Brian W. Andert v. Cynthia M. Carter (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 26 2017, 8:48 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE
Brian W. Andert
New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian W. Andert, June 26, 2017
Appellant, Court of Appeals Case No.
33A04-1609-SC-2019
v. Appeal from the Henry Circuit
Court
Cynthia M. Carter, The Honorable Bob A. Witham,
Appellee. Judge
Trial Court Cause No.
33C03-1602-SC-176
Barnes, Judge.
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Case Summary
[1] Brian Andert, pro se, appeals a judgment issued by the small claims division of
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the Henry County Circuit Court (hereinafter, “small claims court”) in favor of
Cynthia Carter. We affirm.
Issue
[2] The sole issue Andert raises is whether the small claims court properly found
that he failed to meet his burden of proof regarding his legal malpractice claim
against Carter.
Facts
[3] In 2011, Andert was convicted by a jury of three counts of Class B felony sexual
misconduct with a minor and was sentenced to ten years imprisonment. He
appealed, and in 2012, this court issued an opinion affirming his convictions.
Andert v. State, No. 71A05-1109-CR-509 (Ind. Ct. App. May 17, 2012).
[4] In 2013, Andert hired attorney Carter to review his criminal case for issues that
could be raised in a petition for post-conviction relief. Per an August 13, 2013
letter that Carter wrote to Andert, the fee she charged to “check out the
appellate record from the Indiana Court of Appeals, review it, research the case
law, and obtain and review [Andert’s] client files” would be $1,500.00. App.
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Small claims matters are adjudicated in the small claims division of the Henry Circuit Court No. 3. See Ind.
Code § 33-33-33-8.
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Vol. II p. 9. The letter provided: “That fee for reviewing the materials includes
sending you my written opinion concerning the case and does have to be paid
prior to my beginning the work. If there are good issues, then the $1500 would
be pro-rated toward the fee for litigating the case.” Id. Carter received the fee
from Andert on September 9, 2013, and she began obtaining the case files and
reviewing them. In a letter dated October 15, 2013, Carter informed Andert
that he owed an additional $40.00 fee to cover the costs the law firm that
represented him at trial had charged to copy his case file. After reviewing
Andert’s case files, Carter wrote an opinion letter to Andert, dated March 4,
2014, explaining her analysis of Andert’s case and declining to represent him.
[5] Andert wanted to obtain DVDs, CDs, and other audio recordings that he
believed were part of his criminal case file and would be beneficial to a pursuit
of post-conviction relief. It appears that Carter was unable to provide Andert
with the items because they were not a part of the case files sent by the
attorneys who previously represented Andert. Andert filed in the small claims
court a notice of claim for a refund of the $1,540.00 he paid to Carter,
essentially alleging legal malpractice and arguing that the terms for the payment
of the fee were not met because Carter failed to provide Andert with the DVDs,
CDs, and other audio recordings he requested. On August 1, 2016, the small
claims court issued an order determining that Andert “failed to meet his burden
of proof in [his] case and therefore . . . shall take nothing on his claim.” Id. at
53. Andert now appeals.
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Analysis
[6] The small claims court determined that Andert failed to meet his burden of
proof regarding his claim against Carter. Because the small claims court’s
decision was not in Andert’s favor, he is appealing from a negative judgment.
On appeal, we will not reverse a negative judgment unless it is contrary to law.
LTL Truck Serv., LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind. Ct. App.
2004). To determine whether the judgment is contrary to law, we consider the
evidence in the light most favorable to the appellee, together with all the
reasonable inferences to be drawn therefrom. Id. A judgment will be reversed
only if the evidence leads to but one conclusion and the trial court reached the
opposite conclusion. Id.
[7] When a trial court enters a general judgment, as the small claims court did here,
the judgment will be affirmed if it can be sustained upon any legal theory
consistent with the evidence. Helmuth v. Distance Learning Sys. Ind., Inc., 837
N.E.2d 1085, 1089 (Ind. Ct. App. 2005). “In making this determination, we
neither reweigh the evidence nor judge the credibility of witnesses.” Id.
“Rather, we consider only the evidence most favorable to the judgment together
with all reasonable inferences to be drawn therefrom.” Id.
[8] Carter did not file a response brief. Where an appellee fails to file a brief, we do
not undertake to develop arguments on that party’s behalf; rather, we may
reverse upon a prima facie showing of reversible error. Morton v. Ivacic, 898
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N.E.2d 1196, 1199 (Ind. 2008). Prima facie error is error “at first sight, on first
appearance, or on the face [of] it.” Id.
[9] Andert argues that the small claims court erred in determining that he failed to
meet the burden of proof on his claim because he established that he and Carter
had a contract, that Carter had “a contractual obligation,” and that Carter
“failed to meet that contractual obligation.” Appellant’s Br. p. 5. He contends
that Carter’s failure to secure the DVDs, CDs, and other audio recordings that
he believed were contained in his case file was due to incompetence and lack of
diligence. Andert’s argument, however, essentially is a claim for legal
malpractice. See Alvarado v. Nagy, 819 N.E.2d 520, 525 (Ind. Ct. App. 2004)
(holding that plaintiff’s complaint stated a claim for legal malpractice). To
establish legal malpractice, Andert was required to demonstrate that he: 1)
employed Carter (the duty), 2) who failed to exercise ordinary skill and
knowledge (the breach), 3) proximately causing (causation), 4) damage to him
(damages). See Rice v. Strunk, 670 N.E.2d 1280, 1283-84 (Ind. 1996). “In
Indiana, an attorney is generally required to exercise ordinary skill and
knowledge.” Clary v. Lite Machines Corp., 850 N.E.2d 423, 432 (Ind. Ct. App.
2006) (internal quotations, citations, and footnotes omitted). “[T]o succeed in a
legal malpractice claim, the plaintiff must prove, among other things, that the
attorney breached that duty.” Id. The small claims court found that Andert did
not sustain his burden of proof on his legal malpractice claim. We agree.
[10] Andert hired Carter to review his criminal case for issues that could be raised in
a post-conviction relief petition. Carter informed Andert that the fee for her
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services was $1,500.00 and that the fee included Carter preparing a written
opinion letter on the case. Andert paid the fee, and Carter obtained Andert’s
case files, reviewed the case files and the record from Andert’s direct appeal,
and wrote an opinion letter to Andert that explained her analysis of his case.
The forty-dollar additional charge was for copy fees to obtain his case file.
When Carter received Andert’s case files, the DVDs, CDs, and other audio
recordings were not included.
[11] Carter provided Andert with the services promised for the fee charged. Andert
has not shown that Carter breached her duty to exercise ordinary skill and
knowledge in performing her services. The small claims court determined that
Andert failed to carry his burden of proof on his legal malpractice claim. It did
not err in making its determination.
Conclusion
[12] For the foregoing reasons, the judgment of the small claims court is affirmed.
[13] Affirmed.
Baker, J., and Crone, J., concur.
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