dissenting.
In the earlier appeal between these same parties and with regard to the same issues, this court stated: “[A] genuine issue of ma*439terial fact exists concerning whether David publicly divulged William’s mental health history.” 633 N.E.2d at 292. With regard to the particular claim of intentional infliction of emotional distress, the court stated: “[T]he undisputed evidence discloses that David referred to William’s mental condition in litigation unrelated to David’s custody dispute with Vicki. William’s mental health was irrelevant in these other court proceed-ings_ Considered together with the evidence of animosity between David and William, we conclude that a genuine issue of material fact exists.... ” Id.
David’s affidavit was not filed in support of his Motion for Summary Judgment at the time of the trial court’s initial determination. Even assuming for the sake of argument that its subsequent filing reflects “new facts”, thus permitting reconsideration of the motion for summary judgment,4 such does not justify the judgment. Notwithstanding David’s affidavit stating that he “filed no documents making any reference whatsoever to William Watters’ mental health history [and that he] never made any oral statement to the judge or anyone else concerning William Watters’ mental health history,” (Record at 127-128) the affidavit of Watters is to the contrary. The latter states that “Mr. Dinn made specific reference to my mental health by referring to the records that he had obtained from St. Francis Hospital [and that he] used the specific terms and language from those reports such as stating that I was diagnosed as having ‘obsessive-compulsive’ disorder, that I was taking controlled substances prescribed to treat any mental condition, and other comments taken directly from the mental health records which concerned my mental health status.” Record at 158-159.
At a minimum, the respective statements are subject to conflicting inferences. While some or a portion of David’s filings and statements might be construed as bearing upon whether Watters had a negative attitude and relationship to children, certain other information allegedly divulged in the small claims action might be considered to be irrelevant and intended to cause emotional distress, given the animosity between the two men.
I would reverse the summary judgment as to all three remaining claims and would remand for further proceedings.
. See Herrell v. Casey (1993) Ind.App., 609 N.E.2d 1145; Krieger v. Ownership Corp. (1959) 3rd Cir., 270 F.2d 265, reh’g denied.