# Rubin v. Johnson

> Indiana Court of Appeals · February 19, 1990 · 550 N.E.2d 324

URL: https://www.frixlaw.com/law-library/cases/9713216

## Case

- **Full name:** Sidney RUBIN D/B/A Gold's Pawn Shop and Steven Rubin, Appellants (Defendants), v. Doris Jean JOHNSON, as Administratrix of the Estate of David A. Johnson, Appellee (Plaintiff)
- **Court:** Indiana Court of Appeals
- **Decided:** February 19, 1990
- **Citations:** 550 N.E.2d 324; 1990 Ind. App. LEXIS 157; 1990 WL 15636
- **Precedential status:** Published
- **Opinion:** Concurrence by Baker
- **Judges:** Ratliff, Robertson, Baker
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713216

## Opinion text

BAKER, Judge,
concurring.
While I concur in the result reached by the majority, I do not believe that all of paragraphs 25 through 81 of Looney's affidavit would be admissible, either for the purposes of considering the summary judgment motion or subsequently at trial. As noted by the majority, an expert may form an opinion based upon hearsay. However, the expert's opinion may not relate to matters on which he has not been qualified as an expert. Paragraphs 25, 28, and 31 are inadmissible because each state a conclusion about Johnson's state of mind. Although a lay opinion may generally be offered concerning another's sanity, Guardianship of Carrico v. Bennett (1974), 162 Ind.App. 330, 331 , 319 N.E.2d 625, 627 , the same must be based upon personal knowledge when contained in an affidavit used for summary judgment purposes. French v. Hickman Moving & Storage (1980), Ind.App., 400 N.E.2d 1384, 1387 . Looney did not observe Johnson and therefore, had no personal knowledge of Johnson's sanity.
Ind. Trial Rule 56(E) requires that any affidavit in support of or in opposition to a motion for summary judgment must be based upon personal knowledge and "show affirmatively that the affiant is competent to testify about the matters stated therein."" There is nothing in the affidavit to show that Looney has the qualifications to testify as an expert witness on the mental state of another person. However, I share the majority's opinion that Looney's expertise and his assertions in paragraph 26, 27, and 30 preclude Rubin's requested summary judgment, and I also would affirm the trial court's denial of the same.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713216. Public record. Not legal advice.