Thomsen v. Musall
Docket: No. 49A05-9812-CV-596
Court: Indiana Court of Appeals; July 8, 1999; Indiana; State Appellate Court
The court addressed the rehearing petition submitted by D.J. Thomsen regarding the denial of her motion for summary judgment in a legal malpractice case brought by Kentin and Edna Musall. The original ruling concluded that Thomsen’s affidavit was inadequate to demonstrate the absence of any genuine issue of material fact. Thomsen contended that the court improperly assessed the credibility of her affidavit by suggesting potential bias. The court rejected this, clarifying that the affidavit failed to meet the legal standard for supporting a summary judgment motion. Specifically, the affidavit consisted of mere legal conclusions and opinions rather than admissible factual evidence, as required by Indiana Trial Rule 56(E). Thomsen's assertions that she complied with the standard of care and did not cause harm were deemed insufficient because they were not grounded in undisputed facts and did not counter the allegations made by the Musalls. The Musalls claimed that Thomsen advised them to withhold a pet fee deposit, failed to return their calls, and did not inform them about a money judgment against them, which they only discovered through a wage garnishment order. Thomsen's affidavit did not adequately address these allegations or eliminate the genuine issues of material fact surrounding her conduct. Additionally, Thomsen argued that the court did not apply a de novo standard of review when examining the trial court's decision. The court clarified that its commentary regarding the potential influence of Thomsen’s bias did not affect its independent review of the affidavit, affirming that a de novo standard was indeed applied in the assessment of the summary judgment motion. While granting rehearing, the court reiterated that the credibility of Thomsen’s affidavit was not a factor in its decision and maintained its original conclusion regarding the insufficiency of the affidavit. The petition for rehearing was denied in all other respects. The court noted that there remains a material question of fact regarding whether Thomsen breached her duty to stay informed about court actions.