[CITE: Philbeck v. Collins & Altman, 13 CADDNAR 219 (2013)]


[VOLUME 13, PAGE 219]



Cause #: 13-063F

Caption: Philbeck v. Collins & Altman

Administrative Law Judge: Lucas

Attorneys: Shipman (Philbeck); pro se (Collins); Roberts (Altman)

Date: November 27, 2013




As set forth in the “Report of Status Conference and Order for Hearing of the Facts” entered on September 18, 2013, a schedule for the consideration of summary judgment was entered with respect to the potential liability of State Farm Fire & Casualty Company (and perhaps Jason Altman).  With filing and approval of the “Stipulation of Dismissal with Prejudice” with respect to State Farm Fire & Casualty Company, and the dismissal of State Farm Fire & Casualty Company as a party, the administrative law judge vacated the schedule in an entry made on September 25, 2013.


On September 30, 2013, Jason Altman filed a “Motion for Enlargement of Time” to file a motion for summary judgment as to him only.  The one-month extension sought by Altman was determined by the administrative law judge to be impracticable with conduct of the hearing set for January 14, 2014.  The administrative law judge granted the “Motion for Enlargement of Time” in part.  The summary judgment schedule was then reinstated in pertinent parts as follows:


(1) Any motion for summary judgment, with supporting documentation, shall be filed and served by Jason Altman by October 15, 2013.


(2) Any response and supporting documentation to a motion for summary judgment under (1) shall be filed and served by the Philbecks by November 15, 2013.  If any other party wishes to be considered with respect to summary judgment, the other party shall also file and serve any pleading and documentation by November 15, 2013.


By his attorney, “Jason Altman’s Motion for Summary Judgment” was filed on October 15, 2013.  The motion was made as an affirmation.  No response to the motion was filed by the Philbecks or by another party.  The motion is ripe for disposition.


This proceeding is controlled by IC § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”). IC § 4-21.5-3-23 governs summary judgment under AOPA:


    (a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding.

    (b) Except as otherwise provided in this section, an administrative law judge shall consider a motion filed under subsection (a) as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.

    (c) Service of the motion and any response to the motion, including supporting affidavits, shall be performed as provided in this article.

    (d) [IC § 4-21.5-3-28 and IC § 4-21.5-3-29] apply to an order granting summary judgment that disposes of all issues in a proceeding.


Summary judgment should be granted if the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990).  In determining if a genuine issue of material fact exists to preclude summary judgment, all doubts must be resolved against the nonmoving party.  Facts set forth by a party opposing the motion must be taken as true.  Terry v. Indiana State University, 666 N.E.2d 87 (Ind. App. 1996).


Supporting and opposing summary judgment affidavits must present admissible evidence that follows substantially the same form as though the affiant were giving testimony in court.  Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193 (Ind. App. 2010).  “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.”  Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).


A party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing.  Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001).  See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994).  Once the party moving for summary judgment establishes a lack of material fact, the party responding to the motion must disgorge sufficient facts to show the existence of a genuine triable issue.  Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).


The proceeding was brought under authority of IC § 25-36.5 (sometimes referred to as the “Timber Buyer Act”)  Jason Altman was allegedly an agent of Meredith N. Altman, his father, and insured under Meredith Altman’s bond with State Farm Fire and Casualty Company.  As indicated supra, State Farm Fire and Casualty Company was dismissed voluntarily as a party.  During the initial prehearing conference held on May 10, 2013, Meredith Altman was dismissed voluntarily as a party.  “Report of Initial Prehearing Conference and Notice of Telephone Status Conference” (May 13, 2013).


As demonstrated by “Jason Altman’s Motion for Summary Judgment”, these facts are not in genuine material dispute: Jason Altman is not a timber grower, timber buyer, or timber cutter as these terms are defined or used in the Timber Buyer Act.  He did not contract with Martha Philbeck or James Philbeck, Sr. (collectively, the “Philbecks”).  Jason Altman did not cut any timber.  He did not receive any monies, compensation, or other consideration from the Philbecks.  Jason Altman is not a necessary party to this proceeding.


As demonstrated in the “Affidavit in Support of Motion for Summary Judgment” that was attached to “Jason Altman’s Motion for Summary Judgment”, these facts are not in genuine material dispute: Jason Altman did not cut timber on the Philbeck’s land.  He was paid by Cliff Slusher to transport logs from the Philbecks’ land to various sawmills.  Jason Altman did not contract with the Philbecks to purchase or to provide any services.  His agreement was limited to transportation of timber at Slusher’s instance and request.


Jason Altman has met his burden and is entitled to dismissal with prejudice as a matter of law.  Hauling logs is not, in itself, sufficient to establish liability for damages under the Timber Buyers Act.  Facts that are not in genuine dispute demonstrate he is not liable under the Timber Buyer Act, to the Philbecks or to another party, for the activities at issue in the proceeding.


Jason Altman’s Motion for Summary Judgment is granted.  He is ordered dismissed with prejudice. 


A person that wishes to seek judicial review of this final order must file a petition for judicial review in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5.  Service of a petition for judicial review is also governed by 312 IAC 3-1-18.