Augustine v. First Fed. Sav. & Loan Ass'n of Gary , 175 Ind. App. 597 ( 1978 )

STATON, P.J. —

Eichel and Patricia Lovelace purchased real estate from Thirteen Hundred Broadway Corporation under a conditional sales contract. Thirteen Hundred Broadway Corporation had mortgaged the real estate prior to the contract sale to First Federal Savings and Loan Association of Gary. The building on the real estate had been insured with Buckeye Union Insurance Company by R.A. Augustine, an agent, d/b/a South Shore Insurance Company, South Shore Building and Mortgage Company, and South Shore Securities Corporation. The insurance expired on December 5, 1971. After the insurance expired, the building on the real estate was destroyed by fire on December 12, 1971.

Lovelaces sued Thirteen Hundred, First Federal, Augustine, and Buckeye, alleging that one or more of the defendants negligently failed to notify Lovelaces of the expiration of the insurance. Augustine filed third-party actions against First Federal and Buckeye. First Federal and Buckeye moved for summary judgments; the motions for summary judgments were granted. Later, First Federal filed a couterclaim for foreclosure on the mortgage and a motion for summary judgment against Thirteen Hundred. First Federal’s motion for summary judgment was granted by the trial court. This appeal arises from the granting of the two motions for summary judgment for First Federal and the granting of the summary judgment for Buckeye.

Ind. Rules of Procedure, Trial Rule 56(C) provides in pertinent part that:

“The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . .” (Emphasis added.)

We emphasize the fact that summary judgment shall be rendered if the evidence, including depositions, shows that there is no genuine issue' as to any material fact. Summary judgment is appropriate only where there clearly are no factual issues in the case. See Linton v. Linton (1975), 166 Ind. App. 409, 336 N.E.2d 687.

Without unduly burdening this opinon with a recitation of the issues being litigated in this complex suit (most relate to negligence or breach of implied or expressed contracts), we point out that several instruments (mortgages, contracts, insurance policies) were subject to interpretation by the trial court. However, to be considered in conjunction with those instruments were the actions and agreements of many parties. The parties recorded, via deposition testimony, several hundred pages of evidence pertaining to the inter-relationships between the parties and their respective duties (expressed or implied). Yet, at the time Augustine filed his praecipe for appeal (after the summary judgments had been rendered and after the motions to correct errors had been denied) the depositions were still sealed. They were still sealed when they reached this Court. Clearly, the trial judge erred in granting summary judgment without considering all of the available evidence.

Our cursory review of part of the deposition testimony reveals that many genuine issues of material fact are in dispute.¹ Therefore, the summary judgments are reversed, and the cause is remanded for trial.

Buchanan, J., concurs;

Garrard, J., concurs in part and dissents in part with opinion.

1 . Judge Garrard concludes in his dissent that Buckeye was entitled to a summary judgment in its favor. However, in reaching that conclusion, Judge Garrard did not open the depositions. Within the depositions is testimony which raises a significant question concerning the apparent authority of South Shore, the reliance of the Lovelaces upon Buckeye, and the delegation of duty to notify. Genuine issues of material fact exist; summary judgment was inappropriate.

1 . The devolution of this business into three entities, while perhaps significant in some aspects of the litigation, has no special bearing on the present issues. For the sake of brevity, they are referred to simply as the agent.