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Throgmartin v. Stober

Court of Appeals of Indiana

March 3, 2014

SUZANNE THROGMARTIN, Appellant-Plaintiff,
v.
WILSON S. STOBER and CHRISTOPHER E. CLARK, Appellees-Defendants

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable James B. Osborn, Judge. Cause No. 49D14-1110-CT-38813.

ATTORNEY FOR APPELLANT: CHRISTOPHER L. LAUX, Notre Dame, Indiana.

ATTORNEY FOR APPELLEES: MICHAEL E. BROWN, JAMES R. COHEE, Kightlinger & Gray, LLP, Indianapolis, Indiana.

FRIEDLANDER, Judge. BAILEY, J., and MATHIAS, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge.

Suzanne Throgmartin (Suzanne) appeals from the trial court's order granting Wilson S. Stober and Christopher E. Clark's motion for summary judgment and the trial court's denial of her motion to correct error pertaining to the summary judgment entered, contending that the trial court erroneously granted summary judgment in favor of Stober and Clark on her claim of legal malpractice against them.

We reverse and remand.

Suzanne retained Stober and Clark to represent her in litigation against her ex-husband, Don Throgmartin (Don), Don's brother, Gerald Throgmartin (Gerald), and other defendants. Suzanne alleged in her legal malpractice action against Stober and Clark that on July 15, 2010, during a mediation session regarding Suzanne's claim against Jan Helbert, who was one of the defendants, Stober and Clark pressured Suzanne into settling her claims against Gerald, and that settling with Gerald was against her wishes. When Suzanne ultimately refused to sign the settlement agreements, Stober and Clark withdrew from their representation of Suzanne.

Also on July 15, 2010, Suzanne suffered a nervous breakdown, and since that time has been disoriented, confused, and has suffered from memory lapses. On December 15, 2010, Suzanne executed a general durable power of attorney, with the help of new counsel, Christopher L. Laux (Laux), naming her friend, Ronald Canacci (Canacci), as her attorney in fact. The general durable power of attorney stated that Canacci had the power to institute legal proceedings on Suzanne's behalf. Canacci was also granted the power to acquire, lease, and sell Suzanne's property, as well as conduct banking, invest, obtain insurance, and file taxes, among other things.

In the meanwhile, Suzanne began residing with the Canaccis. On March 10, 2011, Canacci and his wife filed a petition for the appointment of a temporary guardian over Suzanne, and instituted guardianship proceedings in Marshall Circuit Court. In their petition, the Canaccis stated that Suzanne was an incapacitated person, and that a guardian was needed to " take immediate steps to conserve [Suzanne's] assets and potential assets." Appellant's Appendix at 40. The Canaccis also claimed in their petition that " an emergency exists" urging the immediate appointment of a guardian, citing Suzanne's " inability to assist in conducting her pending legal matters, even with representation." Id. at 41. In particular, the Canaccis asked the trial court to grant them the ability as temporary guardians to " have the legal authority to fully assist [Suzanne's] attorneys in the various pending litigation, including be [sic] substituted as the legal party for [Suzanne], if necessary and required by the respective courts(s)." Id. at 42. The guardianship court appointed the Canaccis as temporary guardians over Suzanne.

Later, on May 5, 2011, the Canaccis filed a petition requesting to be appointed as Suzanne's permanent guardians. On June 9, 2011, Suzanne's sister, Kathryn Allen (Allen), and Suzanne's daughter, Diane Caudill (Caudill), objected to the Canaccis's petition, arguing that the Canaccis might be more concerned with the potential proceeds from the pending litigation than Suzanne's care. On July 27, 2011, Adult Protective Services (APS), intervened in the guardianship proceedings and sought the appointment of a ...


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