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
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
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.
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.
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.
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.
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.
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.
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.
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 ...