Drendall Law Office, P.C. v. Lucy Mundia ( 2019 )

FILED
Dec 02 2019, 5:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Crystal G. Rowe Benjamin M. Blatt
Alyssa C.B. Cochran South Bend, Indiana
Kightlinger & Gray, LLP
New Albany, Indiana
Michael E. Brown
Kightlinger & Gray, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Drendall Law Office, P.C., December 2, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-PL-582
v. Appeal from the St. Joseph Circuit
Court
Lucy Mundia, The Honorable John E. Broden,
Appellee-Plaintiff, Judge
Trial Court Cause No.
71C01-1411-PL-319
Robb, Judge.
Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019 Page 1 of 30
Case Summary and Issue
[1] Lucy Mundia sued Drendall Law Office, P.C. (“Drendall”) for legal
malpractice, alleging Stephen Drendall (“Attorney Drendall”), the attorney she
hired to represent her in negligence and wrongful death claims against the City
of South Bend (“City”) and St. Joseph County (“County”), failed to timely file
a tort claims notice resulting in her claims being barred and her chance to
pursue a settlement being lost. Summary judgment for Drendall was reversed
by this court on appeal, see Mundia v. Drendall Law Office, P.C., 77 N.E.3d 846(Ind. Ct. App. 2017), trans. denied (“Mundia I”), and the case proceeded to a jury
trial. Drendall moved for judgment on the evidence after Mundia rested her
case. The trial court denied the motion, and Drendall rested without presenting
evidence. The jury returned a verdict in Mundia’s favor in the amount of
$312,000.00. Drendall then renewed its motion for judgment on the evidence.
Following briefing and a hearing on the issue, the trial court again denied the
motion for judgment on the evidence and entered judgment in Mundia’s favor.
[2] Drendall appeals the judgment, raising the issue of whether the trial court erred
in denying its motions for judgment on the evidence because Mundia’s evidence
that she lost the opportunity to pursue a settlement was insufficient to support
the judgment in her favor. We conclude Mundia’s evidence was not sufficient
to prove that Drendall’s failure to file a tort claim notice caused her to lose the
opportunity to settle with the City and/or the County. Therefore, an essential
element of her legal malpractice claim was not supported by substantial
evidence, and the trial court erred in denying Drendall’s motion for judgment
Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019 Page 2 of 30
on the evidence and instead entering judgment for Mundia on the jury’s verdict.
We reverse and remand.
Facts and Procedural History
I. Underlying Facts and Pre-Trial Proceedings
[3] On May 28, 2013, the City’s Police Department arrested Mundia’s husband,
Edward Mwuara, for invasion of privacy for violating a protective order. In its
report, the Police Department noted that Mundia told the officer that she had a
protective order against Mwuara. The officer “checked [his] in car computer
and saw there [was] a protective order for [Mundia] against [Mwuara] that
[was] active.” Exhibits, Volume IV, Plaintiff’s Exhibit 11 at 35. The report did
not note the protective order number or that there was also a protective order
against Mwuara for Mundia’s six-year-old daughter, Shirley Mundia.1 Upon
receiving the police report, the County Prosecutor’s Office searched for a
protective order in Mwuara’s name but not in the name of Shirley or Mundia,
the protected individuals. The search returned only one protective order and
showed it was expired or dismissed. Therefore, the Prosecutor’s Office declined
to file charges and Mwuara was released from jail. Less than seventy-two hours
1
During the summary judgment proceedings, the parties agreed that the police report also contained a
misspelling of Mwuara’s name. See Mundia I, 77 N.E.3d at 849 n.3.
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later, Mwuara returned to Mundia’s house and stabbed both Mundia and
Shirley, resulting in Shirley’s death and severe injuries to Mundia.
[4] On August 25, 2013, Attorney Drendall sent Mundia a letter noting that he met
with Mundia’s brother in June to discuss possible claims against the City and
the County and stating, “You should know there are strict time limits to bring
such claims. I hope you have hired another lawyer and are in negotiations
already. If not, please take action immediately. We would be happy to assist
you in this matter.” Appellant’s Appendix, Volume 2 at 38. Mundia initially
hired Elton Johnson to represent her, but she became unhappy with Johnson’s
representation and on October 14, 2013, entered into a contract for Drendall to
succeed Johnson in representing her in negligence and wrongful death claims
against the City and the County. The contract specified that the date of the
incident was June 2, 2013. Because Mundia was pursuing claims against
governmental entities, the Indiana Tort Claims Act (“ITCA”) required a notice
of the claim to be filed with those entities within 180 days of the date of her
loss. Drendall, despite taking over Mundia’s case with approximately forty-five
days remaining in that period, did not file the required notice by the required
date. In fact, Drendall did not file a tort claim notice at all.2 Thus, pursuant to
2
When Attorney Drendall took over as Mundia’s counsel, he received a notice of lien from Mundia’s former
counsel stating he had done 108 hours of work on the case at a “reasonable attorney’s fee of $21,600.”
Exhibits, Vol. IV at 21. When asked at the jury trial why he did not file a tort claim notice when he took over
the case, Attorney Drendall testified, “Well, some attorney says he does $21,000 worth of work including
drafting documents I thought it was a reasonable assumption that he had done the basic first thing of sending
the tort claim notice.” Transcript, Volume II at 47.
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Indiana Code section 34-13-3-8, Mundia’s claims against the City and the
County were “barred.”3
[5] In September 2014, Mundia discovered that Drendall had not filed a 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 notice was a breach of Drendall’s duty to represent her. Mundia also
alleged that Drendall’s breach proximately caused her damages because she had
lost the ability to bring and settle her negligence and wrongful death claims,
claims which she valued at over one million dollars.4 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,
and she argued that, given the County’s public admission of fault, it was
probable the County “would have settled both claims for a significant portion of
their value at trial.” Appellant’s App., Vol. 2 at 30.5
3
Indiana Code section 34-13-3-8 states, “[A] claim against a political subdivision is barred unless notice is
filed . . . within one hundred eighty (180) days after the loss occurs.”
4
Mundia asserted she hired Drendall to represent her in both her personal capacity and her capacity as
Shirley’s personal representative. Acknowledging the statutory limit on a claim against a governmental
entity is $700,000, but asserting that “[g]iven the nature of the injury and wrongful death . . ., it is likely that
[she] could have recovered in full on both her claim and the claim on behalf of her deceased daughter,”
Mundia claimed her damages were $1,398,000.00 (representing the statutory limit for two claims but “taking
into account the work [Drendall] did in writing two . . . letters” that were in her file). Appellant’s App., Vol.
2 at 29-30.
5
Mundia also less clearly claimed in her complaint that the City was responsible for her injuries and Shirley’s
death because one of its police officers prepared an incomplete report. For the most part, however, Mundia
appears to have abandoned any claim that Drendall’s failure to file the tort claim notice diminished her
chances of settling with the City, as her complaint itself focused on the probability the County would have
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[6] 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. Drendall then filed a motion for summary
judgment, attempting to negate the proximate cause and damages elements of
Mundia’s legal malpractice claim. The trial court held a summary judgment
hearing and entered a general order finding that there were no disputed issues of
material fact and granting Drendall’s motion for summary judgment.
[7] Mundia appealed the summary judgment decision. We stated the “main point
of contention” on appeal as “whether Drendall affirmatively showed that its
failure to file the Tort Claim Notice was not the proximate cause of Mundia’s
damages.” Mundia I, 77 N.E.3d at 854-55 (footnote omitted).
Drendall argues Mundia cannot show that the outcome of her
underlying litigation would have been more favorable but for
Drendall’s failure to timely file a Tort Claim Notice. However,
as non-movant on summary judgment, that is not her burden.
That would be her burden at trial. . . .
Here, Drendall, as summary judgment movant, had the burden
to show that it was not the proximate cause of Mundia’s
damages. Drendall argues that it met its summary judgment
settled her claims given its “public admissions of fault,” see Appellant’s App., Vol. 2 at 30, her response to
Drendall’s motion for summary judgment “questioned the appropriateness of Drendall’s initial decision to
file a negligence claim against the [City] and stated that she ‘never really disputed’ that the City would have
had immunity under the ITCA[,]” Mundia I, 77 N.E.3d at 851, her primary argument at trial also rested on
the statement issued by the Prosecutor’s Office acknowledging its error in handling the case, and at the
hearing on Drendall’s Trial Rule 50 motion, she acknowledged “there’s not much there in terms of the City’s
liability[,]” Tr., Vol. III at 43. Nonetheless, the City was never dismissed from the complaint and we will
include the claims against the City in our discussion and decision.
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burden, contending that Mundia’s damages in this malpractice
case were the loss of a monetary recovery from a trial on her
underlying negligence and wrongful death claims and that
application of the immunity provisions of the ITCA would have
precluded recovery of such trial damages.
Mundia, however, contends that, even in the face of application
of the immunity provisions, her damages included the possibility
of settlement outside of trial, especially “given the egregious fact
pattern and Drendall’s own political connections[.]” In other
words, Mundia argues that, even if the immunity provisions
applied, the outcome of the underlying litigation would have
been more favorable—in that she would have had an opportunity
for settlement negotiations—but for Drendall’s negligence in
failing to file the Tort Claim Notice. . . .
Id. at 855-56 (record citations and footnote omitted). We concluded Drendall
had not adequately met its initial burden of proving an absence of any genuine
issue of material fact or affirmatively negating at least one element of Mundia’s
malpractice claim, specifically noting that the August 2013 letter from Drendall
to Mundia “shows that settlement could have been a possibility, or at least an
option, in Mundia’s underlying litigation.” Id. at 856.
Our reversal of the trial court’s grant of summary judgment
should not be construed as an opinion on the merits of Mundia’s
case or whether she will ultimately be able to show all the
elements of her legal malpractice claim. However, because
Drendall has failed to prove there are no genuine issues of fact
regarding the issues of proximate cause and damages of
Mundia’s legal malpractice claim, we reverse the trial court’s
entry of summary judgment and remand for further proceedings.
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Id. at 856-57.
II. Jury Trial and Post-Trial Proceedings
[8] A jury trial commenced on November 13, 2018. Mundia called Attorney
Drendall in her case-in-chief. Attorney Drendall conceded he had undertaken
to represent Mundia before the 180-day statutory notice period had expired and
that he did not file a notice of tort claim on her behalf. Therefore, as on
summary judgment, Drendall essentially conceded the elements of duty and
breach. See Transcript, Volume II at 48-49. He testified that he did not have
experience negotiating a case against the City or the County. He had no
particular knowledge of whether the City or County would or would not
negotiate or settle a case such as this, or whether sympathy was a factor the
City or County would take into consideration. But when he took the case in
October 2013, he thought negotiation “[m]ight” get something. Id. at 76.
I didn’t know all of the facts underlying the incidents that
happened. . . . I didn’t know then whether the immunity would
cover the act that [Mundia] brought to me.
And I thought that there was some chance that the City might
offer something – not the City, but the County might offer some
settlement notwithstanding immunity[ b]ecause I had seen the
press releases where they admitted to dropping the ball in the
search of the protective orders, and the release of Mr. Mwaura
[sic] that lead to the death of Shirley Mundia.
***
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. . . They looked bad. And perhaps, perhaps they would pay
something that would be a good gesture in the public relations
sector.
Id. at 34-35. Attorney Drendall testified that in June of 2014, “things had been
sitting for a while and [he] wasn’t getting any more cooperation from Mr.
Johnson[,]” id. at 72, so he reached out to the Prosecutor’s Office “[a]bout
whether we could get some settlement[,]” id. at 56. It was at that time Attorney
Drendall learned that the County had not received a tort claim notice in this
matter and his “heart sank[.]” Id. at 72. Nonetheless, he acknowledged that
whatever monetary value the case might have would be dependent upon
whether or not the City and the County had immunity.
[9] Mundia also called James Groves, who had been designated as Drendall’s
expert witness. Groves is a local attorney who has knowledge of the ITCA and
is a “fair expert on defending claims against municipalities[,]” having
represented both the City and the County for thirty years in cases brought
against them. Id. at 109. In his time defending the City and the County from
negligence claims, he did not recall ever having been asked to get involved in
settlement negotiations based solely on a tort claims notice. See id. at 172.
[10] Groves noted that Drendall’s failure to file a tort claim notice may have
breached the standard of care, but it was not the proximate cause of Mundia
not getting any damages. Id. at 186. Groves testified that “as a general rule if a
tort claim notice is not filed, there is never going to be any discussion of
settlement.” Id. at 164. However, “[i]f there is no fundamental claim to begin
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with[,] the filing of a tort claim notice, or the lack of filing a tort claim notice is
academic. Because the case never would have gone anywhere even had a tort
claim notice been filed.” Id. at 140. Neither the City nor the County has ever
asked him to offer a settlement in a negligence case without first examining
their liability, id. at 142,6 and he was certain that “where there are immunity
defenses [the City and the County] aren’t even going to broach the subject or
discuss settlement until the outcome of a motion for summary judgment[,]” id.
at 144. Groves differentiated between a governmental immunity case in which
a tort claim notice was filed and a case in which one was not: in the first case,
he would file a summary judgment motion directed to the merits of the claim
and the government’s defenses; in the latter case, he would file a motion to
dismiss or summary judgment based “solely upon they didn’t do the
prerequisite under the [ITCA] by giving a notice of claim” and the merits of the
claim would likely never be reached. Id. at 146.
[11] It was Groves’ opinion that even if a tort claim notice and ensuing lawsuit had
been filed in Mundia’s case, summary judgment would have been granted to
the City and the County based on immunity and Mundia would never have
received a settlement offer and would never have received any money. Id. at
185-86; see also id. at 183 (when asked what his experience is with the City or
6
Groves did acknowledge he is not the only attorney employed by the City or the County to defend against
cases like this, however. The City and the County send cases to attorneys “[b]ased upon what they perceive
the case to deal with, and what that particular lawyer’s skills are.” Id. at 142-43. No other attorneys used by
the City or the County to defend tort claims were called as witnesses.
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the County making payment on a case when summary judgment has been
granted on the basis of immunity, Groves responded, “They don’t.”). With
regard to the specific claims, Mundia asked Groves whether the testimony of
the officer who arrested Mwuara and prepared the police report that he had no
discretion over whether to make the police report raised at least a question as to
whether the City was immune. Groves answered that although making the
police report is nondiscretionary by police department policy, “[w]hat he puts
in, or fails to put in the report, is discretionary.” Id. at 115. But “[i]f a notice of
claim was not filed within [180 days] then you don’t even look at the immunity
issue [because] technically the claim is barred[ r]egardless of whether there was
immunity or not.” Id. at 117. Even if a tort claim notice had been filed, it was
Groves’ opinion that any lawsuit filed against the City would not have
succeeded “on the basis of Mrs. Mundia, your claim against the City does not
have legal merit because the City had immunity for this circumstance.” Id. at
160. As for the County, Groves noted that a prosecutor has total discretion as
to whether to file criminal charges, and if he had been retained by the County to
defend Mundia’s claim, he would expect the same result as for the City: her
claim would not succeed based upon immunity.
[12] Under questioning by Mundia’s counsel, Groves testified:
Q: When you act as defense counsel in these types of claims for
[the County], does the County ever agree to settle claims on the
basis of public opinion?
A: Not in my experience.
Q: In this situation . . ., do you think the County would be open
to any sort of settlement if the claim had been filed just because
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of the publicity?
A: Now, I’m not sure I can answer that question. Because a lot
of it depends on who’s in office, and what their attitude is at that
particular time.
Q: So there is no fixed policy?
A: But in my experience there have been tragic situations where
I thought it would be nice to try to take care of these people. But
you have to remember you’re dealing with public funds. . . . You
can’t just willy-nilly start making a unilateral decision that you’re
going to spend public funds to take care of a problem in which
there is no remedy. . . .
Q: But would you say that it’s an absolute bar that there would
be no settlement, or there would be a slim chance that settlement
might be possible?
A: I can’t – I don’t know.
***
Q: [I]s there a possibility, or is it an absolute that there will never
be a settlement?
A: I’m not – I’m not going to say never, never or ever, ever.
Anything is possible.
***
Q: So the possibility of settlement is never absolutely barred, is
that correct?
A: That’s correct.
Id. at 121-23; 190-91.
[13] Of note, Mundia called Michael Dvorak, the County prosecutor at the time of
this incident. On June 5, 2013, the Prosecutor’s Office issued a public
statement regarding its review of the decision not to prosecute Mwuara,
concluding that Mwuara should have been charged with violation of a
protective order and that the deputy prosecuting attorney “failed to exercise the
thoroughness expected, particularly in crimes with women and children as
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victims of domestic abuse.” Exhibits, Vol. IV at 8. Neither party asked Dvorak
if, during his time in office, the Prosecutor’s Office had ever or would ever settle
a negligence case in which the County had immunity based on the
egregiousness of the error.
[14] Finally, Mundia herself testified, noting that Attorney Drendall told her that he
thought he could get a settlement from the government. Tr., Vol. II at 202. She
expressed her anguish and frustration at the loss of her daughter, stating, “I
wish I died on that day. . . . It’s been five years. And every day it’s just like it’s
last night, like it just happened.” Id. at 207. She pursued this case against
Drendall because she believed she had lost something of value “by not being
able to face the County, and the City in this situation[.]” Id. at 205. Attorney
Drendall said “he’s going to help us. And we waited and . . . realized that all
[was] not well” with the case in Drendall’s hands. Id.
[15] At the conclusion of Mundia’s evidence, Drendall moved for judgment on the
evidence, claiming Mundia had not presented evidence that a settlement would
have been offered to her and would have been achieved despite the City’s and
the County’s immunity and therefore, she had failed to prove her case. Id. at
213. Mundia countered by pointing to Attorney Drendall’s testimony that “he
thought there was a value there to a settlement” and Mr. Grove’s testimony
“that he could not say it was impossible that a settlement would have been
offered.” Id. at 221. The trial court noted that the City and the County had
immunity from a claim such as this. But pointing to Attorney Drendall’s “very
candid” testimony that he believed when he took the case that there was some
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chance the County might offer something for public relations reasons and
Groves’ “grudging[]” testimony that he could “never say never” as to the
possibility of a settlement, the trial court stated,
I do think that there is some evidence that the case had some
settlement value. I admit it’s a greatly discounted settlement
value because I think, quite candidly, the City and the County
are holding a lot of cards in the litigation scenario. . . . There is
evidence submitted in the record as part of plaintiff’s case in chief
that the case had potentially some settlement value
notwithstanding the immunity.
Id. at 228-29. Accordingly, the trial court denied Drendall’s motion. Drendall
rested without presenting any evidence.
[16] During discussions between the trial court and counsel settling the jury
instructions, the trial court stated, “[T]here’s clearly going to be an instruction
that says that there is immunity for the County, and for the City in the case.”
Id. at 229. Mundia did not object. The trial court drafted its own instruction
regarding immunity because there was no applicable pattern instruction. The
record does not show that Mundia objected to the substance of the instruction.
During closing arguments, Mundia’s counsel stated, “The Court will shortly
instruct you that as a matter of law, the City of South Bend and St. Joseph
County had immunity [from] civil liability for the negligent acts of their
employees in this matter.” Id. at 245-46. And indeed, the trial court did
instruct the jury that at all relevant times, Indiana Code chapter 34-13-3 was in
full force and effect and pursuant to that chapter, the court had “found as a
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matter of law and now so instruct[s] you that both the [City] and the [County]
possessed legal immunity for their actions or failure to act in this case.
Therefore, those governmental entities were not liable to [Mundia] for any
injuries she may have suffered.” Appellant’s App., Vol. 2 at 128 (Jury
Instruction No. 16). The trial court also instructed the jury, in part, as follows:
The Plaintiff, Lucy Mundia, sued Drendall Law Office, PC, the
Defendant.
Plaintiff claims the Defendant committed legal malpractice in the
handling of Plaintiff’s case causing her financial damage and
harm. Specifically, Plaintiff contends that Defendant’s failure to
file a timely Notice of Tort Claim prevented Plaintiff from
seeking a settlement despite legal immunity for the governmental
entities.
Plaintiff must prove her claims by the greater weight of the
evidence. Defendant denies Plaintiff’s claims. Defendant claims
that [the County] and [the City] possessed legal immunity for
their actions or failure to act. Therefore, Defendant claims his
failure to file a Notice of Tort Claim did not damage the Plaintiff.
Defendant is not required to disprove Plaintiff’s claims.
Id. at 120 (Jury Instruction No. 8). The jury returned a verdict for Mundia in
amount of $312,000. See id. at 68. Drendall then renewed his motion for
judgment on the evidence. See id. The trial court withheld entry of judgment,
directed the parties to file briefs on the issue, and set the matter for hearing.
[17] At the hearing, Drendall noted that the Court of Appeals opinion in Mundia I
held that Mundia was entitled to the opportunity to present evidence on the
issues of proximate cause and damages at a trial but that it would be her burden
to show that the outcome of her underlying case would have been more
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favorable but for Drendall’s failure to timely file a tort claim notice. Drendall’s
position was that Mundia had failed to present any evidence to support her
burden. First, she failed to present evidence that had Drendall timely filed a
notice of tort claim, the City and the County would have entered into
negotiations with her and paid her a settlement even though they were not
liable to her, thus failing to present any evidence of proximate cause. And
second, she failed to present any evidence supporting a damages amount, thus
requiring the jury to speculate in reaching its verdict.
[18] Mundia pointed to the Prosecutor’s Office’s press release acknowledging its
error, Groves’ testimony that he was only one of several attorneys who
represented the City and the County and that it was not possible to say a
settlement would never be offered, and Drendall’s testimony that he thought a
settlement was possible under the unique facts of this case as evidence
sufficiently supporting the jury’s determination of proximate cause. She again
acknowledged that the trial court had found the City and the County were
immune and had so instructed the jury and that the jury’s verdict was a result of
the trial court’s instruction that any damages amount should be discounted
based on immunity.7
7
At this hearing, Mundia claimed she had up to four claims worth up to $2,800,000 (two claims against the
City, two claims against the County, each capped at $700,000) despite only asking for half that in her
complaint based on two claims against the County. See Appellant’s App., Vol. 2 at 30 (the prayer for relief
asking the court to “grant [Mundia] damages in the amount of $1,398,000.00”).
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[19] The trial court took the matter under advisement, and on March 4, 2019, issued
an order that reads, in pertinent part:
8. The Indiana Court of Appeals remanded this case to the trial
court for a trial. . . . [Drendall] is correct that at no time did the
Court of Appeals indicate that [Mundia] would prevail in
proving the elements of her legal malpractice claim, but only that
she was entitled to a trial where she would then have the
opportunity to prove the elements of her claim. Thus, from the
moment the trial in this cause commenced, the Court’s ears were
acutely listening to any evidence presented in regard to the
potential settlement value of [Mundia’s] case. Very early on in
the trial, [Mundia] called [Attorney] Drendall as a witness . . . .
In response to questions from [Mundia’s] counsel, the Court
heard [Attorney] Drendall testify that [he thought there was a
chance the County might offer a settlement because they looked
bad and would pay something as a good public relations gesture].
9. [Drendall] asks this Court to disregard [Attorney] Drendall’s
testimony. At [the hearing], [Drendall’s] counsel stated that Mr.
Groves is the designated expert in this case, not [Attorney]
Drendall. Further, [Drendall] argues that [Attorney] Drendall’s
testimony needs to be framed in the context that he qualified his
answers by indicating that he “thought” the County might settle
or that there was some chance the County might settle. Groves,
on the other hand, was definitive in his answer stating that no
governmental entity would settle a case when it so clearly
possessed legal immunity.
10. However, the Court cannot simply disregard or ignore the
testimony of [Attorney] Drendall. Based on the foundation that
preceded Mr. Groves’ testimony, he possessed far more
experience in this area of the law than did [Attorney] Drendall.
However, the jury chose to accept [Attorney] Drendall’s
testimony that the case had some settlement value. The Court
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cannot simply supplant the jury’s decision as to which witnesses
to believe. That is the province of the jury. . . .
Appealed Order at 5-6. The trial court therefore denied Drendall’s motion for
judgment on the evidence and entered judgment in favor of Mundia in the
amount awarded by the jury. Drendall now appeals.
Discussion and Decision 8
I. Standard of Review
A. Judgment on the Evidence
[20] Indiana Trial Rule 50(A) provides:
Where all or some of the issues in a case tried before a jury or an
advisory jury are not supported by sufficient evidence or a verdict
thereon is clearly erroneous as contrary to the evidence because
the evidence is insufficient to support it, the court shall withdraw
such issues from the jury and enter judgment thereon or shall
enter judgment thereon notwithstanding a verdict.
The purpose of a motion for judgment on the evidence is to test the sufficiency
of the evidence presented by the nonmovant. Overshiner v. Hendricks Reg’l
Health, 119 N.E.3d 1124, 1131 (Ind. Ct. App. 2019), trans. denied. A motion for
judgment on the evidence should be granted “only when there is a complete
88
We heard oral argument on this case in the Indiana Court of Appeals courtroom on October 23, 2019. We
thank counsel for their informative and helpful oral presentations.
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failure of proof because there is no substantial evidence or reasonable inference
supporting an essential element of the claim.” Stewart v. Alunday, 53 N.E.3d
562, 568 (Ind. Ct. App. 2016) (quoting Raess v. Doescher, 883 N.E.2d 790, 793
(Ind. 2008)). Likewise, judgment on the evidence is proper if the inference
intended to be proven by the evidence cannot logically be drawn from the
evidence without undue speculation. Hill v. Rhinehart, 45 N.E.3d 427, 435 (Ind.
Ct. App. 2015), trans. denied. But if there is evidence that would allow
reasonable people to differ as to the result, then judgment on the evidence is
improper. Stewart, 53 N.E.3d at 568.
[21] Our supreme court has noted that a judgment on the evidence “does not alter
the critical, invaluable, and constitutionally protected role of the jury in
Indiana’s system of jurisprudence.” Purcell v. Old Nat’l Bank, 972 N.E.2d 835,
842 (Ind. 2012). A trial court is not free to engage in weighing evidence or
judging the credibility of witnesses to grant judgment on the evidence in a case
where reasonable people may come to competing conclusions, as weighing
evidence and judging witness credibility has always been within the purview of
the jury. Id. “That said, it is equally true that judges, at times, may play a role
in the ultimate determination of cases . . . to ensure the proper administration of
our laws . . . . Where . . . the plaintiff fails to present sufficient, probative
evidence as to a necessary element of a claim, the trial judge is within his or her
discretion to issue judgment on the evidence pursuant to Rule 50(A).” Id.[22] Thus, the grant or denial of a Trial Rule 50 motion is within the broad
discretion of the trial court and will be reversed only for an abuse of discretion.
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Hill, 45 N.E.3d at 435. When we review a trial court’s ruling on such a motion,
we use the same standard as the trial court: we must consider only the evidence
and reasonable inferences most favorable to the non-moving party. Stewart, 53
N.E.3d at 568. When, as in this case, the trial court denies the motion and
declines to intervene, “it is not the province of this Court to do so unless the
verdict is wholly unwarranted under the law and the evidence.” Ohio Farmers
Ins. Co. v. Indiana Drywall & Acoustics, Inc., 970 N.E.2d 674, 685 (Ind. Ct. App.
2012), trans. denied.
B. Legal Malpractice
[23] To prevail on a legal malpractice claim, the plaintiff must prove: 1)
employment of the attorney and/or firm (duty); 2) failure of the attorney
and/or firm to exercise ordinary skill and knowledge (breach); 3) proximate
cause (causation); and 4) loss to the plaintiff (damages). Gates v. O’Connor, 111
N.E.3d 215, 223-24 (Ind. Ct. App. 2018), trans. denied. Duty and breach are
settled in this case. Drendall conceded that he had a duty to Mundia arising
from the representation agreement and that he breached that duty by failing to
file a tort claim notice within the required time frame to preserve her right to
proceed in court. Therefore, only proximate cause and damages are at issue.
[24] In Roumbos v. Vazanellis, 95 N.E.3d 63, 65 (Ind. 2018), our supreme court
reiterated that the “trial within a trial” doctrine governs claims of legal
malpractice. Under this doctrine, to prove proximate cause, a plaintiff alleging
malpractice must show that the outcome of the underlying litigation would have
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been more favorable had the lawyer not been negligent. Id. at 65-66; see
Devereux v. Love, 30 N.E.3d 754, 763 (Ind. Ct. App. 2015) (“Proximate cause
requires that there be a reasonable connection between the defendant’s allegedly
negligent conduct and the plaintiff’s damages.”), trans. denied. Here, the
underlying litigation would have been negligence and wrongful death claims
against the City and the County. But because the City and the County are
governmental entities, before Mundia could have sued them in court, she was
required to give them notice of her claims within 180 days of her loss. Ind.
Code § 34-13-3-8(a). Failing to give the required notice entitles the
governmental entity to a dismissal. Stone v. Wright, 133 N.E.3d 210, 217 (Ind.
Ct. App. 2019). Governmental entities are generally subject to liability for
tortious conduct but the legislature has granted them immunity for losses
resulting from certain acts, including the performance of a discretionary
function or the failure to enforce a law. Ind. Code § 34-13-3-3(7), (8).
Therefore, even if a timely notice of tort claim had been filed, Mundia’s claim
was subject to an immunity defense. If the City and the County proved that
their conduct fell within one of the exceptions to liability set out in the ITCA,
then they would not be liable for the acts complained of. See Peavler v. Bd. of
Comm’rs of Monroe Cty., 528 N.E.2d 40, 46 (Ind. 1988) (stating the burden of
proving immunity is on the governmental entity seeking its benefit). The trial
court determined as a matter of law that the City and the County did have
immunity for their acts in this case. See Birge v. Town of Linden, 57 N.E.3d 839,
843-44 (Ind. Ct. App. 2016) (stating the determination of whether an act falls
within a category of immunity is a question of law for the court’s
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determination). Mundia conceded as much when she did not object to the trial
court instructing the jury that the City and the County had immunity. By doing
so, she also conceded that she would have recovered no damages at a trial. Her
claim against Drendall was premised on his suggestion that despite immunity,
the City and/or the County might offer her a settlement based upon their
admitted errors causing her serious harm.
[25] Therefore, to prevail on the proximate cause element of her legal malpractice
claim, Mundia must have presented sufficient evidence that she would have
recovered damages via settlement with the City and/or the County if Drendall
had timely filed a notice of tort claim on her behalf despite the City and the
County having immunity. Proximate cause is primarily a question of fact for
the jury, but it can be decided as a matter of law if the relevant facts are
undisputed and lead to only a single inference or conclusion. Gates, 111 N.E.3d
at 224.
II. Evidence of Proximate Cause
[26] By its express language, Rule 50 acknowledges that a party must do more than
simply present some evidence in support of her claim; in addition, that evidence
must also be sufficient evidence. Purcell, 972 N.E.2d at 841; see Ind. Trial Rule
50(A) (stating the trial court may enter judgment on the evidence “[w]here all
or some of the issues in a case tried before a jury . . . are not supported by
sufficient evidence”) (emphasis added). Unlike a motion for summary judgment
under Indiana Trial Rule 56, the sufficiency test of Indiana Trial Rule 50(A) is
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not merely whether a conflict of evidence may exist, but rather whether there
exists probative evidence, substantial enough to create a reasonable inference
that the nonmovant has met his burden of proof. Purcell, 972 N.E.2d at 841.
[27] Our supreme court has stated that determining whether evidence was sufficient
to defeat a motion for judgment on the evidence requires both a quantitative
and a qualitative analysis. Id. at 840. Specifically, the court explained,
Evidence fails quantitatively only if it is wholly absent; that is,
only if there is no evidence to support the conclusion. If some
evidence exists, a court must then proceed to the qualitative
analysis to determine whether the evidence is substantial enough
to support a reasonable inference in favor of the non-moving
party.
Qualitatively, . . . [evidence] fails when it cannot be said, with
reason, that the intended inference may logically be drawn
therefrom; and this may occur either because of an absence of
credibility of a witness or because the intended inference may not
be drawn therefrom without undue speculation. The use of such
words as “substantial” and “probative” are useful in determining
whether evidence is sufficient under the qualitative analysis.
Ultimately, the sufficiency analysis comes down to one word:
“reasonable.”
Id. (citations and some quotation marks omitted).
[28] Drendall argues that Mundia did not present sufficient evidence, either
quantitatively or qualitatively, that her case had a settlement value that was lost
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by Drendall’s failure to timely file a tort claim notice on her behalf, nor did she
present sufficient evidence of what that settlement value would have been.9
A. Quantitative Evidence
[29] The conclusion Mundia wanted the jury to reach was that it was more likely
than not that she would have received a settlement from the City or the County
had Drendall filed a timely notice of tort claim. Her evidence fails the
quantitative test only if there is no evidence to support this conclusion. See
Purcell, 972 N.E.2d at 840. Drendall argues Mundia presented “no direct or
circumstantial evidence that the City and/or County had offered, or were
planning to offer, a settlement despite their immunities[,]” and contends she
therefore has failed to provide any evidence that Drendall’s breach caused her to
lose the opportunity to settle. Brief of Appellant at 31.
[30] The evidence Mundia presented included her own testimony that Attorney
Drendall told her he thought she could get a settlement; Attorney Drendall’s
testimony that, based on the statement by the Prosecutor’s Office
9
Drendall first claims that Mundia’s burden at trial was to prove that a case against the City and/or the
County was “winnable,” relying on language used by the trial court and quoted by this court in Mundia I. See
77 N.E.3d at 855 (quoting the trial court saying Mundia had to prove that the case underlying the legal
malpractice case was winnable and then stating, “[w]hile this would be Mundia’s burden at trial, it is not her
burden on summary judgment”). Because it is undisputed that both the City and the County were statutorily
immune from liability, Drendall argues that Mundia’s claims against the City and the County were not
“winnable” and therefore, her claim against Drendall for failing to procure a “win” fails as a matter of law.
But Mundia never claimed she could outright win a case against the City or the County. The appropriate
standard, as stated above, is that the outcome of the litigation would have been more favorable absent the
attorney’s negligence and in this case, a settlement would have been a more favorable outcome than receiving
nothing.
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acknowledging it erred in handling Mwuara’s arrest, he thought there was
“some chance” the County “might offer some settlement” because they “looked
bad[,]” Tr., Vol. II at 35; Groves’ testimony that if a tort claim notice is not
filed, “there is never going to be any discussion of settlement[,]” id. at 164; and
Groves’ concession that “the possibility of settlement is never absolutely
barred,” id. at 190-91. We agree with Mundia that she did present some
evidence supporting her desired conclusion that Drendall’s failure to file the tort
claim notice proximately caused the loss of opportunity to settle. There was
evidence that without a tort claim notice, the City and the County would never
discuss settlement; Attorney Drendall thought when he undertook to represent
Mundia that there was a possibility for settlement; and the only City/County
attorney who testified conceded he could not say the City or the County had
never or would never settle a claim for which they had immunity although they
had not done so in cases he handled for them. This is some evidence
supporting Mundia’s assertion that had Drendall filed a tort claim notice, the
City and/or the County might have entertained a settlement.
B. Qualitative Evidence
[31] We proceed then to the qualitative analysis to determine whether the evidence
Mundia presented is substantial enough to support a reasonable inference in her
favor. See Purcell, 972 N.E.2d at 840. The crux of the qualitative analysis under
Trial Rule 50(A) is whether the inference that the plaintiff’s allegations are true
may be drawn from the evidence presented without undue speculation. Id. at
841.
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[32] Proof of proximate cause requires evidence of a reasonable connection between
the defendant’s conduct and the plaintiff’s damages. Clary v. Lite Machines
Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006). “When the issue of
[proximate] cause is not within the understanding of a lay person, testimony of
an expert witness on the issue is necessary.” Singh v. Lyday, 889 N.E.2d 342,
357 (Ind. Ct. App. 2008), trans. denied. Drendall contends, and we agree, that
expert testimony was required here because the issue of “whether an immune
governmental entity would have paid taxpayer money to settle Mundia’s claim
had a tort claim notice been timely filed” is not within the understanding of a
layperson. Br. of Appellant at 31. The only expert testimony, given by Groves,
was that Drendall’s breach was not the proximate cause of Mundia’s damages
because neither the City nor the County would have paid to settle a claim when
they were statutorily immune whether or not a tort claim notice had been filed.
In denying Drendall’s motion for judgment on the evidence, the trial court
acknowledged that Groves “possessed far more experience in this area” than
Attorney Drendall and he “definitive[ly]” stated no governmental entity would
settle a case when it “so clearly” possessed immunity. Appealed Order at 6.
The trial court nonetheless deferred to the jury’s decision to believe Attorney
Drendall’s testimony “that the case had some settlement value.” Id. However,
Attorney Drendall did not testify that the case had settlement value; he testified
that he thought the case might have settlement value before he had all the facts
about the case. See Tr., Vol. II at 76.
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[33] At the close of Mundia’s case-in-chief, then, the expert testimony showed
Drendall was not the proximate cause of Mundia’s damages and she had
presented no evidence showing that the City or the County had ever or would
ever settle a case in which it had immunity. The Prosecutor’s Office accepted
responsibility for the circumstances that led to Mwuara’s immediate release
from jail, and yet it never reached out to Mundia to broach the subject of
compensating her for their error. Groves testified he was but one attorney used
by the City and the County for tort claims and yet no other attorneys who did
work for the City or the County were called to testify to their experiences with
settlement in immunity cases. Groves also testified that expenditure of public
funds to settle cases would be a matter of public record, id. at 184-85, and yet
Mundia presented no evidence of the City or the County ever using funds in
such a way. The only evidence that supported a chance of a settlement was
generalized and ambiguous – Drendall admitting he had no particular
knowledge when it came to negotiating with a governmental entity but thinking
the government “might” offer a settlement under the circumstances of this case
and Groves “grudgingly” admitting he could never say the City or the County
would never settle under these circumstances. Id. at 228-29. The intended
inference that Mundia would have received a settlement if Drendall had filed a
tort claim notice could not logically be drawn from this testimony without
undue speculation on the part of the jury.
[34] Attorney Drendall acknowledged the value of this case depended on whether or
not the City and the County had immunity. See id. at 77. And in that regard,
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Groves opined, the trial court found as a matter of law, and importantly,
Mundia’s counsel conceded, that the City and the County both had immunity
for the acts on which Mundia’s claims against them would have been based.
Had Mundia not conceded the issue of immunity, she could have argued that
immunity was an open question and Drendall’s failure to file the tort claim
notice foreclosed her opportunity to argue immunity to a court, which in turn
might have encouraged the City or the County to settle on the chance the court
found their actions were not entitled to immunity. But once she conceded
immunity, her only argument for a possibility of settlement was essentially that
the City and the County would offer a settlement gratuitously. And Groves’
testimony refuted that would ever happen.
[35] Mundia’s burden was to present sufficient evidence to show it was more probable
than not that she would have achieved a better result if Drendall had filed the tort
claim notice. See Roumbos, 95 N.E.3d at 65-66. Although Mundia’s evidence
suggests the possibility of a settlement was not completely foreclosed, there was
no substantial evidence or reasonable inference from the evidence that it was
probable she would have obtained a settlement under these circumstances. In
other words, Mundia’s evidence may have proved that she could have gotten a
settlement, but it did not prove that she would have. We therefore agree with
Drendall that Mundia’s evidence of proximate cause fails the qualitative test.
See Court View Centre, L.L.C. v. Witt, 753 N.E.2d 75, 81 (Ind. Ct. App. 2001) (“If
evidence fails to create a reasonable inference of an ultimate fact, but merely
leaves the possibility of its existence open for surmise, conjecture or
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speculation, then there is no evidence of probative value as to that ultimate fact
and a Trial Rule 50 motion should be granted.”).10
[36] Although the facts of this case are undeniably tragic and Mundia has
unquestionably suffered harm, the law and the evidence in this case do not
support her claim for relief. Mundia has failed to present sufficient, probative
evidence on a necessary element of her legal malpractice claim, and therefore
the jury’s verdict in her favor “is wholly unwarranted[.]” Ohio Farmers Ins. Co.,
970 N.E.2d at 685. Accordingly, the trial court abused its discretion in denying
Drendall’s Trial Rule 50(A) motion for judgment on the evidence.
Conclusion
[37] Viewing Mundia’s evidence and the reasonable inferences therefrom in the light
most favorable to her as the non-moving party, we conclude the jury’s verdict
was clearly erroneous because Mundia did not present substantial evidence
supporting the proximate cause element of her claim for legal malpractice. The
trial court abused its discretion in denying Drendall’s motion for judgment on
the evidence. We therefore reverse and remand for the trial court to vacate the
jury verdict and enter judgment for Drendall.
10
Because we have held there was not sufficient evidence on the issue of proximate cause, Mundia’s claim
for legal malpractice fails, and we need not address the issue of whether she presented sufficient evidence on
the issue of damages.
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[38] Reversed and remanded.
Brown, J., and Pyle, J., concur.
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