Jоhn W. DEARMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 49A04-9211-CR-417
Court of Appeals of Indiana, Fourth District
April 20, 1994
632 N.E.2d 1156
Even if Strunk‘s knowledge of the others’ future intentions could be considered a present fact, the summary judgment was not erroneous. The matters before the trial court with reference to summary judgment, in my view, disclose the аbsence of a genuine issue as to whether any compensable injury was occasioned by the acts or nonfeasance of the attorneys. This is clearly true with regard to any claimed damages resulting frоm the termination of Rice‘s management contracts by the other partners. The attorneys clearly had no control or input with respect to that decision.
I also perceive no compensable injury to Rice regarding his assertion that, had he known of his prospective termination, he would not have agreed to the refinancing arrangement. Clearly, the refinancing was absolutely essential to the best interests of the partnership, including the partnership interest of Rice. Thus Rice, as a partner, has no viable claim for damages as a result of the refinancing. Additionally, his capacity as a management еmployee was unaffected by the refinancing.
A somewhat parenthetical thought is prompted by the fact that Strunk stood to benefit and, by accepting the offer to succeed Rice, did in fact benefit frоm the termination. Such circumstance is susceptible to an inference that a claim may have been asserted upon a theory of tortious interference with Rice‘s management contract. Seе 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, § 6.23, p. 348 (3d Ed.1989). However, the claims asserted are clearly focused upon theories of fraud, breach of a fiduciary duty, conspiracy, and breach of a duty to advise of the need to obtain independent сounsel.
Even if the allegations be construed to embrace the concept of tortious interference, recovery in Indiana requires proof that the defendant induced a breach of contract. Furno v. Citizens Insurance Co. of America (1992) 1st Dist. Ind.App., 590 N.E.2d 1137. Malice is also a required element. Mallen, supra at § 6.23. Here, there is no evidence or reasonable inference that Strunk maliciously induced or advised the termination. The decision to terminate Rice‘s management contracts had already been made by the other partners. That Strunk benefitted from the termination may present ethical and moral questions, but it does not, of itself, provide the seeds for recovery under the complaint filed or the faсts alleged. Not every breach of ethical conduct gives rise to a private cause of action.
Subject to the caveats expressed herein, I concur.
Pamela Carter, Atty. Gen., Dana A. Childress-Jones, Deputy Atty. Gen., Office of Attorney General, Indianapolis, fоr appellee-plaintiff.
Robert C. Perry, Steckler Perry & Ryan, Indianapolis, for appellant-defendant.
CHEZEM, Judge.
Case Summary
Appellant-defendant, John Dearman (“Dearman“), appeals his conviction for Child Molesting, a Class C felony. We affirm.
Issue
Dearman presents one issue for review, restated as: Whеther the master commissioner had authority to conduct Dearman‘s trial and sentencing, instead of the regular judge of Marion Superior Court, Criminal Division II.
Facts and Procedural History
On November 21, 1990, the State charged Dearman with ten counts of child molesting, five as Class B felonies, and five as Class C felonies. On December 5, 1990, the State moved to dismiss six counts of the information and the Honorable Webster L. Brewer, regular judge of the Marion Superior Court, Criminal Division II, granted thе motion.
Dearman‘s first trial counsel made an oral motion for a change of judge on November 26, 1990. The trial court granted the motion and named a panel of three judges. On November 30, 1990, Dearman‘s second сounsel filed his appearance with the trial court and filed a motion to vacate and set aside the order granting the change of judge. Following a hearing, the trial court vacated the order and rulеd that the case would stay under the jurisdiction of the Honorable Webster Brewer.
The case was scheduled for jury trial on April 11, 1991. Dearman and the State agreed on this date that Andrew J. Fogle, Master Commissioner for thе Marion Superior Court, Criminal Division II, would serve as Special Judge for the trial. Fogle continued the trial because of incomplete discovery. The trial was rescheduled to begin on Octo
On January 24, 1992, the Honorable Webster Brewer appointed Fogle as Judge Pro Tempore in the Marion Superior Court, Criminal Division II, for January 28, 29, 30, and 31, 1992. Fogle accepted the appointment on January 28, 1992. Dearman‘s jury trial commenced January 30, 1992, and concluded in the early morning hours of February 1, 1992. The jury convicted Dearman of one count of child molesting, as a Class C felony.
Fogle conducted Dearman‘s sentencing hearing on April 15, 1992. Dearman was sentenced to four years in the Indiana Department of Corrections, with two years suspended and two years probation.
Discussion and Decision
Dearman сontends that Fogle was not properly appointed as special judge and did not have authority to conduct the trial or sentencing.
(1) The presiding judge, or if there be no such judge, the regular judge of the court shall submit a list of three [3] persons from which, by striking, an appointee may be selected. In а moving party proceeding each party shall strike one [1] name from such list. The moving party shall strike first. From the name or names remaining the judge submitting such list shall select and appoint the special judge....
Our examinаtion of the record reveals that Fogle was not appointed as special judge under the provisions of
Bеcause Fogle was not a duly appointed special judge in Dearman‘s case, he acted in his capacity as a master commissioner. A master commissioner has the same powers and duties аs are prescribed by statute for a magistrate.
(1) does not have the power of judicial mandate; and
(2) may not enter a final appealable order unless sitting as a judge pro tempore or a special judge.
A magistrate shall report findings in an evidentiary hearing, a trial, or a jury‘s verdict to the court. The court shall enter the final order. In a criminal case, the court shall conduct the sentencing hearing.2
Although it would appear that Fogle overstepped thе bounds of his powers and duties as a master commissioner, he did not do so at either the trial or sentencing stage of the proceedings.
On January 24, 1992, the Honorable Webster Brewer appointed Fogle as judge pro tempore of Marion Superior Court, Criminal Division II, for January 28, 29, 30, and 31. Fogle accepted this appointment on January 28. Dearman‘s jury trial began on January 30, while Fogle was acting as the duly appointed judge pro tem of the court. Curiously enough, the transcript of the trial from January 30 and 31 refers to Fogle as “Special Judge.” Fogle also held himself out as special judge by noting “SJ” after his signature on the jury instructions, although he had accepted the appointment as judge pro tem. Even though the parties were under the impression that Fogle was special judge in the case, we must look to the record to derive his status. The record, as supplemented by the State, shows that Fogle was appointed judge pro tempore, and as such, he was acting as judge pro tem during Dearman‘s trial.3
Dearman‘s sentencing occurred аfter Fogle‘s term as judge pro tem. However, it was proper for Fogle to conduct Dearman‘s sentencing hearing. Once a judge pro tem has begun consideration of the case, he or she has jurisdictiоn to hear the case to completion. Harris v. State (1993), Ind.App., 616 N.E.2d 25, 33, trans. denied. We find that Fogle had authority, as judge pro tem, to conduct Dearman‘s trial and sentencing hearing, and also had authority to sentence Dearman.
This case hаs caused much confusion as to the capacity in which Fogle was acting prior to, during, and after Dearman‘s trial. To avoid this needless confusion, the trial court should strictly follow the rules for appointing special judges and judges pro tem. Also, when a court appoints a special judge or judge pro tem, the court should include the official appointment in the record and inform all parties as to the аppointment.
Affirmed.
MILLER, J., concurring.
SHARPNACK, C.J., dissenting with opinion.
I respectfully dissent. Judge Fogle was without authority to act beyond the time of his pro tempore appointment. Boushehry (1993), Ind.App., 626 N.E.2d 497 (on petition for rehearing), 622 N.E.2d 212.