Stiller v. Leatherman

• Decision Date: 14 February 1995
• Docket Number: No. 64A03-9310-CV-334,64A03-9310-CV-334
• Citation: 646 N.E.2d 701
• Parties: Ernest W. STILLER, M.D., Appellant-Defendant, v. Jack LEATHERMAN and Gary Boyn, Trustee of the Bankruptcy Estate of Jack Leatherman, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 701

646 N.E.2d 701

Ernest W. STILLER, M.D., Appellant-Defendant, v. Jack LEATHERMAN and Gary Boyn, Trustee of the Bankruptcy Estate of Jack Leatherman, Appellees-Plaintiffs.

No. 64A03-9310-CV-334.

Court of Appeals of Indiana Third District.

Feb. 14, 1995.

Robert D. Hawk, F. Amin Istrabadi, Spangler, Jennings & Dougherty, P.C. Merrillville, for appellant.

R. Kent Rowe, R. Kent Rowe, III, Rowe, Foley & Gardner, South Bend, for appellees.

OPINION

HOFFMAN, Judge.

Defendant-appellant, Ernest W. Stiller, M.D., brings an interlocutory appeal of the denial of his request for summary judgment. The facts relevant to appeal are summarized below.

In April 1986, Dr. Stiller performed surgery on Jack Leatherman's knee. An ensuing infection required amputation of Leatherman's leg below the knee. Leatherman filed a proposed complaint before the Indiana Department of Insurance for medical malpractice against Dr. Stiller in April 1988. On December 6, 1989, the medical review panel unanimously determined that Dr. Stiller failed to meet the appropriate standard of care as alleged in Leatherman's complaint.

In June 1988, Leatherman filed a voluntary petition for bankruptcy. The pending suit against Dr. Stiller was listed as a contingent or unliquidated claim. Gary Boyn was appointed trustee of Leatherman's bankruptcy estate on June 8, 1988. In September 1988, the bankruptcy court issued an order of discharge relieving Leatherman from his debts. On September 21, 1988, Boyn, as the trustee, filed an application with the bankruptcy court to employ counsel to pursue Leatherman's claim against Dr. Stiller. On November 9, 1988, the bankruptcy court granted Boyn's application.

Leatherman instituted a proceeding in his own name against Dr. Stiller in February 1990. Dr. Stiller moved for summary judgment on August 10, 1993. Dr. Stiller alleged that upon commencement of the bankruptcy action, Leatherman was divested of standing to institute a claim and that the suit must be brought exclusively by the trustee.

On August 30, 1993, Boyn filed a motion to ratify Leatherman's actions in prosecuting the claim and to be joined as a party or for substitution as the named plaintiff. Boyn attached his affidavit disclosing that he had authorized counsel to continue the medical malpractice litigation which had been previously instituted before the Department of Insurance in Leatherman's name.

On September 7, 1993, the trial court denied Dr. Stiller's motion for summary judgment and granted Boyn's motion to be "added as party plaintiff" in the cause. Pursuant to Dr. Stiller's request, the action was certified for interlocutory appeal of the denial of his request for summary judgment.

As consolidated, Dr. Stiller raises one issue for review: Whether the trial court erred in failing to grant summary judgment in favor of Dr. Stiller where the action was commenced in the name of the debtor rather than in the name of the trustee in bankruptcy.

When reviewing a motion for summary judgment, this Court stands in the shoes of the trial court. This Court must liberally construe all designated evidentiary matter in favor of the non-moving party and resolve any doubt against the moving party. Even if it appears that the non-moving party will not succeed at trial, summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting inferences. Where material facts are not in dispute, the issue is the application of the law to the facts. Fidelity Financial Services v. Sims (1994), Ind.App., 630 N.E.2d 572, 574. Specifically, Dr. Stiller contends that because Leatherman lacked standing to bring the action and the trustee did not move to intervene or be substituted as a party until after the statute of limitations had expired, Ind. Trial Rules 17(A) and 15(C) cannot salvage the action. Thus, according to Dr. Stiller, judgment must be entered in his favor. Dr. Stiller directs our attention to Bradley v. Stiller (1992), Ind.App., 604 N.E.2d 1242, and McDonald v. Fairfield Pathologists, Inc. (1991), Ind.App., 580 N.E.2d 690.

Both Bradley and McDonald are distinguishable from the present case. The applicability of T.R. 17(A) and ...