Wm. J. & M. S. Vesey, Inc. v. Hillman, 171A20

• Decision Date: 20 March 1972
• Docket Number: No. 171A20,171A20
• Citation: 151 Ind.App. 388,29 Ind. Dec. 655,280 N.E.2d 88
• Parties: WM. J. AND M. S. VESEY, INC., Plaintiff-Appellant, v. Lee H. HILLMAN, Raymond W. Cassady, Partners d/b/a Hillman China Company, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 88

280 N.E.2d 88

151 Ind.App. 388

WM. J. AND M. S. VESEY, INC., Plaintiff-Appellant, v. Lee H. HILLMAN, Raymond W. Cassady, Partners d/b/a Hillman China Company, Defendants-Appellees.

No. 171A20.

Court of Appeals of Indiana, First District.

March 20, 1972.

Rehearing Denied April 18, 1972.

Benton W. Bloom, Bloom & Bloom, Columbia City, Bowen, Myers, Northam & Soards, Indianapolis, for plaintiff-appellant.

Mentor Kraus, J. A. Bruggeman, Barrett, Barrett & McNagny, Fort Wayne, Phil M. McNagny, Jr., Gates, Gates & McNagny, Columbia City, for defendants-appellees.

ROBERTSON, Presiding Judge.

Plaintiff-appellant (Vesey) entered into a lease for two lots and the improvements thereon, with the Lincoln National Bank and Trust Company of Fort Wayne, acting as the trustee of the estate of C. W. Khune. The lease covered the period from July 1, 1948, through June 30, 1953, during which time Vesey operated a wholesale and retail florist business at the leased premises.

On several occasions, Vesey had discussed with a trust officer of the bank the possibility of purchasing the leased property. While the trust officer agreed that Vesey would have an opportunity to bid at the appropriate time, this provision was never put in writing, nor incorporated in the lease.

A year after the execution of the lease, Hillman and Cassady, (hereinafter referred to as Hillman) offered, by means of a sealed bid, to purchase the property occupied by Vesey. The bid was accepted with the resulting purchase by Hillman. The offer, acceptance, and sale, took place while Vesey was out of town. Upon his learning of the transaction and return to Fort Wayne, he offered 10% more than Hillman's bid, but was rejected.

On June 30, 1953, Vesey filed a complaint against Hillman, the trustee bank, and others, however, this appeal only concerns Hillman. The two paragraphs of complaint with which this appeal is concerned allege, in substance, that Hillman failed to make certain repairs to the building as required by the lease, thereby causing damage to Vesey's business and property, and that Hillman intentionally caused a breach of contract between Vesey and the trustee bank, in that Vesey's right to bid on the property in question was denied to him. ¹

At the trial of this case the court sustained Hillman's motion for judgment on the evidence and gave judgment in his favor on the paragraph involving the intentional procurement of breach of contract. The paragraph of complaint regarding damages to Vesey because of Hillman's failure to repair the premises, likewise terminated in Hillman's favor.

Vesey's lengthy second motion to correct errors was overruled.

The first specification raised by Vesey is directed to the trial court's failure to grant his motion for a summary judgment when this cause was remanded to Allen County after the first appeal. Hillman did not file a response to the motion, but merely relied upon the allegations and denial of the pleadings as they then existed. Vesey's argument hinges on that part of Ind.Ann.Stat. § 2--2524(e) (Burns 1968) which states: 'If he (the adverse party) does not so respond, summary judgment, if appropriate, shall be entered against him.' The failure of Hillman to respond to the motion for summary judgment in this case does not require Vesey to automatically succeed.

'. . . However, it is the burden of the party moving for a summary judgment to show the lack of a genuine issue of fact. It has been held that if there is any doubt as to the existence of a factual issue, then the motion must be resolved in favor of the non-mover.' (Citing authorities)

Klinger v. Caylor (1971) Ind.App., 267 N.E.2d 848, 856.

Additionally, it is the ultimate responsibility of the trial court to consider the existence of a material issue of fact. Kapusta v. DePuy Mfg. Co. Inc. (1968), 249 Ind. 679, 234 N.E.2d 487. See also: Mayhew v. Deister (1969) Ind.App., 244 N.E.2d 448.

It would further appear that some 470 pages of the 968 pages of record is devoted to the trial of this cause which strongly indicates the correctness of the ruling that a material issue of fact existed.

Vesey relies upon the following quote for authority for his proposition that it was error to deny the motion for summary judgment:

'We are of the opinion that because appellant had failed to file an opposing affidavit in compliance with the statute he has failed to present error in regard to collateral estoppel. By appellant's failure to file an opposing affidavit, he has, in effect, admitted the validity of appellee's argument on this issue.' (Citing authorities.) Markwell v. General Tire and Rubber Co. (1968), 142 Ind.App. 188, 191, 233 N.E.2d 676, 678.

In the Markwell case, supra, the motion for summary judgment contained, inter alia, the litigation of a suit based on the same incident in the Federal District Court for the Southern District of Indiana, through the Seventh Circuit Court of Appeals. The Indiana Circuit Court, in Markwell, had a complete record upon which to determine that case. Such a state of the record did not exist in this case. Although this case had been remanded for a trial in the prior appeal, the Judge of the Allen Circuit Court did not have such a record to act upon. Moreover, the action in the state court in Markwell, supra, was held to be a collateral attack on the judgment of the federal case.

A second specification of error alleges the court made no record of the fact that a motion for the oral examination of Hillman was argued and denied. We have not been apprised as to what harm befell Vesey because of this omission, therefore this specification would fall within the purview of TR. 61, in that such error was harmless.

The next series ² of specifications of error is directed to that paragraph of complaint pertaining to the failure of Hillman to keep the leased premises in repair as specified in the lease. The 40 rhetorical paragraphs of this paragraph allege the numerous faults with the building, i.e., cracked walls, leaking roof and skylight, the state of bad repair of the gutters and downspouts; the history of Vesey attempting to get repairs made to the aforementioned conditions; the repair work by Hillman; the repair work done by Vesey; the damages suffered by Vesey (loss of merchandise, etc.), and prayed for judgment in the sum of $50,000. After a trial, the court found against Vesey on this paragraph of complaint.

The lease between the parties contained the following provisions regarding the duty to repair:

'The lessor agrees to keep the exterior walls of the buildings, the roofs, gutters and downspouts in repair.

'No alterations of the buildings on said premises shall be made which may weaken or injure, or tend to injure the said buildings, and the written consent of the lessor shall first be obtained before any changes, improvements or betterments are made on the leased premises, and the lessee agrees, prior to the expiration of the tenancy to put the buildings in the same condition, as they now are, or improved condition in which they may be placed, and particularly so far as disturbed or altered by any changes by the lessee heretofore made, or which the lessee may hereafter make on said premises, as and if the lessor so demands.'

The keystone of Vesey's argument directed to the judgment on this paragraph of complaint, consists of the following specifications:

1. The judgment is contrary to the law and the evidence and not supported by sufficient evidence;

2. That the following findings of fact are contrary to the law and evidence:

a. 'All failures to repair on the part of the defendants about which the plaintiff now complains could have been repairs at small expense to plaintiff. The plaintiff failed to make such repairs. Plaintiffs' alleged damages, if any, resulted due to plaintiff's non-feasance.'

b. 'That damages claimed by plaintiff are speculative and conjectural.'

3. That the following conclusions of law are contrary to the law and the evidence:

a. 'The law is with the defendant.' b. 'The plaintiff failed to minimize his damages and make the repairs about which it complains, which repairs, if any, could have been made at small expense to the plaintiff, and cannot recover in this action.'

Succinctly stated, Vesey's theory of law is that where substantial repairs are required the tenant may opt to repair or recover damages from the landlord incurred due to the lack of repair. See Landlord & Tenant, 32 Am.Jur. § 715, p. 590.

Hillman's theory is that a tenant cannot recover damages where a failure to repair by the tenant, when the duty exists, causes the damage. Guynn v. Tremont Hotel Co. (1921), 75 Ind.App. 647, 129 N.E. 336; Olinger v. Reahard (1947), 117 Ind.App. 172, 70 N.E.2d 436; Raco Corp. v. Acme-Goodrich, Etc. (1955), 126 Ind.App. 168, 126 N.E.2d 262.

In considering both negative judgments from which Vesey appeals, it must be reiterated that a specification of error predicated upon...