Smith v. Kinney, 3--574A93

• Decision Date: 10 December 1975
• Docket Number: No. 3--574A93,3--574A93
• Citation: 338 N.E.2d 507,167 Ind.App. 202
• Court: Indiana Appellate Court
• Parties: Charles D. SMITH, Appellant (Plaintiff below), v. Martin H. KINNEY, Appellee (Defendant below).

Page 507

338 N.E.2d 507

167 Ind.App. 202

Charles D. SMITH, Appellant (Plaintiff below), v. Martin H. KINNEY, Appellee (Defendant below).

No. 3--574A93.

Court of Appeals of Indiana, Third District.

Dec. 10, 1975.

Zarko Sekerez, Merrillville, for appellant.

Robert J. Addison, Nick Katich, Addison, Stiles & Greenwald, Gary, for appellee.

STATON, Presiding Judge.

The present case was tried by jury. The only issue presented for review is whether the trial court erred in granting defendant Kinney's motion for a directed verdict at the close of plaintiff's case. We conclude that there was no error, and the judgment of the trial court is affirmed.

On October 29, 1964, Charles Smith allegedly applied to the Board of Directors of the Merrillville Conservancy District for the annexation of certain real estate. On April 27, 1965, the property was annexed. Smith alleged that he was represented in the annexation proceedings by Martin Kinney and that Kinney's representation involved a conflict of interest because Kinney, during the annexation proceedings, was a member of the Board of Directors of the Merrillville Conservancy District and also represented the District as its attorney in various legal matters. Smith alleges that, because of this undisclosed conflict, he was damaged. ¹

When a motion for judgment on the evidence (directed verdict) is made under Trial Rule 50 of the Indiana Rules of Procedure:

'(T)he court must draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and to that party give every favorable intendment of the evidence, and a judgment can not be entered unless there is insufficient evidence to sustain a verdict for the non-moving party.' 3 W. F. Harvey, Indiana Practice § 50.3, at 370 (1970).

See also Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 275 N.E.2d 849; Farmer v. Werner Transportation Co. (1972), 152 Ind.App. 609, 284 N.E.2d 861. '(A) defendant's TR. 50 motion should be granted at the end of plaintiff's case only when there is a lack of reasonable evidence of probative value upon one or more of the vactual (sic) issues necessary to support a verdict, and there is no reasonable inference that can be drawn from such evidence in favor of plaintiff.' Miller v. Griesel (1974), Ind., 308 N.E.2d 701, 707.

The evidence viewed most favorably to the plaintiff reveals that Smith, individually, was not the owner of the land when the annexation proceedings were going on, that Smith did not individually retain the services of Kinney, and did not pay Kinney for the services rendered. A corporation, Consolidated Builders Corp., of which Smith was an officer and a stockholder, owned the land and, by Smith as its president, sought to have the land annexed to the Merrillville Conservancy District. ² It is well-settled that a 'corporation is a legal entity separate and distinct from its stockholders, individually or collectively considered.' Benner-Coryell Lumber Co. v. Indiana Unemployment Compensation Bd. (1940), 218 Ind. 20, 25, 29 N.E.2d 776, 778. The stockholders or directors of a corporation cannot recover upon causes of action belonging to the corporation. Cutshaw v. Fargo (1893), 8 Ind.App. 691, 34 N.E. 376.

Trial Rule 17 provides: 'Every action must be prosecuted in the name of the real party in interest.' Clearly, Consolidated Builders Corp. is the real party in interest, and Smith, individually, has suffered no damage....