# Cornett v. Johnson > Indiana Court of Appeals · May 22, 1991 · 571 N.E.2d 572 URL: https://www.frixlaw.com/law-library/cases/9722418 ## Case - **Full name:** Eugene P. CORNETT, Appellant/Plaintiff, v. Phillips B. JOHNSON and/or Johnson & Eaton, Attorneys at Law, Appellees/Defendants - **Court:** Indiana Court of Appeals - **Decided:** May 22, 1991 - **Citations:** 571 N.E.2d 572; 1991 Ind. App. LEXIS 798; 1991 WL 85366 - **Precedential status:** Published - **Opinion:** Concurrence by Shields - **Judges:** Barteau, Conover, Shields - **Cited by:** 20 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/9722418 ## How later opinions describe it (automated extraction) - noting. that where a judge testifies in such case, “the judge appears to be throwing the weight of his position and authority behind one of two opposing litigants” ## Opinion text SHIELDS, Presiding Judge, concurring. I agree the trial court erred in granting Phillips B. Johnson's motion for summary judgment in Eugene P. Cornett's cause of action for legal malpractice based upon Johnson's conduct pending the appeal of the judgment in the dissolution action between Cornett and his former wife. I also agree the trial court properly granted Johnson judgment based upon his pre-trial and trial conduct but wish to separately address that issue. As a moving party defendant Johnson had to show the undisputed material facts negated at least one element of Cornett's claim and that he was entitled to judgment as a matter of law or, alternatively, Johnson had to raise an affirmative defense which would bar Cornett's recovery. Ogden Estate v. Decatur County Hospital (1987), Ind.App., 509 N.E.2d 901 ; Creighton v. Caylor-Nickel Hospital, Inc. (1985), Ind. App., 484 N.E.2d 1303 . Johnson chose the former alternative and sought summary judgment on the ground the undisputed material facts negated proximate cause, an essential element in Cornett's legal malpractice claim, and, accordingly, claimed he was entitled to judgment as a matter of law. Johnson bore the burden of showing the lack of an issue of material fact. Until that showing was made, Cornett, the non-moving party, had no burden whatsoever. Only if Johnson made his required showing was Cornett obligated to come forward and show an issue of fact existed concerning proximate cause. Johnson made his required showing. Ind.Trial Rule 56(C) did not require Johnson, as the moving party, to support his motion for summary judgment with affidavits or other similar materials negating proximate cause. The rule specifically speaks in terms of affidavits, if ony. T.R. 56(C). Johnson's only burden was to identify for the trial court those portions of the existing record which demonstrated the absence of a genuine issue of material fact on the issue of proximate cause. Thus, an interrogatory to Cornett, requesting Cor-nett's evidence on the element of proximate cause, could and did establish Cornett did not have any admissible evidence on proximate cause despite the fact the cause had been pending for several years. Johnson's interrogatory and Cornett's answer read: Describe completely and in detail each fact and opinion upon which you rely to support an allegation that the damages you seek were proximately caused by the alleged negligence of Phillips B. Johnson. Because of the negligent acts and unprofessional conduct of Phillips Johnson, Adaline Cornett received approximately $550,000.00 more in property than she was otherwise entitled. Further, because of his failures, including his failure to introduce joint venture agreements and to impress upon the Court the absolute necessity of giving the plaintiff control of the business properties or making a division which would eliminate any action in concert between the parties, the plaintiff suffered damages because of inability to sell property, properly develop *578 property and pay off properties, all in an amount in excess of $5,000,000.00. Record at 217. Cornett's answer to the interrogatory, or more appropriately, his lack of answer, showed Cornett had neither fact nor opinion evidence on the issue of proximate cause. Hence, with that interrogatory and answer Johnson made his required showing. Therefore, the existing record evidences the lack of a genuine issue of material fact on the issue of proximate cause. Hence, the burden of producing material to evidence a conflict shifted to Cornett. Cornett attempted to meet his burden of showing a conflict existed with reference to a material fact relevant to the issue of proximate cause by offering the affidavit and testimony of Judge Pictor. However, I fully agree the trial court could not consider that proffered evidence for the reason stated in the majority opinion. Therefore, Cornett did not meet his burden; hence, the trial court properly granted Johnson's motion for summary judgment on Johnson's pre-appeal conduct. My concern about the majority opinion is that it is totally silent as to the means and manner by which Johnson met his initial burden. Instead, the opinion appears to erroneously impose the initial burden upon Cornett rather than Johnson when it writes, "Cornett must show that the distribution of the marital property would have been more favorable to him, and specifically that he would have been given control of the joint venture property, if Johnson had presented the omitted evidence." At 575. At trial, Cornett's burden is to prove his claim by a preponderance of the evidence; however, that is his trial burden, not his burden at the summary judgment stage. To repeat, Cornett had no burden whatsoever at the summary judgment stage until and unless Johnson, who had the initial burden, fulfilled that burden. Finally, I agree with Judge Conover's statement in his Opinion Concurring in Result that the reference in the majority opinion to the Code of Judicial Conduct is neither called for nor appropriate and should be stricken. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9722418. Public record. Not legal advice.