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Mundia v. Drendall Law Office, P.C.

Court of Appeals of Indiana

May 31, 2017

Lucy Mundia, Appellant-Plaintiff,
v.
Drendall Law Office, P.C., Appellee-Defendant.

         Appeal from the St. Joseph Circuit Court The Honorable David T. Ready, Judge Pro Tempore Trial Court Cause No. 71C01-1411-PL-319

          ATTORNEY FOR APPELLANT Benjamin M. Blatt South Bend, Indiana

          ATTORNEYS FOR APPELLEE Mark D. Gerth Michael E. Brown Sarah A. Hurdle Kightlinger & Gray, LLP Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] Our Indiana Supreme Court has explained that "Indiana's distinctive summary judgment standard imposes a heavy factual burden on the movant to demonstrate the absence of any genuine issue of material fact on at least one element of the [non-movant's] claim." Siner v. Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1187 (Ind. 2016) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)).

         [¶2] This case is an example of the importance of a summary judgment movant meeting its initial burden when filing a summary judgment motion, the importance of designating evidence that will assist it in negating an element of the non-movant's claim, and demonstrating the absence of any genuine issue of material fact.

         [¶3] Lucy Mundia ("Mundia") appeals the trial court's order granting summary judgment to Drendall Law Office ("Drendall") on Mundia's legal malpractice claim. Mundia had hired Drendall to represent her in her negligence and wrongful death claims against St. Joseph County ("the County") and the City of South Bend ("the City"), which were based on acts and omissions of the South Bend Prosecutor's Office ("the Prosecutor's Office") and the South Bend Police Department ("the Police Department"). Mundia's malpractice claim stems from Drendall's failure to file a Tort Claim Notice with the County and the City within the 180-day statutory period set forth in the Indiana Tort Claims Act ("ITCA"), Indiana Code § 34-13-3-8. Drendall's failure to file the required notice barred Mundia's claims against these governmental entities.

         [¶4] Drendall filed a motion for summary judgment on Mundia's legal malpractice claim. In its motion, it conceded that it had a duty to her as a client and had breached that duty by failing to file the required notice, but it argued that the failure to file the tort claim notice was not the proximate cause of her damages for a legal malpractice claim. Specifically, Drendall argued that it did not proximately cause Mundia's damages because she would not have been able to recover at trial on her underlying negligence and wrongful death claims because the Prosecutor and the Police Department would have had immunity under the ITCA. The trial court granted summary judgment to Drendall.

         [¶5] Mundia argues that the trial court erred by granting summary judgment to

         Drendall on her legal malpractice claim because there is an issue of fact regarding proximate cause and damages. Because we agree and conclude that Drendall did not meet its initial burden of negating the elements of proximate cause and damages of Mundia's legal malpractice claim, we reverse the trial court's grant of summary judgment and remand for further proceedings.

         [¶6] We reverse and remand.[1]

         Issue

         Whether the trial court erred by granting Drendall's motion for summary judgment.

         Facts[2]

         [¶7] The facts most favorable to Mundia, the non-moving party in this summary judgment, are set forth herein.

         [¶8] According to Mundia's complaint against Drendall, on May 28, 2013, the Police Department arrested Mundia's husband, Edward Mwuara ("Mwuara"), for invasion of privacy for violating a protective order. In its report, the Police Department noted that there was a protective order for Mundia's six-year-old daughter, Shirley Mundia ("Shirley"), but failed to note that there was a protective order for Mundia. The Prosecutor's Office searched for a protective order in Mwuara's name but not in the name of Shirley or Mundia, the protected individuals.[3] Upon seeing no active protective order under Mwuara's name, the Prosecutor's Office released him 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.

         [¶9] On October 14, 2013, Mundia and Stephen Drendall ("Attorney Drendall") entered into a contract to have Drendall represent Mundia in her negligence and wrongful death claims against the County and the City. The contract specified that the date of the incident was June 2, 2013. Pursuant to the ITCA, Mundia was required to file her Tort Claim Notice within 180 days of the date of her loss.[4] Drendall, however, did not file the required Tort Claim Notice by the required date. In fact, Drendall did not file a Tort Claim Notice at all. Thus, pursuant to Indiana Code § 34-13-3-8, Mundia's claims against the City and the County were "barred."

         [¶10] Almost one year later, in September 2014, Mundia discovered that Drendall had not filed the 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 Tort Claim Notice was a breach of Drendall's duty to represent her. Mundia also alleged that Drendall's breach caused her damages because she had lost the ability to bring her negligence and wrongful death claims, which she alleged would have been in excess of one million dollars. In her complaint, 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. Mundia argued that, given the County's public admission of fault, the County would have been likely to settle her claims. Mundia attached to her complaint a copy of the following documents: (1) the contract or "Contingent Fee Agreement" between Mundia and Drendall; (2) an August 25, 2013 letter from Attorney Drendall to Mundia in which Attorney Drendall offered to represent Mundia in her claims against the City and the County and informed Mundia that were "strict time limits to bring such claims";[5] (3) an October 22, 2013 letter from Attorney Drendall to Mundia's original attorney, Elton Johnson ("Attorney Johnson"), informing Attorney Johnson that Drendall was now representing Mundia and seeking Attorney Johnson's case file; and (4) an October 31, 2013 letter from Attorney Drendall to the Prosecutor's Office, following up on Attorney Johnson's two prior records requests and seeking to obtain the records. (Drendall's App. Vol. 2 at 10, 15).

         [¶11] Thereafter, 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. As a defense, Drendall alleged, in part, that Mundia's "damages [we]re caused in whole or in part" by Attorney Johnson. (Drendall's App. Vol. 2 at 19).

         [¶12] On June 13, 2016, Drendall filed a motion for summary judgment. Drendall did not dispute the duty or breach elements of Mundia's legal malpractice claim. Instead, Drendall sought to negate the elements of proximate cause and damages. Drendall argued that it was not the proximate cause of Mundia's damages because her negligence claims were barred by the ITCA. Specifically, Drendall argued that, even if it would have timely filed the Tort Claim Notice, the Prosecutor's Office and the Police Department were immune under the ITCA. Drendall asserted that the Prosecutor's Office was immune under Indiana Code § 34-13-3-3(7) of the ITCA ("Subsection 7") because it had performed a discretionary function when it decided not to file charges against Mwuara. Drendall also asserted that the Police Department was immune from liability for enforcing or failing to enforce a law pursuant to Indiana Code § 34-13-3-3(8) ("Subsection 8").[6] As to the issues of proximately causing Mundia's damages, Drendall argued that Mundia "was not damaged by Drendall's representation because, even if Drendall had filed the notice of claim within the 180 days, the South Bend Police Department and St. Joseph County Prosecutor's Office would be immune from liability." (Drendall's App. Vol. 2 at 38). Drendall designated as evidence Mundia's complaint with attachments and excerpts from the deposition of Sally Skodinski ("Skodinski"), who was the deputy prosecutor who conducted the search of the protective order database and did not file charges against Mwuara.

         [¶13] In Skodinski's deposition, she testified that her job as a deputy prosecutor included reviewing police reports and deciding whether to charge a person. She also testified that when reviewing a police report that involved the violation of a protective order, she would search "[e]ither parties' names" in Incite, "the statewide system of looking up protective orders[, ]" to "make sure that there actually was a valid" protective order. (Drendall's App. Vol. 2 at 64, 66). Additionally, she testified that there was "no written policy" on how to conduct the protective order search but that her "practice" was to verify that there was a valid protective order before making a "charging decision[.]" (Drendall's App. Vol. 2 at 65). In regard to her search for Mwuara's protective order, Skodinski testified that she searched Mwuara's name and "spelled it according to how it was on the front page of the police report." (Drendall's App. Vol. 2 at 66).[7]When "a protective order came up with his name and the alleged victim's name, and it said, 'Expired. Dismissed.'[, ]" Skodinski decided not to charge Mwuara. (Drendall's App. Vol. 2 at 67). She did not do a separate search under Mundia's or Shirley's names, who were the protected individuals and alleged victims.

         [¶14] In Mundia's summary judgment response, she argued that the Prosecutor's Office would not have been immune under the ITCA because the Prosecutor's Office's decisions not to charge and to release Mwuara were not discretionary decisions but were, instead, based upon the office's failure to search for protective orders based on the protected individuals. Mundia argued that the Prosecutor's Office's investigation, or lack thereof, was not protected by the immunity provision of the ITCA. She also argued that, based on federal law, absolute immunity could not be extended to the Prosecutor's Office's actions and failure to act that were part of an investigatory phase. In support of her argument, she cited to Burns v. Reed, 500 U.S. 478 (1991). Additionally, she argued that there was a genuine issue of material fact regarding whether the acts of the Prosecutor's Office, including the deputy prosecutor's failure to properly search for a restraining order, were solely discretionary, thereby making summary judgment inappropriate on her malpractice claim against Drendall. In her ...


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