Trotter v. Indiana Waste Systems, Inc.

• Decision Date: 20 April 1994
• Docket Number: No. 29A04-9211-CV-389,29A04-9211-CV-389
• Citation: Trotter v. Indiana Waste Systems, Inc., 632 N.E.2d 1159 (Ind. App. 1994)
• Parties: Charles TROTTER and Doris Trotter, Appellants-Plaintiffs, v. INDIANA WASTE SYSTEMS, INC., and Shirley Ann Carlson, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1159

632 N.E.2d 1159

Charles TROTTER and Doris Trotter, Appellants-Plaintiffs, v.INDIANA WASTE SYSTEMS, INC., and Shirley Ann CarlsonAppellees-Defendants.

No. 29A04-9211-CV-389.

Court of Appeals of Indiana Fourth District.

April 20, 1994.

Rehearing Denied Sept. 12, 1994.

Jon R. Pactor, Indianapolis, for appellants-plaintiffs.

Stephen W. Lee, Jan M. Carroll, Indianapolis, for appellees-defendants.

CHEZEM, Judge.

Case Summary

Appellants-plaintiffs, Charles Trotter("Charles") and Doris Trotter("Doris"), appeal the trial court's grant of summary judgment in favor of appellee-defendant, Indiana Waste Systems, Inc.("Indiana Waste").We affirm.

Issues

The Trotters present two issues for our review:

I. whether the trial court properly granted Indiana Waste's motion for summary judgment on Trotter's claim for slander of title; and,

II. whether the trial court properly granted Indiana Waste's motion for summary judgment on Trotter's claim for malicious prosecution.

Facts and Procedural History

Charles and Doris were the owners of real estate located in Madison County, Indiana.On August 3, 1988, Charles entered into a purchase agreement for the sale of the real estate to Indiana Waste for the sum of $300,000.The contract provided that the transaction would be closed within thirty days, and was also contingent on the satisfaction of specific conditions by each party as set out in the contract.

September 2, 1988, passed without the parties closing the transaction.On September 5th, Charles' real estate agent delivered to Indiana Waste a copy of the land survey.On September 6th, Charles' attorney contacted Indiana Waste and requested the deposit of $10,000 in earnest money pending the closing.On September 13th, Indiana Waste delivered to Charles' real estate agent an amendment to the purchase agreement along with a check for $10,000.The amendment provided for the escrow of the $10,000 and also stated that Indiana Waste had satisfied or waived some of the contingencies contained in the purchase agreement.Neither Charles nor Doris signed the amendment.On September 14, 1988, both Charles and Doris entered into a purchase agreement for the sale of the real estate to Carl Roark and Edwin Barber("Roark and Barber") for the sum of $310,000.This sales transaction was set to be closed on September 26, 1988.

On September 26, 1988, after having discovered that Trotters had executed a purchase agreement with Roark and Barber, Indiana Waste filed both a complaint against Charles for specific performance of the August 3rd purchase agreement and a lis pendens notice.The closing between Trotters and Roark and Barber did not occur.

On October 11, 1988, Indiana Waste obtained a title report concerning the real estate which stated that both Charles and Doris held title to the land.Indiana Waste determined that it could not enforce the August 3rd purchase agreement because it lacked Doris' signature and on November 29, 1988, dismissed the suit for specific performance.

On December 20, 1988, Trotters entered into another purchase agreement for the sale of the real estate to Roark and Barber.The purchase price was $250,000.The transaction closed on January 9, 1989.

On September 25, 1990, Trotters filed the instant action against Indiana Waste for slander of title, malicious prosecution, abuse of process, and interference with a contractual relation.Indiana Waste moved for summary judgment on the slander of title and malicious prosecution claims, which the trial court granted after a hearing.Trotters appeal.

Discussion and Decision

On appeal from a grant of summary judgment, we consider the same issues and apply the same legal standard as the trial court.Campbell v. Criterion Group (1993), Ind.App., 621 N.E.2d 342, on reh'g.That is, summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.Schrader v. Eli Lilly and Co. (1993), Ind.App., 621 N.E.2d 635, reh'g denied, trans. pending.On review, we may not search the entire record to support the judgment, but may consider only that evidence which had been specifically designated to the trial court.Keating v. Burton (1993), Ind.App., 617 N.E.2d 588, reh'g denied, trans. denied.

I.Slander of Title

Trotters argue that summary judgment was erroneously granted in favor of Indiana Waste because genuine issues of material fact existed concerning whether the statements made by Indiana Waste in its complaint for specific performance slandered Trotter's title to the real estate.To succeed on a claim for slander of title, a plaintiff must prove that false statements were made, with malice, and that the plaintiff sustained pecuniary loss as a necessary and proximate result of the slanderous statements.Morris v. G. Rassel, Inc. (1991), Ind.App., 576 N.E.2d 596.The essence of slander of title is the making of an unfounded claim concerning the ownership or security interest in property of another, resulting in financial loss to the rightful owner.Tancos v. A.W., Inc. (1986), Ind.App., 502 N.E.2d 109, reh'g denied, trans. denied.Trotters argue on appeal that the material they designated to the trial court showed the existence of a genuine issue of material fact: whether the statements in Indiana Waste's complaint for specific performance were made with malice.We disagree.Those materials designated by Trotters do not create a genuine issue of material fact or negate the contention that Indiana Waste was entitled to judgment as a matter of law.

Not all defamation is actionable.The law of libel and slander recognizes two classes of privileged communication, absolute and qualified.Cadle v. McIntosh(1912), 51 Ind.App. 365, 99 N.E. 779.If a statement is made under circumstances where it is absolutely privileged, no right of action accrues even though the statement would otherwise have been actionable.Id.;18 I.L.E., Libel and Slander, § 51.Under Indiana law, statements contained in judicial pleadings are absolutely privileged if those statements are pertinent and relevant to the litigation.Stahl v. Kincade(1963), 135 Ind.App. 699, 192 N.E.2d 493.The determination of whether statements made in judicial pleadings are pertinent and relevant is a question of law for the court.Id.;Briggs v. Clinton County Bank and Trust Co. of Frankfort, Indiana (1983), Ind.App., 452 N.E.2d 989.

Here, Indiana Waste filed a complaint against Charles for specific performance.Indiana Waste alleged that it had a legal interest in the real estate pursuant to the August 3rd contract.Trotters contend, both at the trial court and on appeal, that Indiana Waste did not have an interest in the real estate when it filed the lawsuit because the closing did not occur within thirty days as required by the contract.Trotters argue that this fact, and the inference that Indiana Waste knew it did not have an interest in the real estate, must be taken as true, and hence summary judgment was inappropriate.However, the issue for purposes of summary judgment is not whether Indiana Waste actually had an interest in the real estate at the time it filed the lawsuit, but whether Indiana Waste's allegation that it did is pertinent and relevant to its action for specific performance of the contract, therefore, making the statement absolutely privileged.It cannot be disputed that the claim of an interest in real estate obtained pursuant to an executed contract for its sale is relevant to a suit for specific performance of that contract.SeeStrutz v. McNagny (1990), Ind.App., 558 N.E.2d 1103, trans. denied, (statements in complaint that doctor was guilty of professional malpractice and had unjustly enriched himself at the expense of his client were relevant, even necessary, in bringing an action for malpractice and unjust enrichment).We hold, as a matter of law, Indiana Waste's statements in its complaint were pertinent and relevant to its suit for specific performance.

Trotters also argue that summary judgment was erroneously granted regarding their claim that the lis pendens notice slandered their title to the real estate.They contend that Indiana Waste was not entitled to judgment as a matter of law.The issue of whether statements in a lis pendens notice are absolutely privileged as judicial pleadings was addressed in the case of Curry v. Orwig (1981), Ind.App., 429 N.E.2d 268.In that case, the Currys claimed that a lis pendens notice filed along with a declaratory judgment action to determine rights to a private easement slandered their title.

In 1963, the Orwigs purchased a lot in a residential subdivision from the developer, the Currys.The Orwigs, as well as all the other residents, were granted an ingress and egress easement in the road that entered the subdivision.The Currys retained title to the road.In 1968, the Currys acquired the land to the east of the...