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629 N.E.2d 264

Landau v. Bailey

Indiana Court of Appeals

Decided February 24, 1994

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Indiana Court of Appeals · decided 1994-02-24

Relies on Brockmeyer v. Fort Wayne Public Transportation Corp.

Good law ✅— No negative treatment on recordhow we know

Decided 1994-02-24

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Cited by 14 later decisions — most recently September 2011

14 state decisions

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HOFFMAN, Judge,

¶1concurring in result and dissenting.

¶2I concur in the result as to the reversal of summary judgment inasmuch as Bailey failed to designate evidentiary matter; however, I *268dissent from the finding that Redford’s affidavit was violative of the accountanVclient privilege.

¶3The parties to a summary judgment proceeding must expressly designate to the trial court evidentiary matter which supports their respective positions. Summary judgment is appropriate if the designated eviden-tiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Brockmeyer v. Fort Wayne Public Transp. (1993), Ind.App., 614 N.E.2d 605, 606. The existence of a genuine issue of material fact shall not be ground for reversal of a summary judgment once entered, unless such fact was designated to the trial court and is included in the record.

¶4See id. at 606-607;

¶5Ind. Trial Rule 56(H).

¶6Here, Bailey failed to specifically designate the evidentiary matter supporting his position. This Court may no longer search the record for evidence to support a party’s position. Because Landau did specifically designate the evidentiary matter upon which she based her motion in opposition, I concur in the result as to the determination that summary judgment was inappropriate.

¶7However, I do not agree that the affidavit submitted by Redford was violative of the accountanVclient privilege. In pertinent part, the statute states:

“The information derived from or as the result of such professional services shall be deemed confidential and privileged: Provided, That nothing herein shall be construed as prohibiting a certified public accountant or a public accountant from disclosing any data required to be disclosed by the standards of the profession ... in making disclosure where [the] financial statements, or the professional services of the accountant ... are contested.”

¶8IND.CODE § 25-2-1-23 (1988 Ed.) (amended 1992).

¶9Here, the adequacy of the accounting services are contested. Although the proceeding is against the attorney for legal malpractice, the accounting services are directly implicated as being deficient. The privilege personal to Landau, created by the relationship, was destroyed when Landau placed the substance of the services at issue in the lawsuit.

¶10For the above-stated reasons, I concur in result and dissent.

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