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02/17/88 DALE B. SKAGGS v. MERCHANTS RETAIL CREDIT

Filed: February 17, 1988.

DALE B. SKAGGS, APPELLANT (DEFENDANT & THIRD-PARTY PLAINTIFF BELOW),
v.
MERCHANTS RETAIL CREDIT ASSOCIATION, INC., APPELLEE (PLAINTIFF BELOW), AND GENERAL TELEPHONE COMPANY OF INDIANA, INC., APPELLEE (THIRD-PARTY DEFENDANT BELOW).



Appeal from the Allen Superior Court, The Honorable Dalton C. McAlister, Presiding Judge, Cause No. S-83-1608

Staton, J., Garrard, P.j., Conover, J., Concur.

Author: Staton

STATON, J.,

General Telephone Company of Indiana, Inc. (GTE) is a third party defendant in a suit brought by Merchants Retail Credit Association, Inc. (Retail Credit) against Dale B. Skaggs, who allegedly did not pay his phone bills on time. GTE was awarded summary judgment, and Skaggs appealed raising these issues:

1. Whether the trial court erroneously relied on a deficient affidavit;

2. Whether there are unresolved issues of material fact to preclude summary judgment; and

3. Whether the trial court erred when it assessed damages.

Affirmed.

GTE provided Skaggs with service for two telephone lines. On May 15, 1980, Skaggs acknowledged that his accounts with GTE were past due in the amounts of $3,291.54 for one line and $529.35 for the other. On that date Skaggs entered into two separate extended payment agreements whereby he was to pay $100.00 per month on each past due account until those balances were eliminated. Moreover, Skaggs agreed to pay his regular monthly service bills as they became due. Under the extended payment agreement, if Skaggs failed to pay either $100.00 per month on the past due balance or his current monthly bill, GTE would be allowed to disconnect his lines without further notice.

Subsequently, GTE determined that payments made by Skaggs were insufficient to satisfy the terms of the extended payment agreement and service for each of his lines was disconnected. GTE then assigned the Skaggs accounts to Retail Credit for collection. Retail Credit sued Skaggs who filed a counterclaim against GTE alleging misapplication of funds. This appeal arose after GTE successfully moved for summary judgment.

Skaggs' first complaint is that the affidavit which supported GTE's motion for summary judgment was deficient because it does not show that it was made on personal knowledge by a person competent to testify. While Indiana Rules of Procedure, Trial Rule 56(E) requires that affidavits be based on personal knowledge, caselaw makes it clear that if knowledge and competence of the maker can be inferred from the affidavit, it will pass muster. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723, 730, trans. denied.

The affidavit at issue reveals that its maker was employed by GTE and responsible for customer billing and collections. The statements contained in the affidavit are a recital of the payments and credits made by Skaggs to GTE. Although the maker did not aver personal knowledge of these amounts, it is possible to infer that because of her position with GTE, the maker had knowledge of the material parts of those statements. Similarly, the maker's competence to testify can be inferred from her employment in the billing and collections office of GTE. French v. Hickman Moving and Storage (1980), Ind.App., 400 N.E.2d 1384, 1387. Consequently, the affidavit at issue was properly considered by the trial court.

Skaggs next alleges that there were unresolved issues of material fact present to preclude summary judgment. Specifically, he argues that since both parties have moved for summary judgment there must be conflicting facts present.

The purpose of summary judgment proceedings is to terminate litigation when no factual basis exists and when a case may be determined as a matter of law. E.Z. Gas, Inc. v. Hydrocarbon Transportation, Inc. (1984), Ind.App., 471 N.E.2d 316, 318. It is not intended to be a means of circumventing jury trials, or to decide where the preponderance of the evidence lies before the evidence has been fully presented. Joseph v. Calvary Baptist Church (1986), Ind.App., 500 N.E.2d 250, 253, reh. den. When there are cross motions for summary judgment, the controlling factor is not whether the adverse party was successful or not but whether there exists a genuine issue of material fact. Gibraltor Mutual Insurance Co. v. Hoosier Insurance Co. (1985), Ind.App., 486 N.E.2d 548, 550, reh. den., 489 N.E.2d 592. In fact, summary judgment must be granted where there is no genuine issue of material fact and a moving party is entitled to judgment as a matter of law. Middelkamp v. Hanewich (1977), 173 Ind. App. 571, 581, 364 N.E.2d 1024, 1031, trans. ...


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