Summary
In Kapusta v. DePuy Manufacturing Co. (1968), 249 Ind. 679, 234 N.E.2d 487, this Court considered the question of whether failure of the adverse party to file counter affidavits would automatically result in the granting of summary judgment for the moving party.
Summary of this case from Central Realty, Inc. v. Hillman's Equip., Inc.Opinion
No. 20,619.
Filed March 5, 1968.
PETITION TO TRANSFER — Summary Judgment — Statute — Failure to File Counter-Affidavit — Material Issue. — The Supreme Court denied a petition to transfer a case from the Appellate Court, where the Appellate Court had affirmed the granting of a motion for a summary judgment to appellee in the trial court. The Appellate Court held that appellant's release of all persons possibly liable in an auto accident was a good defense for appellee and that a summary judgment was appropriate since affidavits filed by appellee showed a lack of a material issue of fact. But the Supreme Court objected to the Appellate Court's language, which seemed to hold that a failure of appellant to file a counter-affidavit was a prima facie showing that the moving party was entitled to a summary judgment. The Supreme Court held that, according to statute, it is still necessary, even though counter-affidavits are not filed, for the trial court to consider whether or not there is a material issue of fact. Section 2-2524(c) and (e), Burns' 1968 Replacement.
On Petition to Transfer.
Reporter's Note. — See Appellate Court opinion, 229 N.E.2d 828.
Appellant, Joseph Kapusta, petitions for transfer of his case from the Appellate Court.
Petition Denied.
Patrick and Anderson, of South Bend, for appellant.
Graham, Rasor Harris, of Warsaw, for appellee.
This case is here on petition to transfer from the Appellate Court. (See opinion reported in 229 N.E.2d 828.)
This was a personal injury action instituted by the petitioner-appellant. The trial court granted a summary judgment in favor of the defendants. The Appellate Court affirmed the trial court's summary judgment holding that (1) a release given by appellant purporting to release all persons from liability for all injuries sustained from an automobile accident was a good defense for appellee, and (2) summary judgment was appropriate since affidavits filed by appellee showed the lack of a material issue of fact.
After a review of the petition to transfer and of the Appellate Court decision, we are of the opinion that the Appellate Court reached a correct result and the petition to transfer should be denied. However, we cannot approve of the language in the opinion which states:
"In any event, appellant's failure to file counter-affidavits gave force to a prima facia showing that appellee, the moving party, was entitled to summary judgment as a matter of law." 229 N.E.2d at 832.
We believe this language is contrary to the statute, Ind. Anno. Stat. § 2-2524 (e) (Supp. 1967):
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." (our emphasis)
The language in the opinion seems to indicate that the trial court need not decide if there is a material issue of fact. Ind. Anno. Stat. § 2-2524(c) (Supp. 1967) provides:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . ."
We construe the words "if appropriate" in subsection (e), in light of subsection (c) to still require a finding that there is no genuine issue as to any material fact, whether or not counter-affidavits are filed. Our statute is patterned after Federal rule of Civil Procedure 56 and we believe the Advisory Committee's Notes of 1963 to the last two sentences of subdivision (e) are appropriate: ". . . The amendment (is not) designed to affect the ordinary standards applicable to the summary judgment motion."
Transfer denied.
Lewis, C.J., Arterburn, Jackson and Mote, JJ., concur.
NOTE. — Reported in 234 N.E.2d 487.