                                                                                          FILED
                                                                                     May 31 2017, 8:54 am

                                                                                          CLERK
                                                                                      Indiana Supreme Court
                                                                                         Court of Appeals
                                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Benjamin M. Blatt                                         Mark D. Gerth
      South Bend, Indiana                                       Michael E. Brown
                                                                Sarah A. Hurdle
                                                                Kightlinger & Gray, LLP
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lucy Mundia,                                              May 31, 2017
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                71A05-1610-PL-2388
              v.                                                Appeal from the St. Joseph Circuit
                                                                Court
      Drendall Law Office, P.C.,                                The Honorable David T. Ready,
      Appellee-Defendant.                                       Judge Pro Tempore
                                                                Trial Court Cause No.
                                                                71C01-1411-PL-319



      Pyle, Judge.


                                        Statement of the Case
[1]   Our Indiana Supreme Court has explained that “Indiana’s distinctive summary

      judgment standard imposes a heavy factual burden on the movant to

      demonstrate the absence of any genuine issue of material fact on at least one

      element of the [non-movant’s] claim.” Siner v. Kindred Hosp. Ltd. P’ship, 51
      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                    Page 1 of 20
      N.E.3d 1184, 1187 (Ind. 2016) (citing Hughley v. State, 15 N.E.3d 1000, 1003

      (Ind. 2014)).


[2]   This case is an example of the importance of a summary judgment movant

      meeting its initial burden when filing a summary judgment motion, the

      importance of designating evidence that will assist it in negating an element of

      the non-movant’s claim, and demonstrating the absence of any genuine issue of

      material fact.


[3]   Lucy Mundia (“Mundia”) appeals the trial court’s order granting summary

      judgment to Drendall Law Office (“Drendall”) on Mundia’s legal malpractice

      claim. Mundia had hired Drendall to represent her in her negligence and

      wrongful death claims against St. Joseph County (“the County”) and the City

      of South Bend (“the City”), which were based on acts and omissions of the

      South Bend Prosecutor’s Office (“the Prosecutor’s Office”) and the South Bend

      Police Department (“the Police Department”). Mundia’s malpractice claim

      stems from Drendall’s failure to file a Tort Claim Notice with the County and

      the City within the 180-day statutory period set forth in the Indiana Tort Claims

      Act (“ITCA”), INDIANA CODE § 34-13-3-8. Drendall’s failure to file the

      required notice barred Mundia’s claims against these governmental entities.


[4]   Drendall filed a motion for summary judgment on Mundia’s legal malpractice

      claim. In its motion, it conceded that it had a duty to her as a client and had

      breached that duty by failing to file the required notice, but it argued that the

      failure to file the tort claim notice was not the proximate cause of her damages


      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017    Page 2 of 20
      for a legal malpractice claim. Specifically, Drendall argued that it did not

      proximately cause Mundia’s damages because she would not have been able to

      recover at trial on her underlying negligence and wrongful death claims because

      the Prosecutor and the Police Department would have had immunity under the

      ITCA. The trial court granted summary judgment to Drendall.


[5]   Mundia argues that the trial court erred by granting summary judgment to

      Drendall on her legal malpractice claim because there is an issue of fact

      regarding proximate cause and damages. Because we agree and conclude that

      Drendall did not meet its initial burden of negating the elements of proximate

      cause and damages of Mundia’s legal malpractice claim, we reverse the trial

      court’s grant of summary judgment and remand for further proceedings.


[6]   We reverse and remand.1


                                                       Issue
              Whether the trial court erred by granting Drendall’s motion for
              summary judgment.

                                                      Facts2
[7]   The facts most favorable to Mundia, the non-moving party in this summary

      judgment, are set forth herein.




      1
        We held oral argument on this appeal on May 17, 2017 in the Court of Appeals Courtroom. We commend
      the parties’ counsel for their oral advocacy.
      2
       We note that, contrary to Indiana Appellate Rule 50, Mundia has failed to file an Appellant’s Appendix
      and that, contrary to Indiana Appellate Rule 46, she has failed to support her Statement of Case and

      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                        Page 3 of 20
[8]   According to Mundia’s complaint against Drendall, on May 28, 2013, the

      Police Department arrested Mundia’s husband, Edward Mwuara (“Mwuara”),

      for invasion of privacy for violating a protective order. In its report, the Police

      Department noted that there was a protective order for Mundia’s six-year-old

      daughter, Shirley Mundia (“Shirley”), but failed to note that there was a

      protective order for Mundia. The Prosecutor’s Office searched for a protective

      order in Mwuara’s name but not in the name of Shirley or Mundia, the

      protected individuals.3 Upon seeing no active protective order under Mwuara’s

      name, the Prosecutor’s Office released him from jail. Less than seventy-two

      hours later, Mwuara returned to Mundia’s house and stabbed both Mundia and

      Shirley, resulting in Shirley’s death and severe injuries to Mundia.


[9]   On October 14, 2013, Mundia and Stephen Drendall (“Attorney Drendall”)

      entered into a contract to have Drendall represent Mundia in her negligence

      and wrongful death claims against the County and the City. The contract

      specified that the date of the incident was June 2, 2013. Pursuant to the ITCA,

      Mundia was required to file her Tort Claim Notice within 180 days of the date

      of her loss.4 Drendall, however, did not file the required Tort Claim Notice by



      Statement of Facts with references to the record on appeal. Drendall, however, has provided our Court with
      an Appellee’s Appendix, which is lacking a copy of the chronological case summary.
      3
          At oral argument, the parties agreed that the police report contained a misspelling of Mwuara’s name.
      4
        The 180-day period from June 2, 2013 would have been Friday November 29, 2013. However, this day was
      the day after Thanksgiving. If it was a holiday in St. Joseph County, then the due date for the Tort Claim
      Notice would have been Monday December 2, 2013. In Drendall’s motion for summary judgment, it
      asserted that the due date for the Tort Claim Notice was November 28, 2013. Mundia’s complaint also listed
      the due date as November 28, 2013. Nevertheless, it is undisputed that Drendall did not file the Tort Claim
      Notice within the required 180-day period.

      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                           Page 4 of 20
       the required date. In fact, Drendall did not file a Tort Claim Notice at all.

       Thus, pursuant to INDIANA CODE § 34-13-3-8, Mundia’s claims against the City

       and the County were “barred.”


[10]   Almost one year later, in September 2014, Mundia discovered that Drendall

       had not filed the Tort Claim Notice. On November 18, 2014, Mundia filed a

       complaint for legal malpractice against Drendall. In her complaint, she alleged

       that Drendall’s failure to file the required Tort Claim Notice was a breach of

       Drendall’s duty to represent her. Mundia also alleged that Drendall’s breach

       caused her damages because she had lost the ability to bring her negligence and

       wrongful death claims, which she alleged would have been in excess of one

       million dollars. In her complaint, Mundia asserted that the Prosecutor’s Office

       had issued a press release acknowledging that it had been negligent in

       performing the protective order search that freed Mwuara from jail. Mundia

       argued that, given the County’s public admission of fault, the County would

       have been likely to settle her claims. Mundia attached to her complaint a copy

       of the following documents: (1) the contract or “Contingent Fee Agreement”

       between Mundia and Drendall; (2) an August 25, 2013 letter from Attorney

       Drendall to Mundia in which Attorney Drendall offered to represent Mundia in

       her claims against the City and the County and informed Mundia that were

       “strict time limits to bring such claims”;5 (3) an October 22, 2013 letter from



       5
           The full body of Attorney Drendall’s letter provided as follows:

                  Re: claims against the government
                Dear Ms. Mundia:

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017   Page 5 of 20
       Attorney Drendall to Mundia’s original attorney, Elton Johnson (“Attorney

       Johnson”), informing Attorney Johnson that Drendall was now representing

       Mundia and seeking Attorney Johnson’s case file; and (4) an October 31, 2013

       letter from Attorney Drendall to the Prosecutor’s Office, following up on

       Attorney Johnson’s two prior records requests and seeking to obtain the

       records. (Drendall’s App. Vol. 2 at 10, 15).


[11]   Thereafter, Drendall filed its answer and admitted that Attorney Drendall had

       entered into a contract with Mundia and that, at the time of entering the

       contract, the 180-day statutory period had not passed. As a defense, Drendall

       alleged, in part, that Mundia’s “damages [we]re caused in whole or in part” by

       Attorney Johnson. (Drendall’s App. Vol. 2 at 19).


[12]   On June 13, 2016, Drendall filed a motion for summary judgment. Drendall

       did not dispute the duty or breach elements of Mundia’s legal malpractice

       claim. Instead, Drendall sought to negate the elements of proximate cause and

       damages. Drendall argued that it was not the proximate cause of Mundia’s

       damages because her negligence claims were barred by the ITCA. Specifically,

       Drendall argued that, even if it would have timely filed the Tort Claim Notice,


               Anthony had come to me in June to discuss claims against South Bend and St. Joseph County
             for their actions in releasing Edward [Mwuara] from custody. I am sorry I did not see you at
             the funeral home.
               You should know there are strict time limits to bring such claims. I hope you have hired
             another lawyer and are in negotiations already. If not, please take action immediately. We
             would be happy to assist you in this matter.
                I hope with God’s help you are coming to peace with the loss of your daughter.
       (Drendall’s App. Vol. 2 at 15).



       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                        Page 6 of 20
the Prosecutor’s Office and the Police Department were immune under the

ITCA. Drendall asserted that the Prosecutor’s Office was immune under

INDIANA CODE § 34-13-3-3(7) of the ITCA (“Subsection 7”) because it had

performed a discretionary function when it decided not to file charges against

Mwuara. Drendall also asserted that the Police Department was immune from

liability for enforcing or failing to enforce a law pursuant to INDIANA CODE §

34-13-3-3(8) (“Subsection 8”).6 As to the issues of proximately causing

Mundia’s damages, Drendall argued that Mundia “was not damaged by

Drendall’s representation because, even if Drendall had filed the notice of claim

within the 180 days, the South Bend Police Department and St. Joseph County

Prosecutor’s Office would be immune from liability.” (Drendall’s App. Vol. 2

at 38). Drendall designated as evidence Mundia’s complaint with attachments

and excerpts from the deposition of Sally Skodinski (“Skodinski”), who was the

deputy prosecutor who conducted the search of the protective order database

and did not file charges against Mwuara.




6
    INDIANA CODE § 34-13-3-3 provides, in relevant part:

        A governmental entity or an employee acting within the scope of the employee’s employment is
        not liable if a loss results from the following:
                                                     *****
        (7) The performance of a discretionary function; however, the provision of medical or optical
        care as provided in IC 34-6-2-38 shall be considered as a ministerial act.
        (8) The adoption and enforcement of or failure to adopt or enforce:
          (A) a law (including rules and regulations); or
          (B) in the case of a public school or charter school, a policy;
        unless the act of enforcement constitutes false arrest or false imprisonment.



Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                           Page 7 of 20
[13]   In Skodinski’s deposition, she testified that her job as a deputy prosecutor

       included reviewing police reports and deciding whether to charge a person. She

       also testified that when reviewing a police report that involved the violation of a

       protective order, she would search “[e]ither parties’ names” in Incite, “the

       statewide system of looking up protective orders[,]” to “make sure that there

       actually was a valid” protective order. (Drendall’s App. Vol. 2 at 64, 66).

       Additionally, she testified that there was “no written policy” on how to conduct

       the protective order search but that her “practice” was to verify that there was a

       valid protective order before making a “charging decision[.]” (Drendall’s App.

       Vol. 2 at 65). In regard to her search for Mwuara’s protective order, Skodinski

       testified that she searched Mwuara’s name and “spelled it according to how it

       was on the front page of the police report.” (Drendall’s App. Vol. 2 at 66).7

       When “a protective order came up with his name and the alleged victim’s

       name, and it said, ‘Expired. Dismissed.’[,]” Skodinski decided not to charge

       Mwuara. (Drendall’s App. Vol. 2 at 67). She did not do a separate search

       under Mundia’s or Shirley’s names, who were the protected individuals and

       alleged victims.


[14]   In Mundia’s summary judgment response, she argued that the Prosecutor’s

       Office would not have been immune under the ITCA because the Prosecutor’s

       Office’s decisions not to charge and to release Mwuara were not discretionary

       decisions but were, instead, based upon the office’s failure to search for


       7
        Again, at oral argument, the parties stated that the police report contained a misspelling of Mwuara’s name
       on one part of the report.

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                         Page 8 of 20
       protective orders based on the protected individuals. Mundia argued that the

       Prosecutor’s Office’s investigation, or lack thereof, was not protected by the

       immunity provision of the ITCA. She also argued that, based on federal law,

       absolute immunity could not be extended to the Prosecutor’s Office’s actions

       and failure to act that were part of an investigatory phase. In support of her

       argument, she cited to Burns v. Reed, 500 U.S. 478 (1991). Additionally, she

       argued that there was a genuine issue of material fact regarding whether the acts

       of the Prosecutor’s Office, including the deputy prosecutor’s failure to properly

       search for a restraining order, were solely discretionary, thereby making

       summary judgment inappropriate on her malpractice claim against Drendall.

       In her response, Mundia also questioned the appropriateness of Drendall’s

       initial decision to file a negligence claim against the Police Department and

       stated that she “never really disputed” that the Police Department would have

       had immunity under the ITCA. (Drendall’s App. Vol. 2 at 69).8


[15]   The trial court held a summary judgment hearing on September 2, 2016. At the

       beginning of the hearing, Mundia’s counsel requested a continuance because

       counsel had recently been “made aware” of some documents that were part of

       Attorney Johnson’s records request to the Prosecutor’s Office. (Tr. Vol. 2 at 3).9



       8
        Based on the content of the Appellee’s Appendix, which does not include a CCS, it does not appear that
       Mundia designated any evidence with her summary judgment response. At oral argument, Mundia’s counsel
       confirmed that he did not file any designated evidence with Mundia’s summary judgment response.
       9
         According to Mundia’s counsel, the documents included “two press releases” (one about the shooting of
       Mwuara and the other about a determination that the police officer was justified in the shooting); a “sworn
       statement from Mr. Dvorak about the content of those documents[;]” and a “letter from Miss Skodinski[.]”
       (Tr. Vol. 2 at 3, 4).

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                          Page 9 of 20
       Drendall’s counsel objected to Mundia’s continuance request because: (1)

       Drendall’s counsel had driven to South Bend from Indianapolis; (2) Mundia’s

       counsel had received the documents two days prior but had just informed

       Drendall’s counsel about them at the hearing; and (3) the deadline for Mundia

       to file her response to Drendall’s summary judgment motion and to designate

       evidence had already passed. The trial court proceeded to hear the summary

       judgment arguments.


[16]   The summary judgment hearing was not the typical summary judgment hearing

       with the movant, Drendall, presenting argument to meet its summary judgment

       burden and specifically negating an element of Mundia’s claim followed by the

       non-movant, Mundia, presenting argument to show why there were genuine

       issues of fact. Indeed, Drendall did not present argument first as movant and

       did not present any specific argument regarding how the immunity provisions

       of the ITCA—Subsection 7 and Subsection 8—applied to negate the proximate

       cause element. Instead, the hearing proceeded with Mundia’s counsel first

       presenting argument to dispute the application of the immunity provisions and

       then arguing that there were questions of fact regarding proximate cause and

       damages.


[17]   During the hearing, Mundia argued that the Prosecutor’s Office would not have

       immunity because Skodinski’s actions were part of an investigatory stage. In so

       arguing, Mundia relied, as she did in her summary judgment response, on the

       federal case of Burns v. Reed, 500 U.S. 478 (1991). Additionally, she argued that

       Skodinski’s manner of conducting the protective order database search was a

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017   Page 10 of 20
       nondiscretionary function that would not have been immune. Mundia also

       argued that, regardless of whether the Prosecutor’s Office had immunity,

       Drendall’s failure to timely file the Tort Claim Notice had resulted in a loss of

       her potential to file her case and enter into settlement negotiations with the

       County and City. Mundia stated that Attorney Drendall’s pursuit of her as a

       client showed that her case had some merit, in the form of a settlement

       opportunity, even if immunity applied. Mundia contended that there would

       have been settlement potential because the Prosecutor’s Office’s search of the

       protective order database was inadequate (only searching the arrestee’s name)

       and because the Police Department’s arrest report of Mwuara contained a

       misspelled name and did not include the protective order number for the active

       protective order against Mwuara.10 Mundia asserted that the trial court should

       deny Drendall’s summary judgment motion because the questions of proximate

       cause and whether there was “value” to her action were questions of fact for the

       jury. (Tr. Vol. 2 at 11).


[18]   Drendall conceded that Attorney Drendall had failed to file a Tort Claim

       Notice. It also acknowledged that the actions of the Prosecutor’s Office might

       have been negligent but argued that it “d[id]n’t really matter” because

       Skodinski’s actions in determining whether to charge Mwuara were “absolutely

       discretionary.” (Tr. Vol. 2 at 18, 22). Drendall also asserted that the Burns v.


       10
         Despite Mundia’s apparent concession in her summary judgment response regarding immunity for the
       Police Department, she appears to have disavowed that argument at the summary judgment hearing and
       argued that the Police Department would not have immunity.



       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                   Page 11 of 20
       Reed federal case was not applicable because it involved a § 1983 claim and not

       an Indiana tort claim.


[19]   Thereafter, on September 19, 2016, the trial court entered a general order,

       finding that there were no disputed issues of material fact and granting

       Drendall’s motion for summary judgment. Mundia now appeals.


                                                    Decision
[20]   Mundia argues that the trial court erred by granting summary judgment to

       Drendall on her claim of legal malpractice.


[21]   Our standard of review for summary judgment cases is well-settled. When we

       review a trial court’s grant of a motion for summary judgment, our standard of

       review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45

       N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the

       moving party has shown that there is no genuine issue of material fact and it is

       entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003

       (Ind. 2014). “Indiana’s distinctive summary judgment standard imposes a

       heavy factual burden on the movant to demonstrate the absence of any genuine

       issue of material fact on at least one element of the [non-movant’s] claim.”

       Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016) (citing

       Hughley, 15 N.E.3d at 1003). Unlike federal practice, in Indiana, a moving

       party is not entitled to summary judgment where it merely asserts that the

       opposing party lacks evidence on an element to prove its claim. Hughley, 15

       N.E.3d at 1003. Instead, our Courts “impose a more onerous burden” and

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017    Page 12 of 20
       require a moving party “to affirmatively ‘negate an opponent’s claim.’” Id.

       (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123

       (Ind. 1994), reh’g denied). Only after the moving party carries its burden is the

       non-moving party then required to present evidence establishing the existence

       of a genuine issue of material fact. Knighten, 45 N.E.3d at 791.


[22]   “In deciding whether summary judgment is proper, we consider only the

       evidence the parties specifically designated to the trial court.” Id. (citing Ind.

       Trial Rule 56(C), (H)). Additionally, “[w]e construe all factual inferences in

       favor of the non-moving party and resolve all doubts regarding the existence of

       a material issue against the moving party.” Id. We must carefully review a

       decision on summary judgment to ensure a party is not improperly denied his

       day in court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d

       970, 974 (Ind. 2001). “Summary judgment is a lethal weapon and courts must

       be mindful of its aims and targets and beware of over-kill in its use.” Southport

       Little League v. Vaughan, 734 N.E.2d 261, 269 (Ind. Ct. App. 2000), trans. denied.

       Indeed, “Indiana consciously errs on the side of letting marginal cases proceed

       to trial on the merits, rather than risk short-circuiting meritorious claims.”

       Hughley, 15 N.E.3d at 1004.


[23]   “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.

       2006) (quoting Rice v. Strunk, 670 N.E.2d 1280, 1283-84 (Ind. 1996)).

       Additionally, “[a]n attorney has the duty to protect and preserve the rights . . .



       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017    Page 13 of 20
       of his client.” Gilman v. Hohman, 725 N.E.2d 425, 431 (Ind. Ct. App. 2000),

       trans. denied.


[24]   Here, Mundia filed her complaint against Drendall and argued that Drendall

       was liable to her for legal malpractice based on Drendall’s failure to timely file a

       Tort Claim Notice. “The elements of an action for legal malpractice are: (1)

       employment of an attorney, which creates a duty to the client; (2) failure of the

       attorney to exercise ordinary skill and knowledge (breach of the duty); and (3)

       that such negligence was the proximate cause of (4) damage to the plaintiff.”

       Reiswerg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010) (internal quotation marks and

       citation omitted).


[25]   “To obtain summary judgment in Indiana, a moving party must demonstrate

       the absence of any genuine issue of material fact on at least one element of the

       opposing party’s claim.” Siner, 51 N.E.3d at 1185-86. Because Drendall

       moved for summary judgment, it had the burden of “affirmatively negating” at

       least one element of the Mundia’s legal malpractice claim. See id. at 1188.


[26]   In Jarboe, our Indiana Supreme Court explained the importance of the parties’

       burden in a summary judgment proceeding:

               The burden imposed at trial upon the party with the burden of
               proof on an issue is significantly different from that required of a
               non-movant in an Indiana summary judgment proceeding.
               Under Indiana’s standard, the party seeking summary judgment
               must demonstrate the absence of any genuine issue of fact as to a
               determinative issue, and only then is the non-movant required to
               come forward with contrary evidence.

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017   Page 14 of 20
                                                     *****

               Merely alleging that the plaintiff has failed to produce evidence
               on each element of [his cause of action against the defendant] is
               insufficient to entitle the defendant to summary judgment under
               Indiana law.

       Jarboe, 644 N.E.2d at 123.


[27]   Accordingly, our task on appeal is not to determine whether Mundia has

       proven each element of her legal malpractice claim; instead, we must determine

       whether Drendall has adequately met its initial burden of proving an absence of

       any genuine issue of material fact or of affirmatively negating at least one

       element with respect to Mundia’s malpractice claim. See id.; Siner, 51 N.E.3d at

       1188.


[28]   In Mundia’s malpractice complaint, she alleged that Drendall’s failure to file

       the required Tort Claim Notice had resulted in damages of losing her ability to

       bring negligence and wrongful death claims and by losing her ability to settle

       with the County, which had apparently publicly admitted fault. On summary

       judgment, Drendall did not dispute that it owed a duty to Mundia or that it had

       breached that duty. Instead, Drendall attempted to negate the proximate cause

       and damages elements of Mundia’s legal malpractice claim. In order for

       Drendall to have summary judgment granted in its favor, it was required to

       designate evidence demonstrating that one of these elements of Mundia’s legal

       malpractice claim was not satisfied. See Jarboe, 644 N.E.2d at 123. Drendall

       argued that Mundia would not have been able to recover any damages in her

       underlying litigation because the Prosecutor’s Office and the Police Department

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017   Page 15 of 20
       had immunity under the ITCA—more specifically, under Subsections 7 and 8

       of INDIANA CODE § 34-13-3-3, respectively. Drendall argued that, as a result, it

       was not the proximate cause of Mundia’s harm.11 The trial court entered a

       general order and granted summary judgment to Drendall, apparently on this

       basis.


[29]   The main point of contention between the parties in this appeal is whether

       Drendall met its summary judgment burden of showing that it had negated an

       element of Mundia’s legal malpractice claim. More specifically, the issue is

       whether Drendall affirmatively showed that its failure to file the Tort Claim

       Notice was not the proximate cause of Mundia’s damages.12 “One’s action or

       omission is the proximate cause of an injury when the ultimate injury is one

       that was foreseen, or reasonably should have been foreseen, as the natural and

       probable consequence of the act or omission.” Rhodes v. Wright, 805 N.E.2d

       382, 388 (Ind. 2004) (internal quotation marks, citations, and internal brackets

       omitted). Proximate cause is generally a question of fact and left to the jury. Id.

       “Only in plain and indisputable cases, where only a single inference or

       conclusion can be drawn, are the questions of proximate cause and intervening

       11
          In other words, Drendall argued that the defendants in the underlying litigation would have had an
       affirmative defense that would have potentially barred Mundia’s claims. The assertion of immunity is an
       affirmative defense, and a “governmental entity seeking immunity [under the ITCA] bears the burden of
       proving that its conduct falls within one of the exceptions set out in the Act.” City of S. Bend v. Dollahan, 918
       N.E.2d 343, 351 (Ind. Ct. App. 2009), trans. denied. “We narrowly construe immunity because it provides an
       exception to the general rule of liability.” Id.
       12
         The parties’ briefs also discuss the specific ITCA immunity provisions and whether they would provide
       immunity to the Prosecutor’s Office and the Police Department. However, because the main argument
       seems to be whether there is an issue of fact regarding whether Drendall was the proximate cause of
       Mundia’s damages even in light of any application of the immunity provisions, we will not go into detail of
       those arguments.

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                            Page 16 of 20
       cause matters of law to be determined by the court.” Peters v. Forster, 804

       N.E.2d 736, 743 (Ind. 2004). “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.” Barkal v. Gouveia & Assocs., 65 N.E.3d 1114, 1119 (Ind. Ct. App.

       2016).


[30]   Drendall argues Mundia cannot show that the outcome of her underlying

       litigation would have been more favorable but for Drendall’s failure to timely

       file a Tort Claim Notice. However, as non-movant on summary judgment, that

       is not her burden. That would be her burden at trial. Specifically, Drendall

       contends that Mundia’s underlying claims were “not viable under the ITCA”

       and that “the fact that [she] had no chance to prevail in her case is dispositive

       because it prevents her from proving that Drendall’s conduct proximately

       caused her alleged loss.” (Drendall’s Br. 11). In so arguing, Drendall is

       attempting to shift the burden onto Mundia by arguing that she, on summary

       judgment, is required to prove the elements of proximate cause and damages.

       Indeed, during the summary judgment hearing, the trial court, too, seemed to

       place the burden onto Mundia. The trial court stated that Mundia, “as in any

       legal malpractice case, . . . “ha[d] to prove the case within the case” and that

       she “ha[d] to prove that it was a winnable case before [she] c[ould] find Mr.

       Drendall did something to ruin [her] chance to win.” (Tr. Vol. 2 at 14). While

       this would be Mundia’s burden at trial, it is not her burden on summary

       judgment.


       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017   Page 17 of 20
[31]   Here, Drendall, as summary judgment movant, had the burden to show that it

       was not the proximate cause of Mundia’s damages. Drendall argues that it met

       its summary judgment burden, contending that Mundia’s damages in this

       malpractice case were the loss of a monetary recovery from a trial on her

       underlying negligence and wrongful death claims and that application of the

       immunity provisions of the ITCA would have precluded recovery of such trial

       damages.13


[32]   Mundia, however, contends that, even in the face of application of the

       immunity provisions, her damages included the possibility of settlement outside

       of trial, especially “given the egregious fact pattern and Drendall’s own political

       connections[.]”14 (Mundia’s Br. 19). In other words, Mundia argues that, even

       if the immunity provisions applied, the outcome of the underlying litigation

       would have been more favorable—in that she would have had an opportunity

       for settlement negotiations—but for Drendall’s negligence in failing to file the

       Tort Claim Notice. She asserts that she “might have found some monetary

       compensation in mediation, or at trial, or not at all, but at the very least she lost

       the greatest value the American legal system can provide” including “her ability




       13
        Drendall’s argument seems somewhat disingenuous given Attorney Drendall’s actions of seeking out
       Mundia to represent her in her tort claims against these governmental entities.
       14
         Drendall contends that Mundia has waived any argument that settlement opportunities were part of her
       damages because she did not specifically argue that in her summary judgment response. We note, however,
       that she raised the argument in the summary judgment hearing and that Drendall did not object to her
       argument during the hearing. Additionally, Mundia’s complaint raised the loss of settlement as a result of
       Drendall’s failure to file the Tort Claim Notice.

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017                       Page 18 of 20
       to speak for the dead . . . and to find some measure of justice and vindication

       for a dead 6-year old . . . .” (Mundia’s Br. 16).


[33]   Drendall argues that the possibility of settlement should not be considered as a

       part of Mundia’s damages because she did not designate any specific evidence

       to show that the Prosecutor’s Office or the Police Department would have

       considered settlement of her claims. Again, Drendall is attempting to shift the

       burden to Mundia before it has shown that its own designated evidence

       affirmatively negated the proximate cause and damages elements.


[34]   To support its attempt to negate the proximate cause and damages elements,

       Drendall designated Mundia’s complaint and attachments and excerpts of

       Skodinski’s deposition. One of these attachments, however, shows that

       settlement could have been a possibility, or at least an option, in Mundia’s

       underlying litigation. Indeed, in Attorney Drendall’s August 2013 letter to

       Mundia, which was attached to the complaint, he informed her of the “strict

       time limits” for her to bring her claims against the City and the County and

       stated that she should be in “negotiations already” with them and “take action

       immediately.” (Drendall’s App. Vol. 2 at 15). The designated evidence

       provided by Drendall with its summary judgment motion is rather limited.

       Aside from excerpts from Skodinski’s deposition, there are no affidavits or

       depositions from the parties involved in the underlying litigation. Drendall did

       not designate evidence to show the content of the police report, which would

       have been the basis of Mundia’s underlying claims against the Police

       Department and would be necessary for Drendall’s attempt to show that the

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017   Page 19 of 20
       Police Department would have had immunity under the ITCA. Indeed, there

       are many factual details lacking regarding the underlying case and the actions

       of the Prosecutor’s Office and the Police Department that Drendall contends

       were protected by immunity under the ITCA.


[35]   We are mindful that, on summary judgment, we are obligated to construe the

       evidence in favor of the non-moving party and resolve all doubts against the

       moving party. Knighten, 45 N.E.3d at 791. Summary judgment should not be

       granted where material facts conflict or conflicting inferences are possible. See

       Hughley, 15 N.E.3d at 1003-04 (explaining that “summary judgment is not a

       summary trial”). Our reversal of the trial court’s grant of summary judgment

       should not be construed as an opinion on the merits of Mundia’s case or

       whether she will ultimately be able to show all the elements of her legal

       malpractice claim. However, because Drendall has failed to prove there are no

       genuine issues of fact regarding the issues of proximate cause and damages of

       Mundia’s legal malpractice claim, we reverse the trial court’s entry of summary

       judgment and remand for further proceedings.


[36]   Reversed and remanded.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2388 | May 31, 2017   Page 20 of 20
