Julie JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee--Plaintiff.
No. 24A04-9809-CR-474
Court of Appeals of Indiana.
April 22, 1999.
Transfer Denied June 30, 1999.
DISCUSSION AND DECISION
Thomsen claims that the trial court erred by denying their motion for summary judgment because once they presented D.J. Thomsen‘s expert opinion on breach of the standard of care and proximate cause, the Musalls were required to come forth with expert testimony to establish the standard of care, citing Hacker v. Holland, 570 N.E.2d 951 (Ind.Ct.App.1991), trans. denied. While we agree with the general proposition that expert testimony is usually required in a legal malpractice action to establish the standard of care, such testimony is not necessarily required to oppose a summary judgment motion. It was Thomsen‘s burden to establish the absence of any genuine issue of material fact. Until such burden was met, 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).
Here, the sole evidence presented to support Thomsen‘s motion for summary judgment was the affidavit of D.J. Thomsen, a party accused of committing malpractice. Although she is a licensed attorney and may well be qualified to render an expert opinion on issues of standard of care, breach, and proximate cause in legal malpractice actions, the trial court found that genuine issues of material fact existed on such issues. The only conclusion to be drawn from the trial court‘s determination is that D.J. Thomsen‘s affidavit alone was insufficient to satisfy Thomsen‘s burden of establishing the absence of any genuine issue of material fact. This may be because D.J. Thomsen had а high stake in the outcome of the litigation which may have affected her ability to render an unbiased expert opinion. Because Thomsen failed to satisfy the burden of a party moving for summary judgment, the Musalls, as the non-moving parties, were not required to come forward with contrary evidence. See Kennedy, 659 N.E.2d at 508; Jarboe, 644 N.E.2d at 123.
Affirmed.
GARRARD, J., and NAJAM, J., concur.
Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General, Indianapolis, Indiana, Attоrneys for Appellee.
OPINION
ROBB, Judge
Case Summary
Appellant-Defendant, Julie Johnson ( “Johnson” ) files this interlocutory appeal from the trial court‘s refusal to grant her motion to dismiss because she was not brought to trial within one year as required by Criminal Rule 4(C). Wе affirm.
Issues
Johnson raises the following issue which we restate as:
Whether the trial court erred in calculating the delay attributable to her for purposes of determining the date by which the State was required to bring her to trial pursuant to Criminal Rule 4(C).
On September 29, 1995, Johnson was charged with battery, a Class A misdemeanor, for slapping the victim. She was served with a summons on October 19, 1995, which ordered her to appear in Franklin Circuit Court on November 17, 1995, to answer the criminal charge. On November 9, 1995, Johnson filed a change of judge motion whiсh was granted. On November 21, 1995, the trial court approved the selection of Gary McCarty as special judge.
After the special judge was selected, there was no documented activity in the case until October 7, 1996, when the Stаte filed a motion to set a trial date. Special Judge McCarty filed a written order in which he qualified and assumed jurisdiction on Johnson‘s case on October 17. On that same day he granted the State‘s motion and set the trial date for February 19, 1997. On February 13, 1997, Johnson filed a motion to dismiss alleging that her trial date was not scheduled in a timely manner in violation of Criminal Rule 4(C).
On February 18, 1997, the special judge entered an order recusing himself stating that the State expressed some concern about a statement he made in late-1995 prejudging the penalty to Johnson in advance of the trial. He did not rule on Johnson‘s motion to dismiss. On February 19, 1997, Judge Pflum was appointed special judge, and on February 27, he assumed jurisdiction.
On June 4, 1997, Johnson‘s motion to dismiss was denied and the trial was set for July 17, 1997. On June 27, 1997, Johnson filed a Motion to Correct Errors. Pursuant to that motion, Special Judge Pflum vacated the trial date and scheduled a hearing on Johnson‘s motion, which was denied on October 6, 1997. On November 4, 1997, Johnson, intending to effect an interlocutory appeal, filed a praecipe for the record of proceedings in the trial court. However, she failed to apply to the trial court to certify its June 4 order denying her motion to dismiss. Therefore, her first attempt to perfect an interlocutory appeal failed. On August 31, 1998, Johnson requested that the trial court certify its June 4, 1997, order for interlocutory appeal. The trial сourt certified its order that same day. On October 15, 1998, this court accepted jurisdiction of Johnson‘s interlocutory appeal.
Discussion and Decision
Criminal Rule 4(C) states:
No person shall be held on recognizance or otherwise to answer a criminal chargе for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar. . . . Any defendant so held shall, on motion, be discharged.
The State bears the burden of bringing the defendant to trial within one year. State v. Hurst, 688 N.E.2d 402, 408 (Ind.1997). The duty to bring the defendant to trial within one year is an affirmative one which rests with the State. Staples v. State, 553 N.E.2d 141, 143 (Ind.Ct.App.1990), trans. denied. Criminal Rule 4(C) relieves the State from that duty only for a delay сaused by the defendant‘s own act or a continuance had on the defendant‘s own motion. State v. Smith, 495 N.E.2d 539, 541 (Ind.Ct.App.1986). The one-year period fixed by the rule is extended only by the period of delay that is chargeable to the defendant. Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind.Ct.App.1997), trans. denied.
Johnson contends that the trial court erred in determining the delay attributable to her in calculating the one year period prescribed by Criminal Rule 4(C) when it denied her motion to dismiss. She argues that the trial court erred in determining the date upon which thе period began. Johnson asserts that she should have been tried one year from the date on which she was charged, September 29, 1995. However, the trial court used the date that the summons was served on Johnson, October 19, 1995, stating that for the purposes of Criminal Rule 4(C), a summons is the same as an arrest.
Johnson argues that a summons and an arrest are two very distinct procedural entities, аnd if the Indiana Supreme Court meant to allow the service of a summons to begin the one year period, it would have so stated in Criminal Rule 4(C). We disagree.
When an individual is charged with a misdemeanor, a summons may be issued in lieu of issuing an arrеst warrant.
Johnson benefitted by
The defendant must object to a trial setting at the earliest opportunity if she learns within the period provided by the rule that the case is set for trial at a time beyond the date permitted. Raber v. State, 622 N.E.2d 541, 545 (Ind.Ct.App.1993). If a defendant fails to object at the earliest opportunity to a trial set outside the prescribed one-year period, she is deemed to have acquiesced to the belated triаl date. Id. An objection must be raised in time to permit the trial court to set the trial for a new date within the proper period. Martin v. State, 419 N.E.2d 256, 258 (Ind.Ct.App.1981).
On October 17, 1996, the trial court set the trial date for February 19, 1997. While the trial date fell outside of the one year period, the court set the trial date within the one year period which would have
Affirmed.
BAKER, J., concurs.
GARRARD, J., concurs with separate opinion.
GARRARD, Judge, concurring
I concur in the result reached by the majority. In my view for purposes of Criminal Rule 4(C) when a defendant is served with a summons rather than arrested after charges have been filed, the one year period does not begin to run before the date she first appears in court, or is arrested on a warrant for hеr failure to appear.
Accordingly, on the facts before us the one year would not commence to run before Johnson‘s scheduled appearance date, and that is sufficient to defeat her claim.