mike-ellis-debra-ellis-vjja-transport-inc-bob-hopkins-kathleen ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), this Nov 27 2013, 5:38 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: APPELLEE PRO SE:
P. ADAM DAVIS DAVID M. DUREE
Davis & Sarbinoff, LLP O’Fallon, Illinois
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
DAVID M. DUREE & ASSOCIATES, P.C.:
THOMAS K. REYNOLDS
Lebanon, Indiana
ATTORNEYS FOR APPELLEES JOHN R.
PRICE AND JOHN R. PRICE &
ASSOCIATES:
MICHAEL E. BROWN
Kightlinger & Gray, LLP
Indianapolis, Indiana
CRYSTAL G. ROWE
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MIKE ELLIS, DEBRA ELLIS, )
VJJ&A TRANSPORT, INC., BOB HOPKINS, )
KATHLEEN HOPKINS, JOHN GOMES, )
JOHN DUNN, COLLET EUGENE )
HARRINGTON, SAZZIP, LLC, KIM NEAL, )
AFIFA ABDELMALEK, ST. MARKORIOS )
CORP., KAPZA, INC., MARIANN DUNN, )
D & G RESTAURANT, LLC, SHAWN WHITE, )
JAMIE G. AUGENSTEIN-WHITE, )
CASUAL CONCEPTS OF TEXAS, LLC, )
JASON CLARK, NICAN ENTERPRISES, INC., )
THOMAS BRINTLE, )
NOBLE ROMAN’S MT. AIRY 100, LLC, )
BRENDA VILLASENOR, HENRY )
VILLASENOR, H & B VILLASENOR )
INVESTMENTS, PAUL MORRIS, )
MARIKATE MORRIS, MOPAN )
COMMERCE, INC., KARI HEYSER, )
FRED ERIC HEYSER, and )
MECK ENTERPRISES, LLC, )
)
Appellants-Plaintiffs/Counterdefendants, )
)
vs. ) No. 29A02-1212-PL-978
)
DAVID M. DUREE and )
DAVID M. DUREE & ASSOCIATES, P.C., )
)
Appellees-Defendants/Counterclaimants, )
)
and )
)
JOHN R. PRICE and )
JOHN R. PRICE & ASSOCIATES, )
)
Appellees-Defendants. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Stephen R. Nation, Judge
Cause No. 29D01-1005-PL-919
November 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
2
Case Summary
Mike Ellis, Debra Ellis, VJJ&A Transport, Inc., Bob Hopkins, Kathleen Hopkins,
John Gomes, John Dunn, Collet Eugene Harrington, Sazzip, LLC, Kim Neal, Afifa
Abdelmalek, St. Markorios Corporation, Kapza, Inc., Mariann Dunn, D & G Restaurant,
LLC, Shawn White, Jamie G. Augenstein-White, Casual Concepts of Texas, LLC, Jason
Clark, Nican Enterprises, Inc., Thomas Brintle, Noble Roman’s Mt. Airy 100, LLC, Brenda
Villasenor, Henry Villasenor, H & B Villasenor Investments, Paul Morris, Marikate Morris,
Mopan Commerce, Inc., Kari Heyser, Fred Eric Heyser, and Meck Enterprises, LLC,1
(collectively referred to as “Clients”) hired David M. Duree, an out-of-state attorney not
licensed to practice law in Indiana, to represent them in a common law fraud suit against
Noble Roman’s, Inc. (“the Underlying Case”). Duree hired attorney John R. Price to sponsor
his pro hac vice application for temporary admission to the Indiana State Bar.
During a hearing in the Underlying Case, Duree stated that the complaint did not plead
a claim for constructive fraud. In addition, the trial court revoked Duree’s pro hac vice
admission after Duree filed improperly notarized affidavits. Duree withdrew his appearance,
and Clients hired new counsel.
1
We have followed the designation of the parties in the chronological case summary, Appellants’
Appendix at 5, but we observe that in their briefs the parties identify Meck as Meck Enterprises, Inc.
3
Clients then filed a complaint against Duree and his law firm for breach of contract to
represent them in the Underlying Case and legal malpractice for waiving a constructive fraud
claim (“the Instant Lawsuit”). Clients’ complaint also included a claim against Price and his
law firm, alleging that they were jointly liable for Duree’s actions in the Underlying Case.
Duree and his law firm filed motions for summary judgment on the claims of (1) Kari and
Fred Eric Heyser, (2) Paul and Marikate Morris and Kapza, and (3) Brenda and Henry
Villasenor. In addition, Price and his law firm filed a motion for summary judgment as to all
of Clients’ claims against them. The trial court granted Duree’s and his law firm’s motions
for summary judgment against (1) the Heysers because they failed to list their claims in their
bankruptcy estate, (2) the Morrises and Kapza because they voluntarily dismissed their
complaint in the Underlying Case, and (3) the Villasenors because their complaint was
dismissed as a contempt sanction in the Underlying Case. The trial court also granted Price
and his law firm’s summary judgment motion because Price did not participate in or have any
knowledge of the improperly notarized affidavits and therefore was not a proximate cause of
Clients’ alleged damages.
The Heysers, the Morrises and Kapza, and the Villasenors appeal the summary
judgment rulings in favor of Duree and his law firm. Clients also appeal the summary
judgment ruling in favor of Price and his law firm. The Heysers argue that summary
judgment is improper because the trial court had already ruled in their favor on the failure to
list their claims in their bankruptcy estate. We conclude that the trial court’s previous rulings
were not equivalent to its summary judgment ruling, and that even if the trial court had
4
previously ruled in their favor on this issue, the court has inherent power to reconsider,
vacate, or modify any previous order until the entry of final judgment.
The Morrises and Kapza argue that summary judgment against them is improper
because (1) as for their breach of contract claim, their voluntary dismissal of their complaint
in the Underlying Case does not affect the fact that they still had to hire an hourly attorney to
represent them after Duree’s admission was revoked; and (2) as for their legal malpractice
claim, their voluntary dismissal was an effort to mitigate damages, and therefore Duree’s
waiver of the constructive fraud claim was still the proximate cause of their damages. We
conclude that summary judgment against the Morrises on their breach of contract claim is
proper because they failed to list their claims in their bankruptcy estate. However, we
conclude that summary judgment against Kapza on its breach of contract claim is improper
because, even though Kapza ultimately dismissed its complaint in the Underlying Case, it
still had to hire an attorney to represent it after Duree’s admission was revoked. We further
conclude that summary judgment on the Morrises’ and Kapza’s legal malpractice claims is
proper because they voluntarily dismissed their complaint in the Underlying Case, and
therefore Duree’s actions were not the proximate cause of their damages.
The Villasenors argue that summary judgment against them is improper for the same
reasons that summary judgment against the Morrises is improper. We conclude that the
Villasenors failed to present a cogent argument supported by authority, and therefore they
waived their argument.
5
As for the trial court’s ruling in favor of Price and his law firm, Clients argue that
summary judgment is improper because Price’s failure to sign the improper affidavits was a
violation of the Indiana Admission and Discipline Rules governing the temporary admission
of out-of-state attorneys. We are unpersuaded by Clients’ argument that the Admission and
Discipline Rules, as opposed to the Indiana Rules of Professional Conduct, were intended to
serve as evidence of the applicable standard of care in legal malpractice cases. Moreover,
even if they were, the undisputed evidence shows that Price did not participate in or have any
knowledge of the improperly notarized affidavits, and therefore Price’s actions and/or
inactions were not the proximate cause of Clients’ alleged damages.
Therefore, we reverse the summary judgment ruling in favor of Duree and his law
firm on Kapza’s breach of contract claim. We affirm all remaining summary judgment
rulings.
6
Facts and Procedural History2
The Underlying Case
The facts most favorable to the nonmoving parties, Clients, follow. Duree is an
attorney who is not licensed to practice in Indiana, and his firm is David M. Duree &
Associates, P.C., (“Duree-Associates”) (sometimes collectively referred to as “the Duree
Lawyers”). Clients hired Duree based on a contingency fee agreement to represent them in
an Indiana lawsuit against Noble Roman’s. Duree hired Price to sponsor his pro hac vice
application for temporary admission to the Indiana bar to represent Clients. Price is a
licensed Indiana attorney, and his firm is John R. Price & Associates (“Price-Associates”)
(sometimes collectively referred to as “the Price Lawyers”).
In June 2008, Duree as lead counsel and Price as local counsel filed a complaint on
behalf of Clients alleging common law fraud against Noble Roman’s. As the case
progressed, Noble Roman’s filed a motion to strike some of the Clients’ affidavits and a
motion to revoke Duree’s pro hac vice admission. The trial court held a hearing on the
motions, during which Duree stated that the complaint against Noble Roman’s did not plead
a claim for constructive fraud. Heyser v. Noble Roman’s, Inc., 933 N.E.2d 16, 18 (Ind. Ct.
2
Clients’ counsel did not set forth the statement of facts in narrative form as required by Indiana
Appellate Rule 46(A)(6). Also, in the table of contents and the statement of the issues, Clients’ counsel used
multiple undefined abbreviations to refer to various court orders and groups of parties, which was confusing.
For example, when reading that the trial court granted “the Heyser MSJ,” it suggests that the trial court granted
the Heysers’ motion for summary judgment, but “the Heyser MSJ,” actually refers to Duree’s and his law
firm’s summary judgment motions against the Heysers. Appellant’s’ Br. at i. In addition, the use of “the
Lawyers” is unhelpful when there were multiple groups of lawyers involved in the lawsuit. Id. at 1. We
request that counsel refrain from using undefined abbreviations in the table of contents and the statement of the
issues.
7
App. 2010), trans. denied (2011). In March 2009, the trial court entered an order that struck
the Clients’ affidavits because they were improperly notarized, granted leave to Clients to
refile the affidavits with declarations attached, and revoked Duree’s pro hac vice admission.
Duree’s Appellee’s App. at 2-3. As to the revocation of Duree’s pro hac vice admission, the
order stated,
Mr. Duree made no attempt to explain his actions in notarizing documents
when the persons were not present before him and the persons were not placed
under oath. Mr. Duree instead focused on why the affidavits should be
admissible under Trial Rule 11. The Court finds that Mr. Duree showed no
remorse for his actions even though such actions may constitute a criminal
and/or unethical act.
Id. at 3. Price remained Clients’ attorney of record in the Noble Roman’s case until May
2009, when P. Adam Davis entered his appearance on their behalf.
In February 2010, Davis withdrew as attorney for the Morrises and Kapza. In April
2010, the Morrises and Kapza filed a voluntary motion to dismiss their claims against Noble
Roman’s with prejudice, which the trial court granted on May 5, 2010.
In July 2010, the trial court issued an order, finding the Villasenors in contempt for
failing to appear for court-ordered depositions and dismissing their claims against Noble
Roman’s with prejudice as well as the claims of H & B Villasenor Investments. Appellants’
App. at 284.
During 2010, Noble Roman’s filed motions for summary judgment against all
remaining Clients. The trial court granted the motion against all plaintiffs except Afifa
Abdelmalek, an Indiana resident who had a claim for violation of the Indiana Franchise
Disclosure Act.
8
The Morrises filed for Chapter 7 bankruptcy on October 6, 2009, and were discharged
on July 13, 2010. The Heysers filed for Chapter 7 bankruptcy on October 29, 2009, and were
discharged on February 16, 2010.
The Instant Lawsuit
On May 21, 2010, Clients, represented by Davis, filed a complaint against the
Duree Lawyers and the Price Lawyers, alleging the following: Count I, the
Duree Lawyers breached their contract to represent Clients in the Noble Roman’s case;
Count II, the Duree Lawyers committed legal malpractice in the Noble Roman’s case by
waiving Clients’ claim for constructive fraud and by failing to advise Clients of any past
disciplinary matters, experience in similar types of cases, and the chances of the lawsuit’s
success; and Count III, the Price Lawyers are jointly responsible for the
Duree Lawyers’ actions in the Noble Roman’s case. Id. at 170-74.
On June 4, 2010, Duree filed his answer, affirmative defenses, and a counterclaim.
Count I of Duree’s counterclaim was a claim for $19,251.60 for out-of-pocket expenses
against some individual Clients, jointly and severally, including the Villasenors. Count II of
Duree’s counterclaim was an abuse of process claim against Davis and his law firm Davis &
Sarbinoff, LLP (sometimes collectively referred to as “the Davis Lawyers”). In Count II,
Duree alleged that the Davis Lawyers knew or should have known that the Morrises’ and the
Heysers’ claims were barred by the Bankruptcy Code because these parties had not listed
their claims against the Duree Lawyers as part of their bankruptcy estates. Id. at 36-60.
9
On June 25, 2010, Duree-Associates filed a motion to dismiss Clients’ complaint for
failure to state a claim upon which relief can be granted. Duree-Associates argued that the
complaint did not allege that the defendants failed to exercise ordinary skill and knowledge, a
specific breach of duty, specific damages, or facts establishing a breach of duty or specific
damages resulting therefrom. Id. at 61.
On July 14, 2010, Duree served requests for admissions on Clients. The requests for
admissions directed to the Heysers asked them to admit, in relevant part, that they filed for
Chapter 7 bankruptcy on October 29, 2009, that they did not include or list as assets of the
bankruptcy estate any of the claims in their complaint against the Duree Lawyers and the
Price Lawyers, and that they were discharged from bankruptcy on February 16, 2010. The
requests for admissions directed to the Morrises asked them to admit, in relevant part, that
they filed for Chapter 7 bankruptcy on October 6, 2009, that they did not include or list as
assets of the bankruptcy estate any of the claims in their complaint against the Duree Lawyers
and the Price Lawyers, and that they were discharged from bankruptcy on July 13, 2010.
Neither the Heysers nor the Morrises responded to the requests for admissions.
Also on July 14, 2010, the Davis Lawyers moved to dismiss Count II of Duree’s
counterclaim for abuse of process against them. On July 20, 2010, Duree filed a response to
the Davis Lawyers’ motion to dismiss. On August 9, 2010, the Davis Lawyers filed a reply
in support of their motion to dismiss. They attached a copy of an August 2, 2010 email from
the Heysers’ bankruptcy trustee to Davis, which stated that the trustee decided not to pursue
the litigation against Duree on behalf of the Heysers’ bankruptcy estate, that he believed the
10
Heysers would be amending their bankruptcy schedules to include the litigation as an asset,
and that it was his intention to abandon that asset. Id. at 129. In addition, the Davis Lawyers
attached a copy of a July 29, 2010 email from the Morrises’ bankruptcy trustee to Davis
stating that he “decided not to seek to administer as an asset any cause of action against Mr.
Duree and therefore it will not be necessary to seek to employ your firm as special counsel.”
Id. at 131.
Also on August 9, 2010, Clients filed a response in opposition to Duree-Associates’
motion to dismiss their complaint. Id. at 105. Clients did not attach copies of the Heysers’ or
the Morrises’ bankruptcy trustees’ emails. On August 25, 2010, Duree-Associates filed a
reply to Clients’ response in opposition to its motion to dismiss, arguing that the complaint
failed to allege that any conduct or omission of the defendants caused Clients to receive a
less favorable outcome in the Noble Roman’s case than they otherwise would have. Id. at
145. It also argued that the Morrises voluntarily dismissed their claims with prejudice in the
Noble Roman’s case and that the trial court dismissed the claims of the Villasenors and H &
B Villasenor Investments as a sanction for the Villasenors’ failure to comply with court
orders.
On September 22, 2010, Duree filed a motion for an order determining that the
requests for admissions served on Clients were deemed admitted. On January 4, 2011, the
trial court held a hearing on this motion, as well as on Duree-Associates’ motion to dismiss
Clients’ complaint and the Davis Lawyers’ motion to dismiss Duree’s counterclaim. At the
hearing, Davis stated that he knew about the Morrises’ and the Heysers’ bankruptcies but did
11
not know that he needed the permission of the bankruptcy court to file lawsuits on their
behalf until he received Duree’s abuse of process counterclaim against him and his law firm.
Id. at 455-56.
On June 6, 2011, the trial court issued an order (“the June 6, 2011 Order”), which in
relevant part (1) denied Duree-Associates’ motion to dismiss Clients’ complaint; (2) granted
the Davis Lawyers’ motion to dismiss Duree’s counterclaim for abuse of process; and (3)
granted Duree’s request for a determination that Clients had admitted the requests for
admissions (with an exception not relevant to this appeal). Id. at 1095.
On June 20, 2011, Duree-Associates filed its answer, affirmative defenses, and
counterclaim. The counterclaim was one count against certain individual Clients seeking
reimbursement of out-of-pocket expenses incurred in the Underlying Case. Id. at 646-48. On
June 27, 2011, Clients filed their answer to Duree-Associates’ counterclaim. Id. at 650-53.
Clients also filed a motion to strike paragraphs 29 and 30 of Duree-Associates’ affirmative
defenses. Paragraph 29 alleged that Clients’ complaint failed to state a claim upon which
relief can be granted. Paragraph 30 alleged that the Heysers and the Morrises failed to list
their claims against Duree-Associates in their bankruptcy estates and therefore were barred
by the Bankruptcy Code and principles of judicial estoppel from pursuing claims against it.
In their motion to strike, Clients argued that paragraphs 29 and 30 directly contradicted the
June 6, 2011 Order, which “found that (1) Counts I and II of the Complaint state claims for
which relief may be granted and (2) that the Morris and Heyser claims [were] properly before
[the] Court.” Id. at 654.
12
Meanwhile, in September 2010, Duree had filed motions for summary judgment on
(1) the Heysers’ claims against him, alleging that they admitted that they did not list their
claims as assets in their bankruptcy estate; (2) the Morrises’ and Kapza’s claims against him,
alleging that the Morrises and Kapza voluntarily dismissed their complaint against Noble
Roman’s and that the Morrises failed to list their claims in their bankruptcy estate; and (3) the
Villasenors’ and H & B Villasenor Investments’ claims against him, alleging that the trial
court in the Underlying Case dismissed their complaint as a contempt sanction. In addition,
Duree filed a motion for summary judgment on Count I of his counterclaim against the
Villasenors for $19,251.60 for out-of-pocket expenses. On July 18, 2011, Duree-Associates
filed a motion for summary judgment on the claims of the Heysers, the Morrises, Kapza, the
Villasenors, and H & B Villasenor Investments by adopting Duree’s motions for summary
judgment.
On May 26, 2011, the Price Lawyers filed a motion for summary judgment on all
claims against them. Id. at 523.
On January 11, 2012, Duree filed a motion for an order holding Clients in contempt
for failing to provide responses to interrogatories and produce requested documents by the
court-ordered deadline. Id. at 803.
On February 21, 2012, the trial court held a hearing on Clients’ motion to strike
Duree-Associates’ affirmative defenses paragraphs 29 and 30, the Duree Lawyers’ summary
judgment motions, the Duree Lawyers’ motions to dismiss Clients’ complaint, the Price
Lawyers’ motion for summary judgment, and Duree’s motion for a contempt order. On
13
September 11, 2012, the trial court issued the order from which Clients appeal (“the
September 11, 2012 Order”), in which it (1) granted Clients’ motion to strike Duree-
Associates’ affirmative defenses paragraphs 29 and 30; (2) granted the Duree Lawyers’
motions for summary judgment against the Heysers based on their failure to list their claims
in their bankruptcy schedules; (3) granted the Duree Lawyers’ motions for summary
judgments against the Morrises and Kapza based on their voluntary dismissal of their
complaint in the Underlying Case; (4) granted the Duree Lawyers’ motions for summary
judgment against the Villasenors based on the involuntary dismissal of their claims as a
sanction for failure to comply with court orders;3 (5) took Duree’s request for $19,251.60
from the Villasenors in Count I of his counterclaim under advisement because the Villasenors
might have filed for bankruptcy and Clients’ counsel was requested to notify the trial court
within thirty days of the Villasenors’ bankruptcy status; (6) denied the Duree Lawyers’
motions to dismiss Clients’ complaint and ordered Clients to immediately respond to
discovery and/or supplement discovery as necessary; (7) granted Duree’s motion for an order
holding Clients in contempt for failing to respond to discovery as ordered but took “under
advisement the imposition of any sanction until it determined whether pursuant to this Order
[Clients] properly answered, responded and/or supplemented discovery in this cause;” (8)
granted the Price Lawyers’ motion for summary judgment against all Clients; and (9) found
“that there is no just reason for delay and direct[ed] entry of final judgment concerning the
3
The trial court did not address the summary judgment motion with respect to H & B Villasenor
Investments.
14
rulings as set forth in this Order.” Duree’s Appellee’s Br. at A-9. This appeal ensued.
Additional facts will be provided as necessary.
Discussion and Decision
Standard of Review
This is an appeal from the trial court’s grants of summary judgment in its September
11, 2012 Order.4 Specifically, the Heysers, the Morrises and Kapza, and the Villasenors
appeal the grant of summary judgment in favor of the Duree Lawyers. In addition, all Clients
appeal the grant of summary judgment in favor of the Price Lawyers.
“Summary judgment is appropriate only when there are no genuine issues of material
fact and the moving party is entitled to a judgment as a matter of law.” Quezare v. Byrider
Fin., Inc., 941 N.E.2d 510, 513 (Ind. Ct. App. 2011), trans. denied; Ind. Trial Rule 56(C).
When reviewing a grant or denial of a motion for summary judgment
our well-settled standard of review is the same as it is for the trial court:
whether there is a genuine issue of material fact, and whether the moving party
is entitled to judgment as a matter of law. Summary judgment should be
granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that
there is no genuine issue of material fact and the moving party deserves
judgment as a matter of law. All factual inferences must be construed in favor
of the non-moving party, and all doubts as to the existence of a material issue
must be resolved against the moving party.
Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010) (citations omitted). “In reviewing a
trial court’s ruling on a motion for summary judgment, we may affirm on any grounds
4
Clients also appealed the trial court’s rulings holding them in contempt, ordering them to respond to
discovery, and holding in abeyance its ruling on Duree’s counterclaim against the Villasenors. On October 16,
2013, we issued an order finding that these rulings were interlocutory orders over which we have no
jurisdiction. We dismissed Clients’ claims regarding these rulings and remanded for further proceedings.
15
supported by the Indiana Trial Rule 56 materials.” Kozlowski v. Lake Cnty. Plan Comm’n,
927 N.E.2d 404, 408 (Ind. Ct. App. 2010), trans. denied.
The Clients’ complaint alleged breach of contract and legal malpractice. “[T]he
essential elements of a breach of contract action are: 1) the existence of a contract; 2) the
defendant’s breach thereof; and 3) damages.” Hopper v. Colonial Motel Props., Inc., 762
N.E.2d 181, 187 (Ind. Ct. App. 2002), trans. denied.
To prove a legal malpractice claim, a plaintiff must establish: 1)
employment of the attorney (duty); 2) failure of the attorney to exercise
ordinary skill and knowledge (breach); 3) proximate cause (causation); and 4)
loss to the plaintiff (damages). It is appropriate for a trial court to grant an
attorney summary judgment on a legal malpractice claim if the designated
evidence negates at least one of these elements. In Indiana, an attorney’s duty
is generally to exercise ordinary skill and knowledge.
Flatow v. Ingalls, 932 N.E.2d 726, 729 (Ind. Ct. App. 2010) (citations and quotation marks
omitted), trans. denied (2011).
I. Summary Judgment in Favor of the Duree Lawyers and Against the Heysers
The Heysers argue that their failure to list their claims against the Duree Lawyers in
their bankruptcy estate cannot, as a matter of law, support summary judgment in favor of the
Duree Lawyers. The Duree Lawyers contend that the Heysers have waived their claim
because they cite no authority in support of their argument. See Wenzel v. Hopper &
Galliher, P.C., 830 N.E.2d 996, 1004 (Ind. Ct. App. 2005) (failure to present cogent
argument supported by legal authority constitutes waiver of issue for appellate review); Ind.
Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on
the issues presented supported by cogent reasoning. Each contention must be supported by
16
citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied
on”). The Duree Lawyers are correct that the Heysers failed to cite any legal authority.
While the Heysers certainly would have presented a stronger argument had they supported
their statements with legal authority, their argument is adequate to permit review on the
merits, and therefore we choose to do so. See Izaak Walton League of Am., Inc. v. DeKalb
Cnty. Surveyor’s Office, 850 N.E.2d 957, 965 (Ind. Ct. App. 2006) (“There is, quite properly,
a judicial preference for deciding cases on their merits, rather than dismissing them because
of some minor or irrelevant technical defect.”).
Specifically, the Heysers argue that their failure to list their claims in their bankruptcy
estate cannot serve as a basis to grant summary judgment in favor of the Duree Lawyers
because the trial court already ruled in their favor on this issue when it (1) granted the Davis
Lawyers’ motion to dismiss Duree’s abuse of process counterclaim, (2) denied Duree-
Associates’ motion to dismiss Clients’ complaint for failure to state a claim upon which relief
can be granted, and (3) granted Clients’ motion to strike Duree-Associates’ affirmative
defenses paragraphs 29 and 30. There are several reasons that the trial court’s previous
rulings are not on par with its summary judgment ruling. First, Duree’s abuse of process
counterclaim against the Davis Lawyers includes elements that are not part of contract and
17
negligence theories.5 The trial court may have dismissed the abuse of process claim based on
the absence of one of those elements.
Second, the trial court’s decision to deny Duree-Associates’ motion to dismiss was
based on whether the complaint failed to state a claim upon which relief can be granted
pursuant to Indiana Trial Rule 12(B)(6). The test for whether a complaint survives a motion
to dismiss pursuant to Trial Rule 12(B)(6) is not the same as the standard for summary
judgment. “A motion to dismiss under [Trial] Rule 12(B)(6) tests the legal sufficiency of a
complaint: that is, whether the allegations in the complaint establish any set of circumstances
under which a plaintiff would be entitled to relief.” Trail v. Boys & Girls Clubs of Nw. Ind.,
845 N.E.2d 130, 134 (Ind. 2006) (emphasis added). “The purpose of summary judgment is to
terminate litigation about which there can be no factual dispute and which may be determined
as a matter of law.” Bushong v. Williamson, 790 N.E.2d 467, 474 (Ind. 2003) (citation and
quotation marks omitted).
The trial court’s ruling on Duree-Associates’ motion to dismiss also differs from the
summary judgment ruling in terms of the designated evidence. To support their motion for
summary judgment, the Duree Lawyers designated the requests for admissions, which the
trial court had deemed admitted in its June 6, 2011 Order. Thus, the designated evidence
showed that the Heysers admitted that they did not list their claims against the Duree
5
“Abuse of process has two elements: (1) ‘ulterior purpose or motives;’ and (2) ‘a willful act in the
use of process not proper in the regular conduct of the proceeding.’” Wells v. Bernitt, 936 N.E.2d 1242, 1252-
53 (Ind. Ct. App. 2010) (quoting Watson v. Auto Advisors, Inc., 822 N.E.2d 1017, 1029 (Ind. Ct. App. 2005),
trans. denied) trans. denied (2011).
18
Lawyers as part of their bankruptcy estate.6 The Heysers did not designate contrary evidence,
and we may not rely on the “extrinsic evidence” to which they refer.7 Appellants’ Br. at 15.
See Filip v. Block, 879 N.E.2d 1076, 1078 (Ind. 2008) (“Indiana Trial Rule 56(C) requires
parties to designate the evidence in support of or opposition to a motion for summary
judgment.”). As for the trial court’s grant of Clients’ motion to strike affirmative defenses,
that was based on its previous denial of Duree-Associates’ motion to dismiss and likewise
differs from the summary judgment ruling.
Furthermore, even if the trial court had previously ruled in favor of the Heysers on this
issue, the trial court has the inherent power to reconsider, vacate, or modify any previous
order until the entry of final judgment. P.R. Mallory & Co. v. Am. Cas. Co. of Reading, Pa.,
920 N.E.2d 736, 747 (Ind. Ct. App. 2010), trans. denied. Accordingly, we affirm the trial
court’s grant of summary judgment in favor of the Duree Lawyers on the Heysers’ claims
against them.
6
Unless rights of action are included as part of the debtor’s bankruptcy estate and abandoned by the
trustee, they may not be pursued by the debtor. See Boucher v. Exide Corp., 498 N.E.2d 402, 403 (Ind. Ct.
App. 1986), trans. denied (1987) (“Abandonment presupposes knowledge. There can, as a rule, be no
abandonment by mere operation of law of property that was not listed in the debtor’s schedule or otherwise
disclosed to the creditors.”) (citation and quotation marks omitted).
7
The Heysers filed no affidavits with their opposition to summary judgment. They designated the
June 6, 2011 Order and Duree-Associates’ motion to dismiss with its related filings, but they did not attach the
Heysers’ and the Morrises’ bankruptcy trustees’ emails to their response in opposition to Duree-Associates’
motion to dismiss.
19
II. Summary Judgment in Favor of the Duree Lawyers and Against the Morrises and
Kapza
The trial court granted summary judgment in favor of the Duree Lawyers based on the
Morrises’ voluntary dismissal of their complaint in the Underlying Case. The Morrises and
Kapza argue that their voluntary dismissal does not support summary judgment in favor of
the Duree Lawyers on either the breach of contract claim or the legal malpractice claim. The
Duree Lawyers argue that the Morrises failed to cite any authority in support of their
arguments and therefore waived their claim for review. See Wenzel, 830 N.E.2d at 1004; Ind.
Appellate Rule 46(A)(8)(a). Because the Morrises and Kapza’s argument is adequate to
permit our review and our preference is to review claims on the merits if possible, we decline
to find their arguments waived. See Izaak Walton League, 850 N.E.2d at 965.
As for the breach of contract claim, the Morrises and Kapza argue that even though
they voluntarily dismissed their complaint in the Underlying Case, they still suffered damages
from the Duree Lawyers’ breach of the contingency fee agreement because they had to hire
an hourly attorney. We agree. See Bank One, Nat’l Ass’n v. Surber, 899 N.E.2d 693, 704
(Ind. Ct. App. 2009), trans. denied (stating that the measure of damages for breach of
contract is such damages that are reasonably considered as arising naturally from the breach,
or that are reasonably supposed to have been within the parties’ contemplation at the time
they entered into the contract as a probable result of the breach). However, there is an
alternative basis upon which we can affirm the trial court’s grant of summary judgment
against the Morrises but not Kapza. The Duree Lawyers’ designated evidence included the
20
requests for admissions directed to the Morrises, which the trial court deemed admitted in its
June 6, 2011 Order. Thus, the designated evidence showed that the Morrises admitted that
they did not list their claims against the Duree Lawyers as part of their bankruptcy estate.
The Morrises did not designate any evidence to the contrary.8 Therefore, the Morrises are
barred from bringing their breach of contract claim against the Duree Lawyers. Accordingly,
we affirm the grant of summary judgment in favor of the Duree Lawyers and against the
Morrises on the breach of contract claim. Kapza’s breach of contract claim against the Duree
Lawyers remains, and therefore we reverse the grant of summary judgment in favor of the
Duree Lawyers and against Kapza on the breach of contract claim.
As for the legal malpractice claim, the Morrises and Kapza argue that their voluntary
dismissal was an effort to mitigate damages after Duree doomed their lawsuit by waiving a
constructive fraud claim, and therefore Duree’s actions were still the proximate cause of their
damages. The Morrises and Kapza fail to cite any legal authority which supports damages in
a legal malpractice claim where the client voluntarily dismissed the claim in the underlying
lawsuit. In a legal malpractice claim, “[p]roximate cause requires the plaintiff to show at a
minimum that the outcome of the underlying litigation would have been more favorable but
for the attorney’s negligence. Such proof typically requires a trial within a trial.” Flatow v.
Ingalls, 932 N.E.2d 726, 729 (Ind. Ct. App. 2010), trans. denied (2011) (citations and
quotation marks omitted). The Morrises and Kapza do not direct us to any designated
8
The Morrises did not file any affidavits with their opposition to summary judgment. Like the
Heysers, they designated the June 6, 2011 Order and Duree-Associates’ motion to dismiss with its related
filings, but the Heysers’ and the Morrises’ bankruptcy trustees’ emails were not part of those filings.
21
evidence that would support the position that their lawsuit against Noble Roman’s would
have been successful but for Duree’s waiver of the constructive fraud claim.
Finally, the Morrises and Kapza make the same arguments that the Heysers advanced,
namely, that the trial court previously decided this issue in their favor and that extrinsic
evidence precludes summary judgment. We reject these arguments for the same reasons that
we rejected the Heysers’ arguments. Accordingly, we affirm the trial court’s grant of
summary judgment in favor of the Duree Lawyers on the Morrises’ and Kapza’s legal
malpractice claims against them.
III. Summary Judgment in Favor of the Duree Lawyers and Against the Villasenors
The trial court granted summary judgment in favor of the Duree Lawyers and against
the Villasenors based on the involuntary dismissal of the Villasenors’ complaint as a sanction
for their failure to comply with court-ordered discovery. The Villasenors’ sole argument is
that summary judgment is improper in their case for the same reasons that summary judgment
against the Morrises is improper. The Duree Lawyers contend that the Villasenors have
waived their claim for failure to present cogent argument supported by authority. We agree.
Given that the Villasenors’ complaint was involuntarily dismissed as a discovery sanction,
we fail to see how the Morrises’ arguments apply to the Villasenors’ position. We are unable
to review the Villasenors’ claim on the merits, and consequently it is waived. See Wenzel,
830 N.E.2d at 1004; Ind. Appellate Rule 46(A)(8)(a). Therefore, we affirm the trial court’s
grant of summary judgment in favor of the Duree Lawyers on the Villasenors’ claims against
them.
22
IV. Summary Judgment in Favor of the Price Lawyers
Count III of Clients’ complaint alleged that the Price Lawyers owed them a legal duty
arising out of the attorney-client relationship, including their duty as co-counsel, to sign all
briefs, papers, and pleadings and to make a reasonable inquiry into the character,
qualifications, experience, and disciplinary history of the Duree Lawyers prior to
recommending Duree for temporary admission, and that the Price Lawyers are jointly
responsible with the Duree Lawyers for their actions, inactions, and omissions. Appellants’
App. at 173.
The procedural history relevant to this issue is that the Price Lawyers moved for
summary judgment against the Clients on the basis that Price had no knowledge of Duree’s
improper notarization of Clients’ affidavits in the Underlying Case, and therefore the Price
Lawyers had not committed or omitted any act that caused Clients’ alleged damages. The
Price Lawyers’ designated evidence included Price’s affidavit, in which he swore that he “did
not prepare, notarize, or sign the affidavits that were filed by [Duree]” and that he “had no
knowledge that [Duree] notarized the affidavits when the affiants had in fact not appeared
before him to sign the affidavits and were not placed under oath.” Id. at 547. Price also
attested that he (1) was retained by Duree to sponsor him in a pro hac vice application for
temporary admission, (2) had no contact with Clients regarding the suitability of Duree as
their attorney in the Underlying Case, (3) was not a party to any agreement or fee
arrangement with Clients in the Underlying Case, (4) had not received a retainer or any other
payment directly from Clients for any services rendered in the Underlying Case, and (4) had
23
no contractual relationship with Clients and had no agreement with them to represent them
on a contingency fee basis. Id. at 546-47. In addition to Price’s affidavit, the Price Lawyers
designated copies of the improperly notarized affidavits, which had been signed only by
Duree and not Price. Id. at 558-609.
Clients responded to the Price Lawyers’ motion for summary judgment, arguing that
the Price Lawyers’ lack of knowledge of Duree’s actions in the underlying case supported
their legal malpractice claim. Id. at 665. The Clients’ designated evidence included their
complaint, the Price Lawyers’ answer, the June 6, 2011 Order, and the appearance of the
Price Lawyers in the Underlying Case. The trial court granted the Price Lawyers’ motion for
summary judgment, concluding that it was undisputed that Price did not have any knowledge,
information, or belief that the affidavits were not properly notarized and that Clients had
failed to designate evidence that created a genuine issue of material fact as to the Price
Lawyers’ liability and whether any of their actions were the proximate cause of any damages
to Clients. Duree’s Appellee’s Br. at A-12.
On appeal, Clients argue that the Price Lawyers’ designated evidence was insufficient
to support summary judgment in their favor. Recall that to “prove a legal malpractice claim,
a plaintiff must establish: 1) employment of the attorney (duty); 2) failure of the attorney to
exercise ordinary skill and knowledge (breach); 3) proximate cause (causation); and 4) loss to
the plaintiff (damages).” Flatow, 932 N.E.2d at 729. To succeed in a motion for summary
judgment, the defendant’s designated evidence must negate at least one element. Id.24
Clients argue that Price’s failure to sign the affidavits does not shield the Price
Lawyers from liability for Duree’s conduct in the Underlying Case. According to Clients,
Price’s failure to sign the affidavits supports the Price Lawyers’ liability because it violates
Indiana Admission and Discipline Rule 3, which governs the temporary admission of out-of-
state attorneys. Specifically, Clients argue that Price violated Rule 3(2)(d), which provides,
Members of the bar of this state serving as co-counsel under this rule shall sign
all briefs, papers and pleadings in the cause and shall be jointly responsible
therefore [sic]. The signature of co-counsel constitutes a certificate that, to the
best of co-counsel’s knowledge, information and belief, there is good ground
to support the signed document and that it is not interposed for delay or any
other improper reason. Unless ordered by the trial court, local counsel need
not be personally present at proceeding before the court.
Clients attempt to bolster their argument with reference to the Indiana Rules of
Professional Conduct.9 Indiana’s “Rules of Professional Conduct have limited application
outside of the attorney disciplinary process” and are not intended to create a legal malpractice
claim or other civil liability. Liggett v. Young, 877 N.E.2d 178, 182 (Ind. 2007).
Nevertheless, Clients contend that the Rules of Professional Conduct are evidence of the
applicable standard of care in a legal malpractice action.
The Preamble to the Rules of Professional Conduct provides,
The Rules are designed to provide guidance to lawyers and to provide a
structure for regulating conduct through disciplinary agencies. They are not
designed to be a basis for civil liability, but these Rules may be used as non-
conclusive evidence that a lawyer has breached a duty owed to a client.
Furthermore, the purpose of the Rules can be subverted when they are invoked
9
Clients may be under the mistaken impression that the Rules of Professional Conduct are the same as
the Rules for Admission and Discipline, even citing Indiana Admission and Discipline Rule 3(2) as “I.R.P.C.
3(2)).” Appellants’ Br. at 23.
25
by opposing parties as procedural weapons. …. Nevertheless, since the Rules
do establish standards of conduct by lawyers, a lawyer’s violation of a Rule
may be evidence of breach of the applicable standard.
Ind. Rules of Professional Conduct, Scope [20].10
The unstated basis for Clients’ argument is that if the Rules of Professional Conduct
may be used as non-conclusive evidence of a lawyer’s breach of duty to a client then the
Admission and Discipline Rules may also be used as such evidence. However, the
Admission and Discipline Rules do not contain language analogous to the Preamble to the
Rules of Professional Conduct. If our Supreme Court intended the Admission and Discipline
Rules to serve as non-conclusive evidence of a lawyer’s breach of duty, it could have stated
so. Walters v. Grant Cnty. Council, 821 N.E.2d 415, 418 (Ind. Ct. App. 2005) (“[I]t is just as
important to recognize what the statute does not say as it is to recognize what it does say.”).
Even assuming solely for purposes of this appeal that a violation of the Admission and
Discipline Rules could serve as non-conclusive evidence of a lawyer’s breach of duty to a
client, Clients’ contention that Price’s affidavit was insufficient to support summary
judgment is still without merit. Price’s affidavit is evidence that he did not participate in the
preparation of the affidavits and had no knowledge of their improper preparation. There is
nothing in the record to suggest that Price knew of the affidavits prior to their filing before
the court. Clients did not designate any evidence in response that would create a genuine
issue of material fact that the Price Lawyers’ actions or omissions proximately caused any of
10
Clients mistakenly quote the version of the Preamble that was in effect before the Rules of
Professional Conduct were amended effective January 1, 2005. Appellants’ Br. at 24. We quote the current
version of the Preamble, which was in effect during the Underlying Case.
26
their alleged damages. Accordingly, we conclude that the trial court properly granted
summary judgment in favor of the Price Lawyers on Clients’ complaint.11
Conclusion
We reverse the grant of summary judgment in favor of the Duree Lawyers on Kapza’s
breach of contract claim and remand for further proceedings. We affirm all remaining
summary judgment rulings in favor of the Duree Lawyers.12 We also affirm summary
judgment in favor of the Price Lawyers on Clients’ complaint.
Affirmed in part, reversed in part, and remanded.
BARNES, J., and PYLE, J., concur.
11
In just one sentence, Clients address Price’s lack of knowledge that the affidavits were improperly
notarized. They assert that local counsel may be subject to discipline if the out-of-state attorney fails to satisfy
the requirements of the rule governing temporary admission “regardless of whether Indiana co-counsel played
any part in said out-of-state attorney’s actions and/or inactions.” Appellants’ Br. at 24. In support, Clients cite
In re Anonymous, 932 N.E.2d 1247 (Ind. 2010), but that case does not stand for the proposition that Clients
advance. In Anonymous, local co-counsel played a part in the out-of-state attorney’s failure to satisfy the
requirements for temporary admission. Local co-counsel signed an appearance with out-of-state counsel even
though co-counsel had not co-signed the petition for temporary admission, which the out-of-state attorney
would have needed to obtain temporary admission. Ind. Admis. Disc. Rule (3)(2)(a)(4). When the trial court
notified local co-counsel that the out-of-state attorney was not admitted to practice in Indiana, local counsel’s
“inadequate response was to give [the out-of-state attorney] a copy of the applicable rule.” 932 N.E.2d at
1249. In any event, even if local counsel was disciplined for an out-of-state attorney’s actions and/or inactions
when local counsel had no knowledge of the out-of-state attorney’s conduct, it does not necessarily follow that
local counsel breached the applicable standard of care owed to the out-of-state attorney’s client.
12
In their reply brief, Clients argue for the first time that the Duree Lawyers failed to present argument
or designate evidence regarding Clients’ legal malpractice claims based on failure to adequately advise of any
past disciplinary matters, experience in similar types of cases, and the chances of success in the Underlying
Case. Appellants’ Reply Br. at 7. Clients did not present this argument to the trial court in their response in
opposition to summary judgment. “‘A party generally waives appellate review of an issue or argument unless
the party raised that issue or argument before the trial court.’” Hoagland v. Town of Clear Lake Bd. of Zoning
Appeals, 873 N.E.2d 61, 65 (Ind. Ct. App. 2007) (quoting GKC Indiana Theatres, Inc. v. Elk Retail Investors,
LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002)). Therefore, Clients waived this argument.
27