P. Kevin Barkal, M.D. and Pemcor, Inc., Appellants-Plaintiffs,
Gouveia & Associates, Appellee-Plaintiff.
from the Lake Circuit Court The Honorable Robert G. Vann,
Special Judge The Honorable Alice A. Kuzemka, Magistrate
Trial Court Cause No. 45C01-1302-CT-29
ATTORNEYS FOR APPELLANTS Daniel H. Pfeifer Jerome W. McKeever
Pfeifer Morgan & Stesiak South Bend, Indiana
ATTORNEYS FOR APPELLEE Michael E. O'Neill Daniel W.
Glavin Nathan D. Hansen O'Neill McFadden & Willett,
LLP Schererville, Indiana
OF THE CASE
Appellants-Plaintiffs, P. Kevin Barkal, M.D. (Dr. Barkal) and
PEMCOR, Inc. (Pemcor) (collectively, Appellants), appeal the
trial court's grant of summary judgment to
Appellee-Defendant, Gouveia & Associates (Attorney
Gouveia), concluding that Appellants failed to designate
expert testimony establishing that Attorney Gouveia breached
the standard of care in his legal representation of Pemcor in
the underlying bankruptcy case.
Appellants raise three issues on appeal, one of which we find
dispositive and which we restate as: Whether the trial court
properly concluded that Appellants failed to designate expert
testimony to establish a breach of the appropriate standard
AND PROCEDURAL HISTORY
In this seemingly never-ending bankruptcy saga of several
medical offices located in California, we are now presented
with the alleged legal malpractice component. These
sixteen-year-old proceedings arose out of a simple slip and
fall personal injury claim which occurred at one of Dr.
Barkal's offices in San Diego, California.
On December 1, 2000, Anna May Webb (Webb) filed a personal
injury claim premised on a slip and fall in the San Diego
County Superior Court in California (California trial court)
against Dr. Barkal and the San Diego Pain Management
Consultants (SDPMC), in which Dr. Barkal "ha[d] an
interest." (Appellants' App. Vol. 3, p. 197). On
January 7, 2002, the parties entered into a settlement
agreement in the amount of $138, 000 to be paid by SDPMC. The
agreement provided for the payment of $42, 000 up front by
SDPMC's insurance carrier, with the remaining balance to
be paid in 48 installments of $2, 000, and with Dr. Barkal
personally guaranteeing payment. Because SDPMC and Dr. Barkal
stopped making payments, Webb filed a motion to enforce the
settlement on October 15, 2002, which was granted by the
California trial court and judgment was entered against Dr.
Barkal and SDPMC for $151, 971.21. On December 21, 2005,
after having difficulty collecting the judgment, the
California trial court appointed Martin Goldberg as post
judgment limited receiver (Receiver), and ordered Dr. Barkal
to turn over all keys, leases, books, records, ledgers, and
all other business records relating to twelve entities,
including Pemcor (collectively, Barkal Entities), owned by
Dr. Barkal, as well as prohibited Dr. Barkal from using any
income generated by these Barkal Entities. On May 5, 2006,
Webb filed a motion to amend the original judgment to include
Dr. Barkal's aliases and nine of Dr. Barkal's alter
ego entities, which was granted on June 26, 2006. On January
4, 2008, the California trial court entered an order of
contempt against Dr. Barkal, finding him guilty of contempt
of court for "knowingly and willfully" violating
the court's orders by attempting to collect accounts of
the Barkal Entities and interfering with the duties of the
Receiver. (Appellants' App. Vol 2, pp. 179-181).
In January of 2008, Dr. Barkal, who by now had moved to
Munster, Indiana, retained the Indiana law firm of Daniel L.
Freeland & Associates, P.C. (Attorney Freeland) to file
bankruptcy in Indiana. Attorney Freeland agreed to represent
Dr. Barkal individually, with the caveat that Attorney
Gouveia be hired to separately represent the Barkal Entities
to prevent any conflict of interest. After a meeting,
Attorney Gouveia accepted representation of the Barkal
Entities in Chapter 13 bankruptcy proceedings.
On March 10, 2008, Attorney Freeland filed a voluntary
petition for Chapter 13 bankruptcy in the United States
Bankruptcy Court for the Northern District of Indiana
(Bankruptcy Court) on behalf of Dr. Barkal. Eight days later,
on March 18, 2008, Attorney Freeland filed a motion for
turnover against the Receiver on
behalf of Dr. Barkal and the appointed trustee. In this
motion, Dr. Barkal and the trustee requested that the
Receiver deliver all items from the collection against Dr.
Barkal and the Barkal Entities to the Trustee. On March 28,
2008, by a separate motion, Attorney Gouveia intervened in
the proceedings on behalf of the Barkal Entities, claiming
that the Entities had an interest in the accounts receivables
the Receiver was seeking to collect. On April 18, 2008, the
Bankruptcy Court conducted a hearing on the motion for
turnover filed by Dr. Barkal and joined by the Barkal
Entities. At the hearing, the parties agreed that the
"core issue" should be characterized as:
The extent to which proceeds of accounts receivable of the
Barkal Entities or of [Dr. Barkal], or corporate governance
powers in relation to the Barkal Entities - now or in the
future subject to the possession or control of [the Receiver]
appointed with respect to Case No. GIC757374 in [the
California trial court] - constitute property of the Chapter
13 bankruptcy estate of [Dr. Barkal] in case number 08-20663.
(Appellants' App. Vol. 3, pp. 16-17). After ordering the
Receiver to turn over $9, 494.00 to the trustee from an
account designated under Dr. Barkal's name, the
Bankruptcy Court set an evidentiary hearing for May 16, 2008,
or in the alternative for both parties to agree to a
statement of designated record approved by all the attorneys.
The parties subsequently agreed to a joint index of exhibits
regarding appointment of Receiver and judgment - debtor alter
egos, which was filed with the Bankruptcy Court on the
evidentiary hearing date. On July 15, 2008, the Bankruptcy
Court "determined that the accounts receivable of the
Barkal Entities are not property of the Chapter 13 bankruptcy
estate" filed by Dr. Barkal, and therefore, denied the
motion for turnover of the Barkal Entities. (Appellants'
App. Vol. 3, p. 42).
On July 21, 2008, a joint conference call was conducted
between, among others, Dr. Barkal, Attorney Freeland, and
Attorney Gouveia, represented by his associate attorney,
Shawn Cox (Attorney Cox). During the meeting, Dr. Barkal was
advised that the Barkal Entities could not be in a Chapter 13
bankruptcy, because "a 13 is not even structured to
address companies." (Appellants' App. Vol. 4, p.
205). Attorney Freeland recommended withdrawing the Chapter
13 bankruptcy, with which Dr. Barkal agreed, and to re-file
the bankruptcy petition as a Chapter 11 in an attempt to save
Dr. Barkal's property in California from foreclosure. Dr.
Barkal noted that they would "immediately proceed to
seek counsel for the filing of bankruptcy by one or more of
the 9 companies, so that the liquidation of those
companies' assets will provide additional income to the
re-filed Barkal bankruptcy." (Appellants' App. Vol.
3, p. 195). That same day, Attorney Freeland, on behalf of
Dr. Barkal, moved to dismiss the Chapter 13 bankruptcy case.
On August 11, 2008, Dr. Barkal wrote to Attorney Cox
requesting that Attorney Gouveia "immediately file the
necessary corporate bankruptcies to accomplish the short-term
goal of staying the foreclosure sale of the house on August
18, and buying us additional time to allow the Appellate
Court in California to issue a ruling which may drastically
alter the draconian orders under which I have been trying to
survive." (Appellants' App. Vol. 3, p. 4). Two days
later, Attorney Cox responded:
As I relayed to you on Monday, and I reiterated to your
California counsel yesterday, I am not in a position to
undertake the representation of one or more of the
"Barkal Entities" to file Chapter 7 bankruptcies.
As we discussed Monday, our engagement was limited to
addressing certain issues in your Chapter 13 [b]ankruptcy,
and we did not ever agree to file bankruptcies on behalf of
the entities. At no time did we agree to file bankruptcies on
behalf of these ...