 682, 157 Ind.App. 446 |
| Case Date | August 30, 1973 |
| Court | Court of Appeals of Indiana |
Page 682
v.
DAVIDSON'S SOUTHPORT LUMBER CO., INC., and
John C. Adams d/b/a John Adams Plumbing and Excavating Co., Appellees.
Page 683
Merrill Moores and David L. Millen, John L. Price, of Moores & Millen, Indianapolis, for appellants.
D. Reed Scism, of Roberts & Ryder, Leo L. Kriner, of Kriner & Harman, Indianapolis, for appellees.
WHITE, Judge.
Appellants, Mr. and Mrs. Renn (owners) hold title to a dwelling house newly constructed pursuant to their written contract with one Robert Viles d/b/a Rainbow Homes. Viles, who is not a party to this litigation, seems to have fathered it by failing to pay for building materials he purchased[157 Ind.App. 447] from appellee Davidson's Southport Lumber Co., Inc., (Lumber Co.). Lumber Co. filed a notice of mechanics lien against owners' property. Owners thereupon filed a quiet title suit against Lumber Co. Lumber Co. counterclaimed for foreclosure of the lien it claimed to hold. Owners moved for summary judgment which was granted with this proviso: 'To the extent to which . . . Davidson's Southport Lumber Co., Inc. . . . (counterclaim) allege(s) a cause of action independent and separate from the cause of action to foreclose the mechanic's lien, . . . (it) shall be deemed to continue.'
Lumber Co. then moved for and was granted summary judgment against owners in the sum of $4,771.26 on the theory that owners' contract with Viles made him their agent in the purchase of building materials of that value.
Lumber Co.'s motion for summary judgment was supported only by its verified statement of account attached to the counterclaim and by the following affidavit:
'Thomas G. Miner, being first duly sworn, deposes and says that he is Manager of the Franklin Division of Davidson's Southport Lumber Co., Inc., and in that capacity supervised the furnishing and delivering of building materials for the residence constructed on Lot 213 in Devon Hills, Indianapolis, Marion County, Indiana; that said materials were purchased and delivered to said residence at the special instance and request of William A. Renn and Peggy J. Renn through their agent, Robert Viles, doing business under the firm name the style of Rainbow Homes, and that the fair and reasonable market value of the materials so furnished is Four Thousand Seven Hundred Seventy-one Dollars and Twenty-six Cents ($4,771.26); that no payments have been made on said account and that said sum is due and unpaid.'
Owners opposed Lumber Co.'s motion only by their affidavit 1, as follows:
[157 Ind.App. 448]
Page 684
'1. That affiants did not enter into any contract, express or implied, with Davidson's Southport Lumber Co., Inc. for the furnishing and delivering of building materials for the residence on Lot 213 in Devon Hills, Indianapolis, Marion County, Indiana.'2. That affiants did not authorize any other person to enter into a contract or agreement with Davidson's Southport Lumber Co., Inc. for the furnishing and delivering of building materials for the residence on Lot 213 in Devon Hills, Indianapolis, Marion County, Indiana.
'3. That specifically, affiants did not authorize Robert Viles in his individual capacity or doing business under the firm name and style of Rainbow Homes, to enter into an agreement or contract on their behalf with Davidson's Southport Lumber Co., Inc. for the furnishing and delivering of building materials for the residence on Lot 213 in Devon Hills, Indianapolis, Marion County, Indiana.
'4. That affiants did not constitute Robert Viles their agent to enter into an agreement or contract with Davidson's Southport Lumber Co., Inc. for the furnishing and delivering of building materials for the residence on Lot 213 in Devon Hills, Indianapolis, Marion County, Indiana; and that Robert Viles in his individual capacity or doing business under the firm name and style of Rainbow Homes did not act or purport to act as the agent for affiants in the entering into any agreement or contract with Davidson's Southport Lumber Co., Inc. for the furnishing and delivering of building materials for the residence on Lot 213 in Devon Hills, Indianapolis, Marion County, Indiana.'
The court then made this entry: 'Motion for Summary Judgment under advisement. Plaintiff (owners) directed to supply contract with Viles within 2 days.'
[157 Ind.App. 449] The court's entry on the day following reads:
'Building Agreement is filed which reads in the words and figures as following:'
What follows in the record is a photocopy of a six-page, typewritten, document which is wholly unverified. For reasons which will appear, we do not consider its content relevant to our decision.
The trial court granted Lumber Co.'s motion for summary judgment. The judgment entry recited, inter alia, that,
'having considered the pleadings, the motion for summary judgment of the defendant and . . . (counter-complainant), Davidson's Southport Lumber Co., Inc., and the memorandum of the plaintiffs in opposition to said motion for summary judgment, and all affidavits filed herein and argument of counsel, the Court finds that there is no genuine issue as to any material fact undetermined between plaintiffs and the defendant'.
We note that the record does not state that the court considered the building contract in finding 'that there is no genuine issue as to any material fact undetermined'. Owners' counsel also noted that...
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Tietloff v. Lift-A-Loft Corp., LIFT-A-LOFT
...v. Great Cent. Ins. Co. (3d Dist.1974) 160 Ind.App. 244, 311 N.E.2d 640; Renn v. Davidson's Southport Lumber Co., Inc. (2d Dist.1973) 157 Ind.App. 446, 300 N.E.2d...
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Podgorny v. Great Central Ins. Co., No. 3--673A64
...by one not qualified to testify to such, by affidavit, will not suffice. Renn v. Davidson's Southport Lumber Co., Inc. (1973), Ind.App., 300 N.E.2d 682; Newell v. Standard Land Corporation (1973), Ind.App., 297 N.E.2d Paragraphs numbered 2, 3 and 4 of Podgorny's affidavit present merely leg......
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Weenig v. Wood, No. 2--974A228
...(he was) entitled to judgment as a matter of law,' TR. 56(C). Renn v. Davidson's Southport Lumber Co., Inc. (2d Dist. 1973), Ind.App., 300 N.E.2d 682, Even were we to suppose that Weenig's affidavit and the purported release were properly before the trial court when it ruled on Weenig's TR.......
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Lenard v. Adams, No. 3-1280A374
...56(E); Whitaker v. St. Joseph's Hospital (1981), Ind.App., 415 N.E.2d 737, 743; Renn v. Davidson's Southport Lumber Co., Inc. (1973), 157 Ind.App. 446, 451, 300 N.E.2d 682, 685; W. Harvey, 3 Indiana Practice 556 (1970). The affidavits submitted in opposition to the motion for summary judgme......
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Tietloff v. Lift-A-Loft Corp., LIFT-A-LOFT
...v. Great Cent. Ins. Co. (3d Dist.1974) 160 Ind.App. 244, 311 N.E.2d 640; Renn v. Davidson's Southport Lumber Co., Inc. (2d Dist.1973) 157 Ind.App. 446, 300 N.E.2d...
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Podgorny v. Great Central Ins. Co., 3--673A64
...by one not qualified to testify to such, by affidavit, will not suffice. Renn v. Davidson's Southport Lumber Co., Inc. (1973), Ind.App., 300 N.E.2d 682; Newell v. Standard Land Corporation (1973), Ind.App., 297 N.E.2d Paragraphs numbered 2, 3 and 4 of Podgorny's affidavit present merely leg......
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Lenard v. Adams, 3-1280A374
...56(E); Whitaker v. St. Joseph's Hospital (1981), Ind.App., 415 N.E.2d 737, 743; Renn v. Davidson's Southport Lumber Co., Inc. (1973), 157 Ind.App. 446, 451, 300 N.E.2d 682, 685; W. Harvey, 3 Indiana Practice 556 (1970). The affidavits submitted in opposition to the motion for summary judgme......
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Bassett v. Glock, 2-176A1
...this provision is not intended to effect abbreviated or summary trial. Renn v. Davidson's Southport Lumber Co., Inc. (2d Dist.1973) 157 Ind.App. 446, 300 N.E.2d 682, 687. Submitted to the trial court were the depositions of the physicians, Glock, Kimbrough and Bridges, as well as that of Ba......