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Douglas v. Monroe2/26/2001
Rule 56(E) requires that affidavits opposing summary judgment `set forth such facts as would be admissible in evidence . . . .'" Estate of Shebel ex rel. Shebel v. Yaskawa Elec. America, Inc., 713 N.E.2d 275, 280 (Ind. 1999). "Mere assertion of conclusions of law . . . in an affidavit will not suffice." Rubin v. Johnson, 550 N.E.2d 324, 327 (Ind. Ct. App. 1990), trans. denied. Lionel's statement about control was a legal conclusion and therefore inadmissible as evidence.
However, as Carol correctly points out, neither Monroe nor the trial court noted this problem. " hile trial court consideration of conclusory statements or matters in affidavits otherwise inadequate under T.R. 56(E) would constitute error, [Monroe's] failure to raise a timely objection constitutes waiver of such claim of error." Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990).
Although Lionel's allegedly conclusory statement will thus be considered on appellate review, our inquiry does not end simply because such conclusion recited the word "control." "Under T.R. 56(E), a party opposing summary judgment must come forth with specific facts showing that there is a genuine issue for trial." Id. Lionel's affidavit fails to set forth facts to support the notion of control. Specifically, there is no evidence that Carol instructed Lionel to seek a lawyer's advice, let alone Monroe's advice. There is no evidence that Carol told him when or where to speak with Monroe, gave him questions to ask her, outlined potential terms of employment, or gave him the power to bind her to an agreement, such as would support an attorney-client relationship. Further, there is no evidence that Carol was unaware of how to form such an attorney-client relationship, as she eventually did enter into such a relationship with her current counsel. Especially telling is Carol's previously mentioned deposition testimony that she never thought Monroe was representing her in the matter of Curtis's death. Under these circumstances, we conclude that Carol has failed to set forth sufficient specific facts to support an actual agency theory. See id. at 601.
Carol's apparent agency argument is likewise unpersuasive. Carol submitted no evidence regarding the necessary manifestation made by the principal to a third party who in turn is instilled with a reasonable belief that another individual is an agent of the principal. See Swanson, 504 N.E.2d at 332. That is, there was no form of communication, direct or indirect, by Carol, which instilled a reasonable belief in the mind of Monroe that Lionel was acting as her agent. Lionel's statements are simply insufficient to create an apparent agency relationship.
Although we sympathize with Carol's immense loss, we must conclude that the trial court properly granted summary judgment in Monroe's favor in this legal malpractice action.
Affirmed.
BAKER, J., and BARNES, J. concur.
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