Argus v. Matuska

Cook, P. J.

This is an action by the appellant, Harry Argus, a real estate broker, seeking to recover damages resulting from the alleged breach of a real estate broker’s commission contract by the appellees.

After answering appellant’s amended complaint, appellees filed their motion for summary judgment with a supporting affidavit, supporting documents and memorandum brief. Appellant failed to respond, and summary judgment was entered against him.

Appellant appeals to this court, alleging that the trial court erred in granting the appellees’ motion for summary judgment and in entering the summary judgment against him.

We find from the record that a “Lease Agreement” was signed by the appellees and National Tea Company in October, 1958, and that the agreement included the following provision:

“The Lessor covenants and agrees to construct a building 100' x 125' all in accordance with plans and specifications to be approved by Lessee and Lessor.”

Such plans and specifications were never approved and consequently, it is appellees’ contention that a binding and enforceable agreement was never entered into by the parties. Since appellant’s broker’s commission agreement was contingent upon an agreement between appellees and National Tea it necessarily follows that if such is the fact, shown by the motion for summary judgment and supporting affidavits, documents, and pleadings, appellant is not entitled to recover his commission.

Although not involving identical parties, the issue of the enforceability of this lease agreement had been previously litigated in Federal Court, wherein it was determined that agreement upon the building plans and specifications was essential before the “Lease Agreement” became an effective and enforceable lease. See: National Tea Company v. David Weiss et al. (1965), C. A. 7th, 341 F. 2d 331.

The parties agree that the Federal litigation is not binding as an adjudication of the case before us, but it is relevant here in that appellees included, in support of their motion for summary judgment, a certified copy of the finding and decision of the United States District Court for the Northern District of Indiana which tried such case, and a citation of the decision of the United States Circuit Court of Appeals affirming the District Court’s holding.

Appellant attempts to excuse his failure to respond to appellees’ motion for summary judgment by claiming that there is some language in the District Court’s opinion indicating that there was conflicting evidence on the issue of the approval of the building plans. It is then implied that if appellant were allowed to go to trial on the merits there might arise a genuine issue of fact as to mutual agreement upon plans and specifications, and that consequently, a response was unnecessary.

Although no Indiana case directly on the issues presented has been decided, we quote with approval from Moore’s Federal Practice, Volume 6, paragraph 56.23, p. 2584 (and cases cited therein) wherein it is stated:

“Although the trial court in the exercise of a sound discretion may decline to grant summary judgment, even though the movant has technically discharged his burden, the trial court will normally not look with indulgence upon a party who has presented neither evidenciary materials in opposition nor any reason for his failure to do so. Further, it is certainly well settled that the opposing party is not entitled to hold back his evidence until trial, and is not entitled to a trial on the possibility that an issue of material fact might arise if the case were to go to trial on the merits.”

Restating the federal rule on this subject, Burns’ Ind. Stat. Anno. § 2-2524(e) provides, in pertinent part:

“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 affidavit 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.”

We have held that the failure of the adverse party to respond by affidavit or otherwise to the moving party’s motion for summary judgment has the effect of admitting the validity of the moving party’s action. Markwell v. General Tire (1968), 142 Ind. App. 188, 13 Ind. Dec. 30, 233 N. E. 2d 676.

Neither this court nor the trial court can, or should, speculate as to what evidence might be adduced at trial. It is neither necessary nor proper. If the appellant had evidence which he could have offered to show the existence of a genuine issue of fact regarding specifications for the building in question he should have come forward with affidavits or other proof required by Burns’ § 2-2524 (e). If appellant was unable to produce such proof he should have so advised the court, as provided by Burns’ § 2-2524 (f). Having followed neither course of action, it is now too late for appellant to complain because the trial court took the only course of action available to it, on the basis of the record before it, and properly entered a summary judgment for the appellees.

Judgment affirmed.

Bierly, Pfaff and Smith, JJ., .concur; Faulconer, J., dissents with opinion.