Whitney A. Gates, Jonathan W. Gates, and Jacob A. Gates, Appellants-Plaintiffs,
Joseph D. O'Connor and Bunger & Robertson, LLP, Appellees-Defendants.
from the Monroe Circuit Court The Honorable Heather A. Welch,
Special Judge Trial Court Cause No. 53C01-1405-CT-877
ATTORNEYS FOR APPELLANTS Kevin W. Betz Sandra L. Blevins Betz
Blevins Indianapolis, Indiana
ATTORNEYS FOR APPELLEES Michael E. O'Neill Marian C.
Drenth O'Neill McFadden & Willett, LLP Schererville,
Whitney A. Gates, Jonathan W. Gates, and Jacob A. Gates
(hereinafter "Whitney") appeal the trial court's
entry of summary judgment in favor of attorney Joseph D.
O'Connor and Bunger & Robertson, LLP ("the law
firm")on Whitney's claim for legal
malpractice. Whitney's complaint against O'Connor
alleged that O'Connor negligently failed to pursue and
obtain a dissolution of marriage between his father, Jerry
Gates, and Jerry's wife, Susan, prior to Jerry's
death, which allegedly resulted in a substantial loss of
inheritance to Whitney. We note that while this case is
nominally about lawyer malpractice, namely, whether
O'Connor's purported breach of his duty of care
proximately caused Whitney's loss of inheritance, it is
really about the "trial within a trial," that is,
the law that applied to the underlying dissolution of
marriage proceedings. After a thorough review of such law as
well as the designated evidence, we conclude that, as counsel
for Jerry while Whitney was acting as Jerry's guardian,
there was nothing O'Connor could have done to compel a
dissolution of Jerry's marriage. Thus, as did the trial
court, we conclude that O'Connor has negated the element
of proximate cause in the legal malpractice action and is
entitled to summary judgment. Accordingly, we
and Procedural History
Jerry was a successful Bloomington real estate developer and
businessman with an interest in various closely held
corporations and limited liability companies. Most of his
assets were acquired after he married Susan in March 1986.
Before the marriage, Jerry and Susan executed a prenuptial
agreement. Among other things, the agreement provided that,
in the event of a dissolution of the marriage, Susan would
receive her separate property, one-half of all jointly held
property, and a cash payment based upon the duration of the
marriage prior to the commencement of a dissolution. The
agreement also contained provisions limiting Susan's
inheritance from Jerry's estate based on the duration of
the marriage provided that they were married at the time of
his death. Jerry executed a will with corresponding
In March 2007 Jerry suffered an ischemic stroke, which
deprived his brain of an adequate blood supply. This was the
first of three strokes that eventually led to Jerry's
death six years later in March 2013. Jerry had a good
physical recovery from his first stroke, but the stroke
resulted in cognitive and personality changes and negatively
affected his attitude, demeanor, short-term memory, and
Notwithstanding the first stroke, Jerry remained competent
and retained his testamentary capacity, and, in October 2007,
he executed another will and established a revocable trust.
This second will and the trust provided Susan with a larger
inheritance than under Jerry's 1986 will and the
prenuptial agreement as long as Jerry and Susan were still
married at the time of Jerry's death. Jerry also named
Susan as his attorney-in-fact under a general durable power
of attorney over all his personal, intangible, and real
property. The power of attorney was a stand-by instrument; it
would take effect only if Jerry were declared incapacitated
by two licensed physicians unrelated to Jerry or his family.
The instrument named Jerry's son, Whitney, and others as
successor attorneys-in-fact in the event Susan was unable or
unwilling to serve.
In August 2008, after Jerry was diagnosed with hypomania, one
of his physicians signed an affidavit stating that Jerry was
incapacitated and unable to effectively manage his property
or financial affairs. On August 15, 2008, Whitney filed his
petition for the appointment of a guardian over Jerry's
person and estate under cause number 53C07-0808-GU-98 (the
"guardianship"). On that same date, Susan filed a
verified petition for dissolution of marriage under cause
number 53C07-0808-DR-491 (the "dissolution") after
more than twenty-two years of marriage.
Jerry resisted the appointment of a guardian, and in January
2009 the parties entered into a private settlement agreement,
which was approved by the guardianship court. The
guardianship was then dismissed without prejudice. However,
six months later, in June 2009, Whitney filed a motion to set
aside the dismissal and to reinstate the cause of action, to
which Jerry objected. In July 2009, the guardianship court
set aside its prior dismissal and reinstated Whitney's
Also in June 2009, Jerry's then-attorney Andrew Z.
Soshnick informed Whitney that Jerry was revoking
Whitney's authority as a successor attorney-in-fact under
the "alleged General Durable Power of Attorney,"
Appellees' App. Vol. 4 at 92, and, two days later,
pursuant to Indiana Code Section 30-5-3-5,  Whitney filed an
action entitled "Verified Petition for Judicial
Interpretation of a Power of Attorney Document and for
Instructions to Attorney-in-Fact" under cause number
53C07-0906-MI-1464. Among other things, Whitney requested
that the court find that Jerry lacked capacity to control or
revoke the power of attorney, find that Whitney is a
successor attorney-in-fact, and instruct Whitney as to the
powers he may exercise under the power of
attorney. All three actions-the guardianship, the
dissolution, and the petition for judicial interpretation of
the power of attorney-were then pending simultaneously before
Special Judge Nardi in the Monroe Circuit Court.
After multiple and lengthy guardianship hearings, almost
three years after Whitney had first filed his petition for
appointment of guardian, in June 2011 the guardianship court
entered its twenty-seven-page order with detailed findings of
facts, conclusions, and judgment, which adjudicated Jerry to
be incapacitated and determined that a guardian for his
person and estate should be appointed. The court concluded
that Whitney was a "good candidate" to be appointed
guardian of Jerry's person and estate, recognized that in
his power of attorney Jerry had requested that Whitney be
appointed as his guardian, and stated that "the Court is
obligated to honor that request if at all possible."
Appellants' App. Vol. 3 at 84.
At the same time, the court appointed attorney Robert Ralston
to serve as co- guardian with Whitney over Jerry's estate
"until the dissolution matter is completed."
Id. The court had previously appointed Ralston as
receiver of Jerry's personal financial affairs. Finding
that Whitney "obviously has a close relationship with
his stepmother," Susan, the order further provided that
"Attorney Ralston … shall have the discretion to
make all decisions regarding the dissolution matter and shall
act in [Jerry's] best fiduciary interest."
Id. at 85.
Some ten months later, in March 2012, the co-guardians filed
their "Petition to Retain Legal Counsel for Pending
Dissolution Matter," and the guardianship court issued
its order authorizing the co-guardians to retain O'Connor
to represent Jerry in the dissolution of marriage
proceeding. The order further stated that
"[c]o-guardian Robert Ralston shall have the authority
to give direction to attorney Joseph O'Connor and to make
decisions concerning the dissolution matter, including
strategies for resolution or trial." Id. at
On March 29, 2012, Whitney and Ralston retained O'Connor
to represent Jerry in the dissolution. Shortly thereafter, on
May 7, one of O'Connor's associates at the law firm
prepared a memorandum for him that evaluated "the
division of Jerry Gates' estate in the event he died
before or after a [dissolution] could be
finalized. The [m]emorandum concluded that Susan Gates would
likely receive a larger inheritance as Jerry's spouse
than she would receive as his former spouse."
Id. at 169. O'Connor forwarded the memorandum to
Thereafter, O'Connor met with Whitney and Ralston
"to discuss the [dissolution] and potential property
settlement." Id. at 168. Pursuant to those
meetings, O'Connor conveyed a proposed settlement to
Susan's counsel, Ryan Cassman, on May 29. That proposed
settlement offer was "limited by the 1986 Prenuptial
Agreement," in accordance with "the Guardians'
requests." Id. at 170. O'Connor followed up
with Cassman on June 20 and requested a response.
O'Connor further requested that the two sides schedule
O'Connor and Cassman spoke by phone in early July.
Cassman informed O'Connor that Susan "was desirous
of completing the dissolution process" and agreed
"to proceed with mediation." Id. at
168. O'Connor and Cassman continued to be in
contact throughout July. On August 15, O'Connor asked
Cassman for a response to the proposed settlement offer and
to proposed mediation details, among other things. Susan did
not respond to the proposals.
Instead, on September 20, 2012, Susan moved to dismiss her
petition for dissolution of marriage after it had been
pending for more than four years. On September 24, the
dissolution court issued its order dismissing Susan's
petition for dissolution. On that same date, at Whitney's
direction, O'Connor filed a counter petition for
dissolution of marriage for Whitney, as Jerry's guardian.
Cassman immediately emailed O'Connor stating that he did
not believe that Whitney had authority to seek a dissolution
on Jerry's behalf, that Susan wished to remain married to
Jerry, and that Susan believed Whitney was using his position
as guardian to push to dissolve the marriage in order to
increase his own inheritance. Two days later, O'Connor
advised Whitney that there was no specific legal authority
allowing a guardian to pursue dissolution of marriage on
behalf of his ward. Nonetheless, Whitney desired to proceed.
Accordingly, on October 1, O'Connor filed a motion to set
aside the court's order granting Susan's motion to
dismiss on the grounds that the dissolution statute provided
a five-day grace period for the opposing party, in this case,
Jerry, by his duly appointed guardian Whitney, to file a
counter petition for dissolution before an action could be
dismissed. See Ind. Code § 31-15-2-12. Susan
responded with an Indiana Trial Rule 12(B)(6) motion to
dismiss Whitney's counter petition. However, the trial
court granted Whitney's motion to set aside and issued an
order setting aside its prior order granting Susan's
motion to dismiss her petition. Then, after a hearing on
November 28, the court issued its order denying Susan's
motion to dismiss Whitney's counter petition.
Susan did not seek an interlocutory appeal of the dissolution
court's orders at this point. O'Connor and Cassman
re-engaged in settlement discussions, and, in January 2013,
the parties agreed to attend mediation in April. Although the
parties had agreed to mediation, Cassman made clear to
O'Connor "his intention to file a summary judgment
motion and/or appeal if necessary" on the trial
court's rulings and the legitimacy of Whitney's
counter petition for dissolution of marriage. Appellants'
App. Vol. 2 at 189, 233-34. The parties then designated a
mediator and scheduled mediation for April 12.
On March 12, one month before the scheduled mediation, Jerry
suffered his second stroke. The next day, O'Connor moved
for an emergency bifurcation of the dissolution proceedings
requesting the court to immediately issue a decree of
dissolution with distribution of the marital estate to occur
on a later date. The dissolution court held an emergency
hearing on the motion the following day, at which Cassman
objected to O'Connor's bifurcation proposal. Rather
than rule on the emergency petition, the trial court set
another hearing on the request to bifurcate for April 9.
However, on March 18, 2013, Jerry died at age seventy-eight.
Consequently, O'Connor moved to dismiss the dissolution
as moot, which the court granted.
On May 3, 2014, Whitney filed his complaint for damages
against O'Connor and the law firm, asserting claims of
legal malpractice, gross negligence, breach of contract, and
breach of fiduciary duty. In particular, Whitney alleged that
O'Connor had committed legal malpractice when
O'Connor did not secure a decree of marriage dissolution
prior to Jerry's death, which resulted in Whitney and his
heirs receiving a lesser share of Jerry's estate than
they would have received had the marriage been dissolved.
O'Connor moved for summary judgment and designated the
affidavit of Evansville family law attorney Kelly Lonnberg,
who stated that "O'Connor … diligently
pursued a resolution and final divorce settlement" of
the marital estate, which involved "the division of
multiple complex assets, including properties"; that
"O'Connor … complied with the standard of
care applicable to attorneys engaged in the practice of
Family Law during [his] representation of Jerry Gates at all
times"; and that nothing that O'Connor "did or
allegedly failed to do in the course of [his] representation
of Jerry Gates, through the Guardianship, caused monetary
damage to [Whitney], or caused [Whitney's] inheritance in
Jerry Gates' estate to be drastically reduced as claimed
…." Appellants' App. Vol. 3 at 20-21.
Lonnberg further stated that, "[h]ad [Cassman] filed a
motion for summary judgment on the [validity of the] counter
petition for dissolution filed by Whitney Gates, as Guardian
of Jerry Gates, . . . Susan Gates would have succeeded"
because "[i]n 2012 and 2013, Indiana law did not provide
a Guardian legal authority to file a dissolution action on
behalf of [his] Ward." Id. at 23. In light of
that assessment, Lonnberg stated that "[t]he dissolution
… could not have been finalized after Susan Gates
dismissed her claim for dissolution due to the Guardianship
that had already been established before [O'Connor's]
involvement as counsel." Id. at 24.
In response to O'Connor's motion for summary
judgment, Whitney designated the deposition and supplemental
affidavit of Indianapolis family law attorney M. Kent Newton.
In his deposition, Newton testified that, in 2012 and 2013,
there was "ambiguity" in Indiana's case law on
the authority, or lack thereof, of a guardian to file a
counter petition for dissolution on behalf of his ward.
Appellants' App. Vol. 7 at 9. He further testified that
he was "unaware of any prohibition" against such a
filing under Indiana's guardianship statutes in effect at
the time of O'Connor's representation. Id.
at 10. And he stated that "family law
practitioners" had a "mixed" assessment of the
law such that it was an "open question" among them
whether such a procedure might be valid. Id. at 16.
However, when pressed to identify or produce case law
authority in support of his position, Newton was unable to do
In any event, Newton further averred that a reasonably
competent family law attorney in Indiana in a dissolution
action that involved such a large estate and a guardianship
over the attorney's client would have acted
"expeditiously" upon retention to put
"motivation … [on the] opposing party to come to
settlement either through mediation or negotiations
…." Id. at 35. In this respect, Newton
identified a number of procedures-any one of which might or
might not have ultimately been successful-that he thought
O'Connor should have immediately implemented, which
included filing a counter petition for dissolution, filing an
emergency motion to bifurcate the proceedings, filing an
emergency motion to be excused from the local mediation
requirement, and immediately requesting that a trial date be
As Newton explained:
In a family law matter an element and a major element in many
cases is motivating the other side to take action that should
be taken expeditiously, i.e. get ready for trial or settle
…. [O'Connor] failed to go along two tracks of
preparing for litigation … [and] at the same time