                                                                         FILED
                                                                    Dec 27 2016, 8:26 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




        ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
        Daniel H. Pfeifer                                          Michael E. O’Neill
        Jerome W. McKeever                                         Daniel W. Glavin
        Pfeifer Morgan & Stesiak                                   Nathan D. Hansen
        South Bend, Indiana                                        O’Neill McFadden & Willett, LLP
                                                                   Schererville, Indiana


                                                     INTHE

             COURT OF APPEALS OF INDIANA
        P. Kevin Barkal, M.D. and                                  December 27, 2016
        Pemcor, Inc.,                                              Court of Appeals Case No.
        Appellants-Plaintiffs,                                     45A03-1607-CT-1601
                                                                   Appeal from the Lake Circuit
                 v.                                                Court
                                                                   The Honorable Robert G. Vann,
        Gouveia & Associates,                                      Special Judge
        Appellee-Plaintiff.                                       The Honorable Alice A. Kuzemka,
                                                                 SMagistrate
                                                                   Trial Court Cause No.
                                                                   45C01-1302-CT-29



        Riley, Judge.




Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016                      Page 1 of 18
                                      STATEMENT OF THE CASE

[1]     Appellants-Plaintiffs, P. Kevin Barkal, M.D. (Dr. Barkal) and PEMCOR, Inc.

        (Pemcor) (collectively, Appellants), appeal the trial court’s grant of summary

        judgment to Appellee-Defendant, Gouveia & Associates (Attorney Gouveia),

        concluding that Appellants failed to designate expert testimony establishing that

        Attorney Gouveia breached the standard of care in his legal representation of

Pemcor in the underlying bankruptcy case.                 [2] We   affirm.


                                                        ISSUE

[3]     Appellants raise three issues on appeal, one of which we find dispositive and

        which we restate as: Whether the trial court properly concluded that

        Appellants failed to designate expert testimony to establish a breach of the

        appropriate standard of care.


                              FACTS AND PROCEDURAL HISTORY

[4]     In this seemingly never-ending bankruptcy saga of several medical offices

        located in California, we are now presented with the alleged legal malpractice

        component. These sixteen-year-old proceedings arose out of a simple slip and

        fall personal injury claim which occurred at one of Dr. Barkal’s offices in San

        Diego, California.


[5]     On December 1, 2000, Anna May Webb (Webb) filed a personal injury claim

        premised on a slip and fall in the San Diego County Superior Court in



Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016     Page 2 of 18
        California (California trial court) against Dr. Barkal and the San Diego Pain

        Management Consultants (SDPMC), in which Dr. Barkal “ha[d] an interest.”

        (Appellants’ App. Vol. 3, p. 197). On January 7, 2002, the parties entered into

        a settlement agreement in the amount of $138,000 to be paid by SDPMC. The

        agreement provided for the payment of $42,000 up front by SDPMC’s

        insurance carrier, with the remaining balance to be paid in 48 installments of

        $2,000, and with Dr. Barkal personally guaranteeing payment. Because

        SDPMC and Dr. Barkal stopped making payments, Webb filed a motion to

        enforce the settlement on October 15, 2002, which was granted by the

        California trial court and judgment was entered against Dr. Barkal and SDPMC

        for $151,971.21. On December 21, 2005, after having difficulty collecting the

        judgment, the California trial court appointed Martin Goldberg as post

        judgment limited receiver (Receiver), and ordered Dr. Barkal to turn over all

        keys, leases, books, records, ledgers, and all other business records relating to

        twelve entities, including Pemcor (collectively, Barkal Entities), owned by Dr.

        Barkal, as well as prohibited Dr. Barkal from using any income generated by

        these Barkal Entities. On May 5, 2006, Webb filed a motion to amend the

        original judgment to include Dr. Barkal’s aliases and nine of Dr. Barkal’s alter

        ego entities, which was granted on June 26, 2006. On January 4, 2008, the

        California trial court entered an order of contempt against Dr. Barkal, finding

        him guilty of contempt of court for “knowingly and willfully” violating the

        court’s orders by attempting to collect accounts of the Barkal Entities and

        interfering with the duties of the Receiver. (Appellants’ App. Vol 2, pp. 179-


Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016       Page 3 of 18
        181).
[6]     In January of 2008, Dr. Barkal, who by now had moved to Munster, Indiana,

        retained the Indiana law firm of Daniel L. Freeland & Associates, P.C.

        (Attorney Freeland) to file bankruptcy in Indiana. Attorney Freeland agreed to

        represent Dr. Barkal individually, with the caveat that Attorney Gouveia be

        hired to separately represent the Barkal Entities to prevent any conflict of

        interest. After a meeting, Attorney Gouveia accepted representation of the

        Barkal Entities in Chapter 13 bankruptcy proceedings.


[7]     On March 10, 2008, Attorney Freeland filed a voluntary petition for Chapter 13

        bankruptcy in the United States Bankruptcy Court for the Northern District of

        Indiana (Bankruptcy Court) on behalf of Dr. Barkal. Eight days later, on
        March 18, 2008, Attorney Freeland filed a motion for turnover 1 against the

        Receiver on behalf of Dr. Barkal and the appointed trustee. In this motion, Dr.

        Barkal and the trustee requested that the Receiver deliver all items from the

        collection against Dr. Barkal and the Barkal Entities to the Trustee. On March

        28, 2008, by a separate motion, Attorney Gouveia intervened in the proceedings

        on behalf of the Barkal Entities, claiming that the Entities had an interest in the

        accounts receivables the Receiver was seeking to collect. On April 18, 2008, the

        Bankruptcy Court conducted a hearing on the motion for turnover filed by Dr.

        Barkal and joined by the Barkal Entities. At the hearing, the parties agreed that

        the “core issue” should be characterized as:



        1
            The purpose of a turnover is to get the item out of the bankruptcy estate and returned to the person filing the
        motion. See Appellants’ App. Vol. 5, p. 141.

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                 The extent to which proceeds of accounts receivable of the Barkal
                 Entities or of [Dr. Barkal], or corporate governance powers in
                 relation to the Barkal Entities – now or in the future subject to the
                 possession or control of [the Receiver] appointed with respect to
                 Case No. GIC757374 in [the California trial court] – constitute
                 property of the Chapter 13 bankruptcy estate of [Dr. Barkal] in
                 case number 08-20663.


        (Appellants’ App. Vol. 3, pp. 16-17). After ordering the Receiver to turn over

        $9,494.00 to the trustee from an account designated under Dr. Barkal’s name,

        the Bankruptcy Court set an evidentiary hearing for May 16, 2008, or in the

        alternative for both parties to agree to a statement of designated record

        approved by all the attorneys. The parties subsequently agreed to a joint index

        of exhibits regarding appointment of Receiver and judgment – debtor alter egos,

        which was filed with the Bankruptcy Court on the evidentiary hearing date. On

        July 15, 2008, the Bankruptcy Court “determined that the accounts receivable

        of the Barkal Entities are not property of the Chapter 13 bankruptcy estate” filed

        by Dr. Barkal, and therefore, denied the motion for turnover of the Barkal

        Entities. (Appellants’ App. Vol. 3, p. 42).


[8]     On July 21, 2008, a joint conference call was conducted between, among

        others, Dr. Barkal, Attorney Freeland, and Attorney Gouveia, represented by

        his associate attorney, Shawn Cox (Attorney Cox). During the meeting, Dr.

        Barkal was advised that the Barkal Entities could not be in a Chapter 13

        bankruptcy, because “a 13 is not even structured to address companies.”

        (Appellants’ App. Vol. 4, p. 205). Attorney Freeland recommended

        withdrawing the Chapter 13 bankruptcy, with which Dr. Barkal agreed, and to

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016         Page 5 of 18
        re-file the bankruptcy petition as a Chapter 11 in an attempt to save Dr. Barkal’s

        property in California from foreclosure. Dr. Barkal noted that they would

        “immediately proceed to seek counsel for the filing of bankruptcy by one or

        more of the 9 companies, so that the liquidation of those companies’ assets will

        provide additional income to the re-filed Barkal bankruptcy.” (Appellants’

        App. Vol. 3, p. 195). That same day, Attorney Freeland, on behalf of Dr.

        Barkal, moved to dismiss the Chapter 13 bankruptcy case.


[9]     On August 11, 2008, Dr. Barkal wrote to Attorney Cox requesting that

        Attorney Gouveia “immediately file the necessary corporate bankruptcies to

        accomplish the short-term goal of staying the foreclosure sale of the house on

        August 18, and buying us additional time to allow the Appellate Court in

        California to issue a ruling which may drastically alter the draconian orders

        under which I have been trying to survive.” (Appellants’ App. Vol. 3, p. 4).

        Two days later, Attorney Cox responded:


                        As I relayed to you on Monday, and I reiterated to your
                 California counsel yesterday, I am not in a position to undertake
                 the representation of one or more of the “Barkal Entities” to file
                 Chapter 7 bankruptcies.


                        As we discussed Monday, our engagement was limited to
                 addressing certain issues in your Chapter 13 [b]ankruptcy, and
                 we did not ever agree to file bankruptcies on behalf of the entities.
                 At no time did we agree to file bankruptcies on behalf of these
                 entities and we are not accepting such an engagement at this
                 time.



Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016          Page 6 of 18
                       We would be happy to provide you names of other
                 bankruptcy practitioners in the area if you so request.


        (Appellants’ App. Vol. 3, p. 2).


[10]    In January of 2009, Dr. Barkal retained Attorney David Welch (Attorney

        Welch) to file bankruptcy petitions on behalf of the Barkal Entities. On October

        9, 2009, Attorney Welch filed petitions for Chapter 11 bankruptcy proceedings

        in the Bankruptcy Court for the following Barkal Entities: West

        Coast Interventional Pain Medicine, Inc.; Surgical Leasing Company, Inc.;

        SDPMC; CV Surgical Management, Inc.; and The Pain Management Group.

        On October 29, 2009, Attorney Welch filed a Chapter 11 bankruptcy petition

        on behalf of Medical Facilities Management, G.P. No Chapter 11 bankruptcy

        petition has ever been filed for Pemcor, the named plaintiff in this cause. On

        August 12, 2010, the Chapter 11 bankruptcy proceedings were transferred from

        the Bankruptcy Court to the Southern District of California based on the

        convenience of the parties and in the interest of justice. After the proceedings

        were transferred, a trustee was appointed and the bankruptcies were converted

        to Chapter 7 proceedings to collect the accounts receivable of the Barkal

        Entities in a less expensive fashion.


[11]    Meanwhile, on March 9, 2010, Appellants filed a Complaint in the Lake

        Superior Court (trial court) alleging that due to Attorney Gouveia’s legal

        malpractice, they had lost “meritorious bankruptcy cases and the attendant

        bankruptcy protection available to [them] under [f]ederal [l]aw.” (Appellants’


Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016      Page 7 of 18
        App. Vol. 2, p. 19). Attorney Gouveia filed his answer and affirmative defenses


        on June 28, 2010, denying the allegations of the Complaint. On January 19,

        2016, Attorney Gouveia filed his motion for summary judgment, memorandum

        of law, and designation of evidence. In his motion, Attorney Gouveia

        contended that Appellants had not produced any expert testimony to support

        their allegation that he had violated the applicable standard of care. Secondly,

        Attorney Gouveia asserted that Appellants’ claims failed as a matter of law

        under the unclean hands doctrine and were barred by the Rooker-Feldman

        doctrine. Lastly, Attorney Gouveia disputed the existence of any damages as a

        result of his perceived breach of the standard of care. On April 21, 2016,

        Appellants filed their Response, memorandum of law, and designation of

        evidence. They posited that Attorney Gouveia had committed legal

        malpractice by: 1) failing to advise Dr. Barkal against filing a Chapter 13

        bankruptcy; 2) waiving an evidentiary hearing to support a motion for turnover;

        and 3) failing to advise or take any additional action once the Chapter 13

        bankruptcy was dismissed. In support of their contentions, Appellants

        submitted the deposition testimony of Attorney Welch and Attorney Mark

        Zuckerberg (Attorney Zuckerberg). On June 8, 2016, the trial court conducted

        a hearing on Attorney Gouveia’s motion. Twenty days later, on June 28, 2016,

        the trial court granted summary judgment to Attorney Gouveia, concluding:

                 Upon careful consideration of the arguments presented, and
                 review of the parties’ submissions, the [c]ourt hereby finds that
                 [Appellants] have failed to present the testimony of an expert
                 witness to establish the appropriate standard of care and a breach

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016      Page 8 of 18
                 thereof. The [Appellants] have also failed to establish that the
                 facts herein would fall under the common knowledge exception to
                 the requirement to present expert testimony to support a claim of
                 professional malpractice. Therefore, there are no genuine issues of
                 material fact remaining that would preclude entry of summary
                 judgment, and [Attorney Gouveia] is entitled to judgment as a
                 matter of law.


        (Appellants’ App. Vol. 2, p. 17).


[12]             Appellants now appeal. Additional facts will be provided as necessary.


                                       DISCUSSION AND DECISION


                                                I. Standard of Review


[13]             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. Ind. Trial Rule 56(C). “A fact is material if its resolution would

                 affect the outcome of the case, and an issue is genuine if a trier of fact is

                 required to resolve the parties’ differing accounts of the truth . . . , or if

                 the undisputed facts support conflicting reasonable inferences.” Williams

                 v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).


[14]             In reviewing a trial court’s ruling on summary judgment, this court

                 stands in the shoes of the trial court, applying the same standards in

                 deciding whether to affirm or reverse summary judgment. First Farmers

                 Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008),

                 trans. denied. Thus, on appeal, we must determine whether there is a

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016             Page 9 of 18
                 genuine issue of material fact and whether the trial court has correctly

                 applied the law. Id. at 607-08. In doing so, we


        consider all of the designated evidence in the light most favorable to the

        nonmoving party. Id. at 608. The party appealing the grant of summary

        judgment has the burden of persuading this court that the trial court’s ruling

        was improper. Id. When the defendant is the moving party, the defendant

        must show that the undisputed facts negate at least one element of the plaintiff’s

        cause of action or that the defendant has a factually unchallenged affirmative

        defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

        judgment must be reversed if the record discloses an incorrect application of the

        law to the facts. Id.


                                                II. Legal Malpractice


[15]             It is a basic principle 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.


        Blasche v. Himelick, 210 N.E.2d 378, 381 (Ind. Ct. App. 1965), reh’g denied, trans.

        denied. In Indiana, an attorney is generally required to exercise “ordinary skill

        and knowledge.” Clary v. Lite Machines Corp., 850 N.E.2d 423, 432 (Ind. Ct.

        App. 2010), trans. denied. Accordingly, to prove a legal malpractice claim, the

        plaintiff-client must show: (1) employment of the attorney (the duty); (2) failure

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016        Page 10 of 18
        of the attorney to exercise ordinary skill and knowledge (the breach); (3)

        proximate cause (causation); and (4) loss to the plaintiff (damages). Beal v.

        Blinn, 9 N.E.3d 694, 700 (Ind. Ct. App. 2014), trans. denied. To establish

        causation and the extent of harm in a legal malpractice case, the client must

        show that the outcome of the underlying litigation would have been more

        favorable but for the attorney’s negligence. Id.


[16]             Focusing on the duty and breach elements of the legal malpractice claim,

                 Appellants first contend that the trial court erred when it concluded that

                 no testimony had been designated to establish the appropriate standard of

                 care and Attorney Gouveia’s breach thereof. Appellants point to the

                 deposition testimony of Attorneys Welch and Zuckerberg as properly

                 designated expert testimony to withstand Attorney Gouveia’s motion for

                 summary judgment. Evidentiary rulings, including a decision to exclude

                 expert testimony, lie solely within the trial court’s discretion and will not

                 be reversed absent an abuse of that discretion. Hannan v. Pest Control

                 Services, Inc., 734 N.E.2d 674, 679 (Ind.

        Ct. App. 2000), trans. denied.


[17]             With regard to the question of whether an attorney exercised due care

                 and diligence in his representation of the client in the underlying case,

                 Indiana law requires “expert testimony” to demonstrate the standard of

                 care by which the [] attorney’s conduct is measured.” Hacker v. Holland,

                 570 N.E.2d 951, 953 (Ind. Ct. App. 1991), reh’g denied, trans denied. In


Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016         Page 11 of 18
                 this respect, the trial court is considered the gatekeeper for the

                 admissibility of expert opinion evidence under

        Indiana Evidence Rule 702. Doe v. Shults-Lewis Child & Family Servs., Inc., 718

        N.E.2d 738, 750 (Ind. 1999). With regard to the admissibility of expert

        testimony, Indiana Evidence Rule 702 provides:

                 (a) If scientific, technical, or other specialized knowledge will
                     assist the trier of fact to understand the evidence or to
                     determine a fact in issue, a witness qualified as an expert by
                     knowledge, skill, experience, training, or education, may
                     testify thereto in the form of an opinion or otherwise.


                 (b) Expert scientific testimony is admissible only if the court is
                     satisfied that the scientific principles upon which the expert
                     testimony rests are reliable.


        Knowledge admissible under the Rule must connote more than subjective belief

        or unsupported speculation. Howerton v. Red Ribbon, Inc., 715 N.E.2d 963, 966

        (Ind. Ct. App. 1999), trans. denied. Once the admissibility of the expert’s

        opinion is determined under Rule 702, “the accuracy, consistency, and

        credibility of the expert’s opinions may properly be left to vigorous

        crossexamination, presentation of contrary evidence, argument of counsel, and

        resolution by the trier of fact.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453,

        460 (Ind. 2001).


[18]             Focusing on the first prong of Evidence Rule 702, Appellants posit that

                 based on their “training, education, skill, and experience as bankruptcy

                 attorneys,”

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016          Page 12 of 18
        Attorneys Welch and Zuckerberg qualified as an expert witness under the Rule.

        (Appellants’ Br. p. 18). The designated evidence confirms Attorneys Welch and

        Zuckerberg’s wealth of experience as bankruptcy attorneys. Attorney Welch,

        licensed in Illinois, elaborated on his legal education at the John Marshall Law

        School in Chicago, his legal accomplishments, and his practice with a primary

        concentration on bankruptcy matters. Likewise, Attorney Zuckerberg testified

        to his educational background, his consumer bankruptcy practice, and his

        Indiana board certification in consumer bankruptcy. As such, it is undeniable

        that both Attorneys are imminently qualified by “knowledge, skill, experience,

        [] [and] education” to be characterized as experts in bankruptcy. See Evid. R.

        702(a).


[19]             Nonetheless, ignoring the experience element, Attorney Gouveia, in

                 response, emphasizes each Attorney’s statement that they had not been

                 retained as an expert in the case and their respective admissions that

                 “they did not have the requisite information in order to provide expert

                 opinions.” (Appellee’s Br. p.

        31).


[20]             Turning to the designated evidence before us, Attorney Welch, upon

                 being questioned by counsel for Attorney Gouveia, made the following

                 statements:


                 [Attorney Gouveia]: Do you understand that there is a legal
                 malpractice case pending in Indiana captioned P. Kevin Barkal,


Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016      Page 13 of 18
                 M.D., [], and Pemcor, Inc. v. Gouveia & Associates? Are you
                 generally aware of that?


                 [Attorney Welch]: Generally aware. I don’t know if I knew
                 about the Pemcor part, but generally aware.


                 ****


                 [Attorney Gouveia]: [M]y understanding coming down here is
                 you were going to say Gouveia & Associates somehow breached
                 the standard of care that applies to reasonable lawyers practicing
                 bankruptcy law from Northwest Indiana. Do you have any
                 opinions of that sort?


                 [Attorney Welch]: Well, first of all, me as an expert is news to
                 me. . . . If I were to render an expert opinion, I would spend a lot
                 more time in doing work to prepare my opinion than I did
                 preparing for this deposition, so. . . . I’m not here giving an
                 expert opinion of anything. I was never asked to, to be honest
                 with you.


                 ****


                 [Attorney Gouveia]: Safe to say that you haven’t reviewed the
                 Gouveia & Associates file or [Attorney] Freeland’s file with
                 regard to their respective representations in that earlier
                 bankruptcy proceeding?


                 [Attorney Welch]: Absolutely not.


        (Appellants’ App. Vol. 5, pp. 123-24, 126).


[21]    Attorney Zuckerberg testified in a similar vein:

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016       Page 14 of 18
                 [Attorney Zuckerberg]: I thought when I was going to be showing
                 up today it only revolved around my reviewing the schedules as to
                 [Attorney] Freeland and the eligibility of Dr. Barkal on the 13.
                 That was my sole expectation.


                 ****


                 [Attorney Gouveia]: Have you ever been retained as an expert in
                 Barkal versus Gouveia?


                 [Attorney Zuckerberg]: No.


                 ****


                 [Attorney Gouveia]: Has [Appellants’ attorney] at any time
                 asked you to form opinions about the standard of care that would
                 apply to [Attorney Gouveia’s] work in connection with Dr.
                 Barkal?


                 [Attorney Zuckerberg]: He asked my opinion, but I hadn’t seen
                 all of the documents, nor was I familiar with the information to
                 render an opinion.


                 ****


                 [Attorney Gouveia]: Have you been asked to reach an opinion in
                 connection with whether any standard of care was breached by [Attorney
                 Gouveia] in connection with the Barkal bankruptcy?


                 [Attorney Zuckerberg]: No.


                 ****


Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016        Page 15 of 18
                 [Attorney Gouveia]: Just to sum up, as you sit here today, do you
                 have any opinion on any issue connected with what [Attorney
                 Gouveia] and his firm did or didn’t do in the course of their
                 representation of the Barkal Freeland case?


                 [Attorney Zuckerberg]: I know nothing. I’ve reviewed nothing.
                 I’m not qualified to give an opinion, I don’t think.


        (Appellants’ App. Vol. 5, pp. 144, 145, 146)


[22]    Based on this designated evidence, it is clear that neither attorney had reviewed

        the materials relevant to the instant legal malpractice proceeding, nor were they

        prepared to formulate any opinions relevant to the instant matter and helpful to


        the trier of fact. Although both attorneys testified in general terms and

        answered multiple speculative hypotheticals about the proceedings in a Chapter

        13, 11, and 7 bankruptcy, they both admitted not to be qualified to provide

        expert opinions with regard to Attorney Gouveia’s specific conduct in the

        matter at hand, his standard of care and alleged breach thereof. Accordingly,

        while Attorneys Welch and Zuckerberg may be well versed in bankruptcy, here,

        in the absence of having reviewed the appropriate documentation, their

        knowledge cannot assist “the trier of fact to understand” whether Attorney

        Gouveia committed legal malpractice when representing the Barkal Entities in

        the Chapter 13 proceedings. See Evid. R. 702(a).


[23]    In an effort to survive Attorney Gouveia’s motion for summary judgment,

        Appellants assert that Attorney Gouveia’s purported breach of the standard of

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016        Page 16 of 18
        care fell within the common knowledge exception to the expert testimony

        requirement. While the common knowledge exception is a generally accepted

        deviation from the requirement of expert testimony in a legal malpractice case,

        it is very limited and applies solely in cases of obvious and transparent

        malpractice. In Storey v. Leonas, 904 N.E.2d 229, 238 (Ind. Ct. App. 2009), reh’g

        denied, trans. denied, we characterized the exception as “when 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.” The vast array of federal rules regulating the

        bankruptcy landscape can be daunting at times, even for a legal professional.

        The relative wisdom of pursuing relief under Chapter 13 of the Bankruptcy

        Code versus a different chapter based on the facts presented is certainly not

        within the “common knowledge” of the community as a whole and rather

        requires the knowledge, training, and expertise of an expert in the field.


[24]    Therefore, as Appellants failed to present the testimony of an expert supporting

        their allegation that Attorney Gouveia breached his standard of care during his

        representation of the Barkal Entities in the Chapter 13 bankruptcy proceedings,

        the trial court properly granted summary judgment to Attorney Gouveia.


                                                 CONCLUSION

[25]    Based on the foregoing, we hold that the trial court properly concluded that

        Appellants failed to designate expert testimony to establish a breach of the

        appropriate standard of care.

Court of Appeals of Indiana | Opinion 45A03-1607-CT-1601 | December 27, 2016        Page 17 of 18
[26]    Affirmed.


[27]    Bradford, J. and Altice, J. concur




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