Mirjana Miletic v. Michael J. O'Brien (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 12 2017, 8:29 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Mirjana Miletic Adam J. Sedia
Crown Point, Indiana Hoeppner Wagner & Evans, LLP
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mirjana Miletic, December 12, 2017
Appellant-Plaintiff, Court of Appeals Case No.
45A03-1703-CT-513
v. Appeal from the Lake Superior
Court
Michael J. O’Brien, The Honorable John R. Pera,
Appellee-Defendant. Judge
Trial Court Cause No.
45D10-1411-CT-227
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, Mirjana Miletic (Miletic), appeals the trial court’s
judgment on the evidence in favor of Appellee-Respondent, Michael J. O’Brien
(Attorney O’Brien), in Miletic’s claim for legal malpractice.
[2] We affirm.
ISSUE
[3] Miletic raises three issues on appeal, one of which we find dispositive and
which we restate as: Whether the trial court erred by entering a judgment on
the evidence in favor of Attorney O’Brien.
FACTS AND PROCEDURAL HISTORY
[4] On August 21, 2004, Miletic married Dragan Miletic (Dragan). Miletic and
Dragan separated in March of 2012. Miletic retained Attorney O’Brien to
represent her in the divorce proceedings.
[5] At some point, Miletic was diagnosed with breast cancer, and she suffers from a
host of other medical conditions. While the divorce was pending, in May of
2012, Miletic filed a claim to receive supplemental security income due to a
disability, and she was subsequently determined to be eligible for disability
benefits in the amount of $710.00 per month. Conversely, in August of 2012,
the Medicaid Medical Review Team determined that Miletic did not meet
Medicaid’s disability criteria.
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[6] In his Financial Declaration Form, completed in July of 2012, Dragan
indicated that he was unemployed and receiving unemployment benefits. He
was also maintaining health insurance on Miletic through COBRA. At some
point before the parties’ dissolution, it appears that he moved to California for
new employment. On October 18, 2012, Attorney O’Brien filed a Verified
Petition for Maintenance Due to Spousal Incapacity, requesting that Dragan
pay to Miletic “a reasonable monthly maintenance, in addition to a
continuation of the COBRA for a period of time the [c]ourt considers
appropriate.” (Appellant’s App. Vol. II, p. 26).
[7] On November 26, 2012, the trial court held a final hearing on the dissolution,
during which Miletic and Dragan informed the court that they had reached an
agreement on all issues. Specifically, the parties indicated that they had no real
property, and they had already divided all personal property. Dragan agreed
that he would maintain health insurance for Miletic until she completed
treatment or obtained Medicaid. The trial court questioned Dragan regarding
the provision of health insurance because it would be “a form of . . .
[incapacity] spousal maintenance.” (Appellant’s App. Vol. II, p. 52). Dragan
indicated that he was “[w]holeheartedly” agreeing to “pay directly for
[Miletic’s] insurance, as long as she needs it.” (Appellant’s App. Vol. II, p. 51).
Miletic testified that she understood the terms of the agreement, that she agreed
to it of her own “free will,” and that she would abide by it. (Appellant’s App.
Vol. II, p. 57). The trial court instructed Attorney O’Brien to memorialize the
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settlement agreement in a document to be signed by both parties and submitted
to the court for a final decree.
[8] On April 10, 2013, Dragan notified the court that he had complied with the
agreed-upon settlement and, at Attorney O’Brien’s request, had signed and
returned the formalized settlement agreement in January of 2013. However, he
stated that Miletic had “terminated [Attorney O’Brien] and refused to sign the
[s]ettlement [a]greement.” (Appellant’s App. Vol. II, p. 136). Thus, Dragan
requested that the court fully implement the settlement as “decided at the final
hearing on November 26th 2012.” (Appellant’s App. Vol. II, p. 136). On June
27, 2013, the trial court conducted a hearing and directed Miletic’s new counsel
to prepare and file a decree; this was never done. Thus, on September 6, 2013,
the trial court issued a Final Decree of Dissolution of Marriage, relying on the
parties’ assertions during the final hearing. The trial court ordered that Dragan
“shall provide incapacity spousal maintenance to [Miletic] by maintaining
health insurance coverage for her until her current treatment is completed or
until Medicaid accepts her.” (Appellant’s App. Vol. II, p. 20).
[9] On October 26, 2015, Miletic filed an Amended Complaint against Attorney
O’Brien, alleging legal malpractice. Specifically, she claimed that Attorney
O’Brien “failed to exercise reasonable skill in representing [her] that a
reasonably competent attorney would do.” (Appellant’s App. Vol. II, p. 22).
Miletic argued that, in the divorce proceedings, Attorney O’Brien “only asked
for medical coverage or COBRA coverage” even though “[h]e was supposed to
ask for monthly payments to be for spousal support due to [her] disability.”
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(Appellant’s App. Vol. II, p. 22). Miletic further contended that, had Attorney
O’Brien properly conducted discovery, he would have learned that her ex-
husband was “earning over $164,000 per year,” 1 and she should “have gotten
spousal maintenance or support as a result of [her disability] and [husband’s]
ability to pay same.” (Appellant’s App. Vol. II, p. 23). Accordingly, she
“request[ed] [j]udgment against [Attorney O’Brien] in an amount that will
compensate [her] for [her] damages which is a life[]time of spousal support
[she] should have received if [Attorney O’Brien] had competently done his job.”
(Appellant’s App. Vol. II, p. 23).
[10] On October 30, 2015, Attorney O’Brien filed a motion for summary judgment,
which the trial court denied on March 11, 2016. On December 20, 2016, the
trial court conducted a bench trial. At the close of Miletic’s case, Attorney
O’Brien moved for directed verdict. Based on its finding that Miletic had failed
to meet her burden of proof, the trial court granted Attorney O’Brien’s motion.
1
It should be noted that, throughout this case, Miletic has repeatedly emphasized that Dragan earned
$164,000 per year at the time of their divorce and, thus, clearly should have been required to pay
maintenance. A review of the tax returns admitted into evidence indicates that Dragan worked for Kraft
Foods Group during his marriage to Miletic, and for tax years 2004, 2007, 2008, 2009, 2010, and 2011, their
joint gross income (derived from his earnings as she appeared to have been unemployed) averaged
$68,134.67. Then, in 2012, Dragan lost his job and subsequently began new employment in California.
According to the jointly-filed tax return for that year, Dragan earned $164,103: $106,850 from Kraft Foods
Group and $33,780 from his new job. He also later filed an amended tax return to include $14,289 from a
retirement account. Transcripts from the dissolution proceeding indicate that Dragan received a severance
package from Kraft Foods. Thus, our court can infer that Dragan’s increase in income in 2012 was
attributable to the severance package from Kraft Foods Group and was not a reflection of his regular salary,
contrary to Miletic’s assertion. Moreover, the record establishes that Dragan equally divided his severance
package with Miletic prior to the final hearing.
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On January 19, 2017, Miletic filed a motion to correct errors, which the trial
court denied on February 14, 2017.
[11] Miletic now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] At the close of Miletic’s case-in-chief, Attorney O’Brien requested a directed
verdict (i.e., a judgment on the evidence) pursuant to Indiana Trial Rule 50,
which the trial court granted. However, a directed verdict is reserved for cases
that are tried before a jury, and the instant case involved a bench trial. See Ind.
Trial Rule 50(A). “The Indiana Supreme Court has noted that a court on
appeal will address a trial court’s ruling on a motion for directed verdict made
at a bench trial as a Trial Rule 41(B) motion for an involuntary dismissal.”
Vega v. City of Hammond, 80 N.E.3d 904, 909 (Ind. Ct. App. 2017).
[13] Trial Rule 41(B) provides that
[a]fter the plaintiff or party with the burden of proof upon an
issue, in an action tried by the court without a jury, has
completed the presentation of his evidence thereon, the opposing
party, without waiving his right to offer evidence in the event the
motion is not granted, may move for a dismissal on the ground
that upon the weight of the evidence and the law there has been
shown no right to relief. The court as trier of the facts may then
determine them and render judgment against the plaintiff or may
decline to render any judgment until the close of all the evidence.
If the court renders judgment on the merits against the plaintiff or
party with the burden of proof, the court, when requested at the
time of the motion by either party shall make findings if, and as
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required by Rule 52(A). Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision .
. . operates as an adjudication upon the merits.
Thus, “[a] Trial Rule 41 motion to dismiss tests the sufficiency of the plaintiff’s
case in chief.” Vega, 80 N.E.3d at 909. On appeal, we review a ruling on a
Trial Rule 41(B) motion for involuntary dismissal “under the clearly erroneous
standard.” Thornton-Tomasetti Eng’rs v. Indianapolis-Marion Cnty. Pub. Library,
851 N.E.2d 1269, 1277 (Ind. Ct. App. 2006). Accordingly, we will not reweigh
evidence or assess the credibility of witnesses, and we will “reverse the trial
court only if the evidence is not conflicting and points unerringly to a
conclusion different from the one reached by the lower court.” Id.
[14] Additionally, we note that Miletic is proceeding pro se. It is well established
that pro se litigants “are held to the same legal standards as licensed attorneys.”
Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016). Pro se parties must
“follow the established rules of procedure and must be prepared to accept the
consequences of their failure to do so.” Id. at 983-84. Our court “will not
become an advocate for a party, or address arguments that are inappropriate or
too poorly developed or expressed to be understood.” Id. at 984 (internal
quotation marks omitted).
II. Legal Malpractice
[15] Miletic claims that Attorney O’Brien committed legal malpractice during his
representation of her in the dissolution proceedings. She argues that she
presented ample evidence of his negligence during her case-in-chief, proving
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that Attorney O’Brien “failed to do discovery to prove what [Dragan] earned,”
which ultimately prevented Attorney O’Brien from “prov[ing] a maintenance
case” at trial. (Appellant’s Br. p. 14). Accordingly, Miletic maintains that the
trial court erred in granting Attorney O’Brien’s request for judgment—i.e.,
involuntarily dismissing her claim based on the weight of evidence—and now
requests that our court reverse the trial court’s decision and order Attorney
O’Brien to “compensate [her] for a lifetime of [s]pousal [s]upport.”
(Appellant’s Br. p. 14).
[16] It is a basic tenet “of professional conduct that an attorney must faithfully,
honestly, and consistently represent the interest and protect the rights of his
client, and that he is bound to discharge his duties to his client with the strictest
fidelity, to observe the highest and utmost good faith, and to inform his client
promptly of any known information important to him.” Barkal v. Gouveia &
Assocs., 65 N.E.3d 1114, 1119 (Ind. Ct. App. 2016). In Indiana, an attorney is
generally expected “to exercise ‘ordinary skill and knowledge.’” Id. Therefore,
to succeed on a claim of legal malpractice, Miletic was required to establish:
“(1) employment of the attorney (the duty); (2) failure of the attorney to
exercise ordinary skill and knowledge (the breach); (3) proximate cause
(causation); and (4) loss to the plaintiff (damages).” Id. Whether an attorney
exercised due care and diligence in representing a client—i.e., whether an
attorney breached his duty—ordinarily “requires expert testimony to
demonstrate the standard of care by which the . . . attorney’s conduct is
measured.” Id. at 1119-20 (internal quotation marks omitted). As for causation
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and the extent of the client’s harm, the plaintiff must show that, but for the
attorney’s negligence, “the outcome of the underlying litigation would have
been more favorable.” Id. at 1119.
[17] In granting Attorney O’Brien’s motion for directed verdict, the trial court
stated:
First of all, I want to say that no one could—no judge could live
with this case as long as I have, it having been filed over two
years ago, and both sides being in front of me on any number of
occasions, and not feel sympathy towards you, Ms. Miletic.
You’re in a situation in your life which is not very—not very
good, and I understand that. But what you’ve asked the [c]ourt
to do is to place responsibility for your situation on the shoulders
of [Attorney] O’Brien. And I told you months, and months, and
months ago, and advised you of the perils—do you know what I
mean by that word, perils—of representing yourself in—in a case,
this is not a small claims court, I have to hold you to the same
standard I would if you were a lawyer . . . that had gone to law
school and had been well-trained, and well-educated, and well-
schooled in what the law requires. At the end of the day, I’ve
taken an oath to uphold the law and to follow the law. I can’t
make things up as I go along. And even though I have the
upmost sympathy for you, and for the situation you’re in, it is
your obligation to prove to me by the greater weight of the
evidence that [Attorney] O’Brien did something he shouldn’t
have done or failed to do something that he should have done—
that’s called negligence in the law—and that as a result of his
negligence, you were harmed. The only way that I can make
that determination is through expert testimony, testimony from a
lawyer, here, who would tell me what he failed to do or tell me
what he did do that he shouldn’t have done. You’ve not
presented me with any expert testimony this morning concerning
[Attorney] O’Brien’s alleged negligence. And because of that,
there is a failure of proof on your part to hold him accountable
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for anything that you claim he did to you or failed to do for you.
Knowing I have to be faithful to the law, I have to rule in
[Attorney] O’Brien’s favor, not because I’m unsympathetic to
your plight or that I think that he—he did represent you
appropriately. I don’t know that. I don’t know whether he did
or he didn’t. . . . [I]n order to prove your case, you have to have
an expert, a lawyer, come in and testify to that. What you’re
really asking me to do is to act as that lawyer for you. . . . So, I’m
finding in favor—I’m granting the motion for directed verdict.
I’m finding in favor of [Attorney] O’Brien because of the failure
of proof on your part.
(Tr. pp. 53-55).
[18] Miletic now asserts that the trial court’s decision was erroneous because expert
testimony was unnecessary; she posits that her “case is so obvious that even a
child can tell it was negligence.” (Appellant’s Br. p. 16). Despite the
requirement of expert testimony in legal malpractice cases, there is an exception
if “the question is within the common knowledge of the community as a whole
or when an attorney’s negligence is so grossly apparent that a layperson would
have no difficulty in appraising it.” Storey v. Leonas, 904 N.E.2d 229, 238 (Ind.
Ct. App. 2009), trans. denied. Here, Miletic argues that, at the time of her
dissolution, Attorney O’Brien knew that she was sick, disabled, and unable to
work or provide for herself. She further contends that, at the onset of her case,
she instructed Attorney O’Brien to seek a spousal maintenance award, “and he
had a duty to use reasonable care and skill in pursuing that claim.”
(Appellant’s Br. p. 21). Instead, she maintains that Attorney O’Brien “breached
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his duty to at all times protect and preserve [her] property.” (Appellant’s Br. p.
22).
[19] On the other hand, Attorney O’Brien argues that Miletic has waived her right to
rely on the common knowledge exception because she did not assert that expert
testimony was unnecessary to demonstrate Attorney O’Brien’s negligence until
her motion to correct errors. “A party may not raise an issue for the first time
in a motion to correct error or on appeal.” Troxel v. Troxel, 737 N.E.2d 745, 752
(Ind. 2000). Notwithstanding any waiver, Miletic’s claim fails on the merits.
[20] It is well established that the common knowledge exception “is very limited and
applies solely in cases of obvious and transparent malpractice.” Barkal, 65
N.E.3d at 1122. Here, we are unable to find such obviousness and transparency
in Attorney O’Brien’s alleged malpractice. Per his client’s request, Attorney
O’Brien filed a motion for spousal maintenance, seeking both monetary
payments and the provision of health insurance. Apparently, by the time of the
final hearing, Miletic and Dragan settled the maintenance issue. In her brief,
Miletic fails to address the fact that, at the final dissolution hearing, she
affirmed to the trial court that she understood and agreed with the settlement
arrangement reached by the parties, which included a provision of spousal
maintenance solely in the form of health insurance. 2 The trial court expressly
2
Miletic does cite to her own testimony from the malpractice hearing, wherein she indicated that prior to the
final dissolution hearing, Attorney O’Brien met privately with Dragan and decided on the issue of health
insurance in her absence, and then during the final hearing, Attorney O’Brien instructed her “to ‘just shut up
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“accept[ed], adopt[ed], and approve[d] the parties’ settlement agreement.”
(Appellant’s App. Vol. II, p. 57). Our court is not privy to the negotiations that
preceded the settlement, and it is unclear as to what occurred following that
hearing such that a written version of the settlement agreement was never
submitted to the trial court. Nevertheless, there was no attempt to repudiate the
settlement, and the trial court explicitly relied on the parties’ in-court averments
in drafting the dissolution decree with the limited spousal maintenance award.
Accordingly, because Attorney O’Brien’s purported negligence is not, as Miletic
essentially asserts, “so grossly apparent that a layperson would have no
difficulty in appraising it,” the common knowledge exception does not apply.
Barkal, 65 N.E.3d at 1122. Therefore, expert testimony was required to
establish whether Attorney O’Brien breached the applicable standard of care.
The trial court did not err in dismissing Miletic’s legal malpractice claim based
on her failure to establish the elements of her claim. 3
CONCLUSION
[21] Based on the foregoing, we conclude that the trial court did not err in granting
judgment to Attorney O’Brien—i.e., dismissing Miletic’s legal malpractice
and say yes to my question.’” (Appellant’s Br. p. 12). However, this is in stark contrast to her testimony that
she knowingly entered into the settlement agreement of her own free will.
3
Miletic also raises an issue concerning the trial court’s refusal to allow her to testify from her notes and an
issue regarding the trial court’s exclusion of a “demonstrative exhibit,” “which was a time line summarizing
[her] exhibits.” (Appellant’s Br. p. 23). We find that Miletic has waived both of these issues based on her
failure to develop a cogent, well-reasoned argument with appropriate citations to authority. See Ind.
Appellate Rule 46(A)(8)(a).
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claim—based on Miletic’s failure to meet her burden of establishing a right to
relief.
[22] Affirmed.
[23] Baker, J. and Brown, J. concur
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