*1 1079 Finаlly, pat- findings the evidence nor thereon at 798. Midland exhibited ther money unauthorized over be- a conclusion NationsCredit com- tern of control approve the hold- criminal term is longing to others. Id. We mitted conversion as § ing in Midland-Guardian but conclude defined Indiana Code 35-43-4-3. clearly not control ease. a conclusion of errone- it does Where law ous, it must be set aside. We direct the Nations- Grauel also findings court to amend its and conclusions in ownership language into “slipped” the Credit this opinion. accordance with disagree Amendments. with that We part, part Affirmed in reversed re supreme characterization. Our remanded. public cently reiterated well-established the freedom policy of this state which favors MATTINGLY, JJ., FRIEDLANDER and parties. In re private between of contract concur. Pond, 1130, Marriage 700 N.E.2d (Ind. 1998); Publ’g, Trimble Ameritech v. 1998). (Ind. Inc., 1128, N.E.2d applies contact even to am
freedom of rule presume that a con
biguous contracts. We freely bargained agreement of
tract is the Trimble, parties. See Moreover, one to know
1129. is bound signs. he
contents of thе contract which Services, Computer COMPANY, Inc. v. Ameri Pinnacle LENHARDT TOOL DIE& Inc., Publ’g, INC., Appellant-Defendant, tech (Ind.Ct.App.1994). Here, counsel represented Grauel LUMPE, Appellee-Plaintiff. Duane negotiating the an accountant when Yet, No. 49A05-9706-CV-216. fact ambiguous despite documents.6 Fourth and Amendments con- Fifth Appeals Court of of Indiana. language that have alerted a tained would terms, change in Grau- party to a substantial Dec. 1998. which created el executed amendments ambiguity Grau- regarding the discounts. any responsibility el cannot now disavow ownership provision.
The trial court found that “NationsCredit’s the nature
representatives understood outright own-
security opposed interest as However, is not
ership.” that conclusion finding criminal conduct.
equivalent to knowingly and inten- NationsCredit
While
tionally over the Reserve exercised control
Account, control was it cannot be that its said acted
unauthorized when NationsCredit interpretation
accordance with reasonable ambiguous contract. legislature intend to did not Nei- disputes. fide bona contract
criminalize support- Language ferring a dis- the funds income. there was 6. The record shows that here hierarchy ownership agreement con- ing within NationsCredit’s decision was contained into cerning Account take the Reserve provisions and Fifth Amendments. Fourth favor of trans- The issue was settlеd in income. *2 Anderson, Miller & Robert A. Ice Donadío Ryan, Indianapolis, Appellant-Defendant. Johnson, O’Connor, L. D. William Eric Gray, Kightlinger Indianapolis, Appel- & lee-Plaintiff.
OPINION SHARPNACK, Judge. Chief Company, Inc. Lenhardt Tool & Die (“Lenhardt”) appeals of its from denial against motion for Duane for negligence claims liability. Lenhardt raises several issues restate as: we consolidate and (1) designated whether Lenhardt sufficient materials of motion require Lumpe designate materials demonstrate mate- that there issue of fact as to a mold machined rial whether inju- by Lenhardt was involved Lumpe; ries to (2) Lenhardt’s failure to include whether in the record materials by Lumpe response summary judg- Lenhardt’s motion ment warrants affirmance motion; court’s denial of Lenhardt’s and, (3) deny- erred in the trial court summary judgment for ing liability gov- Lumpe’s strict claim Liability plugs being the molds used at Product because erned Indiana Act. the time of the accident cannot be identified located, Lumpe prove that cannot affirm. We Lenhаrdt, molds were manufactured let Lumpe, the The facts most favorable to *3 negligently alone manufactured manufac- (“Olin”) nonmovant, man- follow. Olin Brass dangerously tured so as to be defective. manufacturing The ufactures brass bars. argues that Lenhardt once it demonstrated metal into a process pouring involves molten Lumpe prove could not the mold was allows to cool and mold which the metal by Lenhardt, the shift- manufactured burden by solidify into bars. The metal is cooled Lumpe ed to under Ind. Rule 56 Trial flowing through “spirings” “pipes” or water prove with come forward evidence to poured mold. The metal is within the molten by and mold was manufactured Lenhardt the mold over tank. As into a water so, failed as Lenhardt Lumpe to do mold, by formed it lowers bar is brass contends, summary judgment it is entitled to tank to into the water cool. erroneously the trial court denied. which for a “melter” or Lumpe worked Olin as The issue for us is whether the evidence regu- “pin man.” A man” “pin “melter” designated suffiсiently demon- Lenhardt the mold. lates the flow of molten metal into lack of a of fact strates the material issue molten metal into contact with If the comes Lenhardt manufactured the mold. Sim- water, August explosion may an occur. On may a in a motion ply put, defendant succeed 22, 1992, explosion which occurred Olin summary judgment plain- by showing the for injured Lumpe. the molds used Some of proof an es- tiff lacks sufficient to establish of made explosion at the time were Olin plaintiffs elеment of the claim sential Lumpe complaint a for Lenhardt. filed plaintiff proof. the burden of bears liability against Len- negligence and strict Company, Tool & Die Inc.1 Lenhardt hardt brings of this into focus Resolution issue summary judgment a motion then filed practice the contrast between the federal as which the denied.2 expressed in and our Corp. Celotex v. Catrett practice expressed as Celo state Jarboe. I. v.Catrett, Corp. 106 S.Ct. tex U.S. first issue we resolve is whether The must (1986); v. Land 91 L.Ed.2d Jarbоe sufficiently or not Lenhardt demonstrated Community Newspapers, 644 mark a of fact on a the lack of material issue (Ind.1994), Celotex, reh’g In denied. Lumpe’s of and that material element claim Supreme that: States Court held United a summary judgment entitled to as it was 56(c) plain language Rule man- “... sup- of law. matter Lenhardt entry summary judgment, af- dates the summary judgment port of its motion for upon adequate discovery time and ter including of Jack various items an affidavit motion, a against party a fails to make Lenhardt, who portions deposition of of the the exis- Johnson, showing sufficient to establish portions deposition of Claude par- tence of an essential to Dwayne Lumpe, response Manu- element of Olin case, ty’s party and on which that will bear facturing nonparty production, proof In such a response request for admis- at trial. a the burden situation, interrogatories by Weldaloy genuine there can ‘no issue filed sions Foam, fact,’ any complete fail- Comрany, material since a Products Inc. and Creative items, ele- argued proof concerning an essential on these ure of Inc. Based court, us, non-moving party’s case neces- ment of the to the trial summary against granted Lenhardt and complaint Welda- also filed his 1. Inc., Foam, Inc., loy Company, Creative Fol- Products Delaware. denied Machinery Company, Inc. order, & Tool and Delaware lowing a motion to Delaware filed However, they parties appeal. are not to this granted The trial reconsider. court being appealed. and entered the instant order Delaware and filed motions for 2. Both summary judgment. Initially, the trial rule, seeking sarily party all facts immaterial. der the federal renders other required ne judg- is not moving party ‘entitled movant gate opponent’s ment matter of because non- claim. The as a law1 moving only has make inform of the basis of party failed to a suffi- need the court showing identify portions cient on an еssential element of relevant the motion respect her which she case with record it believes demon ‘which proof.... burden strate the absence of Celotex, [quoting
material fact.’ U.S. s}; i}: 323, 106 atCt # # 2553.] S. course, upon then seeking summary judg- burden rests the non-mov- party
Of showing responsibility ing party to make a sufficient always ment the initial bears *4 challenged each establish the existence of informing of the district court of the basis motion, upon has identifying por- for its and element which the non-movant those proof. of not pleadings, depositions, tions of the ‘the an- the burden Indiana does interrogatories, and the federal method- swers to and admissions adhere Celotex affidavits, file, together any,’ ology. on with the if which it believes demonstrate absence ease, In not present the defendants do genuine of a issue of But material fact. judg- summary their motion Appeals, unlike the of we find no Court any designated with evidence to es- ment express implied requirement or Rule 56 quеstion on the absence of a of fact tablish moving party support that its motion an outcome-determinative issue as to the with affidavits or other similar materials promissory Merely alleg- estoppel claim. claim_ negating opponent’s [R]e- plaintiff failed ing produce moving gardless party of whether the ac- of promissory on each element evidence companies summary judgment its motion entitle estoppel is insufficient to the defen- affidavits, may, with summary judgment dаnt to under Indiana should, granted long be as whatever is so law.” before the district court demonstrates (citations Jarboe, 644 N.E.2d and foot- at entry summary the standard for the omitted). note 56(c), judgment, set in Rule as forth is did Jarboe court purposes principal One of the satisfied. previous distinguish or hold- overrule summary judgment rule is isolate ing Company, in Hinkle v. Niehaus Lumber dispose factually unsupported (Ind.1988). Hinkle defenses, claims think it and we should 56(E) from T.R. follows: quoted as interpreted way be in a it to allows summary judgment а motion for is “When accomplish purpose.” this supported provided in this made and as Celotex, 322-24, U.S. S.Ct. rule, may upon party an adverse rest Jarboe, supreme In our court held: 2552-53. allegations mere or denials of his imposed upon “The at trial burden pleading, response, but his affidavits on party proof the burden of an issue with rule, provided in this must set otherwise significantly required is different from showing that specific forth facts there is summary of a an Indiana non-movant genuine issue for trial. If he does not so judgment proceeding. Under Indiana’s summary judgment, appropri- respond, standard, party seeking summary ate, against him....” be shall entered must demonstrate absence Hinkle, 1245. The court con- 525 N.E.2d at any genuine of fact as to a determi- tinued: issue, only native then is the non- con- required
movant
come forward with
party opposing
“A
trary evidence.
disgorge
‘obliged to
sufficient evidence’
genuine
summary
triable
judg
In
show the existence
respect,
Indiana’s
summary judg-
party opposing
divergеs from
issue. The
procedure abruptly
ment
specific
‘come
with
facts
practice.
ment must
forth
federal
Un
genuine
plaintiffs
there
issue for
one element of the
claim
showing that
is a
”
(1990),
Corp.
relief. Moore
Sitzmark
trial.’
Ind.App., 555
1307. A court
Id. at 1245-1246.
grant summary judgment, after ade-
must
Hinkle,
injured
plaintiff
was
when
In
motion,
discovery
upon
quate time for
roofing
a failure of sheet metal
there was
party
against a
who fails to make
show-
salt
over a shed
corrosive
installed
where
ing sufficient to
the еxistence
establish
compounds were
Id. at 1244.
stored.
case,
party’s
an element essential to that
the issue of
roofing had corroded.
Id. On
party
and on which that
will bear
supplier
there was evidence that
instance,
proof at
trial.
In this
burden
(Niehaus)
knew or had reason to know
there is no
issue of material
likely
dangerous
when
to be
fact,
complete
proof
because a
failure of
manner,
court not
used
a foreseeable
concerning element of the
essential
presented
Hinkle had
no evidence to
ed that
nonmoving party’s
other
case renders all
had
show that Niehaus knew or should have
immaterial.
The movant is enti-
facts
any
expectation that
the metal
reasonable
judgement
of law be-
tled to
as a matter
in an unusual
roofing sheets were
used
non-moving party
has failed to
cause
ly
Id. at 1245. The
corrosive environment.
showing
make a sufficient
essential
*5
quoted
deposition
from the
of the roof
court
of his case
he
the
element
to which
bears
had
ing contractor as evidence that Niehaus
proof at
burden of
trial.
Id.”
roofing material
how or where its
no idea
brief,
13; Record,
Appellant’s
p.
pp. 123-124.
deposition
Id.
was
was to be used.
The
quotation
Briggs,
In
Lenhardt
from
by
support
Niehaus in
of its mo
submitted
citation,
contrast,
following
immedi
summary judgment.
omitted
which
In
tion for
ately preceded the
sen
bold and underlined
nothing
Hinkle
whatever
plaintiff
submitted
v.
by tence: “Watson Rural
Co.
Indiana
upon the
Watеr
and relied
materials submitted
131,
Corp.,
Water
540 N.E.2d
Lumber Cities
Niehaus. See Hinkle v. Niehaus
139
Co.,
(Ind.Ct.App.1989),
(quoting
trans.
Celotex
denied
(Ind.Ct.App.1987),
N.E.2d 198
vacat
510
Catrett,
317, 322-23,
(Ind.1988).
477
ed,
Thus,
Corp. v.
106
it is
U.S.
be held liable under creasing longevity, it cannot be said (a) their (b) ap- rule in subsection stated ordinary repair produces eco- scarce although: plies goods. nomic (1) exercised all reason- The seller has packaging, preparation, in the able care However, recognized legislature has use, instructing for and sale labeling, consumption exemp- the context [in product; his § tax in 6- tion to state sales codified I.C. (2) 2.5-5-5.1], consumer has not repair The user or point, at some activi- into bought product from or entered trans- ty extensive nature and so is so the seller.” any contractual relation with object it forms the such that cannot Rather, characterized as a mere service. 1995).3 (1983) (amended § I.C. 33-1-1.5-3 activity produces prod- repair a new First, that its transactions Lenhardt claims uct. ...” service, not a the sale of a with Olin involved correctly product. Lenhardt states Corp. Dept. Rotation Products State apply (Ind.Tax 1998). to transactions which Act does not Rev., “wholly predominantly the sale Demi, Whitaker, or involve analysis adopt the We § product.” I.C. 33- Rotation, rather than a a service entity and hold that where 1.5—2(6). However, be the distinction alters, reconditions, product or modifies a or 1— easily so product is not tween service prod to the extent that a new raw material In Denu v. Western Gear determined. into thе stream of uct has been introduced held that “Indiana’s Corp., the district court commerce, entity a manufacturer and an inter limitations would not bar statute of Act. provider products under the More allowing pretation recommencement over, product prior to the exists where been recondi product has repair when statute extent of the performed, the work altered, tioned, to the extent that or modified product determines performed on the work into the product has been introduced a new entity created a new Denu v. Western of commerce.” existing product. stream merely serviced an (S.D.Ind.1983). F.Supp. Corp., Thus, Gear a case is a distinction such Co., Inc., the v. Snow Similarly, Whitaker aon case degree matter of to be determined analy thorough Rotation, on a district court embarked N.E.2d at by case basis. See *7 a product a and the distinction between sis of 802. v. T.J. Snow under the Act. Whitaker service Here, ship solid blocks Olin would Inc., Cо., F.Supp. 1039-1045 drawings and Lenhardt with of metal (7th (S.D.Ind.1997), Cir. aff'd, 151 F.3d then ma would specifications. Lenhardt 1998). repair court concluded per the metal into molds chine the block of constitutes a refurbishing product of a specifica and drawings in the designs found reconditioning or recon the service while Thus, met transformed the tions. product.4 creates a product new struction that is substan product” “a new al block into at 1044. material used. tially from the raw different context, our Therefore, product in different Although a a new it has introduced and provided this same distinction addressed and
tax court of commerce into the stream Olin, At oth held that: not mere services. products to damaged times, ship molds would products er Olin no new “[0]rdinary repair creates original de to the to be restored a service. Lenhardt properly characterized and is specifica drawings and signs in the perpetu- found activity merely Ordinary repair degree of work upon the Depending although tiоns. ... and existing products ates gave the suit in rise to accident which 4. The in we use the accident occurred 3. As the Whitaker, 953 occurred in 1993. Whitaker F.Supp. were effective of the statutes versions Thus, Act version of the the at 1039. that time. we analyzed the same as which the court address here. needed, damaged appeal, ... repair of a could court on unless thereafter mold order, appeal any party of new or the court on shall be either the creatiоn a request, the of ... product. shall transmission other repairing original See service 1044; parts Whitaker, F.Supp. of the record. Parts which are Rotation 95B transmitted, appeal to the court on shall Corp., at 801. There- Products fore, on part nevertheless be a record we that there is a issue of hold alleged appeal purposes. all material as to whether the defec- fact tive had been created or serviced mold added). (Emphasis Lenhardt. cоurse, is, appellant’s It an burden Next, it is a seller error, fails demonstrate and if he reversible At the meaning of the Act. time of within the necessary designate portions of the record Act “a explosion, defined “seller” as particular may a error he fail demonstrate person engaged in business as a manufactur- in his burden. dealer, lessor, er, wholesaler, a a retail a or a § 33-1-1.5-2. As have distributor.” I.C. we Secondly, recognize there our rules that Lenhardt created a new determined are calls in much judgment to be made how molds, possi- made product when it necessary appeal. record is For molds, bly repaired Lenhardt is when it permits rule that reason the above-cited properly considered manufacturer of molds. supplement opposing party court or Thus, Lenhardt is seller under Act. See they necessary, frequent- feel record it Therefore, the trial court did not error id. ly this is done. denying in Lenhardt’s motion for Thirdly, appellee’s point from сounsel’s liability claim. on strict view, things gratifying few can more reasons, foregoing For we affirm the potentially being outcome than determinative court. point appellate able to out tribunal that Affirmed. from opponent one’s omitted record clearly dispositive piece all mention of RUCKER, J., concurs. (That, incidentally, is evidence. not the situ- GARRARD, J., part concurs in and dis- us.) ease ation before in part. sents hold, here, majority For as it does bring party’s that a failure to to the record GARRARD, Judge, concurring in result every appeal item to the trial part. part dissenting opposition court in and in of a motion I in the ma concur result reached in order to secure majori jority disagree I. I with the appellate contrary pro- review is both to the ty’s that “Lenhardt would have had assertion wrongheaded. of the rules and visions designate some evidence that the mold *8 was manufactured Lenhardt” order Finally, I concur result in the reached summary judgment. It have to secure would III. sufficient for had been able to had been show made no evidence that Lenhardt the mold get anything able fur
and would not be Lowmaster, Ind.
ther. See Letson (1976). Here,
App.
Len-
hardt did not shut the door properly denied. Appellate
I as to issue II. Indiana dissent 7.2(B) part: provides,
Rule appellant designate only shall those
parts the record to transmitted to the