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Indy Auto Man, LLC v. Keown & Kratz, LLC

Court of Appeals of Indiana

November 1, 2018

Indy Auto Man, LLC, Appellant-Plaintiff,
Keown & Kratz, LLC, and Dustin Stohler, Appellees-Defendants

          Appeal from the Hamilton Superior Court The Honorable J. Richard Campbell, Judge Trial Court Cause No. 29D04-1507-PL-5455

          ATTORNEY FOR APPELLANT Christopher P. Jeter Massillamany Jeter & Carson LLP Fishers, Indiana

          ATTORNEYS FOR APPELLEE Crystal G. Rowe Kightlinger & Gray, LLP New Albany, Indiana Michael E. Brown Kightlinger & Gray, LLP Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] Indy Auto Man, LLC (IAM), appeals the trial court's order granting summary judgment in favor of Keown & Kratz, LLC (the Firm), on IAM's legal malpractice complaint. Finding that there are genuine issues of material fact that must be resolved by a factfinder, we reverse and remand for further proceedings.


         [¶2] IAM is a used car dealership that, at the time of the facts giving rise to this appeal, was located in Carmel. Yevgeniy Gorin is one of IAM's two principal members. In August 2013, IAM was the named defendant in two unrelated lawsuits.

         [¶3] Mario Massillamany is Gorin's friend and long-time attorney. Gorin attempted to retain Massillamany (who was then with Barnes & Thornburg) to represent IAM in the two lawsuits, but Massillamany declined. Gorin asked that Massillamany recommend a "good reputable attorney" with "some backing to them" because IAM had made the mistake in the past of retaining "backyard mechanics," or attorneys "that were not associated with anyone," costing it "a lot of money" as a result. Appellant's App. Vol. III p. 30. Massillamany recommended that IAM hire Dustin Stohler, a college friend, whom he knew to be affiliated with the Firm.

         [¶4] The Firm is a fifty-fifty limited liability company owned by William Keown and Donald Kratz. The Firm has no employees or secretarial staff and, while Keown and Kratz split expenses, they maintain separate clients and profits.

         [¶5] In early 2013, the Firm realized that it was having to refer increasing numbers of prospective clients to other attorneys for litigation needs. In April 2013, the Firm and Stohler began discussing the possibility of working together. They reached an understanding but did not memorialize it to writing. Evidently, the parties agreed that Stohler would work on some cases for the Firm but would also maintain his own separate clients. The Firm gave him rent-free office space, Firm business cards and letterhead, and a Firm email address. He was allowed to use the Firm's conference rooms and to have his mail delivered to the Firm's office address. Stohler was permitted to use the Firm's billing assistant for his work on Firm client files. The Firm also added Stohler to its legal malpractice insurance policy and, while the Firm claims that this was only intended to cover cases involving the Firm's clients for whom Stohler did work, there is nothing in writing in the record supporting that claim. In May 2013, an announcement appeared in the Wabash College alumni newsletter indicating that Stohler had "recently joined the Indianapolis law firm Keown and Kratz as a Litigation and Employment Attorney." Id. at 127. The Firm did not place the announcement.

         [¶6] IAM retained Stohler to represent it in the two pending cases. When filing his appearance and answer in both cases, he used Firm letterhead and listed the Firm address and his Firm email address as his contact information.

         [¶7] At some point, the relationship between Stohler and the Firm began to sour. Kratz and Keown found that Stohler was tardy, provided pleadings rife with errors, missed deadlines, failed to return calls to clients, and often failed to apprise anyone of his whereabouts. They found him to be unprofessional and became concerned that he was abusing alcohol. In January 2014, Stohler stopped coming to work at the Firm and did not respond to phone calls or an email from Kratz. The Firm filed a missing person's report and the police found that he was "alive and well." Id. at 61. During Stohler's absence, mail addressed to him at the Firm arrived at the Firm's office and was placed on his desk without being opened. The Firm eventually learned that Stohler had accepted an in-house position at a collections firm.

         [¶8] At some point either during or after Stohler's relationship with the Firm, he failed to respond to discovery within the appropriate timeframe on each of the two IAM cases. In one of those cases, a default judgment and damages award of approximately $60, 000 were entered against IAM. When Gorin received notice of the damages award, he attempted to contact Stohler but was unsuccessful, so he reached out to Massillamany. Massillamany felt responsible for IAM's situation because he had recommended Stohler, so he stepped in as IAM's attorney in both cases. He was able to settle both cases for the aggregate sum of $45, 000.

         [¶9] In July 2015, IAM filed a legal malpractice complaint against Stohler and the Firm. IAM attempted to serve Stohler but was unsuccessful; he has never appeared in this case. On September 12, 2016, the Firm filed a motion for summary judgment, arguing that as a matter of law it did not owe IAM a duty of care. Following briefing and argument, on ...

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