Theis v. Heuer

• Decision Date: 14 June 1971
• Docket Number: No. 271A25,No. 2,271A25,2
• Citation: 26 Ind.Dec. 3,149 Ind.App. 52,270 N.E.2d 764
• Parties: E. Frederick THEIS, Jr. and Mary Lynne Theis, Appellants, v. James F. HEUER and Freda M. Heuer, Appellees
• Court: Indiana Appellate Court

Page 764

270 N.E.2d 764

149 Ind.App. 52

E. Frederick THEIS, Jr. and Mary Lynne Theis, Appellants, v. James F. HEUER and Freda M. Heuer, Appellees.

No. 271A25.

Appellate Court of Indiana, Division No. 2.

June 14, 1971.

Rehearing Denied July 26, 1971.

Opinion Superseded 280 N.E.2d 300.

David V. Miller, Frick & Powell, Evansville, for appellants.

James E. Marchand, Fine, Hatfield, Sparrenberger & Fine, Evansville, for appellees.

SHARP, Judge.

This action was commenced by the filing of a complaint for property damage by the plaintiffs-appellants, E. Frederick Theis, Jr. and Mary Lynne Theis, against the defendants-appellees, James F. Heuer and Freda M. Heuer. The complaint is in two paragraphs and generally alleges that on the 6th of December, 1968, the plaintiffs purchased from the defendants a residential dwelling in the City of Evansville, Indiana. At the time of said purchase said dwelling was new and had not been previously inhabited. That said residential dwelling was constructed by the defendants for the purpose of sale and was thereafter sold by the defendants in a defective condition, which defective condition constituted an unreasonable danger to the health and property of the plaintiffs because certain sewer lines leading from said residence and the drain tile placed by the defendants about said residence during its construction were so laid and placed as to cause water and sewage to back up into said residential dwelling during periods when heavy rains occur and resulting in the collection of water and sewage on the first floor of said residential dwelling as high as three or four inches on occasion. Said complaint further alleges that said residential dwelling was sold to the plaintiffs and reached the plaintiffs without substantial change in said defective condition. Said complaint further alleges that at the time of the purchase of said residential dwelling neither of the plaintiffs was possessed of any knowledge of the aforesaid conditions and that the plaintiffs had no knowledge of any fact which would have put them on notice of said defective conditions and that said plaintiffs did not have any reasonable means of personally detecting said defective conditions by reason of the latent nature thereof.

The first paragraph of the plaintiffs' complaint embodies the concept of strict products liability and the theory of implied warranty. The second paragraph of the complaint seeks recovery on the basis of actionable negligence on the part of the defendants during the construction process.

The defendants responded to the two paragraphs of the complaint by filing a motion to dismiss on the basis that neither paragraph of said complaint stated a claim upon which relief could be granted. The trial court granted the defendants' motion to dismiss and entered judgment thereon and the plaintiffs advised the trial court that they did not intend to plead over or file an amended complaint. This appeal is from the granting of the defendants' motion to dismiss by the trial court.

We must first consider whether or not the plaintiffs' complaint in this case was sufficient to withstand a motion to dismiss under Trial Rule 12(B)(6) under the new Indiana Rules of Procedure which became effective January 1, 1970. Recently Division One of this Court had occasion to deal with this very question extensively in an opinion by Judge Lowdermilk in the case of Farm Bureau Insurance Company v. Clinton et al., Ind.App., 269 N.E.2d 780 (1971). No good purpose would be served by repeating or quoting extensively from that opinion but we believe that it is directly applicable to this case. In addition to the authorities cited in Farm Bureau Insurance Company v. Clinton the Federal authorities on the Federal Rule which is identical to our Trial Rule 12(B)(6) are well synthesized and summarized in Volume I A, Federal Practice and Procedure, Barron and Holtzoff (Wright Ed.), § 356, which states in pertinent part as follows:

'The motion performs essentially the same function as the former demurrer in actions at law, and the motion to dismiss for want of equity in suits in equity, but is not limited by the technical requirements which attached to those ancient and now outmoded devices. It applies to claims, not defenses, but at times has been used in testing the sufficiency of defenses before trial on the merits, although under amended Rule 12(f) a motion to strike is the specific method for attacking a defense. A motion to dismiss is proper to test the sufficiency of a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim.

The motion to dismiss is not a substitute for an answer. One court has held that the motion is not a 'responsive pleading' within Rule 12(a)(2), and thus that it need not be made within the time limits there set out. This appears unsound. Although it is true that the objection of failure to state a claim is not waived by failure to raise it on motion within those time limits, if it is to be made by a Rule 12(b) motion, rather than by motion for judgment on the pleadings, it would seem that the time limits apply.

Questions of fact will not ordinarily be determined on a motion to dismiss for failure to state a claim on which relief can be granted. The dismissal of an action for failure to state a claim upon which relief can be granted can result in a judgment on the merits, though usually it will lead only to amendment of the complaint.

The rules do not use the term 'cause of action'. It is the failure to state a 'claim upon which relief can be granted', and not failure 'to state a cause of action', which is tested by the rule. But the court may readily indulge in the use of old, familiar terminology and consider the objection that the complaint fails to state a cause of action as the equivalent of a motion to dismiss for failure to state a claim upon which relief can be granted. The only purpose that can be served in noting the distinction is perhaps to emphasize that the old technical rules of pleading no longer prevail; that a claim for relief stated in general terms and legal conclusions may be sufficient to inform the adversary and to withstand a motion to dismiss; and that the sufficiency of a claim so stated is not tested by the strict standards once applied to determine whether a 'cause of action' was sufficiently stated.

The motion to dismiss for failure to state a claim on which relief can be granted is viewed with disfavor in federal courts because of the possible waste of time in case of reversal of a dismissal of the action, and because the primary objective of the law is to obtain a determination of the merits of the claim. All that is required in the complaint is a generalized statement of facts from which the defendant may form a responsive pleading; thus if a bona fide complaint is filed that charges every element necessary to recover, summary dismissal for failure to set out evidential facts is not justified. Even though the court may believe that the plaintiff will ultimately be unable to prove the allegations of his complaint, the complaint should not be dismissed so long as there is any possibility that the plaintiff will ultimately prevail. Denial of the motion does not necessarily require a complete trial in view of the provision for summary judgment enabling the court to dispose of the case, if there is no genuine issue, on the basis of facts rather than on a mere pleading motion.

The United States Supreme Court has endorsed 'the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'. This rule has been applied by the lower courts in a multitude of cases. Where the complaint shows that plaintiff may be entitled to some relief, the complaint is not to be dismissed even though he is not entitled to the particular relief for which he has asked in his demand for judgment. The test is whether in the light most favorable to plaintiff, and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim. Indefiniteness or lack of clarity in pleading will not usually warrant dismissal, but this is a matter somewhat within the trial court's discretion, and flagrant or persistent disregard of the rules may warrant dismissal.

The complaint will not be dismissed if an amendment or a motion for a more definite statement will cure the defective pleading. A motion addressed to the dismissal of an action as a whole and not to each of the separate counts or causes of action should be denied in its entirety if one of the counts is sufficient, unless the court chooses to regard the motion as addressed separately to each count.

The motion should be determined upon allegations of the complaint and undisputed facts as they appear from pleadings orders, and records of the case. The court must enter judgment forthwith if it appears that the moving party is entitled to a judgment as a matter of law.' (footnotes omitted)

Considering the complaint on its face with all inferences most favorable to the plaintiff the following salient facts stand out:

The plaintiffs purchased a new residence from the defendants; the defendants had constructed the residence; the residence had not been inhabited by any other person or persons prior to the purchase of the residence; said residence was constructed by the defendants for purposes of sale and that the same was sold in a defective condition, which defective condition impaired the intended use of said residence, namely, inhabitation; plaintiffs were not aware of such defective condition and were not possessed of any knowledge or notice by which they could have reasonably discovered the same; that by reason of such defective condition the plaintiffs have suffered damages in the form of expenses and damages and in the form...