Drendall Law Office, P.C. v. Mundia

• Court: Indiana Appellate Court
• Writing for the Court: Robb, Judge.
• Citation: Drendall Law Office, P.C. v. Mundia, 136 N.E.3d 293 (Ind. App. 2019)
• Decision Date: 02 December 2019
• Docket Number: Court of Appeals Case No. 19A-PL-582
• Parties: DRENDALL LAW OFFICE, P.C., Appellant-Defendant, v. Lucy MUNDIA, Appellee-Plaintiff

136 N.E.3d 293

DRENDALL LAW OFFICE, P.C., Appellant-Defendant,

v.Lucy MUNDIA, Appellee-Plaintiff,

Court of Appeals Case No. 19A-PL-582

Court of Appeals of Indiana.

FILED December 2, 2019

Attorneys for Appellant: Crystal G. Rowe, Alyssa C.B. Cochran, Kightlinger & Gray, LLP, New Albany, Indiana, Michael E. Brown, Kightlinger & Gray, LLP, Indianapolis, Indiana

Attorney for Appellee: Benjamin M. Blatt, South Bend, Indiana

Robb, Judge.

Case Summary and Issue

[1] Lucy Mundia sued Drendall Law Office, P.C. ("Drendall") for legal malpractice, alleging Stephen Drendall ("Attorney Drendall"), the attorney she hired to represent her in negligence and wrongful death claims against the City of South Bend ("City") and St. Joseph County ("County"), failed to timely file a tort claims notice resulting in her claims being barred and her chance to pursue a settlement being lost. Summary judgment for Drendall was reversed by this court on appeal, see Mundia v. Drendall Law Office, P.C. , 77 N.E.3d 846 (Ind. Ct. App. 2017), trans. denied (" Mundia I "), and the case proceeded to a jury trial. Drendall moved for judgment on the evidence after Mundia rested her case. The trial court denied the motion, and Drendall rested without presenting evidence. The jury returned a verdict in Mundia's favor in the amount of $312,000.00. Drendall then renewed its motion for judgment on the evidence. Following briefing and a hearing on the issue, the trial court again denied the motion for judgment on the evidence and entered judgment in Mundia's favor.

[2] Drendall appeals the judgment, raising the issue of whether the trial court erred in denying its motions for judgment on the evidence because Mundia's evidence that she lost the opportunity to pursue a settlement was insufficient to support the judgment in her favor. We conclude Mundia's evidence was not sufficient to prove that Drendall's failure to file a tort claim notice caused her to lose the opportunity to settle with the City and/or the County. Therefore, an essential element of her legal malpractice claim was not supported by substantial evidence, and the trial court erred in denying Drendall's motion for judgment on the evidence and instead entering judgment for Mundia on the jury's verdict. We reverse and remand.

Facts and Procedural History

I. Underlying Facts and Pre-Trial Proceedings

[3] On May 28, 2013, the City's Police Department arrested Mundia's husband, Edward Mwuara, for invasion of privacy for violating a protective order. In its report, the Police Department noted that Mundia told the officer that she had a protective order against Mwuara. The officer "checked [his] in car computer and saw there [was] a protective order for [Mundia] against [Mwuara] that [was] active." Exhibits, Volume IV, Plaintiff's Exhibit 11 at 35. The report did not note the protective order number or that there was also a protective order against Mwuara for Mundia's six-year-old daughter, Shirley Mundia.¹ Upon receiving the police report, the County Prosecutor's Office searched for a protective order in Mwuara's name but not in the name of Shirley or Mundia, the protected individuals. The search returned only one protective order and showed it was expired or dismissed. Therefore, the Prosecutor's Office declined to file charges and Mwuara was released from jail. Less than seventy-two hours later, Mwuara returned to Mundia's house and stabbed both Mundia and Shirley, resulting in Shirley's death and severe injuries to Mundia.

[4] On August 25, 2013, Attorney Drendall sent Mundia a letter noting that he met with Mundia's brother in June to discuss possible claims against the City and the County and stating, "You should know there are strict time limits to bring such claims. I hope you have hired another lawyer and are in negotiations already. If not, please take action immediately. We would be happy to assist you in this matter." Appellant's Appendix, Volume 2 at 38. Mundia initially hired Elton Johnson to represent her, but she became unhappy with Johnson's representation and on October 14, 2013, entered into a contract for Drendall to succeed Johnson in representing her in negligence and wrongful death claims against the City and the County. The contract specified that the date of the incident was June 2, 2013. Because Mundia was pursuing claims against governmental entities, the Indiana Tort Claims Act ("ITCA") required a notice of the claim to be filed with those entities within 180 days of the date of her loss. Drendall, despite taking over Mundia's case with approximately forty-five days remaining in that period, did not file the required notice by the required date. In fact, Drendall did not file a tort claim notice at all.² Thus, pursuant to Indiana Code section 34-13-3-8, Mundia's claims against the City and the County were "barred."³

[5] In September 2014, Mundia discovered that Drendall had not filed a tort claim notice. On November 18, 2014, Mundia filed a complaint for legal malpractice against Drendall. In her complaint, she alleged that Drendall's failure to file the required notice was a breach of Drendall's duty to represent her. Mundia also alleged that Drendall's breach proximately caused her damages because she had lost the ability to bring and settle her negligence and wrongful death claims, claims which she valued at over one million dollars.⁴ Mundia asserted that the Prosecutor's Office had issued a press release acknowledging that it had been negligent in performing the protective order search that freed Mwuara from jail, and she argued that, given the County's public admission of fault, it was probable the County "would have settled both claims for a significant portion of their value at trial." Appellant's App., Vol. 2 at 30.⁵

[6] Drendall filed its answer and admitted that Attorney Drendall had entered into a contract with Mundia and that, at the time of entering the contract, the 180-day statutory period had not passed. Drendall then filed a motion for summary judgment, attempting to negate the proximate cause and damages elements of Mundia's legal malpractice claim. The trial court held a summary judgment hearing and entered a general order finding that there were no disputed issues of material fact and granting Drendall's motion for summary judgment.

[7] Mundia appealed the summary judgment decision. We stated the "main point of contention" on appeal as "whether Drendall affirmatively showed that its failure to file the Tort Claim Notice was not the proximate cause of Mundia's damages." Mundia I , 77 N.E.3d at 854-55 (footnote omitted).

Drendall argues Mundia cannot show that the outcome of her underlying litigation would have been more favorable but for Drendall's failure to timely file a Tort Claim Notice. However, as non-movant on summary judgment, that is not her burden. That would be her burden at trial....

Here, Drendall, as summary judgment movant, had the burden to show that it was not the proximate cause of Mundia's damages. Drendall argues that it met its summary judgment burden, contending that Mundia's damages in this malpractice case were the loss of a monetary recovery from a trial on her underlying negligence and wrongful death claims and that application of the immunity provisions of the ITCA would have precluded recovery of such trial damages.

Mundia, however, contends that, even in the face of application of the immunity provisions, her damages included the possibility of settlement outside of trial, especially "given the egregious fact pattern and Drendall's own political connections[.]" In other words, Mundia argues that, even if the immunity provisions applied, the outcome of the underlying litigation would have been more favorable—in that she would have had an opportunity for settlement negotiations—but for Drendall's negligence in failing to file the Tort Claim Notice....

Id. at 855-56 (record citations and footnote omitted). We concluded Drendall had not adequately met its initial burden of proving an absence of any genuine issue of material fact or affirmatively negating at least one element of Mundia's malpractice claim, specifically noting that the August 2013 letter from Drendall to Mundia "shows that settlement could have been a possibility, or at least an option, in Mundia's underlying litigation." Id. at 856.

Our reversal of the trial court's grant of summary judgment should not be construed as an opinion on the merits of Mundia's case or whether she will ultimately be able to show all the elements of her legal malpractice claim. However, because Drendall has failed to prove there are no genuine issues of fact regarding the issues of proximate cause and damages of Mundia's legal malpractice claim, we reverse the trial court's entry of summary judgment and remand for further proceedings.

Id. at 856-57.

II. Jury Trial and Post-Trial Proceedings

[8] A jury trial commenced on November 13, 2018. Mundia called Attorney Drendall in her case-in-chief. Attorney Drendall conceded he had undertaken to represent Mundia before the 180-day statutory notice period had expired and that he did not file a notice of tort claim on her behalf. Therefore, as on summary judgment, Drendall essentially conceded the elements of duty and breach. See Transcript, Volume II at 48-49. He testified that he did not have experience negotiating a case against the City or the County. He had no particular knowledge of whether the City or County would or would not negotiate or settle a case such as this, or whether sympathy was a factor the City or County would take into consideration. But when he took the case in October 2013, he thought negotiation "[m]ight" get something. Id. at 76.

I didn't know all of the facts underlying the incidents that happened.... I didn't know then whether the immunity would cover the act that [Mundia] brought to me.

And I thought that there was some chance that the City might offer something – not the City, but the County might offer some settlement

...