dissenting.
The trial court's exclusion of the three affidavits was premised upon alternative grounds, i.e., that the affidavits were "either immaterial or conclusory". Record at 610-613. However, the court acknowledged that if the affidavits contained assertions of fact as opposed to mere conclusions, its summary judgment ruling was probably erroneous. In other words, the trial court itself stated that the stricken affidavits were the crucial issue with respect to the propriety of the partial summary judgment.
Although both the Kuker and Lundy affidavits do contain some conclusory statements, both also contain statements of fact relevant to the matters in issue.
The distinction between statements of fact and conclusions, as contained in affidavits for summary judgment purposes, is not easily defined. As stated in 1 MceCormick on Evidence § 11, at 42-48 (4th ed. 1992):
"There is no conceivable statement however specific, detailed and 'factual, that is not in some measure the product of inference and reflection as well as observation and memory.... The difference between so-called 'fact,' then, and 'opinion,' is not a difference between opposites or contrasting absolutes, but a mere difference in degree with no recognizable line to mark the boundary."
Viewed in light of the surrounding cireum-stances, the facts alleged in the three affidavits are sufficient to permit a trier of fact to conclude that NAVL was motivated solely by malice in filing its lawsuit. The alleged facts support the conclusion that NAVL filed suit to hinder Comfax in opposing NAVL's efforts to replace Comfax with a less costly supplier or an in-house programmer. A trier of fact might well conclude that filing a lawsuit to recover documents that had no competitive value and that were not confidential or sensitive, constitutes abuse of process.
Kuker's affidavit states as fact that Com-fax's program had period accounting capability 1 to 18 and was not limited to a single 13-period accounting system. It further states that NAVL knew the capability was not limited to a 138-period system. The affidavit also states as fact that NAVL knew that neither Comfax nor Kuker were financially able to oppose NAVL's lawsuit. The affidavit contains additional facts which would permit an inference that the documents sought by NAVL were neither commercially sensitive nor confidential Finally, the affidavit details NAVL's attempts to expedite discovery and seek sanctions which had an intimidating effect upon Kuker and caused him extreme emotional and financial distress. Kuker's affidavit contains many statements of fact which support his conclusions about NAVL's knowledge, motivation and purpose.
In his affidavit, Lundy alleges as fact that NAVL refused to provide information essential to Comfax's ability to comply with the original time schedule. Lundy also states that he prepared a lawsuit against NAVL in early January 1985, and that NAVL filed its own suit in March 1985. Although Lundy expressed a speculative "expert opinion" that NAVL's "preemptive strike" was motivated by a strategy that the "best defense is a good offense," (Record at 510) the surrounding facts and cireumstances would permit just such a conclusion.
Lundy, as an attorney with particular expertise in the area of intellectual property law, was qualified to give his opinion as to the competitive, sensitive, or confidential nature of the documents sought to be recovered by NAVL and as to whether such information was required by NAVL in its business. See Jordan v. Deery (1993) Ind., 609 N.E.2d 1104.1 Lundy's affidavit, in my view, was *487replete with assertions of fact which present genuine issues of fact regarding NAVLIUS motivation in filing and maintaining its lawsuit.
The majority recognizes that Bireley's affidavit was erroneously stricken. However, the majority finds the error harmless, holding that the alleged facts do not permit an inference that NAVL "used process [the filing and maintenance of the lawsuit] in a way not proper in the normal prosecution of the case...." Op. at 482. This rationale presupposes that the lawsuit had some basis in fact and law. If the documents sought in NAVT's lawsuit were demonstrably insignificant, the suit might well be deemed an abuse of process.
The majority seeks to draw some meaningful distinction which militates against application of Archem, Inc. v. Simo (1990) 1st Dist. Ind.App., 549 N.E.2d 1054 to the facts before us. I see no distinction. In fact, the result obtained in Archem is even more clearly dictated here. In Archem, the plaintiff "did not capitulate to the [abuse of process] tactic." Even so, the First District held that it is not essential to a successful abuse of process claim that a "suit filed for an improper purpose must effectuate the purposes for which it was intended." 549 N.E.2d at 1062. In the case before us there are numerous factual assertions that both Kuker and Com-fax were financially and otherwise adversely affected by NAVU's suit.
In my view and in light of the factual allegations contained in the three affidavits, the holding of Archem should be followed here. I would reverse and remand with instructions to deny NAVL's motion for partial summary judgment.
. The majority alludes to the fact that the parties had agreed to maintain the confidentiality of the documents which were ultimately returned by Kuker to NAVL. Op. at 484. The existence of such an agreement and a belief on the part of both, at the outset, that all documents exchanged should receive confidential handling does not mean that each and every document provided Comfax was in fact sensitive or confidential. At most, it gives rise to a dispute as to the inferences to be drawn from the facts. Accordingly, *487summary judgment based on the agreement would be inappropriate.