McCullough v. Allen

Decision Date22 June 1983
Docket NumberNo. 4-282A48,4-282A48
PartiesJames Y. McCULLOUGH, M.D., Appellant (Plaintiff Below), v. William L. ALLEN, III, Appellee (Defendant Below).
CourtIndiana Appellate Court

Richard L. Mattox, Barry N. Bitzegaio, Orbison, O'Connor, MacGregor & Mattox, New Albany, for appellant.

James V. Donadio, Margaret C.A. Young, Robert G. Zeigler, Ice, Miller, Donadio & Ryan, Indianapolis, Richard H. Montgomery, Montgomery, Elsner & Pardieck, Seymour, for appellee.

YOUNG, Presiding Judge.

Doctor James Y. McCullough, M.D., brought this "physician's countersuit" against attorney William L. Allen in response to Allen's suit against him on behalf of Linda Petro. Linda's records, which Allen had read, showed that Linda had been involuntarily committed for mental illness from 1965 to 1968, and again from November, 1969, to January, 1970. Linda voluntarily entered Floyd County Hospital on April 30, 1970, to have a baby. The hospital records for May 1, 1970, show Linda was anxious and suspicious of the staff after delivery, and was given Thorazine. On this same day, Linda signed a consent to a tubal ligation. Linda later alleged McCullough coerced her into signing this consent form. Linda continued to get Thorazine, as well as Nembutal, and was kept in a security room until McCullough performed the sterilization on May 4. On learning all this in February of 1975, Allen first filed a petition in the Floyd Circuit Court to restore Linda's competency, under Ind.Code 16-14-16-3. This petition was granted. One year later, after further investigation, Allen filed suit against McCullough on Linda's behalf stating claims for battery, malpractice, and breach of contract. After extensive litigation, summary judgment was entered against Linda, based on a release given by her to Floyd County Memorial Hospital. McCullough then sued Allen for abuse of process and malicious prosecution, claiming that Allen had filed the competency restoration petition only to bolster Linda's case against him, and that Allen had no probable cause to believe Linda's claim merited litigation. The trial court subsequently granted Allen's motion for summary judgment, and McCullough appeals, raising two issues:

1. Whether the court erred in considering the affidavit of F. Boyd Hovde, tendered by Allen to support his motion for summary judgment; and

2. Whether the court erred in finding no genuine issue of material fact.

We affirm.

In challenging the trial court's entry of summary judgment, McCullough first claims the court erred in considering the affidavit of F. Boyd Hovde. This affidavit, tendered by Allen in support of his motion for summary judgment, stated Hovde's qualifications as an Indiana attorney, and further stated:

3. I have been retained by Margaret C.A. Young of Ice, Miller, Donadio & Ryan to review certain records and render a professional opinion with respect to the actions taken by William L. Allen, III in his representation of Linda Petro in the malpractice case entitled "Linda Petro v. James Y. McCullough, M.D."

4. As part of that review, I reviewed the hospital records of Linda Petro and the records of commitment of Linda Petro to Madison Hospital as well as the law in the area, including statutes and attorney general opinions.

5. It is my opinion that William A. Allen, III acted reasonably and that the claim of Linda Petro was worthy of litigation.

McCullough contends this affidavit does not meet the requirement of Ind.Rules of Procedure, Trial Rule 56(E) that affidavits must "set forth such facts as would be admissible in evidence," since it merely stated Hovde's legal conclusions.

We find that the court properly admitted the contested affidavit. It is true that, at one time, experts were not allowed to express an opinion as to an "ultimate fact in issue." E.g., Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d 364. This rigid rule, however, has been abrogated in Indiana. DeVaney v. State, (1972) 259 Ind. 483, 288 N.E.2d 732; State v. Bouras, (1981) Ind.App., 423 N.E.2d 741. Thus, a qualified attorney's legal opinion as to an ultimate fact in issue is admissible, unless it addresses matters within the common knowledge and experience of ordinary persons. Rosenbalm v. Winski, (1975) 165 Ind.App. 378, 385-86, 332 N.E.2d 249, 254; Bouras, supra, at 745.

The affidavit at issue here clearly did not state matters of common knowledge. Rather, it was an appropriate expression of expert opinion on the existence of probable cause for Allen's suit against McCullough. To support his claim for malicious prosecution, McCullough had to show (1) that Allen did not subjectively believe Linda's claim merited litigation, or (2) that "no competent and reasonable attorney familiar with the law of the forum would consider that the claim was worthy of litigation on the basis of the facts known by the attorney who instituted suit." Wong v. Tabor, (1981) Ind.App., 422 N.E.2d 1279, 1288. Whether a reasonable attorney would consider a claim worthy of litigation is a question that can only be answered by an expert familiar with the law and with the standards employed by reasonable attorneys. The disputed affidavit, couched in the terminology of Wong v. Tabor, supra, was clearly admissible to prove that at least one competent and reasonable attorney considered Linda's claim worthy of litigation. Because the affiant here was qualified to give such an opinion, this case is not affected by the general rule that a court may not enter summary judgment upon an affidavit stating conclusions of law or opinions by one not qualified to give such testimony. Celina Mutual Ins. Co. v. Forister, (1982) Ind.App., 438 N.E.2d 1007; Podgorny v. Great Central Ins. Co., (1974) 160 Ind.App. 244, 311 N.E.2d 640. We accordingly hold that the court did not err in admitting Hovde's affidavit and considering it when ruling on Allen's motion for summary judgment.

McCullough also contends that genuine issues of material fact should have precluded summary judgment against him on his claims for malicious prosecution and abuse of process. Generally, summary judgment is inappropriate when the evidence before the court discloses genuine issues of material fact or a good faith dispute as to the inferences to be drawn from the facts. McKenna v. City of Fort Wayne, (1981) Ind.App., 429 N.E.2d 662. The moving party bears the burden of proving that no issue of material fact exists. Thus, a defendant seeking summary judgment must set forth specific facts that negate the plaintiff's claim. See Layman v. Atwood, (1977) 175 Ind.App. 176, 370 N.E.2d 933. This is true even though the plaintiff would have the burden of proof at trial. Doff v. Brunswick Corp., (9th Cir.1966) 372 F.2d 801, cert. denied, (1967) 389 U.S. 820, 88 S.Ct. 39, 19 L.Ed.2d 71. If the movant produces evidence to meet this burden, the opposing party must respond, setting forth specific facts to show there is a genuine issue for trial. Shideler v. Dwyer, (1981) Ind., 417 N.E.2d 281; Johnson v. Padilla, (1982) Ind.App., 433 N.E.2d 393; Bassett v. Glock, (1977) 174 Ind.App. 439, 368 N.E.2d 18. If the opposing party does not so respond, "summary judgment, if appropriate, shall be entered against him." T.R. 56(E); Wallace v. Indiana Ins. Co., (1981) Ind.App., 428 N.E.2d 1361.

McCullough argues that Allen failed in several respects to meet his initial burden of proving that no issues of material fact existed. Specifically, McCullough claims there remained an issue as to probable cause under the test established in Wong v. Tabor, supra, because Allen did not show he made a reasonable investigation before suing McCullough. This contention reflects a misunderstanding of the Wong decision. It is true that the court in Wong cited with approval a California decision listing diligent investigation as an element of...

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