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.




Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017       Page 1 of 13
                                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.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 2 of 13
[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




      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 3 of 13
      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.”

      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 4 of 13
       (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.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017          Page 5 of 13
       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
       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 6 of 13
               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

       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 7 of 13
       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


       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 8 of 13
       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
       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 9 of 13
               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




       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017   Page 10 of 13
       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

       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017          Page 11 of 13
       “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).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-CT-513 | December 12, 2017              Page 12 of 13
       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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