Opinion
No. 49A05-9812-CV-596
July 8, 1999
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patrick L. McCarty, Judge Cause No. 49D03-9805-CP-678
Todd J. Kaiser, T. Joseph Wendt, Locke Reynolds Boyd Weisell, Indianapolis, Indiana, Attorneys for Appellant.
Kentin Musall, Edna Musall, Indianapolis, Indiana, Appellees pro se.
In a published opinion issued April 21, 1999, we held that the trial court properly denied summary judgment to D.J. Thomsen and Thomsen Law Office because Thomsen's affidavit was insufficient to establish the absence of a genuine issue of material fact on any element of the legal malpractice action brought against her by Kentin and Edna Musall. Thomsen seeks rehearing on several grounds, two of which prompt us to make further comment.
Thomsen argues that in reaching our conclusion about the adequacy of her affidavit, we impermissibly judged its credibility by noting the possibility of her bias. We reject this argument because the affidavit, credible or not, is insufficient to warrant summary judgment.
An affidavit submitted in support of a motion for summary judgment must contain facts that would be admissible in evidence. Ind. Trial Rule 56(E). "Mere assertions of conclusions of law or opinions in an affidavit will not suffice." Comfax Corp. v. North American Van Lines, Inc., 638 N.E.2d 476, 481 (Ind. Ct. App. 1994). Here, Thomsen's personal averments that "I complied with the standard of care in representing Mr. and Mrs. Musall" and that "I did not cause any harm to Mr. or Mrs. Musall" are mere assertions of conclusions of law or opinions. Record at 238. They will not suffice to support a motion for summary judgment.
Thomsen's legal conclusions are not based upon facts that are undisputed, and the affidavit fails to refute the factual allegations underlying the Musalls' complaint. The Musalls alleged that Thomsen advised them to withhold a pet fee deposit from their rent check for their apartment from which they were subsequently evicted. Record at 141. The Musalls also alleged that Thomsen repeatedly failed to return their telephone calls, willfully and intentionally withheld information and failed to advise them that a money judgment was entered against them in the eviction action. They claim to have learned of the judgment only when Edna received a copy of a wage garnishment order at her place of employment, and that this delay resulted in the forfeiture of their appellate rights. Nothing in Thomsen's affidavit eliminates the genuine issues regarding these material facts. Accordingly, Thomsen failed to carry her burden, and the Musalls were not required to come forward with any evidence. See Kennedy v. Murphy, 659 N.E.2d 506, 508 (Ind. 1995); Jarboe v. Landmark Community Newspapers of Indiana, Inc., 644 N.E.2d 118, 123 (Ind. 1994).
For example, Thomsen's affidavit fails to make any mention of the pet fee deposit, and although Thomsen states in her affidavit that she had no knowledge of the judgment, this statement is not sufficient to support her conclusion that she complied with the standard of care. An attorney has a duty to stay apprised of court actions and to make reasonable inquiry when notices of such actions are not received. See Lodge of the Wabash, Ltd. v. Sullivan, 654 N.E.2d 40, 43 (Ind. Ct. App. 1995),trans. denied (discussing Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116 (Ind. 1994)). Here, there is a material question of fact as to whether Thomsen breached this duty.
Thomsen also argues that we failed to employ a de novo standard when reviewing the trial court's denial of summary judgment because we speculated as to the basis of the trial court's decision. Our comment that the trial court may have taken Thomsen's bias into account does not mean that we did not independently review Thomsen's affidavit in reaching our original decision that the affidavit was insufficient to satisfy Thomsen's burden of establishing the absence of any genuine issue of material fact.
Rehearing is granted so that we can specifically state that the credibility of Thomsen's affidavit did not enter into our decision and that we employed a de novo standard in reviewing and affirming the trial court's decision. In all other respects, Thomsen's petition for rehearing is denied.
GARRARD, J., and NAJAM, J., concur.