Volume 37 Issue 16 May 14, 2010

Reiswerg v. Statom, No. 49S02-0906-CV-280, ___ N.E.2d ___ (Ind., May 6, 2010)

A party does not waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that would not be dispositive as to the issue of liability.

Buchanan v. Vowell, No. 49A02-0909-CV-873, ___ N.E.2d ___ (Ind. Ct. App., May 12, 2010)

Where drunk driver injured plaintiff-pedestrian while driver was speaking on her cell phone with defendant (who was following driver in another car), trial court erred in dismissing plaintiff’s complaint alleging that defendant gratuitously undertook a duty to protect plaintiff from the driver and that defendant was acting in concert with the driver.

Storie v. Randy’s Auto Sales, No. 94S00-0912-CQ-559, ___ N.E.2d ___ (Ind., May 13, 2010)

An entity that purchases and later sells a wrecked vehicle is required to apply for a salvage title under Ind. Code § 9-22-3-11(e) when it no longer owns the vehicle upon receipt of the certificate of title.

Buss v. Harris, No. 52A02-0911-CV-1088, ___ N.E.2d ___ (Ind. Ct. App., May 17, 2010)

Where defendant was not determined to be a sexually violent predator at sentencing, the Department of Correction could not later make that determination. Thus, the trial court properly declined to require the defendant to register as a sexually violent predator for life.



Reiswerg v. Statom, No. 49S02-0906-CV-280, ___ N.E.2d ___ (Ind., May 6, 2010)

BOEHM, J.

In this interlocutory appeal, Joseph Reiswerg and the law firm of Cohen Garelick and Grazier filed motions for summary judgment asserting an affirmative defense of statute of limitations to Pam Statom’s attorney malpractice lawsuit against them. The trial court granted Statom’s motion to strike both motions, stating that Reiswerg and the law firm had waived the statute of limitations defense by failing to raise it in response to Statom’s motion for partial summary judgment against them. We reverse the trial court and hold that a party does not waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that would not be dispositive as to the issue of liability.

. . . .

Statom moved for partial summary judgment pursuant to Indiana Trial Rule 56, which allows a party to move for summary judgment on “all or any part” of a claim. Statom’s motion for partial summary judgment asked the trial court for a determination that Reiswerg and CGG were “negligent as a matter of law” and that “their negligence caused harm to Statom.” The elements of an action for legal malpractice are: “(1) employment of an attorney, which creates a duty to the client; (2) failure of the attorney to exercise ordinary skill and knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff.” Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008) (quoting Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006)). Proximate cause embraces both factual causation and scope of liability. Kovach v. Caligor Midwest, 913 N.E.2d 193, 197 (Ind. 2009); see generally Restatement (Third) of Torts ch. 6, special note on proximate cause (2010). Statom’s motion for partial summary judgment sought to eliminate breach and factual causation, but it did not seek to resolve all issues bearing on liability. A number of these issues remained open, including comparative fault as between the plaintiff and the defendant and as among defendants, scope of liability, and any affirmative defenses.

Statom’s motion sought partial summary judgment on the issue of negligence, “leaving damages and allocation of fault” for trial. Statom’s motion for partial summary judgment did not mention, much less negate Reiswerg’s affirmative defense of statute of limitations, and did not seek to establish liability. A party responding to a motion for summary judgment is entitled to take the motion as the moving party frames it. The defendants were under no obligation to raise their affirmative defenses in response to the motion for partial summary judgment that Statom presented. A non-movant is not required to address a particular element of a claim unless the moving party has first addressed and presented evidence on that element. Jarboe v. Landmark Community Newspapers, Inc., 644 N.E.2d 118, 123 (Ind. 1994); see also Kennedy v. Murphy, 659 N.E.2d 506, 508 (Ind. 1995) (plaintiff need not address the issue of causation in response to defendant’s motion for summary judgment on the standard of care element in medical malpractice action). These decisions addressed issues on which the moving party had the burden of proof. In the case before us today, the affirmative defense of statute of limitations is one on which the non-moving defendants had the burden of proof, but this does not alter the plaintiff’s obligation to put in play the issue upon which the plaintiff seeks relief. Here, Statom did not do that. The statute of limitations was asserted as an affirmative defense in the defendants’ answers to the complaint. If Statom wished to resolve all issues as to liability by summary judgment, it was her burden to seek summary judgment on liability. She could also have addressed the statute of limitations directly. If she had done either of these, the limitations defense would have been waived if not presented in response to her motion. But she did neither, and therefore did not raise the raise the adequacy of the defendants’ affirmative defenses.

We agree with those cases holding that a party is required to assert affirmative defenses in response to a motion for summary judgment that would dispose of the case or a motion for partial summary judgment that would establish liability.4 But none of these cases holds that a motion for partial summary judgment on an issue less than liability requires the responding party to assert affirmative defenses or any other issue beyond those raised by the relief sought by the moving party. Both the trial court and the Court of Appeals cited Madison Area Educational Special Services Unit v. Daniels, 678 N.E.2d 427 (Ind. Ct. App. 1997), trans. denied, in holding that Reiswerg and CGG had waived the statute of limitations defense by failing to assert it in response to Statom’s motion for partial summary judgment. We do not find Daniels persuasive here. Daniels was a proceeding in which the only issue was the plaintiff’s entitlement to attorneys’ fees available to the “prevailing party” in an administrative proceeding under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1401 (2004). See 511 Indiana Administrative Code 7-15-6(q) (1991 & Supp. 1993), (awarding attorneys’ fees to the prevailing party). The Court of Appeals held that a school district had waived its statute of limitations defense to the claim for attorneys’ fees by failing to raise it in response to a family’s motion for partial summary judgment which, as described in the opinion, was “for summary judgment.” Daniels, 678 N.E.2d at 430. There is no mention in Daniels of the effect of a partial summary judgment on an affirmative defense. We read the Daniels opinion as treating the motion as one for partial summary judgment as to liability, leaving only damages to be resolved. The court merely held that by failing to assert the statute of limitations in response to the plaintiffs’ motion for summary judgment as to liability, the School waived the defense. Id.

Daniels is consistent with those cases that found an affirmative defense waived if not asserted in response to a motion for summary judgment that disposed of the entire issue of liability. It is similar to Pantry, Inc. v. Stop-N-Go Foods, Inc., 796 F. Supp. 1164, 1167–68 (S.D. Ind. 1992), which held that a defendant waived affirmative defenses by failing to assert them in response to plaintiff’s motion for partial summary judgment on issue of liability. As Judge Tinder explained, “[w]hen a party moves for a summary judgment on the issue of liability, the non-movant is thereby placed on notice that all arguments and evidence opposing a finding of liability must be presented to properly resolve that issue.” Id. at 1167. But neither Daniels nor Pantry supports the view that a motion such as Statom’s that seeks resolution of some but not all elements of liability requires the non-movant to present its affirmative defenses.

No Indiana case has heretofore addressed this issue in the context of a motion for partial summary judgment on less than liability. However, decisions from other jurisdictions are consistent with our view. Where, as here, the plaintiff moves only for partial summary judgment on an issue or an element but not as to liability, the defendant is under no obligation to present all of its affirmative defenses at the summary judgment stage. In short, Statom moved for partial summary judgment, seeking only a declaration that the defendants were negligent as a matter of law. If Statom wanted to move for partial summary judgment on the issue of liability, her mo-tion should have so stated. It did not. She cannot now claim a victory greater than she sought and greater than she placed in issue.

The trial court granted Statom’s motion to strike both Reiswerg’s and CGG’s motions for summary judgment asserting the statute of limitations defense. The Court of Appeals reversed as to CGG, finding that “the fundamental difference between Reiswerg and CGG is that the trial court denied the motion for partial summary judgment as to CGG.” Reiswerg v. Statom, 897 N.E.2d 490, 499 (Ind. Ct. App. 2009). The Court of Appeals relied on Abbott v. Bates, 670 N.E.2d 916 (Ind. Ct. App. 1996), for this conclusion. In Abbott, the plaintiff filed a foreclosure action against Abbott both individually and as trustee. The trial court granted summary judgment against Abbott individually but not against Abbott as trustee. Abbott later attempted to assert affirmative defenses, and the court found that she had waived them individually but not as trustee. The Court of Appeals held that the waiver determination in Abbott was based on the success or failure of the plaintiff’s motion for summary judgment with respect to Abbott individually and Abbott as trustee. Reiswerg, 897 N.E.2d at 499. We read Abbott differently, and conclude the difference in result turned on whether the summary judgment was dispositive of an entire claim:

[W]e cannot say with certainty that the first order was dispositive as to this issue. Thus, Abbott was not required to preserve the issue of the mortgages’ validity by appealing from the first grant of summary judgment nor was she precluded from raising the issue in opposition to Bates’ second motion for summary judgment.

Abbott, 670 N.E.2d at 921. We do not agree that whether Statom’s motion for partial summary judgment succeeded or failed controls its preclusive effect. Specifically, a party’s success or failure in opposing a partial summary judgment motion does not dictate whether that party waived an affirmative defense. Waiver of a contention is effected by the contention’s being placed in issue by the movant and the non-movant’s failure to raise it. When Statom moved for partial summary judgment on the issue of negligence, neither Reiswerg nor CGG asserted the statute of limitations in response. A non-movant’s choice not to assert an affirmative defense as a response to a motion for partial summary judgment that does not implicate the affirmative defense does not bar later assertion of the defense.

The trial court’s order striking the defendants’ motions for summary judgment is reversed. This case is remanded for proceedings consistent with this opinion.

Shepard, C.J., and Dickson, J., concur.

Rucker, J., concurs in result in part and dissents in part with separate opinion in which Sullivan, J., concurs.

RUCKER, Justice, concurring in result in part and dissenting in part.

Because I believe the trial court correctly struck Reiswerg’s motion for summary judgment on grounds that Reiswerg waived his statute of limitations defense by failing to raise it in response to Statom’s motion for partial summary judgment, I respectfully dissent to Part I of the majority opinion. I concur in result to Part II.

. . . .

Under this State’s long-standing and settled law, Reiswerg could not resurrect his statute of limitation defense in his own motion for summary judgment. It was too late. The defense had been waived. Easy case. The trial court properly struck Reiswerg’s summary judgment motion, and its decision should be affirmed. Therefore on this issue I dissent. In all other respects I concur in the result reached by the majority.

Sullivan, J., concurs.

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Buchanan v. Vowell, No. 49A02-0909-CV-873, ___ N.E.2d ___ (Ind. Ct. App., May 12, 2010)

BARTEAU, S.J.

Plaintiff-Appellant Jerry Coleman Buchanan (“Jerry”), by his father and guardian, Odell Buchanan brings this interlocutory appeal of the trial court’s dismissal of his amended complaint for damages against Defendant-Appellee Shannon Vowell (“Shannon”). We reverse and remand.

. . . .

Here, the crux of Jerry’s amended complaint is that Shannon engaged in a negligent activity with Candice that was the proximate result of Jerry’s injuries. The amended complaint alleges that Shannon gratuitously undertook a duty to control Candice’s driving, an act that necessarily impacted third parties who shared the road with Shannon and Candice. The amended complaint also alleges that Shannon acted in concert with Candice in an activity that resulted in his injuries. The amended complaint further notes that Shannon’s cellular communication with Candice negligently distracted an intoxicated driver.

The parties principally argue about whether Shannon gratuitously undertook a duty to protect Jerry from the drunken Candice. Accordingly, we begin our analysis by looking at the concept of a gratuitous undertaking. . . .

. . . .

. . . First, we note that this is not a case where a person tried to prevent an intoxicated driver from driving; indeed, it is a case where a person assisted the intoxicated in driving. Second, we note that others have held that gratuitous undertakings concerning drivers may result in liability to a party other than the one who injured the third party. . . . Accordingly, Jerry should be given the opportunity to engage in discovery and develop his case.

In addition, Jerry may show that Shannon is liable for Candice’s negligent acts if Shannon is found to be acting in concert with Candice. . . .

The allegations made by Jerry in his amended complaint show that Shannon agreed to enter into a concerted activity whereby Shannon would follow the drunken Candice and would direct and/or distract her by calling her on her cell phone. The allegations also show that Candice and Shannon conspired to leave the scene of an accident where serious injury to Jerry had occurred. Thus, like the passenger in Sanke, Shannon encouraged Candice’s tortious activity. It is possible that Shannon, like the passenger in Sanke, could be held jointly liable for Jerry’s injuries.

Furthermore, we note that Shannon owed a duty of reasonable care to those that shared the road with her, both motorists and pedestrians. See Claxton, 615 N.E.2d at 474. Shannon, as an individual, may have breached this duty by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol. Thus, Shannon may be found liable for Jerry’s injuries even if she did not gratuitously assume a duty or act in concert with Candice.

We hold that the trial court abused its discretion in dismissing Jerry’s amended complaint for failure to state a claim. We reverse and remand with instructions that the trial court vacate its order.

Reversed and remanded.

RILEY, J., concurs.

VAIDIK, J., concurring in result with separate opinion.

VAIDIK, J., concurring.

. . . .

. . . I wish to express my disagreement with the majority’s comments about Shannon and Candice’s cell phone conversation. The majority concludes that Shannon may have breached her own duty of care “by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol.” Slip op. at 11. Perhaps the content of the cell phone conversation may evidence Shannon’s aid or encouragement of Candice’s tortious conduct. But I do not believe that merely calling someone on the phone knowing that the person is driving and intoxicated constitutes a tortious act on its own. See also Jay M. Zitter, Annotation, Civil Liability Arising from Use of Cell Phone While Driving, 36 A.L.R.6th 443 (2008).

For the foregoing reasons, I concur in result.

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Storie v. Randy’s Auto Sales, No. 94S00-0912-CQ-559, ___ N.E.2d ___ (Ind., May 13, 2010)

DICKSON, J.

Pursuant to Indiana Appellate Rule 64, the United States Court of Appeals for the Seventh Circuit has certified, and we have accepted, the following question concerning the application of Indiana law: “whether an entity that purchases and later sells a wrecked vehicle is required to apply for a salvage title under Ind. Code § 9-22-3-11(e) when it no longer owns the vehicle upon receipt of the certificate of title.” Storie v. Randy’s Auto Sales, LLC, 589 F.3d 873, 881 (7th Cir. 2009). As explained below, we answer in the affirmative.

. . . .

While acknowledging that Indiana Code § 9-22-3-11 is not free from ambiguity, we find persuasive the legislature’s use of “acquiring” rather than “owning,” the thirty-one day grace period within which to apply for a certificate of salvage title after receiving the original certificate of title, and the harmful consequences that could result if “acquiring” were construed to mean “owning.” As a result, we answer the certified question in the affirmative. That is, an entity that purchases and later sells a wrecked vehicle is required to apply for a salvage title under Indiana Code § 9-22-3-11(e), even if it no longer continues to own the vehicle when it receives the certificate of title. The relinquishment of ownership of the salvage vehicle does not extinguish the obligation to apply for a salvage title.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

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Buss v. Harris, No. 52A02-0911-CV-1088, ___ N.E.2d ___ (Ind. Ct. App., May 17, 2010)

KIRSCH, J.

Edwin G. Buss (“Buss”), Commissioner of the Indiana Department of Correction (“the DOC”), appeals from the trial court’s order in an action for declaratory and injunctive relief brought by Michael L. Harris (“Harris”), a former inmate at the Miami Correctional Facility in Miami County, Indiana, requiring the DOC to update the sex offender registry to remove the term “SEX PREDATOR” and the statement “Lifetime Notification” from Harris’s offender detail and type on the Indiana Sheriffs’ Sex and Violent Offender Registry web site, and determining that Harris’s reporting obligation should be for ten years following the date of his release from incarceration. Buss raises the following consolidated and restated issue for our review: Whether the trial court erred by finding and concluding that Harris should not be listed on the sex offender registry as a sexually violent predator and that Harris’s reporting obligation was limited to ten years following the date of his release from incarceration.

We affirm.

Harris pleaded guilty to child molesting as a Class B felony and was sentenced to ten years executed on April 29, 1999. Harris was released on parole on November 6, 2002, and again on May 13, 2005, but was reincarcerated after each release for parole violations. On December 17, 2007, Harris was released on parole and prior to his release was advised that he would be designated as a sexually violent predator. The notification form Harris received was dated December 19, 2007 and indicated that Harris would have to register for life as a sexually violent predator. The form also included the question “Is the offender a sexually violent predator under IC 35-38-1-8.5[,]” and the box was checked “Yes.” Appellant’s App. at 104. Harris refused to sign the form. Evidently Harris was reincarcerated for additional parole violations and was released on parole on December 1, 2008. Harris again refused to sign the notification form he received which stated that Harris was a sexually violent predator and had to register for life as such.

Harris filed his complaint for declaratory and injunctive relief on September 19, 2007, and both parties filed motions for summary judgment. After our Supreme Court’s decision in Jensen v. State, 905 N.E.2d 384 (Ind. 2009), which will be discussed more fully below, both parties filed additional summary judgment motions and briefs. The trial court’s telephonic summary judgment hearing occurred on July 6, 2009. On July 7, 2009, the trial court entered its order denying the parties’ motions for summary judgment.

On August 17, 2009, the trial court conducted a bench trial, and on August 26, 2009, entered its order granting Harris’s requests for declaratory and injunctive relief. Buss now appeals.

. . . .

In Jensen, under the terms of SORA [“Indiana Sex Offender Registration Act”] at the time of Jensen’s sentencing, he was required to report and register as a sex offender for a period of ten years. 905 N.E.2d at 389. After his release from prison and probation, Jensen annually reported and registered as a sex offender. Id. During the ten-year reporting period, the local sex offender registration coordinator contacted Jensen and informed him that, due to an amendment of SORA, Jensen would have to register for life as a sexually violent predator. Id. Jensen filed a motion with the trial court to determine his registration status. Id. The trial court found Jensen to be a sexually violent predator who must register for life. Id.

Jensen appealed the trial court’s decision, and a panel of this court found that the application of the amendment to SORA violated state ex post facto considerations as applied to Jensen. Jensen v. State, 878 N.E.2d 400, 403 (Ind. Ct. App. 2007), trans. granted. On transfer, our Supreme Court, using the intents-effects test, determined that the amendment to SORA as applied to Jensen was not punitive in nature, and thus did not run afoul of ex post facto considerations. 905 N.E.2d at 394.

As previously stated, Buss asserts that the Supreme Court’s holding in Jensen is dispositive of Harris’s situation and that the trial court erred by failing to so find. Harris, who has proceeded pro se throughout this matter, did advance the argument in his complaint that he sought a judicial interpretation of whether the amendments to SORA as applied to him violated state ex post facto considerations. However, Harris also sought a judicial determination of whether the DOC could make the “sexually violent predator” designation where the trial court at sentencing did not make that determination and Indiana Code section 35-38-1-7.5 does not authorize the DOC to make that determination. The trial court’s order decided the issue by interpreting Indiana Code section 35-38-1-7.5 and specifically found that the issue presented by Harris is not disposed of by our Supreme Court’s holding in Jensen. We agree with that approach to the issue.

. . . .

We note at the outset that nowhere in Indiana Code section 35-38-1-7.5 is the DOC authorized to make the determination that an offender is a sexually violent predator. Furthermore, the trial court correctly observed that the sentencing court did not indicate on the record at Harris’s sentencing hearing that Harris had been convicted of an offense that brought him within the definition of a sexually violent predator under subsection (b). Appellant’s App. at 10. Harris’s judgment of conviction and order of commitment states that Harris’s name “be enrolled on the sex offender list.” Id. at 132. We are left with the question, once an offender’s sentencing hearing has concluded, who makes the determination that an offender’s status is now, pursuant to amendments to the statute, that of a sexually violent predator subject to lifetime registration requirements?

. . . .

If we were to adopt the State’s construction of the statutory provisions, an offender could, in theory, have completed his sentence and reporting requirement, yet without notice to him be in violation of lifetime reporting requirements by operation of law due to subsequent amendments to SORA. Nothing before us indicates that the legislature intended such a result.

The State argues that Buss and the DOC were not making the determination that Harris was a sexually violent predator with a lifelong reporting obligation, but were merely notifying Harris of his status and post-release reporting obligations. The State also notes that Indiana Code section 35-38-1-7.5(f)(2) requires the trial court to send notice to the DOC if a person is a sexually violent predator and uses that language to support its contention that it is not claiming authority to make the status and reporting determinations. Yet, the State does not offer a citation to the record establishing that Buss and the DOC received notification from the trial court indicating a change to Harris’s status, thus triggering their duty to notify Harris.

We hold that the trial court did not err by finding and concluding that the DOC and Buss were not authorized by statute to make a determination of and change to Harris’s status on the sex offender registry. We also reject the State’s argument that Harris’s status was changed by operation of law under Indiana Code section 35-38-1-7.5(b) and note that the Supreme Court’s decision in Jones supports our conclusion. We also hold that the trial court correctly determined that Harris’s reporting obligation was for ten years and not a lifelong reporting obligation, as the change to the duration of Harris’s reporting obligation would have occurred only by a finding and conclusion that his status had changed. Again, Jones is helpful in reaching that conclusion.

Affirmed.

FRIEDLANDER, J., and ROBB, J., concur.

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