The Court granted review in three cases at its September 3 conference.




Fergen v. Sestero
Court of Appeals Opinion
In this med mal case, the treating physician testified that he considered two different diagnoses before incorrectly diagnosing his patient as having a benign cyst. The patient had a malignant tumor and developed terminal cancer. Based on the testimony of the treating physician and his expert witness, the trial court gave an “exercise of judgment” instruction based on WPI 105.08, and the jury rendered a defense verdict. On appeal, the Court of Appeals rejected the plaintiff’s argument that the instruction was unsupported by substantial evidence and, based on stare decisis, declined to address whether the instruction should be limited or abandoned. 1. Whether substantial evidence warranted the issuance an “exercise of judgment” instruction.

2. Whether an “exercise of judgment” instruction should be limited to specific circumstances or abandoned altogether.

State v. Johnson
Court of Appeals Opinion
Johnson received a life sentence as a persistent offender following his conviction of three counts of second degree assault and was sentenced to a lesser concurrent term following a conviction for unlawful imprisonment. On appeal, Johnson argued (1) that his trial counsel was ineffective for failing to predict the impact of two pending cases on the definitional instruction of recklessness and (2) that the information for the unlawful imprisonment charge was deficient. The Court of Appeals rejected the ineffective assistance claim but vacated the unlawful imprisonment conviction. 1. Whether defense counsel’s performance is objectively unreasonable for failing to predict the effect of pending appeals on a pattern instruction.

2. Whether the definition of “restrain” is an essential element of the crime of unlawful imprisonment and therefore must be included in a charging document.

BAC Homes Loans Servicing, LP v. Fulbright
Court of Appeals Opinion
Petition for Review
Answer to Petition for Review
Amicus Memorandum
Answer to Amicus Memorandum
Fulbright bought a condo in a judicial foreclosure sale after the previous owner, who financed her purchase with a Bank of American loan, defaulted on HOA dues. Bank of America was not named in the foreclosure proceeding and subsequently sought to redeem its interest. The trial court held Bank of America was not an authorized redemptioner and the Court of Appeals, relying on Summerhill Village Homeowners Association v. Roughley, affirmed. The legislature subsequently amended the Redemption Act (SB 5541) in response to Summerhill 1. Whether, in light of intervening legislation, the Court of Appeals erred in holding that Bank of America was not an authorized redemptioner under the Redemption Act.

2. Whether, under the Condominium Act, a deed of trust recorded subsequent to a condominium declaration is subsequent to redemption.

3. Whether SB 5541 applies retroactively to authorize redemption of a foreclosed property by a junior lienholder when the sheriff’s deed or title has not issued.