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09/29/87 MONTGOMERY COUNTY FARM BUREAU COOPERATIVE

Filed: September 29, 1987.

MONTGOMERY COUNTY FARM BUREAU COOPERATIVE ASSOCIATION, INC., PLAINTIFF-APPELLANT,
v.
DESERET TITLE HOLDING CORPORATION, DEFENDANT-APPELLEES



APPEAL FROM THE PARKE CIRCUIT COURT, The Honorable Earl M. Dowd, Judge, Cause No. 84C-34.

Ratliff, C.j., Robertson, J. and Shields, P.j., concur.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

Farm Bureau Co-op (creditor of tenant farmer) appeals a partial summary judgment for the landlord that the lease entitled the landlord to a fifty percent (50 %) ownership interest in crops grown on the leased farmland. We reverse.

FACTS

In April and May, 1983, Keith Jeffries met with a representative of Deseret Title Holding Corporation (Deseret) to discuss leasing approximately 1030 acres of farmland located in Hendricks County, Indiana. Before signing the lease, Jeffries began investigating several ways to finance his farming venture. In May, Jeffries contacted the Montgomery County Farm Bureau Cooperative Association, Inc. (the Co-op) regarding the purchase and application of fertilizers and chemicals for the farmland he intended to lease from Deseret. The Co-op agreed to supply these items in exchange for a security interest in the crops to be grown in 1983. By letter dated May 16, 1983, the Co-op's manager advised Deseret that the Co-op would provide Jeffries with materials to "put the crops out" and that the Co-op would "hold the lien" until Jeffries paid for the materials. Record at 151.

On May 26, 1983, Jeffries entered into a lease with Deseret wherein Jeffries agreed to "deliver to the Landlord as annual rental for the year 1983, 50 bushels of #2 yellow grade corn per acre." Record at 49. Thereafter, on June 2, 1983, the Co-op filed a financing statement with the Hendricks County Recorder's Office. The statement contained a description of the real estate Jeffries leased from Deseret and of the 1983 crop as collateral. The Co-op then provided Jeffries with fertilizer and chemicals during the growing season, and applied some of these to the land leased by Jeffries. While harvesting the crop, Jeffries noticed that the yield was much lower than he had expected. Jeffries contended that the Co-op had incorrectly applied chemicals to the land and that, as a result, the 1983 crop was almost a total loss.

In fall of 1983, the Co-op and other creditors began making demands on Jeffries for payment. Finally, on February 3, 1984, the Co-op filed a complaint against Jeffries seeking to foreclose its security interest in Jeffries's 1983 crop. The Co-op later amended its complaint to name Deseret and other parties known to the Co-op who might claim an interest in the crops. On November 19, 1984, Deseret filed its answer claiming that, as landlord, it was the owner of fifty percent (50 %) of Jeffries's 1983 crop. At that time the corn had been delivered to a grain storage company, and on December 21, 1984, the trial court ordered the corn sold and the proceeds deposited with the court.

On March 6, 1985, Deseret filed a cross motion for partial summary judgment claiming ownership of fifty percent (50 %) of the corn or proceeds. The trial court granted the motion on August 26, 1986, stating that pursuant to the lease Deseret was the owner of fifty percent (50 %) of the 1983 crops and that Deseret, therefore, was entitled to the proceeds from fifty percent (50 %) of the corn which Jeffries had delivered to the grain storage company. The court further stated that, as a matter of law, none of the parties (except the grain storage company) had any interest in the landlord's fifty percent (50 %) of the crops. The Co-op now appeals that decision claiming that Deseret had no ownership interest in the crops since Deseret failed to file a lien pursuant to Indiana Code section 32-7-1-18 (Burns Code Ed., Supp. 1987).

ISSUE

Did the trial court err in finding that the landlord had a fifty percent (50 %) ownership interest in crops grown on the leased premises where the lease provided that the tenant would pay as rent a specified number of bushels per acre?

Discussion AND DECISION

The standard of review on appeal of a summary judgment motion is the same standard used in the trial court. First Savings and Loan Ass'n v. Treaster (1986), Ind. App., 490 N.E.2d 1149, 1151, trans. denied. A summary judgment motion may be sustained only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(c); Treaster, at 1151. A party against whom a motion for summary judgment is made must come forward with specific facts which show there is a genuine issue for trial, Moll v. South Central Solar Systems, Inc. (1981), Ind. App., 419 N.E.2d 155, 161, but the opposing party's failure to file affidavits opposing the motion will not necessarily render him liable to judgment. T.R. 56(c); Letson v. Lowmaster (1976), 168 Ind. App. 159, 163, 341 N.E.2d 785, 788. If the opposing party files no affidavits, summary judgment may be entered against him only if, upon the materials before the court, the moving party is entitled to judgment as a matter of law. Id. Thus, upon review of a grant of summary judgment, in addition to considering whether a genuine issue of material fact exists, this court must determine whether ...


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