Strutz v. McNagny

• Decision Date: 27 August 1990
• Docket Number: No. 02A03-8906-CV-266,02A03-8906-CV-266
• Parties: Donald F. STRUTZ, Appellant (Plaintiff Below), v. William F. McNAGNY, et al., George T. Boggs, et al., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1103

558 N.E.2d 1103

Donald F. STRUTZ, Appellant (Plaintiff Below), v. William F. McNAGNY, et al., George T. Boggs, et al.,

Appellees (Defendants Below).

No. 02A03-8906-CV-266.

Court of Appeals of Indiana,

Third District.

Aug. 27, 1990.

Arthur H. Gemmer, Indianapolis, for appellant.

Evan E. Steger, Ice Miller Donadio & Ryan, Indianapolis, for appellees.

STATON, Judge.

Donald F. Strutz (Strutz) appeals a grant of summary judgment. His appeal raises seven issues for our review, which we consolidate and rephrase as follows:

I. Whether the trial court properly considered findings of fact and conclusions of law from another civil case wherein the court had reserved final judgment in ruling on defendants' motion for summary judgment.

II. Whether the trial court erred in granting summary judgment where defendants' pleadings were unverified and defendants failed to respond to plaintiff's opposing "motion."

III. Whether Strutz was denied due process rights by the holding of a hearing on motion for summary judgment without the presence of Strutz's co-counsel and by the holding of a hearing on imposition of attorneys' fees without notifying Strutz or his co-counsel.

IV. Whether the trial court erred in refusing to rule on Strutz's post-judgment motions.

V. Whether the clerk erred in refusing to grant Strutz' Trial Rule 53.1 "lazy judge" motion.

VI. Whether the trial court erred in assessing attorneys fees against Strutz pursuant to IND.CODE 34-1-32-1 (Supp.1990).

We affirm in part and reverse in part.

This case is one of several arising out of a trust accounting action brought by trusts of which Donald F. Strutz, an attorney, was a beneficiary. Because of facts which were unearthed in that action, suit was filed against Strutz for professional malpractice and unjust enrichment. The malpractice/unjust enrichment action was voluntarily dismissed, with the court instructing that the claims could be pursued in the original accounting action to avoid unneeded litigation. Strutz then brought this action, alleging that William F. McNagny and George T. Boggs and their respective law firms (McNagny and Boggs), attorneys in both actions, were liable for abuse of process, malicious prosecution, slander, libel, and defamation.

The trial court granted McNagny and Boggs' motion for summary judgment, and assessed attorneys fees and costs to Strutz pursuant to IC 34-1-32-1.

I. Findings of Fact and Conclusions of Law from the Accounting Action

Strutz does not challenge the merits of the summary judgment, but contends instead that the trial court improperly considered findings of fact and conclusions of law from the original trust accounting action in arriving at its decision. In that action, the court made extensive findings and conclusions relating to Strutz, although Strutz was not technically a party to the action. The court found that the lawsuit was actually being maintained by Strutz, and not the trustee of the trusts; that the action was actually one between attorney and client; that Strutz was guilty of exerting fraud and undue influence over his client; and that Strutz had violated numerous ethical rules governing the attorney-client relationship. These findings of fact and conclusions of law were attached as an exhibit to McNagny and Boggs' Answer and were referred to in their Brief in Support of Motion for Summary Judgment.

Strutz points out that the trial court did not enter a final judgment in the accounting action, since it found that issues remained to be litigated. He also argues that since he was not a party to that action, none of his rights were litigated. Therefore, he argues that the summary judgment should be reversed, since the trial court based its decision on these findings and conclusions.

Before addressing the propriety of considering the findings of fact and conclusions of law in the accounting action, it is necessary for us to examine the trial court's decision in order to determine if the findings and conclusions were a necessary factor to support the trial court's decision. This task is more difficult by virtue of the trial court's failure to make findings of fact and conclusions of law in support of its grant of summary judgment. Of course, such findings are not necessary, nor is the absence of them fatal to the judgment, but when they are placed into the record, they facilitate appellate review. Jenkins v. Nebo Properties, Inc. (1982), Ind.App., 439 N.E.2d 686, 690, transfer denied. The standard upon review of a grant of summary judgment is the same as that of the trial court. We look at the record to determine whether there are genuine issues of material fact which would preclude entry of judgment in favor of the movant, and whether the trial court correctly applied the law. All doubts or inferences are resolved in favor of the nonmovant. Mauller v. City of Columbus (1990), Ind.App., 552 N.E.2d 500, 502. We will affirm if the judgment is sustainable upon any theory supported by the record. Schultz v. Hodus (1989), Ind.App., 535 N.E.2d 1235, 1236, rehearing denied.

Count I of the complaint alleges a cause of action for abuse of process for the malpractice/unjust enrichment action filed on June 28, 1984. A cause of action for abuse of process accrues when the act complained of--here, the filing of the complaint in the malpractice/unjust enrichment action--is committed. Cassidy v. Cain (1969), 145 Ind.App. 581, 251 N.E.2d 852, 857, transfer denied. The complaint in the present action was filed on February 16, 1988. Thus, on the face of the complaint, the two-year statute of limitations for abuse of process had run, and summary judgment was appropriate on this count without considering the findings of fact and conclusions of law in the prior action. IC 34-1-2-2.

Count II alleged that the defendants were guilty of malicious prosecution for initiating the malpractice/unjust enrichment action. The elements of a malicious prosecution action are: (1) that the defendant instituted, or caused to be instituted, a prosecution against the plaintiff; (2) the defendant acted with malice in doing so; (3) the prosecution was instituted without probable cause; and (4) the prosecution terminated in the plaintiff's favor. Lazarus Dept. Store v. Sutherlin (1989), Ind.App., 544 N.E.2d 513, 519, transfer denied. On the face of his complaint, Strutz fails to establish the final element.

Although it is true that withdrawal of the proceedings by the person bringing them may constitute a favorable termination for purposes of an action for malicious prosecution, Sasse v. Rogers (1907), 40 Ind.App. 197, 81 N.E. 590, the court may not ignore the context in which the proceedings were terminated. Wong v. Tabor (1981), Ind.App., 422 N.E.2d 1279, 1284. Here, Strutz attached the dismissal order of the court in the prior action as an exhibit to his complaint. The order stated that the plaintiffs had stipulated to the dismissal of the action upon the grounds that any and all of the claims contained in the complaint could be pursued in any action brought against them. The clear purpose of the order was to allow the plaintiffs to assert their claims in the accounting action in order to eliminate needless litigation, and that was what the plaintiffs in fact did. This can hardly be called a termination favorable to Strutz. This conclusion is supported by the fact that Strutz contested the order both in the trial court and on appeal, and lost in both forums. Thus, summary judgment was appropriate on Count II.

McNagny and Boggs note that "[t]he allegations of Count III are so bizarre it is difficult to respond." Appellee's brief at 22. We agree. Strutz alleges that McNagny and Boggs were guilty of abuse of process and malicious prosecution for asserting the claims against him in the accounting action but without making him a party to the lawsuit. Clearly, this allegation on its face fails to meet the requirement that an action or process be instituted against the plaintiff in order to sustain either cause of action. There is no cause of action in Indiana for abusive failure to issue process or malicious failure to prosecute.

Count IV of Strutz' complaint alleges libel, slander, and defamation in the complaint filed on June 28, 1984. On the face of the complaint, the cause of action had accrued on that date due to the publication of the matter complained of in the complaint, and the two-year statute of limitations had run long before Strutz' complaint was filed on February 16, 1988. IC 34-1-2-2; Chacharis v. Fadell (1982), Ind.App., 438 N.E.2d 1032. Moreover, statements contained in pleadings are privileged to the extent that they are pertinent or relevant to the litigation. Chacharis, supra, at 1033. The statements Strutz complains of allege "that Donald F. Strutz was guilty of professional malpractice and that he had unjustly enriched himself at the expense of his client, one James M. Gladieux and said client's company." Strutz' complaint, p. 2. It hardly needs to be noted that those allegations are clearly relevant, even necessary, to an action for malpractice and unjust enrichment.

Our analysis reveals that there were sufficient grounds to grant summary judgment to McNagny and Boggs on each Count of Strutz' complaint without reference to the findings of fact and conclusions of law in the accounting action. We need not examine the propriety of the consideration of those findings, since any error predicated on those grounds would be harmless.

II. Verification of Motion

Strutz next notes that McNagny and Boggs' answer and motion for summary judgment were not verified. Therefore, he contends that the allegations in his verified complaint were not denied under oath, and should be deemed admitted. Since the trial court could have granted summary judgment in his favor pursuant to Trial Rule 56(B) even though McNagny and Boggs filed the motion, Strutz argues that he is entitled to summary judgment pursuant to Tria...